PAC Fights ‘Open and Ethical’ Matching Fund

ALBUQUERQUE (CN) - A political action committee challenged Albuquerque's "Open and Ethical Election Code," which gives extra public matching funds to candidates who are being outspent by opposition ads.

Albuquerque amended its City Charter in 2009 to "provide for the distribution of 'matching funds' to candidates based on independent expenditures made in opposition to that candidate and based on expenditures made in opposition to that candidate by a candidate opponent," according to the federal complaint.

New Mexico Turn Around, a PAC established to defeat City Council candidate Ray Garduno, "as well as potentially other city council candidates in its discretion," claims the matching-funds section is unconstitutional, under the First and 14th Amendments, and also violates Supreme Court rulings in Buckley v Valeo, 424 U.S. 1 (1976) and Davis v FEC 128 S. Ct. 2759 (2008).

The PAC claims it believes that opposition advertising "is the clearest way to communicate with the voters."

According to the complaint, certified candidates for City Council (who must "'obtain Qualifying Contributions from a minimum of 1% of the City voters registered in the district that the Applicant Candidate desires to represent,'" under city regulations) receive public funding of "'$1.00 per registered City voter residing in the district in which the Participating Candidate desires to represent,' minus any contributions already received by the candidate." (Interior quotes from City Clerk Regulations.)

New Mexico Turn Around challenges Article XVI of the amended City Charter: "(P)articipating candidates may also receive 'matching funds' from the government based on speech made in opposition to their candidacy. Specifically, Article XVI provides that 'when a Participating Candidate's Opposing Funds in aggregate amount are greater than the funds distributed plus any Seed Money spent to a Participating Candidate in the same race, then the Participating Candidate is entitled to receive matching funds in the amount that the Opposing Funds exceed the distribution from the fund plus any Seed Money spent. Total Opposing Funds to a Participating Candidate in an election are limited to twice the amount originally distributed to that Candidate pursuant to Section 12 of the Open and Ethical Elections Code.'"

The opposing funds are calculated both from expenditures made by the opposing candidate and from independent sources spending money to defeat a candidate.

New Mexico Turn Around claims it wants to spend money to oppose candidates, but because of the new rule it "will not make these independent expenditures. Therefore, the matching funds provision irreparably harms New Mexico Turn Around."

It claims that the 2009 amendment violates the Constitution by "impinging upon protected political speech and association" and "by burdening free expression and association without any compelling justification for doing so, without being narrowly tailored in doing so, and for being overbroad by sweeping within their strictures constitutionally protected advocacy."

New Mexico Turn Around wants the rule declared unconstitutional and the city clerk enjoined from enforcing it. It is represented by Brant Lillywhite.

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