N.M. Youth Organized v. Herrera

• Decision Date: 30 June 2010
• Docket Number: No. 09-2212.,09-2212.
• Citation: 611 F.3d 669
• Parties: NEW MEXICO YOUTH ORGANIZED, a project of the Center for Civic Policy, and Southwest Organizing Project, Plaintiffs-Appellees,v.Mary HERRERA, in her capacity as Secretary of State, Defendant-Appellant,James Madison Center for Free Speech, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

611 F.3d 669

NEW MEXICO YOUTH ORGANIZED, a project of the Center for Civic Policy, and Southwest Organizing Project, Plaintiffs-Appellees,v. Mary HERRERA, in her capacity as Secretary of State, Defendant-Appellant,James Madison Center for Free Speech, Amicus Curiae.

No. 09-2212.

United States Court of Appeals Tenth Circuit.

June 30, 2010.

Scott Fuqua, Assistant Attorney General (with Gary King, Attorney General of New Mexico, on the briefs), Santa Fe, New Mexico, for Appellant.

Sara Berger, Freedman Boyd Hollander Goldberg Ives & Duncan, P.A., (with John W. Boyd and David H. Urias on the brief), Albuquerque, New Mexico, for Appellees.

James Bopp, Jr. and Randy Elf, James Madison Center for Free Speech, Terre Haute, IN, filed an amicus curiae brief on behalf of the James Madison Center for Free Speech on Behalf of Appellees.

Before BRISCOE, Chief Judge, HOLLOWAY and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Mary Herrera, the Secretary of State of New Mexico, appeals the district court's grant of summary judgment in favor of the appellees, New Mexico Youth Organized and Southwest Organizing Project. The district court ruled that Secretary Herrera's attempt to regulate these two organizations was unconstitutional. In assessing the constitutionality of the attempted regulation we apply principles from Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), and its progeny, especially Colorado Right to Life Committee, Inc. v. Coffman (“CRLC”), 498 F.3d 1137 (10th Cir.2007). Because we agree with the district court that the Secretary of State cannot constitutionally regulate the organizations, we affirm the district court's grant of summary judgment.

I. FACTUAL BACKGROUND

A. New Mexico Youth Organized and Southwest Organizing Project

The New Mexico Youth Organized (“NMYO”) is a statewide project run by the Center for Civic Policy (“CCP”), a 501(c)(3) nonprofit corporation that pays NMYO's operating costs and hires NMYO's staff. See 26 U.S.C. § 501(c)(3). According to the CCP's Executive Director, Eli Il Yong Lee, “NMYO was formed for the purpose of educating young New Mexicans about issues such as healthcare, clean elections, the economy and the environment.” Aplt's App. at 97. Further, “NMYO educates the public about how their governmental representatives vote and how these representatives are funded. NMYO encourages its constituents to communicate with their representatives regarding issues important to New Mexico youth.” Id. at 98. According to Mr. Lee, NMYO “do [es] not engage in express advocacy for the election or defeat of candidates for public office.” Id. at 97.

Southwest Organizing Project (“SWOP”) is a nonpartisan project of Southwest Community Resources, Inc., a 501(c)(3) nonprofit corporation that serves as SWOP's sponsor for Internal Revenue Service reporting purposes. According to its Executive Director, “SWOP was formed for the purpose of empowering and educating the public about issues such as environmental health and justice, economic development, community development, public education, arts and culture, housing, workers' rights, racial justice and gender equality,” and it “engages in educational activities, nonpartisan get out the vote ... activities, training and leadership development, and community development.” Aplt's App. at 99. The group also “educates the public about how their governmental representatives vote and ... are funded .... [and] encourages its constituents to communicate with their representatives regarding issues important to them.” Id. at 100. According to its representative, SWOP “does not engage in express advocacy for the election or defeat of candidates for public office.” Id.

B. Mailers

In March and April 2008, NMYO and SWOP mailed advertisements criticizing several incumbent state legislators. The mailings denounced certain initiatives the legislators proposed during the legislative session, pointed out that the sponsoring legislators had relied upon certain organizations for funding, and suggested that the legislators were beholden to corporate interests rather than actually working for the public good. Recipients were urged to contact the legislators to express their concern about the legislators' votes and funding sources. The mailings were targeted to the legislators' constituents, and each mailing mentioned an upcoming special legislative session focused on healthcare.

A typical mailer looked like the one sent to State Senator Shannon Robinson's constituents. This mailer had a child depicted on the front with a thermometer in her mouth and stated: “With a special session of the legislature this summer to address HEALTH CARE, it's important to find out WHOSE SIDE IS SENATOR ROBINSON ON?” Id. at 81. On the back of the mailer, it asked: “When New Mexico's state legislature makes critical decisions on our health care, who will State Senator Shannon Robinson stand with?” Id. at 82. It then highlighted a bill that Senator Robinson voted against in the 2008 legislative session that “would have required insurance companies to simply disclose to consumers in clear language the reasons why their health insurance premiums are increased each year,” and stated that by voting against the bill, Senator Robinson “voted with the insurance industry.” Id. It then cited Senator Robinson's campaign finance reports and contended that, “[s]ince 2003 almost 70% of [Senator] Robinson's campaign contributions ... have come from ... [the] health care, pharmaceutical and insurance industry[,] lobbyists[,] banks and payday loan industry[,] liquor and tobacco industry, Political Action Committees[,] ... [and the] oil and mining industries.” Id. The card concluded: “With a special session of the legislature this summer on health care, it's important to CALL SHANNON ROBINSON. REMIND HIM HE WORKS FOR YOU. Call Senator Shannon Robinson at....” Id.

NMYO sent out nine pieces of direct mail between March 22, 2008 and April 5, 2008. The organization has a $225,000 annual budget, of which $15,000 was spent on the direct mail campaign. Aplt's App. at 35.

SWOP sent out five pieces of direct mail between March 22, 2008 and April 5, 2008; these mailers were similar to those sent by NMYO and discussed positions taken by elected officials during the February 2008 legislative session and the sources of those officials' campaign funding. SWOP has a $1,100,000 annual budget, of which it spent approximately $6,000 on the direct mailing campaign. Id. at 36.

C. Complaint and request to comply with the New Mexico Campaign Reporting Act

One of the targeted legislators, Senator Shannon Robinson, sent a letter of complaint to the New Mexico Secretary of State, Mary Herrera, and made a telephonic complaint to the New Mexico Attorney General. A second targeted legislator, Senator Bernadette Sanchez, also contacted the Attorney General. The complaints alleged that NMYO and SWOP failed to register as political committees under the New Mexico Campaign Reporting Act (“NMCRA”), N.M. Stat. Ann. §§ 1-19-25 to -36 (West 1978).

The NMCRA, in relevant part, provides as follows:

A. It is unlawful for any political committee that receives, contributes or expends in excess of five hundred ($500) in any calendar year to continue to receive or make any contribution or expenditure for a political purpose unless that political committee appoints and maintains a treasurer and registers with the secretary of state.

B. A political committee shall register with the secretary of state within ten days of receiving, contributing or expending in excess of five hundred dollars ($500) by paying a filing fee of fifty dollars ($50.00) and filing a statement of organization under oath on a prescribed form showing:

(1) the full name of the political committee, which shall fairly and accurately reflect the identity of the committee, including any sponsoring organization, and its address;

(2) a statement of the purpose for which the political committee was organized (3) the name, address and relationship of any connected or associated organization or entity;

(4) the names and addresses of the officers of the committee; and

(5) an identification of the bank used by the committee for all expenditures or contributions made or received.

N.M. Stat. Ann. § 1-19-26.1(A)-(B).

Furthermore, the NMCRA requires that

[e]ach treasurer of a political committee shall file a report of expenditures and contributions ... until the treasurer files a report that affirms that the committee has dissolved or no longer exists and that its bank account has been closed.

Id. § 1-19-29(G); see id. § 1-19-31 (setting forth the required contents of the report).

The statute defines a “political committee” as:

two or more persons ... who are selected, appointed, chosen, associated, organized or operated primarily for a political purpose; and “political committee” includes: (1) political action committees or similar organizations composed of employees or members of any corporation, labor organization, trade or professional association or any other similar group that raises, collects, expends or contributes money or any other thing of value for a political purpose; ... (3) a person or an organization of two or more persons that within one calendar year expends funds in excess of five hundred dollars ($500) to conduct an advertising campaign for a political purpose.

Id. § 1-19-26(L).

The statute defines an “advertising campaign” as “an advertisement or series of advertisements used for a political purpose and disseminated to the public either in print, by radio or television broadcast or by any other electronic means, including telephonic communications, and may include direct or bulk mailings of printed materials.” Id. § 1-19-26(A).

On April 25, 2008, Secretary of State Herrera issued a letter stating that NMYO was not required to register as a political committee under the NMCRA. On May 22, 2008, Albert J. Lama, Chief Deputy Attorney General, wrote to Secretary...