10th Circuit: New Mexico campaign finance law interferes with political expression

A former state senator says he was improperly penalized for giving a student a $200 donation to attend a summer college and career workshop, an alleged violation of his freedom of speech.(CN) — The 10th Circuit revived a former state senator’s challenge to a New Mexico law that governs what types of donations politicians can make with campaign funds, finding a portion of the statute violates the First Amendment on its face.Vacating a summary judgment ruling for New Mexico Secretary of State Maggie Toulouse Oliver, a 10th Circuit panel decided Tuesday that the secretary cannot discern what donations carry political expression when making exceptions to the Campaign Reporting Act (CRA), a statutory ban on campaign fund donations to non-501(c)(3) organizations or individuals.“Under Defendant’s own reading, then, the CRA’s prohibition on donations to non-501(c)(3) organizations and individuals facially implicates expressive activity and is subject to First Amendment scrutiny,” wrote U.S. Circuit Judge Joel Carson, a Donald Trump appointee, in a 20-page opinion remanding the case to New Mexico district court.The three-judge panel heard the case in November after a district judge found that Democratic state Senator Jerry Ortiz y Pino’s $200 check to pay for a student’s entry into a summer college and career workshop in 2021 did not constitute a meaningful political expression.U.S. Circuit Judges Harris Hartz, a George W. Bush appointee, and Robert Edwin Bacharach, a Barack Obama appointee, also sat on the panel.New Mexico’s Campaign Reporting Act plainly limits political donations using campaign funds to donations to other candidates or political committees, the state general fund, or 501(c)(3) organizations. At the summary judgement stage, Secretary of State Toulouse Oliver said she “considers any funds spent for the purpose of conveying the political viewpoints of a candidate or publicizing their candidacy to be permissible ‘expenditures of the campaign.’”Thus, the prohibition on donations to non-501(c)(3) organizations or individuals shrinks to what the secretary considers not to be expenditures of the campaign, which she says are those for “personal use or personal living expenses, that would exist regardless of the candidate’s campaign.”“The district court accepted this interpretation as ‘undisputed’ and concluded that the CRA does not prohibit any donation that constitutes speech,” Carson wrote. “Yet, we cannot rely on ‘faith in government representations of prosecutorial restraint’ to rewrite unconstitutional laws. … And reading the CRA as permitting anyexpenditure that conveys a political viewpoint or publicizes the campaign under subsection (A)(1) ‘requires rewriting, not just reinterpretation’ of the statute.”The panel suggested any expenditure prohibited by the statute could be construed as political expression: A tuition payment to a non-campaign-affiliated student could convey a political viewpoint on education policy or student debt. A candidate could express a political viewpoint by buying themselves or an associate an American-made car.“Further, even if ‘all applications relating to political speech are … campaign expenditures’ as Defendant suggests, the CRA would still regulate expressive activity,” Carson wrote. “In this case, Defendant referred Plaintiff’s donation to the State Ethics Commission and the Attorney General although he may have engaged in expressive conduct when he donated campaign funds to ‘voice [his] support for’ a student ‘pursuing a career in legal advocacy.’”“While this donation may not have expressed a politicalview, ‘[t]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political,’” he added.Toulouse Oliver urged the panel to apply a facial challenge standard, arguing that at least some of the statute’s prohibitions include personal, nonexpressive campaign expenditures, including “campaign expenditures for home improvement.” Because those prohibitions do not implicate speech, defendants argue that the statute is at least in some part “plainly legitimate.”“It may be true that many of the CRA’s other prohibitions are ‘plainly legitimate,’ but Plaintiff does not attack these prohibitions,” Carson wrote. “Instead, he specifically challenges subsection (A)(4)’s ‘de facto’ ban on charitable donations to non-501(c)(3) organizations and individuals.”It wasn’t until nearly three years after Ortiz y Pino wrote the check that he was asked by Toulouse Oliver to replace the $200 in his campaign fund with his own money, threatening to refer him to both the state’s ethics committee and its attorney general if he refused. After explaining in response that the law is unconstitutional, Ortiz y Pino heard nothing back until March 2024, when Toulouse Oliver made good on her promise.Ortiz y Pino sued days later, asking a New Mexico judge to block Toulouse Oliver from enforcing the statute governing campaign spending and require her to withdraw her referral.U.S. District Judge Margaret Strickland, a Joe Biden appointee, granted a preliminary injunction to Ortiz y Pino on his first request, but later reversed course and issued summary judgment in favor of Toulouse Oliver.The panel did not decide at this stage whether Ortiz y Pino pleaded sufficient facts to demonstrate that he engaged in expressive conduct while making the donation. The district court will decide that on remand.Neither party replied to a request for comment by press time.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads