Lawsuit Says New Mexico’s Campaign Finance Law Unconstitutional

Posted by James Madison CenterOct 14, 20110 Comments

Thursday, October 13, 2011

A group of plaintiffs has filed a lawsuit challenging the constitutionality of New Mexico's new campaign finance laws. The lawsuit alleges that the new limits on contributions to political parties and from political parties to their candidates, as well as the new limits on contributions to committees that spend money independently of any candidate, are unconstitutional.

Political parties in New Mexico used to be able to accept unlimited contributions from their supporters, and could make unlimited contributions to their candidates. The lead plaintiff, the Republican Party of New Mexico, explained in its complaint that it wants to accept unlimited contributions from the national Republican Party, as well as from individual donors who live in New Mexico, and support its candidates with as much money as it can raise. Interestingly, the Republican Party said that it wants the Democrats to be able to do so, too, because it believes that the same First Amendment that protects its political speech protects the Democrats' speech as well.

Two other plaintiffs are political groups that engage in spending that is completely independent of any candidate's input. They want to be able to continue accepting unlimited contributions to fund their political speech, which they assert is their constitutional right.

Additional plaintiffs include two county political parties, two state senators, and several individuals who want to make contributions that are above the current limits.

James Bopp, Jr., the lead attorney for all the plaintiffs, explained that the First Amendment to the United State Constitution protects the right to make and receive political contributions. “The Supreme Court has said that the only reason the government may limit contributions is if there is a danger that the contribution might be used to corrupt a candidate. The test is whether the contribution is one that might lead a candidate to make a deal with the contributor so that the contribution buys the candidate's vote if he gets elected. But contributions made to political parties cannot lead candidates to make deals with contributors, because the contributions are not being made to candidates—they are being made to parties. And contributions from political parties to their candidates cannot lead candidates, if elected, to vote a certain way, because candidates already agree with their parties' positions. That is why they are members of their particular party. So there is simply no interest in restricting contributions to political parties, or contributions from political parties to candidates. It is unconstitutional for New Mexico to do so.”

Mr. Bopp also explained why New Mexico cannot limit contributions to political groups that spend money completely independently of any candidate's input. “Once again,” Mr. Bopp said, “the question is whether the money could be used to buy a candidate's vote. The Supreme Court has ruled that spending done independently of candidates cannot buy votes—only spending that the candidate has input in can do that. So the Supreme Court has ruled that government cannot limit spending that is totally independent of candidates. And since the spending itself is by definition noncorrupting, then contributions for that spending is noncorrupting as well.”

In addition to filing their lawsuit, the plaintiffs filed a motion for preliminary injunction, which means they want the Court to order the State to not enforce the law while the lawsuit proceeds.

The case is Republican Party of New Mexico et al. v. King. The court documents may be viewed at cases/10-12-2011/720/.

James Bopp, Jr. has a national federal and state election law practice.  He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.