New Mexico In Depth 2021 Legislative Special Edition

New Mexico In Depth NMInDepth.com

NM 201 2021 8 In In

Depth

lookat atcritical critical AAlook issuesbefore beforestate state issues lawmakers lawmakers

Legislative Special Edition

NEW MEXICO’S LEGISLATURE MEETS FOR A HISTORIC SESSION THAT, FOR THE FIRST TIME IN HISTORY, WILL SEE the ROUNDHOUSE CLOSED TO THE PUBLIC DUE TO A GLOBAL PANDEMIC

2

New Mexico In Depth • 2021 Legislative special edition

New Mexico In Depth • 2021 Legislative special edition

Contents

New Mexico In Depth 2021 Legislative special edition • Jan. 24, 2021 Trip Jennings

Marjorie Childress

Reporters

Special thanks to our columnists:

Executive director

Shaun Griswold Aliya Uteuova Bryan Metzger

Sara Swann Julia Sclafani Gwyneth Doland

Design

Jason V. Harper

Deputy director

Paul Gessing, Andrea J. Serrano, James Jimenez, Eric Griego, Kathleen Sabo, Sydney Tellez

New Mexico In Depth is dedicated to journalism in the public interest that tells in-depth stories of people who represent our diversity and examines systems and institutions in a way that informs and empowers people and communities.

This special edition is produced in conjunction with NMID’s media partners: Las Cruces Sun-News, Santa Fe New Mexican, Farmington Daily Times, Alamogordo Daily News, Carlsbad Current-Argus, Ruidoso News, Deming Headlight, Silver City Sun-News and the Rio Grande Sun.

INTRODUCTION..................................................................... 4 ARTICLES

Pandemic puts spotlight on public health priorities .......... 6 Educational gains threatened like never before ........... 11 Push on for capital outlay transparency ......................... 15 Much campaign cash is still in the shadows .................... 16 Nonprofits challenge independent expenditure law .... 20 Lawmaker, advocates seek sunshine on lobbying .......... 23 Change could be near for criminal abortion law .......... 26 Lawmakers tackle civil rights, police accountability ...... 27 Could another costly redistricting battle loom? ............ 30

COMMENTARY

Challenges await legislature in the 2021 session ......... 32 Urban, rural communities united for progress ................ 33 Lawmakers must stabilize revenue streams .................... 34 A look at fusion voting in New Mexico ............................ 35 Caution needed amid lack of watchdog groups ........... 36 Common Cause New Mexico sets priorities .................... 37

3

4

New Mexico In Depth • 2021 Legislative special edition

Introduction

Making sense of a historic year and greeting an uncertain future who battled the virus and Dear Readers, won, telling her story A year ago, who to help others as this could have predicted unprecedented public we’d live through health crisis ravages a pandemic that people of color and those would kill nearly 3,000 New Mexicans Trip Jennings with lower-incomes at greater rates than their as of this month, wealthier counterparts. and plunge so many We use state Department of more into economic crisis?

Health data and analysis by Or a nationwide racial justice public health experts and reckoning so robust Ameriresearchers to place her expericans marched in the streets for months? Or a president who ence in context. would refuse to concede after a As one expert said, “In many divisive election and go so far ways, we would say that racism as to incite a mob to storm the and not race is the pre-existing U.S. Capitol? condition that we’re dealing This is the historic backdrop with here.” for the 2021 Legislative session The state’s public schools that, for the first time in memunderwent a transformation in 2020, too. By December, more ory, won’t be open to the pubthan 32,000 students — or one lic due to the pandemic. The of every 10 enrolled in public extraordinary circumstances education statewide — had make it unclear how lawmakers will meet as well as how the been referred to a state-sponsession will unfurl. sored coaching program, many How does one grapple with a for being disengaged, regularly year so marred by history and missing classes, or in danger biology, a world turned upside of failing one or more classes. down? Words can seem inadeMeanwhile, state elected offiquate. cials warned state lawmakers Despite that challenge, it is that learning losses caused by that world you will find in these the pandemic — particularly pages — in addition to articles for at-risk students, which make that examine issues state lawup a majority of New Mexico’s student population — will likely makers will take up over the weaken already low student coming weeks. outcomes.

You’ll find reported stories COVID’s destructive power and opinion columns. But, as in hit at a significant moment. the real world, COVID looms New Mexico had begun to pour large, as does its many reperhundreds of millions of dollars cussions.

You’ll read about one woman to address long-standing edu-

cational inequities before the virus shut down large sectors of the economy, reducing state tax revenue. And some New Mexicans worry the pandemic will stall those gains.

Guest columnists discuss state budgetary realities. And what a difference 12 months makes.

As lawmakers were preparing to convene in Santa Fe for the 2020 legislative session, New Mexico was experiencing the 21st century equivalent of a gold rush from an oil and gas boom that filled the state’s coffers with abundant revenue to fuel an ambitious legislative agenda.

After last year’s session came a global price war and then the disastrous economic shutdown from COVID-19. The Legislature met in June and December to adjust to new financial realities.

Some of our columnists take opposing views on what the state’s leaders should do to shore up the state finances, whether or not to tap the state’s multi-billion dollar trust fund to boost early childhood and education spending, raise or cut taxes or finally make 2021 the year New Mexico legalized recreational cannabis, which could generate new state revenue.

As regular readers know, transparency and the flow of money in politics are focus areas for New Mexico In Depth. In these pages you’ll read stories that zero in on just

how much transparency we can expect from current laws on the books. One article shows the state’s new and much-lauded campaign disclosure law is not as strong as it could be — it doesn’t force into public view millions of dollars from hidden sources — and we look to another state as an example of how New Mexico’s law could be strengthened.

Meanwhile, New Mexico’s new ethics commission is confronting challenges from nonprofits looking to skirt new state rules that require they disclose where their money comes from. We also write about yet another attempt to bring greater public disclosure about the work of lobbyists and those who employ them.

We round out with stories that showcase attempts this year by state lawmakers to make it easier to successfully sue law enforcement for civil rights violations, and to eliminate a criminal abortion law from the 1960s still on the books. We also look forward to redistricting, which the Legislature will take up in the fall of 2021.

We hope this publication helps you understand the disorienting world in which we find ourselves as well as some of the key issues lawmakers will be grappling with over the next several weeks. Thanks for reading. We hope you’ll follow along with us during the session, at www.nmindepth.com.

New Mexico In Depth • 2021 Legislative special edition

5

6

New Mexico In Depth • 2021 Legislative special edition

COVID DISPARITIES

public health

reckoning

The ongoing coronavirus pandemic will force lawmakers to take a long look at policy priorities

By Marjorie Childress, Shaun Griswold and Aliya Uteuova New Mexico In Depth

The coronavirus feels the way it looks in widely circulated images, said Cleo Otero: like a thorn.

“That’s how it felt inside my body, especially my lungs. It was painful.

Like it was scratching the inside of your body. I could really literally feel the virus inside my body.”

Otero’s first clue she was sick came at the laundromat in Albuquerque where she usually buys a bag of spicy chips as she waits on her clothes. On that Friday in July, she couldn’t taste the chips, and she couldn’t smell them either. A headache came on, the kind with intense pressure behind the eyes. At first she thought it was due to her diabetes because she hadn’t been consistent lately with her medication. By Saturday, she was laid out on the couch in the one-bedroom apartment she shares with her partner and 7-year old son. By Sunday, she had a fever, her throat and eyes were hurting, she had chills from the tip of her toes, “all the way up.”

“I’ve never felt chills like this before,” she said. “I just laid there.”

The family went to Balloon Fiesta Park to get tested for COVID-19, a

Shaun Griswold/New Mexico In Depth

Cleo Otero survived a three-week battle with COVID-19. miserable experience on a hot summer day in a line that took hours.

“We all got tested, and we cried,” she remembers.

All three tested positive, but only she got sick. And she got really sick. She spent the next three weeks alone and struggling in their one bedroom while her son and partner, Jasper, moved into the living room. “It really felt like you were by yourself,” she said. “It was really depressing. But at the same time, I didn’t really think about that or the timeframe. I was just so sick.”

She and her partner, Jasper, usually make a living catering meals for groups, but their small business, Cleo’s Blue Corn Kitchen, has been largely shut down by the pandemic.

“We’re lucky we have a community supporting us,” she said. They’ve received a few small business grants, live frugally and take advantage of mutual aid food boxes available to them. “I’m just lucky enough that I know how to make a buck stretch.”

Until she got sick, she spent much of her time working with others in Albuquerque to organize and deliv-

er meals to homeless people in the city, and to help her relatives and friends weather the crisis.

Originally from the northern New Mexico village of Torreon, at first Otero thought she might have picked up the virus from one of the back-and-forth trips she was making to deliver supplies to her family. But later, she learned there had been an outbreak at a store where she’d shopped earlier that week, getting supplies for the weekly meal.

She now thinks she and her family caught the virus at the store, but can’t be certain.

Those weeks in the bedroom are a long blur. She experienced delirium and her equilibrium was off. She’d stagger to the one bathroom, which the family would then clean and sanitize thoroughly. Pedialyte was a lifesaver, she said. Jasper made brothy stews for her. She was taking anything she could think of to help, over the counter medications, aspirins, “sage tea, a lot of sage tea, and then other teas.”

She’d wake up gasping for air, even though she slept on her chest as recommended.

“I’d start doing push ups. My lungs would expand a little bit and after I’d catch my breath I’d start doing yoga, just stretching my lungs, what I thought would help my lungs. That Continued on 7 ➤

7

New Mexico In Depth • 2021 Legislative special edition

Income and COVID-19 Positivity Rates

Maps by Aliya Uteuova/New Mexico In Depth

Continued from 6 ➤ would happen two or three times a night.”

It’s an understatement to say Cleo battled for her life.

***

As 2020 draws to a close with around 400,000 Americans dead from COVID-19, including around 3,000 New Mexicans, the unprecedented public health crisis has made plain that people of color and those with lower-incomes are more likely to catch the deadly and highly contagious airborne virus, and consequently to become hospitalized, or die.

Hardest hit have been Native Americans, like Otero, who is Navajo and Hopi.

By December 26, 6% of New Mexicans had contracted the virus. But

the difference between the highest income and the lowest income communities couldn’t be more stark.

For instance, in 30 of 499 census tracts less than five percent of the population lives below the poverty level. These are the highest income census tracts and just one exceeded the statewide positivity rate on Dec. 26. Conversely, there are 31 census tracts in which more than 40 percent of families live in poverty, and of those, 20 exceeded the statewide positivity rate.

The two maps above created by New Mexico In Depth using data provided by the New Mexico Department of Health illustrate how the positivity rate is higher in lower-income communities and neighborhoods. The map on the left shows the lowest income census tracts in darker colors. The map on the right shows higher positivity rates in darker colors. While the color pat-

tern isn’t completely the same, it’s similar enough to illustrate how the virus has infiltrated lower income communities the most. Visit nmindepth.com for the interactive versions that allow you explore census tracts.

Across the nation, an emerging consensus among public health officials is that poor access to good-paying jobs and wealth are key factors in why lower-income people have contracted the illness at higher levels. They’re more likely to have jobs that force them into contact with others, or to live with greater numbers of people under one roof. They’re more likely to rely on public transportation, or to lack reliable internet connections that help facilitate remote shopping and other essential activities.

Meanwhile, their higher-income neighbors have been able to retreat to their homes for work, can readily

These two maps created by New Mexico In Depth using data provided by the New Mexico Department of Health illustrate how the positivity rate is higher in lowerincome communities and neighborhoods.

The map on the left shows the lowest income census tracts in darker colors.

The map on the right shows higher positivity rates in darker colors. While the color pattern isn’t completely the same, it’s similar enough to illustrate how the virus has infiltrated lower income communities the most. Visit nmindepth.com for the interactive versions that allow you explore census tracts.

access curbside pickup for groceries and other goods, and when the virus does encroach within their families, they’re more likely to have multiple bedrooms and bathrooms that help people maintain physical distance so as to not spread the illness to loved ones.

The lowest-income census tracts are disproportionately home to people of color, and Native people have been particularly affected.

NM Department of Health epidemiologists report that, as of December 21, 8.7% of Native Americans had contracted the virus, more than double the next most impacted group, Hispanics at 3.5%. Native people have been hospitalized and have died at vastly greater rates, as well, relative to their size of the population.

While the COVID-19 pandemic Continued on 8 ➤

8

New Mexico In Depth • 2021 Legislative special edition

Continued from 7 ➤ led to an early and ongoing struggle on the Navajo Nation and in certain Pueblos, the harm to Native communities from COVID-19 spread throughout the state over the course of the year. Mescalero Apache in the south, Jicarilla Apache in the north, the Navajo satellite communities of Alamo and Tohajiilee, and neighborhoods in Albuquerque home to significant Native populations have all been affected by the virus at high rates.

***

Shaun Griswold/New Mexico In Depth

Cleo Otero’s family lived in their living room during the three weeks she self-isolated in their bedroom.

“

Right away we lost two teachers, and a minister and that was from one family.

These are people that you know, I went to school in Alamo as a kid and I grew up there and these are people I loved.

—Tera Jaramillo, CEO of Positive Outcomes

mortuary, for 15 people that needed to be buried. The guy that digs the graves was sick.”

Jaramillo worked closely with Alamo Chapter President Buddy Mexicano to help rush an aid program from the ground up to address a range of disparities, such as lack of water access, safe housing for those needing to quarantine, testing, food insecurity and other problems the community faced.

All the while, she said, Mexicano saw several family members die rapidly in succession. Then, he contracted the illness.

“He became sick a few days prior

“

One of the late surges came to the Alamo Navajo community this fall, where at about 9% of residents had contracted the virus as of late December.

Tera Jaramillo paused before stating how many of her employees had tested positive for COVID-19. “We just had another one, like three minutes ago, that said they have it,” she said during a telephone interview in early December.

It’s all too familiar for Jaramillo, the CEO of Positive Outcomes, a home health and child care provider in Alamo, a remote Navajo satellite community in central New Mexico.

By that point, at least 30 clients and 15 employees of Positive Outcomes had tested positive for COVID-19, Jaramillo said. Ten people had died.

Hundreds of others who live in the community of almost 2,000 had been affected. It’s not uncommon to see the virus spread among homes that can house up to 20 people, Jaramillo said.

“Right away we lost two teachers, and a minister and that was from one family. These are people that you know,” she said. “I went to school in Alamo as a kid and I grew up there and these are people I loved.”

Jaramillo said the crisis was like a war, with helicopters coming day and night, taking people to hospitals. “We were backed up at the

to the election and President Mexicano was elderly so we were trying to be very cautious with him but he did contract COVID and he was in the hospital for quite some time before he passed.”

***

In addition to Native communities, the virus has struck particularly hard in low-income, Hispanic communities along the southern border with Mexico; as well as the south valley and other pockets with high Latino and Native American populations in Bernalillo County.

“These communities are poor, and more isolated,” Dr. Jill McDonald, director of the Southwest Institute for Health Disparities Research and a professor of public health at New Mexico State University in Las Cruces, said of the high rate of COVID in border communities. “The people live in more crowded households.

They work in places that put them in close contact with other people like food processing plants, such as one in Sunland Park, or as workers in long term care facilities. They have a lot of those kinds of low paying jobs that increase their exposure.”

The public health field has long uplifted “social determinants” as key factors in how healthy people and communities are. The World Health Organization attributes most unequal health outcomes to the social, physical, and economic conditions in which people are born, grow, live, work, and age. One prominent public health expert targets poverty as the biggest factor in poor health.

“The real causes of many deaths are social determinants such as illiteracy, fatalism, gender bias, racial bias, unemployment, and poverty,” epidemiologist William H. Foege wrote a decade ago in a paper published in the Public Health Reports journal.

“Poverty is the single biggest factor contributing to adverse health outcomes, and health outcomes worsen as poverty becomes more severe.”

The COVID-19 pandemic has starkly illustrated the disproportionate health effects of low-incomes and crowded housing.

McDonald said that if income were distributed more equitably, the virus might be less concentrated in certain communities because more people would have better-paying jobs, or the ability to work from home, and more would be able to self-isolate if they got the virus.

Enrique Cardiel, Executive Director of the Bernalillo County Public Health Council, echoed McDonald.

Continued on 9 ➤

9

New Mexico In Depth • 2021 Legislative special edition

As vaccines begin to take hold and the pandemic recedes, society as a whole will have an opportunity to tackle the longstanding disparities that have been thrust into the open.

Continued from 8 ➤ “People in lower income communities are less likely to work in jobs where they can work remotely,” Cardiel said. “Working class folks are likely to be the ones that have to maybe work on a construction team or work in a grocery store. And even be, you know, medical staff. Not doctors, but working in a clinic.”

Cardiel said that in Albuquerque, just as in other low-income communities, multiple generations often live in one household, increasing the danger that COVID will be transmitted within a home.

“There may be young folks who get it and are asymptomatic and you have older folks living in the home as well,” he said. “So somebody who’s feeling fine may not know they have it, go to work, come home and spread it to their families.”

Concerning high COVID rates in the city’s International District, Cardiel said outbreaks occurred early in some immigrant communities where language barriers got in the way of public health messages about the pandemic.

“In many ways, we would say that racism and not race is the pre-existing condition that we’re dealing with here,” said Michelle Melendez, director of the City of Albuquerque Office of Equity and Inclusion. “Black and brown people are in those front facing low wage essential services jobs, you know, stocking grocery shelves, working in child development centers, working in nursing homes, all the cleaning companies, all the food service, all of those continue to operate and have been to keep our city going.

And the majority of people in those jobs are people of color.”

In addition to increased risk of exposure, Melendez said, people of color are more vulnerable to getting sicker from the virus because they tend to have higher rates of underlying conditions, such as hypertension, high blood pressure, obesity,

Shaun Griswold/New Mexico In Depth

Pearl Delgarito is sore from the vaccine shot while directing curbside traffic at Alamo Health Clinic. Otherwise, it’s not an issue. “All of my husband’s side of the family, they lost pretty much the whole family. They just have a few left that’s still here,” she said, which includes six aunts. “It was sad because a lot of people you knew are not here no more.” or — like Otero — diabetes.

“If you get the virus, you tend to be sicker if you have those underlying conditions,” she said. “And we know that black and brown people have those underlying conditions.”

Her office uses a tool called the Social Vulnerability Index to gauge which parts of town are at the highest risk based on four factors; household composition and disability, minority status and language, socioeconomic status, housing type and transportation. The city used the index to allocate resources like mobile hand washing stations to neighborhoods in the International District.

Areas in the South Valley were identified to host mobile testing centers.

***

In her second week battling COVID, Cleo Otero started coughing up blood. At first she resisted going to the hospital, because she feared she’d not make it back home.

But she was convinced by her family.

“My mom would cry on the phone, because all we were hearing on the reservation was that our elders and people with underlying conditions were dying.”

She gets emotional when talking about leaving her partner and son to drive herself to the hospital. “So I’m just watching them, and they’re just really quiet and they’re just looking at me and my son couldn’t even speak to me. He was a little afraid of me. Jasper was just like, you got to go. It took me like a good you know, 30 minutes, to even get the courage to walk out the door.”

The walk to her vehicle, about 200 yards, was hard and slow, and once in the car it took her about 15 minutes to catch her breath. The hospital staff were like “machines,” she said. They did x-rays and a CT scan, and found while her left lung wasn’t so bad, her right lung was riddled with the virus. Her oxygen levels were too low, in the mid-80s.

They said they’d give her oxygen for about two hours, and if it didn’t get up to 90 they’d admit her.

“I started really making myself do breathing exercises… I was fighting this number,” she said about trying to get her oxygen level up to 90. It worked, she was able to go home.

Getting there involved another laborious, slow walk to the car. No one escorted her out. She wonders if she would have received a prescription for at-home oxygen therapy, like some in a COVID survivors group she participates in online, had she been on private insurance rather than Medicaid. Instead, she went home empty-handed, to the bedroom where she continued her fight.

***

As vaccines begin to take hold and the pandemic recedes, millions of Americans will need to find new jobs and do their best to regain their footing. Children and students will need to catch up at school. Many of those who caught COVID and survived may grapple with lingering effects.

And society as a whole will have an opportunity to tackle the long-standing disparities that have been thrust into the open in an unprecedented way by the pandemic.

“Health inequity is when one group Continued on 10 ➤

10 Continued from 9 ➤ deals with a health issue disproportionately than other groups from things that are preventable,” Cardiel said.

As for Otero, her recovery has been helped by prayer, the teachings of her elders and the support of her friends and family.

“I definitely feel like I fought,” she said, noting that her elders taught that when one is sick, they need to fight. It’s when she was really tired and gave in to extended sleep that she thinks it got worse. “That was right around the time when I started spitting up [blood],” she said.

Her friends brought soups, herbal medicines and teas, and stayed in constant touch with her. “I really felt for those who felt for me,” she said, noting the fear they expressed for her.

Breathing gradually became easier and less painful. Meaty stews were palatable. She wasn’t stumbling. Her

New Mexico In Depth • 2021 Legislative special edition fingers didn’t tingle anymore. Her brain was less foggy. She no longer coughed up blood. And she could sleep through the night without exercise. When she and her partner decided they could be together again, they stripped and sanitized the bedroom. To this day, they continue to sanitize everything meticulously. “Airborne stuff is really scary, even though we had our masks on, we still got it.”

She’s better now, and is focused on self-care. But she has lingering symptoms, and sometimes finds herself angry, perhaps, she said, from the trauma. “I can’t even imagine what my brain has gone through.” People remind her to slow down, because she’s still healing five months later.

As she got better, she focused on returning what she received, gathering sage and other medicinal herbs into bundles to send across Indian country to those coping with what she went through.

Shaun Griswold/New Mexico In Depth

A smile from Luis Peralta on a sunny cold day in Alamo, New Mexico.

Peralta runs security at the community clinic where many of his friends have come with symptoms. He’s lived in Alamo for nearly 40 years and went to school with Buddy Mexicano, “I knew him ever since we were in school. It’s a tremendous loss because he knew quite a bit and he knew a lot of people.”

11

New Mexico In Depth • 2021 Legislative special edition

LEARNING LOSS EDUCATION

In a historic year, recent educational gains are threatened like never before

By Shaun Griswold and Trip Jennings New Mexico In Depth

Even by the most optimistic standards, the logistics of learning in 2020 have been difficult, if not close to impossible, for a significant number of New Mexico students.

Technological challenges have combined with trauma caused

by COVID-19’s deadly rampage through hard-hit populations, especially the state’s Indigenous communities, to disrupt classrooms and educational plans.

More than 32,000 students — or one of every 10 enrolled in public education statewide — have been referred to a state-sponsored coaching program, many for being disengaged, regularly missing classes, or in danger of failing one or more classes. Less than a quarter are participating, however. And more than half of those, or 5,173 students, are in need of the most help, according to the state education officials, meaning they endure significant on-going barriers and are receiving regular interventions, sometimes daily.

Public Education Secretary Ryan Stewart and his staff didn’t mince words about the severity of the challenge in a December presentation of the education agency’s 2022 budgetary request to state lawmakers.

Learning losses caused by the pandemic — particularly for at-risk students, which make up a majority

Marjorie Childress/New Mexico In Depth

A sign at Tobe Turpen Elementary School in Gallup, New Mexico informs parents when and where they can pick up free “grab & go” meals. of New Mexico’s student population — will likely weaken already low student outcomes, according to the 13-page memo.

“Additionally, school closures and remote learning have had a dramatic impact on enrollment in many school districts, leading some school district leaders to wor-

ry about the pandemic’s impact on their school district’s finances,” they added.

The state education agency went on to ask the legislators for $4 million in emergency funds, citing the possible need for additional grants in light of enrollment shifts in school districts and increased costs

related to the Covid-19 pandemic.

The challenges facing New Mexico’s public education system were numerous before the pandemic swept into the state last March.

Nearly three of every four public school students come from low-inContinued on 12 ➤

12

New Mexico In Depth • 2021 Legislative special edition

Continued from 11 ➤ come families. One in seven are English language learners; the same percentage are disabled.

Keeping many public school students engaged in pre-pandemic classrooms was hard. Now add to that the chaos of COVID-19 as students without access to the internet struggle to continue their education.

Deputy education secretary Katarina Sandoval drove those challenges home during last month’s legislative presentation, telling lawmakers of a student who regularly missed classes before a counselor working for a contractor hired to help students tracked him down.

“When the counselor reached out (to the student’s) mother she learned that (the student) and his siblings were all living with different people because the family lost their home,” Sandoval said. “He was actually kicked out of the place he was living and even his mom was trying to reach him. She wasn’t even sure where he was at the time.”

The counselor finally found the student and remains in contact, sometimes multiple times a day, Sandoval said. She has connected him with state services for housing and technology support to resume school online.

“That just gives you a sense of the kind of services that were occurring in the spring and continue to occur now,” she said.

One teacher’s experience This fall, Viola Hoskie greeted her fourth-grade students online from her classroom at Tobe Turpen Elementary School in Gallup, N.M. Going in rather than working from home helped her focus and maintain her work routine, she said. Not that her consistency simplified her students’ remote learning experience. “My students who live behind mountains or in the canyons have a hard time getting online,”

Courtesy of Viola Hoskie

A sign in Viola Hoskie’s classroom at Tobe Turpen Elementary School in Gallup, New Mexico, provides instructions on how to wear masks. said Hoskie, who, like many of her students, is Navajo. “I have one student who tries to, like, get into class and I try to get him into class and it just will not work on certain days. And so that has always been a struggle.”

The connectivity issues complicating Hoskie’s instruction Viola time persisted despite Hoskie the Gallup-McKinley School District forking over $10 million in 2020 to distribute laptops, iPads and mobile hotspots to students.

New Mexico is on the losing end of the nation’s digital divide, ranking 49th in the nation for broad-

band access, a problem particularly acute on Indian reservations and remote, rural communities — categories that describe the challenges for much of Gallup-McKinley’s student population. The city of Gallup borders the Navajo Nation, and its school district covers an area nearly the size of Connecticut. So not only do large numbers of Gallup-McKinley’s students lack devices to use; less than half of McKinley County’s 71,000 residents have access to high-speed internet.

The district’s diverse student population is almost exclusively low-income; nearly one of every two children under 18 lives below the poverty line in McKinley County.

Four of every five students are Na-

tive American, about 30% are English Language Learners, and 8% are homeless, Superintendent Mike Hyatt noted in a recent court motion that’s part of a landmark education lawsuit in New Mexico.

Students aren’t the only ones struggling with the digital divide, either.

“Some of our teachers do not have access to the Internet in their homes,” Hyatt added. “For example, at Navajo Elementary, eight teachers out of 16 did not have wi-fi at home.”

Hoskie is lucky that way. Much of her time outside classroom instruction during 2020 was spent troubleContinued on 13 ➤

New Mexico In Depth • 2021 Legislative special edition Continued from 12 ➤ shooting tech issues with parents or checking in via emails and text messages, she said. So far, all of her students have kept attending online classes.

“Sometimes the parents will send me pictures of their student work which I’m totally fine with,” she said, “In a typical week, I probably send around 100 text messages.”

It’s difficult to know if Hoskie’s day-in, day-out remote classroom experience played out the same way in hundreds of classrooms across New Mexico from March through the end of 2020. But it is likely some version of it did.

As the fall semester drew to a close in mid December, the vast majority of New Mexico’s more than 750 public schools — many in small towns and rural areas — were using the remote learning model for instruction, according to the state Public Education Department.

Still, at the halfway point of the school year, it is unclear the degree to which the virus has deeply thwarted educational achievement in New Mexico and what the longterm consequences will be. The New Mexico Public Education Department announced in early December that it would pause the state’s spring 2021 standardized testing due to the unpredictability of the pandemic and would reassess the situation in early to mid January.

What is clear, though, is that the new normal isn’t working for everyone.

Top education officials at the December legislative hearing briefed lawmakers on findings from a recent survey confirming what many around New Mexico have suspected: • 44% of families with children in kindergarten through fifth grades reported struggling with using a computer for learning.

• 19% of students in sixth through

Marjorie Childress/New Mexico In Depth

A sign reminds residents as they turn into the Red Rock Chapter south of Gallup to stay home and stay safe during the COVID-19 pandemic.

12th grades reported having to take care of younger siblings while 16% reported not having an adult checking in on their progress.

• More students are reporting a current housing situation impacted by economic hardship.

A hard year

COVID’s destructive power came at a significant moment in New Mexico. It is hard to overstate the educational needs in New Mexico, now magnified by a once-in-acentury pandemic. Before the virus shut down large sectors of the economy, reducing state tax revenue, New Mexico had begun to pour hundreds of millions of dollars to address long-standing educational inequities.

Now some worry that recent progress could be wiped out and old problems could continue to fester.

“COVID-19 has exacerbated the opportunity gaps in an already unfair state public education system in which some districts, families and students have access to broadband Internet, while others, like Zuni

Schools and its students and families, do not,” Zuni Public Schools superintendent Daniel Benavidez said in a December court motion.

His testimony, like Hyatt’s, the Gallup-McKinley school district superintendent, is part of a court motion by plaintiffs in the landmark Yazzie-Martinez lawsuit, which is forcing the state to address decades-old inequities. The plaintiffs are demanding New Mexico do more to ensure that the pandemic doesn’t roll back recent educational gains — or allow the state to use the virus as an excuse to slip back into old funding habits.

“Our students, nearly all of whom are Native American and English Learners, will most likely fall farther behind students in other districts due to our lack of access to computers, technology and necessary broadband infrastructure,” said Benavidez. He and Hyatt were joined by four other school superintendents in the court motion who sounded the alarm.

Stewart, the state education secretary, defended the state’s response to the pandemic, pointing to the

13 “thousands of digital devices” the state had put “into the hands of New Mexico students who lacked them” and the expansion of internet access.

The education secretary was referring to Chromebooks distributed around the state, including more than 6,000 to Native Americans thanks to the New Mexico Indian Affairs Department. And to creative approaches to provide more internet connectivity around the state.

Consider, for example, the systemic barriers to remote learning posed by poverty, geography and technology in the Cuba Independent School District, about 100 miles northeast of Gallup.

About 70% of Cuba’s 570 students lack sufficient broadband or cellular service, said Cuba schools superintendent, Dr. Karen Sanchez-Griego, who was one of the six district leaders to contribute their voice to the court motion. More than 40% of the families in the district are on food stamps and 60% live below the poverty level.

The pandemic forced students out of school buildings where they had the technology needed for a 21st century education.

After that happened, some could be seen sitting or parked on school grounds to connect to the schools’ broadband Internet, the superintendent recalled in the court motion. The need for broadband access across a school district the size of Rhode Island was so overwhelming in 2020 that the district took unprecedented steps to help families connect. It purchased WiFi hotspots near three Navajo Chapter Houses — communal, administratives meeting places for tribal members — and laptops for students and smartphones for teachers, who used them to provide daily instruction, including administering tests.

“And, because some families cannot afford phone plans that allow for regular instructional learning, Continued on 14 ➤

Continued from 13 ➤ (the district) has opted to pay those phones bills through the phone companies directly,” Sanchez Griego said in the motion.

One solution — buying and distributing “jet packs,” small mobile internet hotspots for Cuba’s students — revealed the depth of the monumental challenge, Sanchez Griego said in a telephone interview.

When students continued to not show up for online classes after receiving the devices, district officials discovered they had overlooked a fact of life for many in and around Cuba. It is not uncommon for people to heat and light homes with generators. And some families couldn’t keep the generator running because it cost too much. So some of the mobile hotspot devices weren’t regularly charged.

The school district leapt into action, applying for and receiving a $2,000 grant to help families buy gasoline to run the generators, which keep the internet devices charged, which, in turn, keeps students online so they can learn, Sanchez-Griego said.

Cuba’s example demonstrates how education officials, school districts and parents are responding creatively to historically challenging circumstances.

It’s important to remember not everyone is experiencing the pandemic the same.

Compared to many on New Mex-

New Mexico In Depth • 2021 Legislative special edition

“

Prepping for pandemic schooling

We didn’t have a lot of support in terms of suggestions for how to prepare for the upcoming school year. But I think it’s just something that teachers have within themselves to find a solution to things.

“

14

—Viola Hoskie, teacher, Tobe Turpen Elementary School

ico’s tribal lands, Desiree Harjo of Zuni Pueblo seems to have it good.

But everything is relative.

Her family has an internet connection. And her workday commute is short.

She powers up her computer and, voila, she’s at work: Teaching kindergarten at Shiwi Ts’ana Elementary, the same school Lucia, her fourth-grade daughter, attends.

In mostly rural northwest New Mexico, Shiwi Ts’ana is one of four schools operated by Zuni Pueblo, one of the nation’s 574 federally recognized tribes.

Like everyone else, Harjo and her family have adapted to pandemic life. That has meant keeping Lucia distant from relatives who experienced COVID-19 in their own homes. The fourth grader struggles without the family presence, her mother said, but she’s adapting with technology solutions with skills she’s learned in class.

“She’s become really heavy with

the email and sending pictures and stuff like that so that helps a lot.”

Still, Harjo’s limited internet bandwidth causes her video to buffer and freeze sometimes — not the worst problem in tribal lands where more than 40% of people lack access to broadband, a percentage that jumps to 68% in rural areas.

But it’s frustrating.

“Because a lot of devices are connected to the Wi Fi and I’m on my Zoom pretty much all day too so you have your regular technical issues,” Harjo said.

Harjo and her family represent an oasis of relative connectedness in a desert of digital challenges.

As of May, about 70% of Zuni Public Schools’ students could only go online via smart phones, according to Benavidez, the Zuni superintendent.

Soon after the pandemic hit, the school district installed equipment into three school buses capable of providing up to 20 gigabytes of broadband to serve as mobile sites for families to connect to the Internet temporarily.

Meanwhile, about 650 Chromebooks made their way to Zuni students thanks to the state Indian Affairs Department. And nearly 90% of Zuni’s school population — or 1,244 students — have been referred to the state-sponsored coaching program, although only about 300 are participating, state records show.

For her part, Hoskie, the Navajo fourth-grade teacher at McKinley-Gallup, is weathering the pandemic. This summer she prepped for the 2020-21 school year, developing technology skills to enhance her instruction through a course at Central New Mexico University. She also used programs offered to her by the Golden Apple Foundation of New Mexico, a non-profit that provides teachers professional development and resources for classrooms.

She met up with other teachers on Microsoft Teams, her district’s software platform, to familiarize herself with the technology.

“We didn’t have a lot of support in terms of suggestions for how to prepare for the upcoming school year,” Hoskie said. “But I think it’s just something that teachers have within themselves to find a solution to things.”

Hoskie has found technology support isn’t the only skill she’s mastering these days. On occasion, the fourth grade teacher also dons the role of grief counselor when a student is dealing with COVID-19.

“I’ll send a message and tell them ‘I understand what they’re going through,” she said. “Then I just give them some time, I’ll tell them you know it’s okay to take some time for yourself and your family. And whenever you’re ready just let me know and we’ll work on the things that you missed in class.”

Recently, she did that when the grandparent of one of her students died of COVID a week before the semester ended.

Hoskie exempted the student from final exams, giving her space to grieve.

“I felt like this family has been through a lot,” Hoskie said. “Sometimes you just have to just make that exception and allow them to deal with their family. Sometimes things are more important than education.”

New Mexico In Depth • 2021 Legislative special edition

15

politics and transparency

Lawmakers prepare push for capital outlay transparency

By Marjorie Childress New Mexico In Depth

Legislators will make another push this year to make public how individual lawmakers divvy up capital outlay money.

New Mexico In Depth discovered back in 2015 that those decisions were exempt from the Inspection of Public Records Act, after submitting a request for a list detailing how lawmakers individually allocated infrastructure money that year. We wrote about what we’d found, and several lawmakers promptly introduced bills in 2016 to make information available to the public about how individual legislators steward capital outlay dollars.

Here’s a recap of the issue: Each year, the state Legislature passes a capital outlay budget that sends millions of dollars out to New Mexico communities to pay for infrastructure projects. To figure out how to spend that money, lawmakers divide the money three ways.

The governor controls a third, state agencies control a third, and lawmakers control a third.

How do lawmakers decide how to spend their portion? They divvy their third up among themselves, with the Senate and House getting equal amounts to be apportioned among their members. Each lawmaker gives a list allocating money to a set of projects, to legislative staff, who then create one bill with all the money allocated. The list in that bill doesn’t describe which lawmaker is responsible for which allocation. That information is kept secret.

So if a member of the public

Gallup PD Facebook Page

In 2019, Sen. Sander Rue was one of eight Albuquerque lawmakers who provided funds for Gallup police vehicles. He ought to be able to explain why he has done that over the years to his constituents, he said then, when arguing for the capital outlay transparency legislation he sponsors. wants to find out who funded infrastructure in their neighborhood, they could ask their representative, and they’d probably find out. But they can’t simply file a public records request to find out how the public money was spent. And short of a convoluted process where one could ask a lawmaker to give permission to legislative staff to release the information, one has to rely on the honesty of the lawmaker.

Under this scenario, lawmakers are free to direct money to infrastructure benefiting campaign contributors, and keep it secret. They’re free to take credit for projects, to which in reality they may not have

directed a dime. These are hypotheticals, but in a state with a long history of corruption, they aren’t farfetched.

Rep. Matthew McQueen, D-Galisteo, and former Senator Sander Rue, R-Albuquerque, began pushing for transparency in 2016.

“The public has the right to know how we’re spending money,” said McQueen in an interview earlier this month. “The people who elect me have a right to know how I’m making allocations.”

While Rue is no longer in office, Sen. Bill Tallman, D-Albuquerque, has taken up the effort in the Senate.

As New Mexico In Depth has de-

tailed over the years, most lawmakers have gradually come to agree that the information should be public. The effort has also received support from both Gov. Michelle Lujan Grisham and her Republican predecessor, Susana Martinez, since 2016 and a broad swath of advocates and newspaper opinion pages.

But a small group of senators have blocked the measure every step of the way. Some of those senators are no longer in office, with their replacements on record supporting the transparency measure.

Will the effort finally succeed in 2021? We’ll keep tabs and let you know.

16

New Mexico In Depth • 2021 Legislative special edition

politics and transparency

warning SIGNS

Modest sunshine boosts openness, but still leaves much campaign cash in shadow

By Bryan Metzger New Mexico In Depth

and Sara Swann The Fulcrum

Since New Mexico enacted a new disclosure law last year, more than $800,000 in political spending has been publicly reported by nonprofit groups that in the past would have remained largely hidden.

It’s a change that Secretary of State Maggie Toulouse Oliver calls “a huge victory.” But Austin Graham of the Campaign Legal Center, which advocates for tighter regulation of money in politics, is more reserved: “What’s on the books in New Mexico is not the most cutting edge, but it’s undoubtedly a big improvement from the last decade.”

The New Mexico experience illustrates that improving the transparency of how campaigns are financed can be done, but making progress often requires incremental steps that take a lot of time. What has happened in New Mexico is an example of what states across the country must grapple with when they seek to slow the influence of money over their own politics, at a time when federal regulation of presidential and congressional elections has shriveled.

An ocean of money still floats through the state’s elections while

Where PAC spending comes from More than $39 million from political action committees has poured into state and local campaigns in New Mexico in the last four years. (Contrary to much of the country, the cash flowed more freely in 2018 when every statewide office was on the ballot, at least as of Nov. 2020 when this analysis was undertaken.) Two thirds was spent by groups with funding that’s mainly transparent. But 14 percent was spent by dark money groups, with donors not disclosed, and 19 percent was spent by gray money PACs, with funding sources tough to trace.

Dark money

Gray money

Transparent

2018 campaign $5,252,000

$14,237,000

2020 campaign 11,941,000

New Mexico In Depth remaining out of public view — it’s spent on mailers and advertising that blanket television, radio and social media as elections near — because the new law didn’t strengthen donor disclosure requirements for political action committees.

More than $4.8 million in spending on campaigns across the state this year came from PACs whose donations are very difficult if not

Source: NM Campaign Finance Information system.

Based on all reported fundraising from January 2017 through October 2020.

impossible to trace to their original source, according to an analysis by New Mexico In Depth and The Fulcrum. That’s because their donors often are nonprofit groups or other PACs, so the only way to learn where the money originally came from is to find out the contributors to those other groups.

Finding out who gives to nonprofit organizations — so-called

“dark money groups” — can be next to impossible, because for the most part they aren’t required to identify their own donors.

But identifying who is giving to groups registered as political action committees in Santa Fe is difficult, too, it turns out. Sifting and sorting through multiple layers of public reContinued on 17 ➤

This article was produced in partnership with The Fulcrum, a national nonprofit newsroom focused on the democratic process.

New Mexico In Depth • 2021 Legislative special edition

ports that PACs must file might lead to original sources of their money, but more often it comes to a dead end.

Welcome to the world of “gray money” — when PACs give to other PACs. One salient example in New Mexico this year was the almost $1 million spent by two groups to promote a ballot measure, passed with 56 percent support, that will make the state’s Public Regulation Commission an appointed rather than elected body.

The Committee to Protect New Mexico Consumers reported spending $269,000 but didn’t disclose its donors. Vote Yes to Reform the New Mexico PRC spent $689,600 and reported that its donors were five other groups — one based in New Mexico and the others in Washing-

“

Gray money is a convenient and too often legal way to conceal the identity of the true giver of the money for political spending.

Why wouldn’t political donors take that route if they’re able?

—Chisun Lee, co-author, Brennan report

ton, D.C., or New York.

Creating a system with far greater transparency about who’s seeking to influence elections may be daunting, but other states have done it and offer models for drawing back the curtain on political giving. Several campaign finance experts point to California in particular. For nearly five decades, its robust campaign finance system has been successful in promoting transparency in one

“

Continued from 16 ➤

of the largest political spending markets in the country.

Awash in gray as well as dark money

Since the Supreme Court decision in Citizens United v. FEC lifted restraints a decade ago on political money spent independently of candidates, secretive spending has only become more entrenched in American elections.

17

The Brennan Center for Justice, a liberal public policy institute at New York University Law School, found that just four years after the decision, only 29 percent of outside spending in state races across the country was transparent — plummeting from 76 percent four years before the ruling.

In a 2016 report, the center described dark and gray money as especially harmful in state elections because special interests can spend far less than they would at the federal level and still have a substantial influence on the outcome.

“For candidates used to modest budgets and low-key campaigning, dark money can prove an unfair and expensive obstacle, possibly discouraging potential candidates from deciding to compete,” it concluded.

Continued on 18 ➤

18

New Mexico In Depth • 2021 Legislative special edition

Continued from 17 ➤ Six years ago, two-thirds of contributions to political committees nationally came from other PACs. And such gray money has only become more pervasive in state and local elections since, said Chisun Lee, one of the authors of the Brennan report.

“Gray money is a convenient and too often legal way to conceal the identity of the true giver of the money for political spending,” she said. “Why wouldn’t political donors take that route if they’re able?”

New Mexico In Depth analyzed every contribution made to a political action committee in the state during the 2018 and 2020 campaigns, focusing on transactions of $500 or more. Based on these contributions, we identified 11 funded mostly with dark money from nonprofits and 25 that received most contributions with gray money from other PACs. All together, these PACs spent almost $13 million over the last two elections, roughly a third of all PAC expenditures in the state.

The biggest of them, the Verde Voters Fund of Conservation Voters New Mexico, paid more than $2.5 million primarily to communications and political consulting firms.

But the source of the cash that came from its largest donor, the League of Conservation Voters, is permitted to remain a mystery.

Perhaps most clearly emblematic of gray money, though, is a PAC called Better Future for New Mexico, which funneled $1.6 million to other PACs operating in the state.

It reported raising $2.7 million, almost entirely from three nonprofits: State Victory Action, Grove Action Fund and Civic Participation Action Fund. Two of them don’t have to report their donors, and they didn’t.

Continued on 19 ➤

The biggest dark and gray PACs These 15 political action committees have stood out in New Mexico politics during the past four years, receiving most of their money from sources that were either undisclosed or opaque. Navy-colored bars represent giving by nonprofit groups, who don’t have to reveal their donors. Gray bars represent giving by other PACs, and the source of their money is often hard to trace.

Green bars represent giving by people, businesses, unions, political parties or candidates whose identities are clearly disclosed.

Nonprofits (dark money) Other PACs (gray money) Individuals, corporations, labor, political parties or candidates (transparent) Better Future For New Mexico ($2.7 million) CVNM Verde Voters Fund ($2.6 million) Patriot Majority New Mexico ($2.3 million) Stronger New Mexico ($1 million) Planned Parenthood Votes New Mexico IE Committee ($900,000) NM Working Families Party ($760,000) Vote Yes to Reform the New Mexico PRC ($745,000) Responsible Leadership NM ($570,000) Enchantment PAC ($390,000) Rio Grande Sierra Club Healthy Communities ($346,000) New Mexicans for Public Lands ($150,000) No Corporate Democrats ($146,000) Committee for Responsible Leadership New Mexico ($133,000) Legacy PAC ($107,000) Real Estate Community PAC ($105,000)

New Mexico In Depth Source: NM Campaign Finance Information system.

Based on all reported fundraising from January 2017 through October 2020.

New Mexico In Depth • 2021 Legislative special edition Continued from 18 ➤ California goes deep on disclosure

Had those contributions been given to groups in California for political activity, those groups would have likely had to file their own reports with that state. California is seen as a model for how other states could implement disclosure laws geared toward identifying the original source of campaign finance dollars.

Even though campaigning and lobbying in the nation’s most populous state is a billion-dollar industry, Sacramento has kept dark and gray money spending at bay.

California requires groups to disclose the source of the money they use to influence elections, and goes a step further by requiring donors themselves to file reports if they give generously enough.

Groups involved in elections must report donors who give $100 or more for political purposes. But when such money doesn’t account for a group’s entire spending in an election, it must start identifying donors whose gifts weren’t earmarked for political activity — starting with the most recent, until the total donated matches the total spent.

But what combats gray money secrecy in California the most is its major donor rule.

PACs taking a gift above $5,000 must notify those donors they might be required to file their own report with the state — which they have to do once their cumulative campaign donations top $10,000. And if those major donors, in turn, have raised money to fuel their political giving, they must register as a political committee under California law and send similar disclosure notices to their own generous donors. This process continues until all the original donors are identified.

Hiding behind a corporate identity is not allowed; the $10,000 thresh-

Both the Brennan Center report and New Mexico reform advocates point to evidence the public wants greater disclosure. In a poll last year by the Campaign Legal Center, 85 percent of Democrats and 81 percent of Republicans supported changing the rules to require public disclosure of contributions to all organizations that spend money on elections — effectively ending the world of dark money. And a poll last year by Common Cause New Mexico found 94 percent support statewide for enhancing campaign finance disclosures. old combines money from individuals and businesses or groups they control. And failure to disclose the “true source” of a campaign’s money can be prosecuted by the state as money laundering.

Beyond the reporting requirements, California puts donor information in front of the public when they’re confronted with a political ad — in print, on social media, or on TV or radio. In some cases, the “paid for by” messages must list the sponsor’s three most generous donors at $50,000 or more.

Then there is the state’s Fair Political Practices Commission. Established 46 years ago in response to the Watergate scandal, the bipartisan watchdog agency is independent from the state government.

Last year the panel responded to more than 14,200 phone and email inquiries, hosted 44 workshops about state campaign finance law and resolved almost 1,500 enforcement cases, including 343 settlements that produced almost $800,000 in fines. It also has the power to set new money-in-politics rules, including one that took effect in August requiring some businesses to name the person primarily responsible for approving political activity.

“While the amount of dollars spent is an issue for some people,

our main concern is that the public gets to see where the money is coming from,” said Jay Wierenga, a commission spokesperson.

Making change in New Mexico

19 Both the Brennan Center report and New Mexico reform advocates point to evidence the public wants greater disclosure. In a poll last year by the Campaign Legal Center, 85 percent of Democrats and 81 percent of Republicans supported changing the rules to require public disclosure of contributions to all organizations that spend money on elections — effectively ending the world of dark money. And a poll last year by Common Cause New Mexico found 94 percent support statewide for enhancing campaign finance disclosures.

But the Brennan Center report also warns that states should set reasonable parameters and not make disclosure laws unduly burdensome on the free speech rights of political groups or their benefactors.

“The idea is not to force transparency against everyone and their neighbor who is participating, but rather common-sense disclosure laws so voters can be informed about substantial donors and who is influencing public discourse,” said Lee of the Brennan Center.

One possible reason that reforming New Mexico campaign finance law has taken so long is that citizen-initiated ballot measures are not allowed — so changing the rules is up to legislators, for whom ease in raising campaign money is top of mind.

Dede Feldman, who retired after 16 years as a Democratic state senator, during which she championed a law imposing campaign contribution limits, said the possibility of changing such rules presents legislators with a tough choice: Protect themselves and their odds of getting re-elected or do what’s best for the public?

“When you come to power with one system, you are reluctant to give that up,” she said.

Toulouse Oliver, New Mexico’s chief elections official as secretary of state, said she supports further bolstering of the state’s campaign finance disclosures because it’s important information for the public is making voting decisions. “It’s something that I absolutely will be talking to our legislators about as we prepare for the next legislative session,” she said.

The 2021 session of the Democratic-majority Legislature convenes this month for its regular annual session.

But Toulouse Oliver expressed trepidation, saying she didn’t want to see New Mexico’s laws voided by the courts again, after a decade during which the state’s Campaign Reporting Act was unenforceable. And she said a push for new rules would likely be an uphill effort.

“It’s something that I anticipate having a lot of pushback on from every entity or organization that does this kind of political activity, because it will mean that they have to dedicate more resources to keeping their books straight in terms of Metzger is a reporting fellow at where the money is coming from,” New Mexico In Depth. Sara Swann reported for The Fulcrum. she said.

20

New Mexico In Depth • 2021 Legislative special edition

politics and transparency

A Critical test Nonprofit groups put forth challenges to new independent expenditure law

By Bryan Metzger New Mexico In Depth

After a decade-long effort, New Mexico lawmakers passed new campaign reporting requirements in 2019 to force nonprofit groups, which can spend money on political campaigns without registering as political committees, to disclose their spending as well as the names, addresses, and contribution amounts of their donors who fund such “independent expenditures.”

Outside campaign spending by

New Mexico lawmakers passed new campaign reporting requirements in 2019 to force nonprofit groups, which can spend money on political campaigns without registering as political committees, to disclose their spending as well as the names, addresses, and contribution amounts of their donors.

groups or individuals not affiliated with a particular campaign have long been a target of reformers seeking to rein in the influence of money on politics. Without disclosure, nonprofits can spend unlimited amounts of “dark money” without the public knowing where the money comes from.

In 2020, two nonprofit groups immediately put the new law to the test by refusing to disclose donors despite enforcement efforts by both the Secretary of State and the New Mexico State Ethics Commission.

“I’m not at all surprised,” said

Sen. Majority Leader Peter Wirth, D-Santa Fe, who championed the transparency measure for a decade.

“Anytime you’re trying to rein [dark money] in, you know, there’s going to be groups that are going to push the limits.”

The challenges by the nonprofit groups represent a key test for both the law itself and for the enforcing power of the state’s newly created ethics commission, also established in 2019 after several decades of ongoing debate and setbacks.

Approved by voters and given powers by the Legislature, the commission can subpoena records and enforce state statutes that cover campaign spending, lobbying, and government conduct. “They are a set of statutes that protect representative democracy,” said Jeremy Farris, the commission’s executive director.

The two groups are demonstrating the challenges that confront the new agency.

One group has disclosed its expenses — but not its donors — after settling with the State Ethics Commission following the agency’s conclusion that the group’s activities were political. The group argued that contributors asked in writing that the funds not be spent on political advocacy, and in the statute such written requests make the contributions exempt from disclosure regardless of how the funds are actually spent.

In the other case, the group has taken aim at the definition of “con-

tribution” in the state statute, arguing that since none of its donors were solicited specifically for political activities, their donations don’t count as political contributions even if the money was later used for political campaigning.

On Dec. 14, the State Ethics Commission announced it had filed a lawsuit against that second group — the Council for a Competitive New Mexico — in New Mexico’s 2nd Judicial District Court. The commission is seeking to force the group to register as a political committee, disclose its donors, and pay fines for its prior refusal to disclose.

The Committee to Protect New Mexico Consumers

In August, the Committee to Protect New Mexico Consumers (CPNMC) spent over $260,000 on mailers to New Mexico voters about constitutional amendment 1, which would make the state’s Public Regulation Commission an appointed rather than elected body. Voters approved the measure in November.

The group claims the purpose of the mailers was merely to educate voters.

“501(c)(4) organizations such as the Committee to Protect New Mexico Consumers (CPNMC) are allowed to do educational outreach and communication,” the group’s treasurer, Noah Long, wrote in an email, maintaining the mailers weren’t political.

Continued on 21 ➤

New Mexico In Depth • 2021 Legislative special edition

21

Continued from 20 ➤ But Farris disagrees.

“As we looked at these four mailers, we thought that there was no other reasonable interpretation other than as an appeal to vote for that ballot question,” said Farris.

In September, the commission authorized staff to send the group a letter demanding they comply with the new reporting requirements.

Ultimately, CPNMC settled with the commission, agreeing to disclose how it spent the money but continuing to hide its donors.

An exemption in the law gives groups the opportunity to claim that they don’t have to disclose donors who request in writing their donations not be used for political purposes. The group invoked that language to claim its donors had requested that their money not be used for political purposes, shielding them from the new law even if the mailers were found to be political.

“If that request in writing is made, then the identity of the contributor is not subject to disclosure under the law,” said Farris. “It’s a proviso clause that enables contributors to get out of disclosure requirements when the purpose of the statute is to provide for disclosure.”

In a press release, the commission explained that the settlement led to important disclosure about the group’s spending before election day.

On the same day that CPNMC agreed to file an independent expenditure report, Long created a PAC called “Vote Yes to Reform the New Mexico PRC.” It has disclosed almost $750,000 in contributions from a handful of mostly opaque sources, including other political nonprofits like America Votes and the League of Conservation Voters, demonstrating yet another challenge to tracking money in politics, known as gray money.

Courtesy

An example of CPNMC’s mailers is shown.

The Council for a Competitive New Mexico

Meanwhile, last May a nonprofit called the Council for a Competitive New Mexico (CCNM) reported spending over $130,000 on mailers and robo-calls to voters in the lead up to the June primary election. The spending paid for negative attacks on several Democratic candidates who were challenging more conservative incumbent Democratic state senators. While the group filed a report describing its spending, it didn’t disclose who funded the efforts.

Following an ethics complaint against CCNM in August and a lack of response by representatives of the nonprofit, the Secretary of State’s office gave the group 10 working days to voluntarily disclose its donors or face penalties and fines.

Enter Charles Spies, a D.C.-based lawyer who serves as legal counsel for CCNM with a background in national Republican politics. A proponent of outside spending by

super PACs, he was once quoted as saying “as long as we have a Constitution, outside money’s not going anyplace.” In both 2012 and 2016, Spies helped establish super-PACs supporting Republican presidential candidates Mitt Romney and Jeb Bush.

Spies sent a letter to the Secretary of State’s office on October 2nd arguing that the nonprofit was not required to disclose its donors because no money had been solicited to fund independent expenditures.

Arguing that the term “contribution” in the state’s campaign reporting act applies only to donations explicitly made for political purposes, the letter describes a series of “oral solicitations” made in March of 2020 in which a “broad group of tools” including “policy research and advocacy, issue advocacy, and independent expenditures” were presented.

“Well after donations were received, the CCNM team determined that part of its strategy to achieve its policy goals would be to

make certain independent expenditures,” reads the letter.

Correspondence between the group and state authorities reveal the involvement of several prominent local figures.

Doug Turner, CEO of the public relations firm Agenda and a former Republican candidate for governor, served as a strategic communications consultant for the group.

Local commercial real estate developer Adam Silverman is listed as the group’s secretary, while Laura Sanchez-Rivet, chief of staff of public policy at PNM Resources, Inc, served as the group’s legal counsel.

Lobbyist Chevonne Alarid is listed as the nonprofit’s president.

In an interview, Turner said that he made a series of five to 20-minute phone calls soliciting donations over a period of roughly two weeks.

Turner insisted that the group maintains broader policy goals, pointing to a digital ad campaign emphasizing the importance of safe voting Continued on 22 ➤

Continued from 21 ➤ during the pandemic. But Turner denied knowledge or involvement with the outside spending in June’s Democratic primary, despite his role overseeing strategic communications.

Sanchez-Rivet did not respond to New Mexico In Depth requests for an interview. Charles Spies wrote in an email that, “CCNM has complied with New Mexico law and its filings with the Secretary of State speak for themselves in answering your questions.”

Following Spies’ letter, the Secretary of State’s office referred the case to the State Ethics Commission, stating that it was “unable to conclusively determine that a violation has occurred.” On December 4th, the State Ethics Commission unanimously voted to authorize its staff to send a demand letter to CCNM enforcing the state’s campaign finance law, giving the group until Thursday, December 10th to respond.

State Ethics Commission files suit

Despite the ethics commission’s demand letter, the Council for a Competitive New Mexico continued to refuse to disclose its donors.

“Their response was brief, and more or less followed the lines of how they responded to the Secretary of State’s office — that their contributions weren’t received for a political purpose,” said Farris.

As a result, Jeremy Farris and Walker Boyd, the commission’s legal counsel, filed a civil complaint on behalf of the commission in New Mexico’s 2nd Judicial District court in Albuquerque. The complaint asks that the Council for a Competitive New Mexico be declared a “political committee” in order to enforce disclosure of the group’s donors. The civil complaint alleges that despite CCNM’s arguments to the contrary, the “primary purpose” of CCNM

New Mexico In Depth • 2021 Legislative special edition

“

With respect to campaign finance, and ethics issues, I think you’re going to see bills, and I certainly will encourage everyone to participate, and to do so via the virtual process that’s going to be available. I do think that having committee hearings online will open up the process in a way that it hasn’t been before.

—Sen. Majority Leader Peter Wirth, D-Santa Fe

was to make independent expenditures, meaning more than 50% of either time or money was spent on political activity. It also asks the court to find that contributions to CCNM were political, and that the campaign reporting act compels the group to disclose its spending on its independent expenditures.

Additionally, the complaint asks that CCNM be penalized for its prior refusal to comply, fines that could add up to $20,000.

Ultimately, the strength of New Mexico’s laws on outside spending hang in the balance. If CCNM’s challenge to the disclosure law is allowed to stand, other groups might use the same arguments put forward

by Charles Spies to shield donors from public disclosure in the future.

Clarifying campaign laws in 2021 may be risky

Upon settling with CPNMC, Farris said in a press release that the ethics commission looked forward to working with the Legislature to close the loophole that “allows donors behind independent expenditures to remain anonymous by making a pro–forma request that their contributions not be used to fund independent expenditures.”

But concerns about the mostly virtual nature of the upcoming legisla-

“

22

tive session due to the COVID-19 pandemic have given the commission and some reformers pause.

“The upcoming session might not be the session to get into the disclosure provisions of the Campaign Reporting Act,” said Farris. Because the law is “tightly-knitted,” he said, one change can lead to unintended consequences. Amendments require “a lot of public attention and focus,” he said, “and I think there are concerns that it would be harder to achieve that in a largely virtual session.”

Other reform advocates, including Common Cause New Mexico, have gone even further.

“We are very concerned that if these statutes were opened up for amendment during a session in which full public participation and expert input was not available, the outcome might well be unfortunate,” the organization said in public comments submitted to the state ethics commission.

“It is such a tightly woven sweater,” said Heather Ferguson, executive director of Common Cause New Mexico. “All they have to do is pull one thread and change one term, and that can create loopholes the size of a Winnebago.”

Making such amendments in a way that allows for “thoughtful and deliberative” public participation

would be challenging during a remote session, Ferguson said.

But in an interview, Wirth, the Senate majority leader who championed the 2019 law, sounded more upbeat about the public being able to effectively participate. While the public likely won’t be allowed to enter the Roundhouse, he expects much more access online than in years past.

“With respect to campaign finance, and ethics issues, I think you’re going to see bills, and I certainly will encourage everyone to participate, and to do so via the virtual process that’s going to be available,” said the Santa Fe Democrat.

“I do think that having committee hearings online will open up the process in a way that it hasn’t been before.”

“If we need to fix this, this is the window to do it,” he said.

“We’re headed right back into another election cycle, and what we’ve learned is that trying to wait for a 30 day session is really tough, because people are already campaigning under a set of rules.”

He also noted the change in the composition of the Senate.

“It’s going to be a very different Senate than it’s been,” said Wirth.

“We have seven new members on the Democratic side and four new members on the Republican side.

So more than 25% new members.”

As for the ethics commission, Farris said it won’t put forward a bill to change the campaign reporting act this year. The agency will instead issue recommendations that the commission would support, including the use of a separate bank account for contributions whose donors have made requests that they not be used for outside spending.

“The idea with this particular recommendation is to try to ensure that such contributions can’t be used for independent or coordinated expenditures by requiring that they be placed in a segregated bank account.”

New Mexico In Depth • 2021 Legislative special edition

23

politics and transparency

Lobbying POWER Lawmaker, advocates pursue greater sunshine about those seeking to influence government

By Bryan Metzger New Mexico In Depth

Lobbying at the Roundhouse is a little bit different from other states. Put a crop of unpaid “citizen legislators” and well-paid professional lobbyists in a building together, and a certain culture develops in which lobbyists become key sources of information for lawmakers.

“When I have colleagues that come in here from other states, or from the national level, they’re amazed at the degree of access that folks have here, and it’s more of an informal kind of a situation than it is at a lot of other venues,” said Dan Weaks, a professional lobbyist.

In contrast to unpaid, understaffed legislators, lobbyists— many of whom have significant monetary resources at their disposal— can play an outsized role in the policymaking process, Jeff Steinborn said Sen. Jeff Steinborn, D-Las Cruces, who has witnessed employers hire as many 10 lobbyists for a single issue.

“They had a lobbyist posted at every elevator.”

Another senator didn’t mince words. The system we have “emContinued on 24 ➤

Continued from 23 ➤ powers lobbyists over the people’s elected representatives, and that’s a pretty dysfunctional system, in my view,” said Sen. Jacob Candelaria, D-Albuquerque.

Some argue that the public would be better served if there was more transparency Jacob regarding the work of Candelaria lobbyists to change, pass or stop legislation. In 2021, some advocates think a new crop of freshman lawmakers plus fewer lobbyists in the Roundhouse due to the pandemic may help the prospects of new disclosure laws.

Lobbying and power

In normal times, New Mexicans can engage with their representatives with relative ease. The state capital is open and during the annual legislative session throngs of people from all over the state gather there. Back home when the Legislature isn’t in session, lawmakers tend to be readily accessible, back at their day jobs and otherwise engaged in community meetings.

Lobbyists have ready access to lawmakers, too, but some have much more after years spent building relationships as they seek to influence the outcome of legislative action each session.

Lobbyists advance the interests of an employer, industry association, government agency, or other organized group that’s hired them or for whom they volunteer and they’re required to register under the state’s Lobbyist Regulation Act. In 2020, they numbered 616.

But only a fraction are professionals who may represent multiple clients and are usually hired based on their experience and relationships with legislators and staff, or their subject matter expertise. Roughly 30% spend money to further their

New Mexico In Depth • 2021 Legislative special edition

“

What it looks and feels like when you’re a new legislator is different from what it feels like when you’re an old hand. You begin to find out who are the lobbyists that you can trust, and who are the ones that, you know, you ought to have a jaded eye about.

— Dede Feldman, former Democratic senator

interests, whether through political contributions, expenditures on meals and other activities, or gifts.

“We are primarily, first and foremost, the frontline spokesperson for whomever hires us to convey their issues and their messages to lawmakers,” said J.D. Bullington, a professional lobbyist in Santa Fe who represents over 20 different entities. Bullington is one of several so-called “super-lobbyists,” defined in a 2020 New Mexico Ethics Watch report as any lobbyist representing more than nine clients at once.

Some lobbyists are able to leverage their family relationships, experience as former lawmakers, or staff positions in state government into lucrative lobbying careers. The nonprofit government reform group Common Cause published a report in 2013 that exposed the revolving door of former lawmakers becoming lobbyists. Not only do they have personal relationships, but “they know the legislative history of an issue, e.g. who was opposed to it ten years ago, whether it was vetoed and why, or whether a measure is even constitutional.”

Dan Weaks worked on staff at the Legislature decades ago and knows the inner workings, and people, as well.

“I have great relationships with staff people,” said Weaks, a professional lobbyist who represents multiple clients. “Most of the folks that are in these positions are not brand

“

24

new to the state. So you kind of have a lot of personal relationships that you’ve been able to build up over time.”

For legislators, lobbyists are unavoidable, and for some, they become an important resource.

“What it looks and feels like when you’re a new legislator is different from what it feels like when you’re an old hand,” said former Democratic senator Dede Feldman. “You begin to find out who are the lobbyists that you can trust, and who are the ones that, you know, you ought to have a jaded eye about.”

Steinborn regularly sponsors bills to increase lobbying transparency and says “his experience with lobbyists is professional. Someone will approach me, they’ll say, ‘Senator, I’d like to talk to you about this issue, here’s who I’m representing.’

And they will just lay it out. I think at its best, that’s what it should be.”

Rep. Rebecca Dow, R-Truth or Consequences, said lobbyists help her gather information and do reconnaissance as an unpaid lawmaker. “When a lobbyist comes to me, the first thing I ask them is, who is opposing this?,” she said, which helps her identify who else she needs to Rebecca talk to.

Dow Candelaria, however, dislikes the set up.

“It shouldn’t be up to special in-

terests and paid lobbyists to educate the Legislature on what the important issues are regarding a public policy problem,” said Candelaria. “It basically allows the lobbying class to define what the issues are.”

And the dependence doesn’t stop there.

“Sometimes it’s like, hey, I’ll watch your kids and take them to the casino while you’re in committee tonight,” said Feldman. “Or I’ll take your dry cleaning over to the dry cleaners tonight and pick it up tomorrow for you.”

In a practice that has been described as part of the “fabric” of the process, lobbyists and other outside groups frequently provide food to legislators. “[The per diem] maybe covers your hotel room. So, you know, you’re happy when there’s an invitation to dinner,” Feldman said of the amount of money state lawmakers are given for each day they perform their legislative duties. New Mexico lawmakers are not paid a salary like their counterparts in more than 40 states.

“In committee hearings, it is not uncommon for lobbyists to donate food,” said Rep. Melanie Stansbury, D-Albuquerque. “I tell that to most people, and they think that’s crazy.

Like, how could you have an entity, a private entity who has business before the committee, donating something to the committee? Well, exactly.”

For Bullington, providing meals for lawmakers simply offers the best chance to do effective advocacy.

“Lunch is just a natural time of the day when you can get a lawmaker’s undivided attention,” said Bullington. “And that’s what you’re really looking for.”

At the end of the day, legislators say, the real concern remains the relationship between lobbying, power, and elections, not meals.

“My problem is when the lobbyContinued on 25 ➤

New Mexico In Depth • 2021 Legislative special edition

ists use their clients’ great money and power to influence elections and to sort of preordain what the verdict will be before even starting the actual lobbying process,” said Feldman.

Dow agreed. “Are you more concerned about a lunch during the 60 day session or a million dollar contribution through 10 different subsidiaries to one person who gets to decide whether that bill is assigned to one committee, three committees, or if it even gets heard?”

Compounding the problem is a weakness in disclosure laws. Currently, there’s no publicly available information about which lawmakers or what bills are being targeted by lobbyists, as New Mexico’s lobbying laws do not require it.

Pandemic may present a reform opportunity

Year after year, Steinborn has proposed legislation to increase public disclosure by lobbyists about the bills they seek to advance or stop, so that the legislative process is more transparent.

“The important thing is that citizens know what are the mechanics, the power behind each policy that’s considered,” said Steinborn. “That levels the playing field away from those with money to hire lobbyists, and in favor of citizens– and legislators, for that matter– to be able to understand those mechanics.”

Steinborn will again pursue a bill to require lobbyists to file a report within 14 days of the end of the session that discloses which bills a lobbyist or their employer lobbied on, he said.

He will also re-introduce a measure to mandate lobbyist employers disclose the total amount of money that they invest in lobbying each year, including the compensation paid to lobbyists. “The question New Mexicans deserve to know, is

“

Why must it be incumbent upon me to report to the Secretary of State everything I say to everybody I come in contact with relative to any piece of legislation? I think it’s ridiculous.

—Dan Weaks, professional lobbyist

not ‘gee, did they take five legislators out to the Rio Chama?’ That doesn’t tell you anything,” said Steinborn.

“What you need to know is they [the employer] spent a million dollars on lobbyists to try to get a $600 million subsidy.”

This session, a variety of factors have given reformers hope, including the newly established state ethics commission, a new crop of legislators and the departure of some who have blocked transparency legislation, and, interestingly, the fact that lobbyists will not be present in the building because of the pandemic.

“We actually feel that this would be a very ideal time,” said Heather Ferguson, executive director of Common Cause New Mexico, and herself a registered lobbyist. “Typically, those bills have suffered when contract lobbyists have been able to grab our legislators out in the hall and change their mind or move a vote. This is an opportunity where lobbyists won’t be in the building.”

Lawmakers decided to bar the public from the Roundhouse this session due to the pandemic, and that includes lobbyists.

Feldman remains optimistic that new legislators will be open to changing the process.

“I think they’re much more willing to support transparent and open, good government measures that reduce the power of lobbyists, special interests, than are legislators who— that’s the system that brought them there, that have come to depend upon it,” she said.

“

Continued from 24 ➤

The ethics commission, though not formally proposing changes to lobbying regulations this session, issued “recommendations” to the Legislature in an annual report.

“I hope that the commission can be a helpful resource for the legislators and for the lobbyists to promote more full and fair disclosure that’s in the public interest,” said Stuart Bluestone, one of the commissioners.

These recommendations include a measure similar to Steinborn’s bill to allow greater disclosure on exactly which bills lobbyists are seeking to influence, though with two additional disclosures: once a week after the start of a session, and another due one week after the bill introduction deadline.

“I’m frankly not sure that a report after the session is helpful to inform the public as a couple of reports during the session,” said Bluestone, a former deputy state attorney general.

Emphasizing that he was speaking for himself, Bullington said he would support measures to increase transparency around lobbying.

“I strongly believe that our political process is overly complicated and not very conducive to public access, it could be greatly improved,” said Bullington. “Because lobbyists are sort of a unique category of players and influencers of the process, I think the public has a right to know about every penny that we are spending to influence the process.”

Weaks, on the other hand, was more skeptical about Steinborn’s disclosure efforts. He and others

25 fear transparency measures might go too far.

“Why must it be incumbent upon me to report to the Secretary of State everything I say to everybody I come in contact with relative to any piece of legislation? I think it’s ridiculous,” he said. “As far as what my salary is, or what my contract is for a private client? I personally don’t care, but it’s an intrusion of privacy.”

For her part, Minda McGonagle, another paid lobbyist, said that she understands Steinborn’s position on transparency but wondered if too much disclosure would hinder important give and take that goes on. “It’s like, if you’re always under a very bright, very public light, how can you sometimes work through the sensitive issues to get to what the resolution is?,” she said.

Other legislators were generally supportive of greater disclosure around lobbying, with some caution. Rep. Georgene Louis, D-Albuquerque, said she is supportive of transparency in principle, but wants to be sure that further disclosure measures don’t have a chilling effect on advocates.

“I think we need to Georgene remember that lobbyists aren’t just for Louis big corporations,” said Louis. “I don’t want to pass a bill and then later find out it causes harm, because we’re not hearing from certain people.

Whether or not the upcoming session sees the passage of more transparency measures, structural issues are likely to persist.

“The single most important thing we can do to address lobbying, transparency, and good policymaking in New Mexico, is to professionalize our Legislature with a paid legislature and paid staff,” said Stansbury.

“There is no other professional sphere in which we expect people to perform well at their jobs without pay and without staff.”

26

New Mexico In Depth • 2021 Legislative special edition

primed for repeal Conditions suggest change could be coming for state’s dormant criminal abortion law New Mexico In Depth

Lawmakers and reproductive health advocates believe the time is ripe to remove a criminal abortion law from New Mexico state statute.

First step: the reintroduction of a bill during the 2021 legislative session that would repeal a 1969 law that, while unenforceable due to the U.S. Supreme Court 1973 Roe v. Wade decision that protects the right to an abortion, remains one of the most punitive of its kind in the country.

Sponsors of the abortion legislation as well as healthcare advocates say the makeup of the state Legislature, public opinion on abortion access and shifting support at the federal level indicate that the moment is right for repealing the law that severely restricts and criminalizes abortion in New Mexico.

But that momentum doesn’t mean it will be easy. Opponents are already preparing for a fight.

The effort to repeal the 50-yearold state law has gained urgency in New Mexico since the composition of the U.S. Supreme Court shifted to the right in recent years, creating fear that a majority of justices would overturn Roe v. Wade. Should that happen, state laws would govern abortion access, entirely.

Before the Roe decision, “my personal friends would have to risk their lives trying to get access to abortion,” said Rep. Joanne Ferrary, who said she would again spearhead the effort to overturn New Mexico’s

***

“

I think the voters have made it clear. They sent a clear message that they want to remove this old abortion section [that criminalizes] doctors and women for having an abortion.

— Rep. Joanne Ferrary

abortion law. “Today, abortion is healthcare. And we don’t want to go back to [those] days. Healthcare should be a right.”

A 2018 poll and report by Albuquerque-based organization Forward Together and Latino Decisions focused on rural New Mexicans found that 74% of respondents agreed that “personal decisions about abortion need to remain with New Mexican women, their families and their medical providers.” Support held across political affiliations and religious identity – 71% of religious adults supported personal choice in reproductive health matters, according to the Latino Decisions poll. A 2020 poll of Native Americans in New Mexico by Latino Decision found majority support for legal abortion.

An earlier 2014 Pew Research Center poll indicates that a majority – 51% – of adults in New Mexico support access to abortion in all or most cases.

On abortion legislation, New Mexico is unique – the state has some of the broadest protections

“

By Julia Sclafani

for access to abortion, yet contains a criminal abortion law on its books.

Ferrary’s forthcoming bill will be based on the 2019 House Bill 51, which proposed repealing the New Mexico criminal codes that punish providers of abortion. An amended version of the bill passed in the House of Representatives but died in the Senate with a handful of Democrats joining Republicans for a majority. But in November, seven Democrats joined the Senate who, unlike their predecessors, will likely support the repeal measure.

According to Ferrary, the bill aims to repeal sections of New Mexico state statute that define exceptions to the abortion ban and make performing an abortion a fourth-degree felony. In 2019 members of the Senate Judiciary Committee decided against trying to remove section 2 of the current law, which allows for religious refusal. Ferrary said she and colleagues are still deliberating whether to address religious refusal in their 2021 bill.

The 1969 law criminalizes providers of abortions, with exceptions only in the cases of incest, rape, or if a pregnancy would result in serious birth defects or risks to the woman’s life or health.

A patient seeking an abortion would need to have a special hospital board assembled at the hospital where the procedure is being requested to evaluate the given medical justification. But the law’s religious exemption clause holds significant power to override that.

Under it, a hospital would not be required to form a special hospital board or, even in the case of forming one that approves the procedure, the hospital or its providers retain the right to refuse to offer abortion services.

Despite the nearly 50 years since the law had teeth, the weight of its implications lingers.

“Two words: Supreme Court,” said Vicki Cowart, CEO and President of Planned Parenthood of the Rocky Mountains, which operates health clinics across the region, including four in New Mexico, two of which offer abortion services.

In Cowart’s words, the death of Supreme Court Justice Ruth Bader Ginsburg in September and the subsequent appointment of Justice Amy Coney Barrett show that “the safety net that we’ve counted on at the Supreme Court is really gone now.”

Meanwhile, a slate of court cases – 17 by one expert’s count – pertainContinued on 27 ➤

New Mexico In Depth • 2021 Legislative special edition

ing to abortion bans or restrictions have been filed in courts across the country. Any one of which could prompt the U.S. Supreme Court to revisit the Roe decision. Meanwhile, in 2019, national Pew Research and Kaiser Family Foundation polls found a majority of the U.S. public supports legal abortion. And while there is scarce New Mexico specific data about Catholic opinions about abortion, national Pew Research polling indicates a majority of Catholics believe it should be legal.

Some of those court cases propose time limits as strict as a ban after six weeks, others suggest waiting periods or multiple trips to the same doctors before receiving an abortion.

“And this is not just for the procedural abortion that would be done inside a health center, but also the medication abortion which does not require that level of medical interaction,” Cowart said.

All these obstacles exist in states across the country. They sometimes include mandated counseling that requires providers to present information with no scientific support, like warnings about abortion’s links to breast cancer. In New Mexico, there are no major abortion regulations found in certain other states, like waiting periods or parental notification, other than a partial-birth abortion ban passed in 2000. But if the U.S. Supreme Court disavowed the Roe v. Wade decision, most abortions would automatically become illegal in the state.

***

In New Mexico, advocates believe a new slate of senators joining the legislature in Januay creates a pathway for Democratic initiatives like an abortion decriminalization bill to get passed.

“I think the voters have made it clear. They sent a clear message

“

A complete repeal is not the answer to updating New Mexico’s abortion laws.

“

Continued from 26 ➤

—Stephanie Curry, policy manager, Family Policy Alliance of New Mexico

that they want to remove this old abortion section [that criminalizes] doctors and women for having an abortion,” Ferrary said of the conditions that make her hopeful for the forthcoming bill.

Not only will the statehouse be bluer in the upcoming session, but it will be more female. Over half of the state House will be made up by female legislators – 37 of 70 seats.

On the shift, Planned Parenthood’s Cowart had an insight: “In the states that have that kind of makeup, with half of the legislature being female, the tone and tenor are different, the conversations are different, and family stories and people’s stories get a lot of weight,” she said.

But it won’t be a slam-dunk. A fight to oppose the bill is underway.

“A complete repeal is not the answer to updating New Mexico’s abortion laws ... Current law ensures abortions are only performed by licensed physicians and protects medical professionals and faithbased hospitals from being forced to participate in abortion procedures against their conscience,” said Family Policy Alliance of New Mexico Policy Manager Stephanie Curry in a written statement.

“As in 2019, we expect thousands of New Mexicans to voice their opposition to what will again be regarded as one of the most extreme pro-abortion bills in the country,” Curry said. “This is too important a matter to have the Legislature and the Governor try to fast-track a bill through the process.”

27

Lawmakers tackle civil rights protections, police accountability

By Julia Sclafani New Mexico In Depth

After a year in which police use of lethal force against Black people awakened large swaths of the American public to a discussion about systemic racism, lawmakers in New Mexico are looking to reform policing and better protect civil liberties.

The Memorial Day killing of George Floyd in Minneapolis sparked mass marches across the country, including in New Mexico, to protest the unequal and dangerous treatment Black people encounter in interactions with police.

New Mexico is no stranger to calls for greater scrutiny of law enforcement.

The U.S. Department of Justice forced the state’s largest law enforcement agency into a consent decree after concluding in 2014 the Albuquerque Police Department exhibited a troubling pattern of excessive force, including one of the highest rates in fatal shootings by its police officers. The killings haven’t been limited to APD, either.

Between Floyd’s death this Memorial Day and the end of November, there were 11 fatal police-involved shootings across New Mexico, according to local news reports and a database of deadly police shootings maintained by the Washington Post.

Since 2015, when the Post began compiling data, New Mexico has recorded 115 law-enforcement shootings, New Mexico trails only Alaska for the highest rate of fatal police shootings in that time – 55

Qualified immunity is a legal doctrine resulting from a series of U.S. Supreme Court decisions that shields public officials, like police officers, who violate a person’s constitutional rights, unless the action violates clearly established law. per one million residents.

Soon after Floyd’s death, the state Legislature passed House Bill 5 that created a temporary New Mexico Civil Rights Commission to investigate and recommend ways to hold public officials to greater account, with Gov. Michelle Lujan Grisham signing the legislation June 26.

Nearly four months later, on Oct. 23, the commission voted 6-3 to recommend lawmakers pass a Civil Rights Act, creating a way to sue public officials for violations of the New Mexico Constitution. Commissioners also decided 5-4 that qualified immunity should not be a defense allowed under the new law, but unanimously agreed that state employees should be shielded from personal financial liability.

Qualified immunity is a legal doctrine resulting from a series of U.S. Supreme Court decisions that shields public officials, like police officers, who violate a person’s

Continued on 28 ➤

28

New Mexico In Depth • 2021 Legislative special edition

Continued from 27 ➤ constitutional rights, unless the action violates clearly established law.

While the impetus of the doctrine is to protect government employees from frivolous lawsuits, critics say it also enables public officials to violate people’s rights because they know they won’t be held accountable for damages.

The problem: holding public officials more accountable Despite the New Mexico Constitution providing rights that extend beyond those enshrined in the U.S. Constitution, commissioners who supported the proposed Civil Rights Act said without a statute it New Mexicans aren’t able to sue a person who violated their civil rights. Opponents disagreed, saying the state’s tort claims act allows such lawsuits.

Commissioners also tangled with whether qualified immunity should be allowed as a defense by public officials in state court.

Qualified immunity is a hot button issue, as the commission’s vice chair, Mark Baker, noted during an Oct. 23 meeting.

At the federal level, in order to clear the hurdle of qualified immunity, plaintiffs must show that a previous court has already established the behavior of the public official violated the law. In practice, it means that for a civil rights case to be considered, a case of nearly identical circumstances needs to have already been decided in courts.

The U.S. Supreme Court’s increasing use of qualified immunity to find in favor of police officers, in particular, has drawn widespread criticism from judges, lawmakers, legal experts and commentators from across the ideological spectrum, including from both conservative and liberal Supreme Court justices themselves.

A Reuters investigation last year found the “Supreme Court has built qualified immunity into an often insurmountable police defense by

Bella Davis/New Mexico In Depth

Supporters of Black Lives Matter listen to a speaker at the University of New Mexico. intervening in cases mostly to favor the police.”

“Qualified immunity has been almost abused in its interpretation in my personal opinion,” retired New Mexico Supreme Court Justice and NM Civil Rights Commission Chair Richard Bosson said to the Courts, Corrections and Justice Committee via video conference on Dec. 1.

But Bosson’s fellow commissioner, Gerald Byers, wondered aloud at an October meeting of the commission if qualified immunity were removed “what does the world do when there isn’t anyone to work in law enforcement?”

Some particularly vivid examples of the high bar plaintiffs must overcome provided by Commission Vice Chair Mark Baker included one

2019 decision by the 11th Circuit Court of Appeals “where an officer shot a child lying on the ground because he was trying to shoot the family dog, and the court found that the case had to be dismissed because there wasn’t another case where an officer accidentally shot a child, while trying to shoot a dog.”

A New Mexico case that was tossed out involved a student from Albuquerque’s Cleveland Middle School who was arrested in 2011 after burping in gym class. In 2017, Baker said, U.S. Supreme Court Justice Neil Gorsuch, then a 10th Circuit Judge, called out in his dissent that “officers should know that mere disturbances in a classroom shouldn’t trigger the arrest of a child, but the court found that the law was

not sufficiently clearly established to overcome qualified immunity.”

A June survey by Pew Research Center conducted the same week lawmakers were passing HB 5 suggests that two-thirds of the American public believe individuals need to have the power to sue in cases of police misconduct and excessive force, a stark rise since four years ago, according to the polling.

“Policing isn’t for African Americans and minorities,” said LaQuonte Barry, an Albuquerque organizer with Black New Mexico Movement, which was established in May to respond to excessive force by police that disproportionately affects black and Latinos in the state.

Continued on 29 ➤

New Mexico In Depth • 2021 Legislative special edition Continued from 28 ➤ Recent changes in the Legislature give Barry hope. “We have [Senator-elect Harold Pope Jr.] now in the Senate, so that that’s great because you have a black man, someone that knows our community, that they will be able to speak up,” Barry said, referring to the election of the state’s first black state senator.

Proposed New Mexico Civil Rights Act

The Civil Rights Act proposed by the commission would allow people to sue in district court for violations of civil rights afforded them under the New Mexico state constitution.

Qualified immunity would not be an allowable defense under the Civil Rights Act, but any damages awarded to plaintiffs would be paid by the government institution rather than the public official. In other words, employers of police officers would pay damages rather than the police officer themselves.

Currently, “there’s not a statute to enforce the rights that are provided for in the constitution,” said commission member Zackeree Kelin, a lawyer with the Albuquerque-based Davis Kelin Law Firm who has specialized in civil rights and personal injury law.

Andrew Schultz, a lawyer with the Albuquerque-based Rodey Law Firm, said the state’s constitution provides “all shield and no sword,” referring to a title of an article on state constitutional litigation he co-authored in 2018. Schultz and fellow co-author of the report, retired Court of Appeals Judge Linda Vanzi, contributed their civil rights expertise in New Mexico during the commission’s Sept. 3 meeting.

The commission’s report points out the “bizarre” dichotomy this creates: if you were to slip and fall on government property, you can sue for your injuries under the New Mexico Tort Claims Act. If you’re denied state constitutional rights,

such as the right to bear arms or exercise freedom of speech, you can’t recover damages.

“There’s been limited development of New Mexico constitutional law, in part because there isn’t a private right of action for citizens to enforce it,” Kelin said.

A similar shortcoming existed at the federal level but was remedied after the civil war with Section 1983, a federal statute that allows individuals to sue public officials for deprivation of rights.

Legal experts on the commission point to the case of Stephen Slevin as evidence that damages are a successful deterrent and tool for reform.

In 2013, a federal jury awarded Slevin $22 million in damages against Doña Ana County. Slevin had been held in solitary confinement for the better part of two years (22 months) without being charged – a violation of his constitutional rights. The detention followed a 2005 arrest on suspicion of driving under the influence. The verdict led New Mexico Counties to establish an accreditation program for county jails in collaboration with the New Mexico Municipal League. The program’s purpose is to establish professional standards and evaluate compliance with those standards, according to a document published by the NMML. The commission report pointed to the Slevin case to support that “compensating victims and instituting reform go hand-in-hand.” However, it recommended that damages be limited to an amount equal to the harm suffered by an individual.

Opposition voices on the commission primarily focused on concerns about costs and liability – will cities and counties be able to get insurance and will competent peace officers be deterred from working in New Mexico? – and the effectiveness of the courts for enacting reform.

A minority report, penned by

commissioners Kim Stewart, Victor Rodriguez, state GOP Sen. Steve Neville and Gerald Byers, the new district attorney for the Third Judicial District, contended a new state law is “unnecessary” and that it would “enrich lawyers while not benefiting victims.”

Dissenters point to the New Mexico Tort Claims Act as an existing path for individual remedy.

“The misleading headline that no remedy in state court exists if law enforcement violates a person’s state constitutional right was disingenuous as such remedy exists with New Mexico Tort Claims Act,” Rodriguez said in a presentation during the committee meeting in December.

But Schultz, who’s studied and written about the enforceability of the state constitution, sees limits to the Tort Claims Act. “...the entire Tort Claims Act lays out all the different torts that you can sue the state of New Mexico and other governmental entities for,” Schultz said. “You get to sue when you trip over the sidewalk; you get to sue when the highway isn’t right, you get to sue. All these different exceptions are laid out. And they put a cap on damages.”

“And if you have a claim against the state of New Mexico, and it doesn’t fall within one of those exceptions, you don’t get to sue,” Schultz said.

Majority members of the commission point out that to amend the state Tort Claims Act would still take an act of the Legislature.

“Before you today you have veteran law enforcement professionals telling you that bad government actors deserve accountability, but a new cause of action that causes additional civil liability for public employers isn’t the answer,” Rodriguez said to members of the Courts, Corrections and Justice Committee.

Dissenters suggested not enough attention was paid to reforms to discipline and licensing powers of the Law Enforcement Academy or col-

29 lective bargaining agreements.

The New Mexico Association of Chiefs of Police likewise challenged claims that the Civil Rights Act would help reform police.

“When we’re talking about police reform there’s no magic bullet or somebody else would have figured it out,” said NMACP President and Farmington Police Chief Steve Hebbe in an interview. “It is the basics – you hire good people, you have good policies, you train those people to those policies, and then you hold them accountable, and the better we do with that, the better policing gets. The worse we do at it, the worse policing gets, and right now the state is not doing a very good job of it, and they’re not investing the resources to do a better job of it.”

Hebbe points to the state Law Enforcement Academy as a better target for reform and echoes lawmakers and advocates in suggesting that training and certification responsibilities – both overseen by the LEA – be separated. The academy, which serves as the primary training center for peace officers in the state, is saddled with a backlog of cases to review for decertification, a bottleneck in the process of getting bad cops off the streets.

Hebbe also offers a prudent approach to a qualified immunity statute: Watch what happens in states, like Colorado, that have recently passed civil rights acts that don’t allow qualified immunity as a defense. He suggests keeping an eye on Colorado, which passed a similar law in June.

“If we study them for the next couple of years we can see did it work, or did it cause problems? Did cops leave the profession?” Hebbe said.“...I know it isn’t sexy…but every time we present that to the public that we’re going to do this one thing and it is going to reform police, and then it doesn’t work, everybody’s more stunned, everybody’s more outraged, everybody’s more angry.”

30

New Mexico In Depth • 2021 Legislative special edition

Could another costly redistricting battle be looming on the horizon for New Mexico?

The U.S. Supreme Court has essentially said there’s nothing unconstitutional about partisan gerrymandering.

New Mexico has some of the loosest redistricting rules in the country, elected officials are essentially allowed free rein. Meanwhile, more than 15 other states have laws barring lawmakers from favoring one party over the other and five states have banned the use of partisan data in drawing districts.

By Gwyneth Doland New Mexico In Depth

This winter lawmakers will lay the groundwork for the every-ten-years redistricting process, taking the first steps toward updating political districts to account for population changes.

While the actual maps will likely be drawn during a special session this coming fall, it’s just before and during this session that the Legislature will decide on the rules that govern the process—and reform advocates say this represents the biggest opportunity to change what has historically been, to put it mildly, an expensive cluster#$@%.

I spent much of 2019 researching redistricting in New Mexico for New Mexico In Depth, interviewing experts who had been involved in the process going back more than 30 years. (See my report at nmindepth.com). They described a process that is ostensibly transparent but in reality the public meetings are a “dog and pony show” and all meaningful decisions are made behind closed doors. For lawmakers it is primarily an “incumbent protection plan,” Democrats and Republicans told me, in which legislators choose their constituents, not the other way around.

The past two times the state went through this, the Legislature was controlled by Democrats and the governor was a Republican. Lawmakers failed to agree on some maps and the governors vetoed others and the process ended up in court, where it cost citizens millions of dollars in attorneys’ fees. That kind of dysfunction has been the rule, not

the exception, in the state’s history.

But this year could be different for several reasons.

First, Democrats have single-party rule for the first time in 30 years.

With control of the Legislature and the governor’s office, lawmakers will almost certainly agree on redistricting plans, the governor will almost certainly sign them and there will almost certainly be fewer lawsuits challenging the results.

Here’s why 2021 redistricting is less likely to end up in court: When

the Legislature fails to agree on maps or the governor vetoes one, then the state is without a valid plan, in violation of the state Constitution, and must pay attorneys’ fees for those who sue.

But if the plans are passed and signed—mission accomplished and Constitution satisfied—then anyone who wants to sue has to pay out of (a very deep) pocket. In decades past, civil rights advocates accomplished their most important reforms in the courts, while Republicans used law-

suits to push back against Democratic overreach.

As my 2019 report showed, the two most powerful forces in redistricting are partisanship and incumbency.

The U.S. Supreme Court has essentially said there’s nothing unconstitutional about partisan gerrymandering. State House Speaker Brian

Continued on 31 ➤

New Mexico In Depth • 2021 Legislative special edition

Egolf was accused of plotting to do just that after he made comments that appeared to suggest Democrats would make the state’s 2nd Congressional District less favorable to Republicans. (He later insisted that the process would be fair.)

Nevertheless, because New Mexico has some of the loosest redistricting rules in the country, elected officials are essentially allowed free rein. Nothing in state law right now prevents legislators from intentionally disenfranchising one party or from drawing a district around an incumbent’s house so he gets to keep his seat even as his district shrinks.

Meanwhile, more than 15 other states have laws barring lawmakers from favoring one party over the other and five states have banned the use of partisan data in drawing districts.

Good government groups have tried for years to persuade lawmakers to support an independent redistricting commission, without success. Even if the incoming Legislature supported the idea in January they wouldn’t be able to create such a commission (via constitutional amendment) in time for redistricting in 2021. But groups such as Fair Districts for New Mexico, a project of the League of Women Voters, have their eyes on more incremental changes that could be made relatively quickly.

“We are trying to impact the process by removing partisan influence and, furthermore, the practice of protecting incumbents of both parties,” says Fair Districts executive director Kathleen Burke.

The 2021 legislative session presents several opportunities for such change. Historically, before the session even starts, the Legislative Council committee (run by House and Senate leaders) draws up some loose guidelines. Then during the session, both houses pass a simple bill creating a temporary redistrict-

“

History has proven unequivocally that partisan gerrymandering is detrimental to democracy. The hindrance of democracy necessitates the need for change; and the change, in this case, is a departure from a long history of essentially unfair redistricting.

— Kathleen Burke, executive director, Fair Districts

ing committee, usually requiring that the committee abide by the guidelines. Lawmakers may also consider standalone bills that address redistricting.

Although redrawing political maps has a profound impact on voters and whether or not elected officials are responsive to them, real people are almost completely unaware of and uninvolved in the process. Public hearings on the subject during the summer draw only a handful of voters. The final decisions are made during a special legislative session that is sparsely attended — even when there’s not a global pandemic — and the vast majority of work is conducted behind closed doors. The public gathering constraints imposed by COVID-19 may only complicate the special session’s transparency issues.

Yet when asked, New Mexicans are very supportive of redistricting reform, according to a UNM Center for Social Policy survey released in December. More than 90% of voters said it’s important for legislators to consider new laws to reform redistricting. Voters also said they want a bigger say in the process, such as the ability to submit for consideration maps made by community members, and the ability to comment on all plans online.

“

Continued from 30 ➤

Last year the bipartisan policy group New Mexico First created a 25-member Redistricting Task Force that met during the fall and in mid-December approved a series of recommendations for major and minor reform.

The task force members agreed that ideally the task would be accomplished by an independent commission or that at least the maps would be prepared by an independent advisory board and lawmakers would have to choose from them.

There was consensus that partisan data shouldn’t be used to draw districts and near-consensus that the maps should not favor a political party or incumbent. If they’re successful in getting those ideas adopted they could radically change New Mexico’s deeply flawed process.

Of the several paths to accomplishing their goals, tightening the guidelines (which do not themselves carry the force of law) seems least likely. For the past two redistricting cycles, the guidelines have been effectively a perfunctory seven-point set of general principles quickly approved by the Legislative Council committee with little discussion— before the session even starts. And perhaps in part because redistricting only comes around every 10 years, there’s little institutional memory

31 about guidelines inside and outside the Roundhouse. When I asked about them in December, members of the task force knew of the guidelines but were unaware they would likely be decided before the session.

Task force members are focused on changing state law itself, in time to impact the redistricting special session later in the year.

“First, we want to avoid the millions of dollars that go into litigation,” says retired state Supreme Court Justice Edward Chavez, co-chair of the task force. More importantly, he says, group members agreed to prioritize improving fairness, transparency and public involvement. “The key to doing that is writing into the law [new] guidelines and eliminating those that would allow prioritizing party or incumbents.”

If lawmakers follow the task force’s recommendations, Chavez says, then they probably won’t be sued. But here’s what could change: If party or incumbent favoritism were illegal, citizens would have grounds to sue and courts could force lawmakers to remove the bias.

A spate of retirements and electoral upsets will bring many more new faces to Santa Fe in 2021. In the Senate there have been significant changes in leadership for Republicans and Democrats. But Senate Majority Leader Peter Wirth acknowledges the pressure for change.

“This obviously has got lots of attention focused on it and that’s a good thing,” he says. “I’m sure there’s going to be a variety of bills that come forward. There will be some tweaks to the process.”

Whether those tweaks fundamentally change the process remains to be seen. But reformers are sanguine.

“History has proven unequivocally that partisan gerrymandering is detrimental to democracy,” Burke says. “The hindrance of democracy necessitates the need for change; and the change, in this case, is a departure from a long history of essentially unfair redistricting.”

32

New Mexico In Depth • 2021 Legislative special edition

Commentary

Serious challenges await legislature in the 2021 session

W

ith the demise the Legislature passed HB has plenty of spending to cut, but of “moderwe also recognize the economic 6, a major tax hike. So, a ate” Senate situation imposed by the virus. more progressive Legislature may be inclined to And, with the departure of state Democrats in the 2020 Sen. John Arthur Smith, the Land raise taxes yet again. election, New Mexico’s According to the Feder- Grant Permanent Fund is likely to Legislature again shifts ation of Tax Administra- be tapped. leftward. As New MexiThe question is how the fund can tors, New Mexico has the By Paul Gessing cans turn their attention be used effectively given the chal7th-highest tax burden toward 2021 the state in the nation. And with lenges we face as a state. Democrats remains in the throes of so many businesses and will get their universal pre-K and COVID-19 and the virus families struggling to make ends other “early childhood” programs, shows no signs of letting up. but something needs to be done What does all of this mean for the meet or stay above water during to help two groups that have been 2021 Session? For starters there are these extremely challenging times, raising taxes would be unconsciodevastated by the pandemic and real questions about the logistics nable. Former Gov. Bill Richardson, Gov. Michelle Lujan Grisham’s of a 60-day session under COVID. lockdown. said it best in May when he wrote, A “Zoom” special session like we 1) During the past year student “Don’t raise taxes of any kind.

We had in June is one thing, but a 60learning has been put on hold need to attract new businesses and, day session is much different. The and families have faced numerous public needs to have access to their if anything, get rid of the onerous challenges with virtual schooling. double Social Security tax.” elected officials.

Experts and parents alike predict a Richardson is absolutely right.

Logistics are up in the air, but we “lost year” for many students. The We still believe that New Mexico know some of the big issues. Marijuana will likely be legalized this session and that is a good thing.

But marijuana can’t be a “cash cow” used to fill deficits and the state’s With the demise of “moderate” Senate Democrats in bottom line. New jobs and revenue the 2020 election, New Mexico’s Legislature again shifts are welcome, but the Legislature must also recognize that we are leftward. As New Mexicans turn their attention toward competing with Colorado and 2021 the state remains in the throes of COVID-19 and (now) Arizona. Taxes and regulations must be balanced against the virus shows no signs of letting up. New Mexico’s reducing the black market as well as Legislature is as “progressive” as it has ever been, but we competing with neighboring states.

In terms of economic policy, both also face more serious challenges than ever. Marijuana tax hikes and tapping the permalegalization and tapping the permanent fund (if used nent fund will be on the table this year to address what will likely be appropriately) can help address the current situation, but a very challenging budget situathere could not be a worse time than now to raise taxes. tion. In 2019 with a billion dollars surplus due to the oil and gas boom

Smart, investigative journalism for New Mexico Find our reporting at

state should put financial resources behind helping families deal with the financial challenges of educating their children at home.

Additionally, funds should be made available to give parents of all income levels options of public or private schools for their children; 2) The permanent fund could also be leveraged to assist businesses and get the state economy on firm footing. Lujan Grisham has proposed a $25 million fund to assist the hard-hit tourism industry. The concept should be expanded to include all manner of businesses that have been devastated by the pandemic and lockdowns.

New Mexico’s Legislature is as “progressive” as it has ever been, but we also face more serious challenges than ever. Marijuana legalization and tapping the permanent fund (if used appropriately) can help address the current situation, but there could not be a worse time than now to raise taxes.

Paul Gessing is president of New Mexico’s Rio Grande Foundation.

The Rio Grande Foundation is an independent, nonpartisan, tax-exempt research and educational organization dedicated to promoting prosperity for New Mexico based on principles of limited government, economic freedom and individual responsibility. The views in this column are the author’s alone and do not reflect the view or opinions of New Mexico In Depth.

33

New Mexico In Depth • 2021 Legislative special edition

Commentary

Whether we come from urban or rural communities, everyday New Mexicans are united in push for progress

I

over 50 years ago. I have ’m a 12th generation family who live in AlNuevo Mexicana (give or take a few buquerque and Santa Fe. generations). My family My parents may have can trace their presence in left their homelands but this region from time imthe homelands never left memorial to well before them, and my sisters and By Andrea J. the time this land was I were raised with the Serrano Mexico, a U.S. territory traditions of our families and eventually the 47th mixed in with the realistate. I’m as New Mexican as they ties of living in the city. Many famget. My blood type is red or green. ilies who migrated from rural New I will argue the virtue of the New Mexico moved into neighborhoods Mexico blue sky with anyone, any that were similar to the communiday. The Sandia Mountains take ties they left. Neighbors looked out my breath away every time I see for one another, shared stories from them. their towns and found familiarity While my five sisters and I were amongst each other. born in Albuquerque, our family I never thought of my family comes from rural New Mexico. My in Albuquerque and my family mom was born in the small town in rural parts of New Mexico as of Cedar Grove, nestled in the east being separate. That which bonds side of the Sandia Mountains, near us is stronger than the geography Golden. My dad was from Youngs- of where we live, which is why ville, a town in northern New Mex- the false narrative of an “urban/ ico so small they no longer have a rural divide” being pushed by some post office. My mom and grandma lawmakers is laughable at best, moved to Albuquerque in 1958 and and dangerous at worst. The idea my dad moved there in 1959. They that people who live in urban cities met years later in Old Town and care less about our neighbors and eventually settled in the neighborfamilies in rural New Mexico is hood of Duranes, where I was born a pathetic attempt to divide New and raised. I often refer to myself Mexicans for political gain. as “city with rancho roots.”

The idea that there is a nefarious I have family that still live in plot by some legislators to oppress the small towns my parents left rural New Mexicans is baseless

- and it’s a claim being made by other legislators! I am always bewildered by people who are elected who degenerate elected officials or politics, as if they are somehow outside the very system they willingly joined.

The primary saw the end of an era in the state senate - gatekeepers who blocked progress for decades were defeated in the primaries because voters had had enough. Outof-state corporations like Chevron poured hundreds of thousands of dollars into these primaries as an attempt to protect the incumbents, but the will of voters was stronger than their dollars. Time and time again, lawmakers like John Arthur Smith and Clemente Sanchez gave tax breaks to the wealthy and deprived hard working New Mexicans of any sort of opportunity for advancement- and they served rural districts!

The reality is that some lawmakers have spent years growing their own power on the backs of their constituents, much to the detriment of our entire state. The issue isn’t that lawmakers from urban centers want to do harm to rural New Mexicans; the issue is that there are lawmakers who will sell out New Mexicans - rural and urban alike - because their corpo-

Smart, investigative journalism for New Mexico Find our reporting at

rate donors want yet another tax cut; the wealthy need more wealth while New Mexicans barely get by; greedy corporations want welfare while New Mexican children go hungry. The true enemy of the people of our state are not “urban progressives” but rather lawmakers who would rather keep our state in last place than climb out of the pockets of their wealthy donors.

Last year, in this very publication, I wrote “those who wish to obstruct progress must concede their notions of absolute power, or they can concede their seats in 2020.” Let the loss of some of the most powerful senators in the state be a lesson to current lawmakers: act on behalf of the people - all New Mexicans, regardless of geography, or voters will find someone who will.

I’m proud of my rancho roots, and I’m a proud Burqueña. I am New Mexican, and I look forward to the big changes our Legislature can achieve this session.

Andrea J. Serrano is executive director of OLÉ in Albuquerque. The views expressed in this column are solely those of the author and do not represent or reflect those of OLÉ, its board, staff or New Mexico In Depth.

34

New Mexico In Depth • 2021 Legislative special edition

Commentary

Lawmakers must stabilize revenue streams and send more help to New Mexicans most impacted by pandemic, recession

W

e can build the economic shocks, due in kind of New large part to this over-reliMexico we all ance on oil and gas revewant – one where jobs nue, according to a recent pay a family-sustaining report. wage and children receive Oil price volatility has a world-class education long been a problem, but – but only when everyBy James Jimenez the COVID-19 pandemic one does their part. That has put a sharper focus on means having a stable and it, as well as on racial and equitable tax system – one that asks ethnic disparities. Economic disthe most from those who have the parities are tied to health disparimost and raises the money we need ties, which has been made painfully to make the investments in educaclear as this pandemic has had the tion, health care, infrastructure, and most devastating impact on our more that help drive our economy. highest-poverty areas – which are It also means ensuring that our more likely to be communities of state government has the resources color. Census data show that areas necessary to support families hurt- in New Mexico with the highest ing the most during times of crisis. poverty levels have 10 times the Thanks to crashing oil prices and COVID-19 infections as do those overproduction here at home, it with the lowest poverty levels. is clear that New Mexico does not Our lawmakers must take dehave the kind of revenue stability cisive action to get more help to that would help us sustain those the New Mexicans most impacted investments in our people over the long-term. We cannot subject our educational system to the oil-price roller coaster and expect positive outcomes. What’s more, our over-reliance on revenue from oil and gas extraction has only exacerbated our inability to handle even greater economic problems – such as the pandemic and resulting recession. In fact, New Mexico is among a handful of states that are less able to “bounce back” from

by the pandemic and recession – particularly those who are left out of federal relief – and to stabilize the revenue streams that feed our state budget. This must be done by enacting another fiscal relief package, and by repealing the tax cuts for the wealthy and well-connected, who are disproportionately white.

None of these tax breaks brought the promised benefits to the state – no new jobs or influx of rich people – but they did make us far more reliant on oil and gas revenue, made our tax system more inequitable, and increased the staggering wealth gap between white families and families of color.

Policies like tax cuts that overwhelmingly benefit those at the top are part of the systemic racism that has plagued this nation since before its inception. It is remarkable that New Mexico – a state with a majority population of people of

Thanks to crashing oil prices and overproduction here at home, it is clear that New Mexico does not have the kind of revenue stability that would help us sustain those investments in our people over the long-term. We cannot subject our educational system to the oil-price roller coaster and expect positive outcomes.

Smart, investigative journalism for New Mexico Find our reporting at

color – has enacted policies that cement racial inequity into its own tax code. These policies help ensure that those who earn the least money pay a much larger share of their income in state and local taxes than do those who make the most money – who pay the smallest share of their income in these taxes. Now is the time to fix this inequity.

Thanks to the hard and often painful work of those who’ve brought attention to the fact that people of color are far more likely to die at the hands of police, systemic racism is now a part of our national conscience. If we cannot root out the systemic racism in our state’s own tax code now, when will we? We must all urge our legislators to repeal these racist tax policies.

They must use some of the revenue that will be raised to help those who are hurting the most because of the pandemic and invest the rest in the public structures – our schools, hospitals, roads, and more – that create jobs and help our economy.

James Jimenez is the executive director of New Mexico Voices for Children. Follow them on Facebook, Twitter, Instagram, Flickr, and YouTube. The views in this column are the author’s alone and do not reflect the view or opinions of New Mexico In Depth.

New Mexico In Depth • 2021 Legislative special edition

35

Commentary

A look at fusion voting in New Mexico: Bringing more voters, more choices into our democracy is a good thing for everyone

T

he New Mexico vative Party would appear 2015.

But like in many other states, Legislature has on their line. progress made under fusion was made great strides Fusion voting was a targeted for elimination as major common practice in New in the last few years toparties made a play to consolidate Mexico in the late 19th ward opening up our state power. Why does this matter? With and early 20th centuries. elections to more voters.

In 1896 the Populist Party only two choices, we are stuck in a Same-day voter registration was passed in 2019,

By Eric Griego in New Mexico endorsed dualistic democracy. You vote for the Republican or the Democrat.

Democratic Party guberautomatic voter regisVoting for a third-party candidate, natorial candidate Harvey tration was codified and they made it easier to vote absentee. Butler Ferguson and the platform of if one is even available, is considthe state Democratic party as well. ered “throwing away” your vote.

Historic turnout in 2020, especialThere were fusion candidates in Rio Worse yet, voting for a non-viable ly among first time and younger Arriba, Socorro, Sierra, Lincoln and third party candidate can lead to a voters is evidence these democracy Otero counties in the 1910 elec“spoiler” effect where an even lesser reforms worked. preferred candidate could win the tion.

In the 1916 elections, “IndeThe 2021 session has several election. pendents fused with Democrats in proposals that build on past sucFusion voting provides more the counties of the Hispano north; cess, including increasing access choices by allowing voters to the Progressive Party handed its to polling sites especially in tribal express support for third-party delegates over to the Democratic communities, opening primaries to platforms and impact the outcome nominating convention; and county independent and minor party votof the election. This is the opposite Democrats effectively invited uners, and using ranked choice voting happy Republicans into their camp,” of, and the antidote to, the binary for certain elections. choices voters are faced with in wrote Dr. Phillip Gonzales in the You may also hear about an each election. Under a fusion sysNew Mexico Historical Review in important “new” proposal called “fusion voting.” While new to many, fusion voting has been used successfully in several states for Fusion voting provides more choices by allowing centuries, before it was targeted by voters to express support for third-party platforms and major parties for elimination. In the simplest terms, fusion voting is a impact the outcome of the election. This is the opposite system that allows multiple political of, and the antidote to, the binary choices voters are parties to support the same candidate. Under fusion voting, a Demfaced with in each election. Under a fusion system, ocratic candidate nominated by the voters who don’t fit neatly into the Democratic or Working Families Party would appear on the WFP ballot line in the Republican boxes but don’t want to cast a protest vote election, or similarly a Republican can participate constructively in politics. candidate endorsed by the Conser-

Smart, investigative journalism for New Mexico Find our reporting at

tem, voters who don’t fit neatly into the Democratic or Republican boxes but don’t want to cast a protest vote can participate constructively in politics.

Today, eight states allow fusion voting, and once upon a time, all 50 states allowed it. Long before third parties got branded as the reason bad presidential candidates won elections, they played a critical role in American politics. Third parties took part in the fight to abolish slavery, the institution of the eighthour day, unemployment insurance, women’s suffrage, Social Security, child-labor laws. It was third parties that introduced these “radical” ideas into the mainstream of consciousness. Third-party politicos dared to dream of a better world before major party bosses deemed them conventional wisdom.

This year we are bringing it back and hope voters and legislators will agree that more choices are better for our democracy. Regardless of party, fusion will mean more options for voters, better policies for working people, and a stronger democracy.

Eric Griego is State Director of the Working Families Party and a former Democratic State Senator. The views in this column are the author’s alone and do not reflect the view or opinions of New Mexico In Depth.

36

New Mexico In Depth • 2021 Legislative special edition

Absence of watchdog groups means lawmakers must proceed with caution

W

watchdog legislative activity? What ith news that this upcoming session on the 2021 legisare the chances that something any changes to the Camlative session paign Reporting Act, the could go wrong and that efforts at would be held virtually – Voter Action Act and the improving ethics-related laws turn with the public and lobbyLobbyist Regulation Act, into schemes to weaken legislation? ists prohibited from being “necessary for the effiThese concerns are being in the capitol building cient administration and weighed by all. Due to New Mex– it’s likely that legislative By Kathleen Sabo enforcement of the provi- ico’s unique constitutionally managendas are being adjustsions” of these acts. dated legislative system, a long, ed. For interested citizens, In their annual report, substantive session comes around lobbyists and state agencies charged the commission puts forth a disonly once every two years. (2019, with reporting to or suggesting cussion draft of legislation that 2021, 2023, etc.) Shorter sessions reforms to the Legislature, the most essentially assigns the administraoccurring in even-numbered years important question may be how to tive tasks provided for in the CRA, may address: 1. Budget, appropriparticipate in the upcoming sesVAA, LRA and Financial Disclosure ation and revenue matters; 2. Bills sion - in floor sessions, committee Act (FDA) to the Secretary of State put forth by special messages of the meetings, and with all important governor; and 3. Bills vetoed by the and adjudication and enforcement personal visits with individual governor in the last regular session. authority to the commission. legislators – in order to protect the That means that by the time In other years we would be public interest. another long, substantive session cheering the commission on, Because we have a citizen legarrives in 2023, another election urging them to use their position islature, with short sessions and cycle will have passed (2022), withto propose this change and more limited full-time and seasonal staff out needed reforms to the CRA, … but is that wise in this unpreceavailable to legislators, lawmakers dented time? Do we want legislators the LRA, the FDA and the Governoften rely upon lobbyists to educate working on reform of these acts mental Conduct Act (GCA), unless them about legislation, particularly without sufficient public input and proposed by the governor in the complex legislation. That element short 2022 session. opportunity to participate in and will also be missing.

So, what do we wish for in the upcoming session and how do we accomplish it?

As a watchdog group and an advocate for necessary The newly formed State Ethics reform, New Mexico Ethics Watch will be observing the Commission filled a void in state government. Within the legislation session closely and participating as we are able. We’ll enabling the commission (2019’s SB expect House and Senate leadership to monitor and 668), not only is the commission required to submit an annual report promote public access to and participation in public to the Legislature and governor that hearings and meetings. We, and others, will work to includes recommendations regarding state ethics laws, the Legislahold lawmakers accountable during what will be the ture was specifically charged with unprecedented nature of the upcoming session. making recommendations during

Smart, investigative journalism for New Mexico Find our reporting at

What to do? One solution would be for a special, substantive session to be called before the 2022 elections, but there has been no talk of that. (Although support for this may grow during and after the 2021 session, depending upon how things go.)

As a watchdog group and an advocate for necessary reform, New Mexico Ethics Watch (NMEW) will be observing the session closely and participating as we are able. While we may choose to not support or generate as many legislative proposals as we might otherwise in a non-pandemic session, we WILL be looking for and calling out any proposals and/or amendments that would further weaken already anemic ethics-related laws.

We’ll expect House and Senate leadership to monitor and promote public access to and participation in public hearings and meetings.

We, and others, will work to hold lawmakers accountable during what will be the unprecedented nature of the upcoming session.

Will this strategy work? Time will tell.

Kathleen Sabo is executive director of New Mexico Ethics Watch, a non-partisan organization dedicated to promoting ethics and accountability in government and public life in New Mexico. The views in this column are the author’s alone and do not reflect the view or opinions of New Mexico In Depth.

New Mexico In Depth • 2021 Legislative special edition

37

Common Cause New Mexico to focus on judicial public financing, redistricting, open primaries during this session

T

his past year, Comof interest. This also allows mon Cause New them to focus their time Mexico—along on their court’s case dockwith many other groups— ets, not on trying to raise spent the majority of our large campaign contributime ensuring that this tions. historic pandemic did not Under the current sysBy Sydney Tellez tem, judicial candidates deter New Mexico citizens from exercising their are obligated to raise cammost important right: paign funds from individthe right to vote. For months, we uals and corporations, but at the worked with community partners same time, they must ensure that to instruct voters on registration they do not know which donors and absentee voting, worked with contributed to their campaigns. county clerks and Native American This is done in order to comply groups to ensure ballot access, ran with the Judicial Ethics Code. This a hotline, and fielded hundreds of precarious position — raising monelection protection volunteers for ey from donors and then turning a the general and primary elections. blind eye at fundraising events as We are delighted with our state’s donors’ checks are passed to their record turnout and our hats are off campaign treasurer — is absurd. to all of the poll workers, election Without having a public financofficials, community advocates, and ing option for judicial district court especially, the numbers of engaged races, the bulk of our state’s judivoters who made this happen. We ciary remains vulnerable to outside hope that many of the policies that special interest groups’ spending, helped make voting easier this year many of whom have already been will continue into the future. injecting vast amounts of “dark And now, onto the 2021 Legislamoney” into judicial elections tive Session. throughout the country.

Our first legislative priority is the In 2016, we conducted interviews expansion of public financing to of former judges, justices, attorneys district court judges. Currently, this and current district judges regardvoluntary system covers only the ing the funding of judicial camstate Supreme Court and Court of paigns. Our results showed that the Appeals. Expanding our currently vast majority of our judiciary and successful state program is the best members of the bar—both Republicans and Democrats — wanted way to ensure that our judges are to see our state’s public financing protected from potential conflicts

program expanded to include all judicial races.

This year, Sen. Katy Duhigg and Sen. Peter Wirth will introduce legislation expanding judicial public financing.

Another legislative priority is to allow independent and “decline to state” voters to vote in partisan primary elections. Sometimes known as “Open Primaries,” the particular bill we support enables the growing number of unaffiliated voters in New Mexico to vote in state-financed primaries without changing their registration to affiliate with one party or another. Without the ability to vote in primaries, approximately one third of our electorate is shut out from these important decisions. This is critical because elections are often decided in either the Democratic or Republican primary since many districts are “safe” Republican or Democratic areas, where the registration edge precludes any real competition.

Senator Duhigg and Representative Daymon Ely will carry this legislation, which does not require a voter to sign up for a specific party.

A 2019 poll taken for Common Cause indicated that 82% of all registered voters surveyed favor opening primaries. Since then, the number of DTS voters has increased, with many younger voters declining to affiliate because they are averse to the two-party system.

Smart, investigative journalism for New Mexico Find our reporting at

We also will support legislation to address long-overdue redistricting reforms. For years, our annual polling has shown strong public support (57% in 2020) to create an independent commission to draw district lines. This year, we have been working with Fair Districts New Mexico, to introduce other reforms that would allow increased transparency and public participation in this decennial process. Senator Jerry Ortiz Y Pino and Senator Mark Moores will introduce reforms that are focused on reducing partisanship and the tendency to protect incumbents in the redistricting process—both of which lead to gerrymandering. From our elections work to our work on gerrymandering, all of these pieces are interconnected, and lift up the foundations of good government and inclusive democracy in New Mexico.

Common Cause is a nonpartisan grassroots organization dedicated to upholding the core values of American democracy. We work to create open, honest, and accountable government that serves the public interest; promote equal rights, opportunity, and representation for all; and empower all people to make their voices heard as equals in the political process. The views in this column do not reflect the view or opinions of New Mexico In Depth.

38

New Mexico In Depth • 2021 Legislative special edition

Wear Masks, Stay 6 Feet Apart, Avoid Crowds, Wash Hands

Stay Informed About Efforts to Combat COVID-19 in New Mexico Health Information | cv.nmhealth.org Education and the Economy| newmexico.gov Register for the Vaccine | cvvaccine.nmhealth.org

39

New Mexico In Depth • 2021 Legislative special edition

...to our generous supporters in 2020 Aletta Wilson Allegra Carpenter Andrea F Walters Andrea Fineberg Andrew Webb Arlee Green Arthur Schreiber Ben Shelton Birgitta Gustafson Brenda Sue Griffith Brian Egolf Bruce Wetherbee Carla Clark Carlton Allen Carmen Lopez Charles Goodmacher Charles Romero Charlie Marquez Cheryl Coyle Cheryl Ferrell Cheryl Landgren Chris Mechels Christine Everett Claudia Isaac Cristy Holden Damien Willis Daniel Najjar Daniel Yohalem Dave Maass David Wheelock Deborah Condit Debra Anderson Denise Fort Diane Garrity Dino Chavarria Don Kurtz Donna Thiersch

Dorothy Bowen Dylan Smith Edward Lujan Edward Ranney Elene Gusch Elizabeth Bustamante Elizabeth Glenn Elmer Jackson Eric Unzicker Eva Vasquez Evan Mackinder Felicia Alexander Frank Valdez Gabriela Ibanez Guzman Gail Owens Gaile Herling Gregory Williams Griffin Palmer Guy E Jennings III Henry Shonerd Jack Ferrell Jacquelyn Robins Jake McCook James Harrington James Jimenez James Lewis James Mathews James Montalbano James Rosenthal Janice Langdale Jarratt Applewhite Jeff Dickson Jenni Cloud Jim Baca Joel Davis John Konopak John Lawrence

John Robertson Joseph Alcorn Joseph Yaroch Judith Minks Judith Williams Kate Noble Katherine Duff Katherine Gustafson Kathleen Cody Kathryn Lockridge Kay Bird Lawrence O'Hanlon Les Simpson Linda Fertal Linda Siegle Lisa Domenici Lora Lucero Lori Horvitz LR Mink Lyn Deardorff Lynn Lee Marc Kahn Margaret Rankin Margarita Hibbs Margo Chavez Charles Margo Landon Marjorie Childress Mark Lee Corey Mary Furlow Cole Mary Miller Mary S Campbell Mary Smith Mary Wheeler Meredith Machen Michael Fetterolf Michael Jensen Michael Marcotte Michael Melody

Michaelangelo Allocca Micheal Browde Mickey Curtis Mieka Ritsema Nancy Harbert Nikki Hooser Norm Gaume Pam Rogers Pamela Blackwell Peter Katel Peter Klages Peter Rankaitis Pfeifer Family Fund Philip B Davis Pierre Pfeffer Preston Dunavant Ralph Estes Raymond Sanchez Rebecca Shankland Richard Holmes Robert Khanlian Russell Griswold Russell Mink Russell Sandenaw Ruth Childress Ryan Singh Sandra Fish Sandra L Almand Sara Berger Sarah Hoffman Scott Allocco Shannon Freedle Shannon Robinson Sharon Shoemaker Shawn Mathis Sonya Gravlee Stephen Elliott Steve & Karen Wentworth Steven Kopelman Stuart Bluestone Susan Carter

Susan M Estell Suzan Williams Suzanne Jamison Tara R Bloyd Teresa Burke Terri Cook Terry Schleder Theron Rodgers

Thom Allena Tricia Holser Vennie Eline White Victoria Tafoya Virginia Murphy William Tiwald William Varuola William Wiley

Special thanks to our journalism partners: • • • • • •

The ProPublica Local Reporting Network The Las Cruces Sun News The Carlsbad Current-Argus The Santa Fe Reporter The Santa Fe New Mexican The Institute for Nonprofit News

d

partner

university and

• The Department of Journalism and Media Studies at New Mexico State University • The Department of Communication and Journalism and the New Mexico News Port at the University of New Mexico.

• Stanford University Department of Communication • Columbia Journalism School • Con Alma Health Foundation • Google, Inc. • Inasmuch Foundation • Lenfest Institute for Journalism • New Mexico Local News Fund • Report for America • Solutions Journalism Network • Thornburg Foundation • W.K.Kellogg Foundation

40

New Mexico In Depth • 2021 Legislative special edition

New Mexico In Depth New Mexico In Depth is an investigative news organization that produces vigorous, data-rich stories that can be a catalyst for change.

Don't miss out on our year-round coverage of New Mexico's most pressing issues: EDUCATION, ENVIRONMENT AND ECONOMY, PUBLIC HEALTH, AND ETHICAL GOVERNMENT. Find us: nmindepth.com | facebook.com/NMInDepth | twitter.com/NMInDepth Get our articles in your email: http://bit.ly/NMIDsignup