Surprising Recommendations on Constitutional Amendment 2 & 3

Before taking a deep dive into the League of Women Voters of NM’s excellent analysis of these constitutional amendments, we were inclined to support both, but under closer scrutiny, we’ve shifted that view to leaning to oppose them. Both Amendments have positive goals and elements while putting into the constitution, language making negative consequences quite possible, even likely. Goals are great, but the devil is in the details, and both amendments contain devilish possibilities. Before we turn to the amendments a brief comment on last night’s excellent Public Bank Zoominar and a link to the recording Read on.

Reminder: In yesterday’s post we outlined ways you can support candidates in PA, GA and NM. Every poll or political commentary I’ve seen points to the GOP narrowing gaps or taking leads. We can’t quit now; the consequences of failure are too severe. The link to yesterday’s post can help you get in the game.

Public Banking Zoominar Outlines Economic & Social Benefits & Political Challenges

Before we get started with the amendments, we provide a link to our Recorded Zoominar page where you will find near the top of the page, the recording of Wednesday night’s excellent Zoominar on creating a state Public Bank. Alliance for Local Economic Prosperity (AFLEP) Executive Director Angela Merkert and AFLEP’s Public Bank Campaign Director and retired banker, Harold Dixon, outlined precisely how a state public bank would collaborate with, but not compete with community banks. Joining them for the discussion was Helga Garcia-Garza, Chair of the NM Food & Agriculture Policy Council and Sarah Manning, AFLEP Outreach worker who described how lack of access to capital impedes rural and small business development and how a state public bank could change that. We also shared a tremendous six-minute video that outlined clearly how a public bank could greatly accelerate expansion of farms operated by young farmers. This one example of public benefit could apply equally to many other entrepreneurial or small business development contexts. Also joining the panel was Rep. Christine Trujillo and Sen. Jeff Steinborn who described the legislative challenges and how you can help overcome them and get this done. Wall Street bankers have already begun their disinformation campaign, sowing seeds of fear and doubt among legislators and the public. Retake peeps must get fully informed and ready to counter their disinformation. Check this out to find out more about how a public bank would benefit New Mexicans and what you can do to support the effort. And then share the video with your legislators and encourage them to support the public bank in 2023. This could be the year we get this done.

Yes or No on Constitutional Amendments 2 & 3

The League of Women Voters NM (LWVNM) published an excellent 30+ page analysis of all three amendments on the ballot. But since we are already solidly supporting Amendment 1, which would devote more permanent funding to early childhood, today we focus on the less well known Amendments 2 and 3. We received input from several Retake readers to modify our reaction to the LWVNM’s very objective analysis. We provide excerpted passages from the LWVNM report, followed by italicized Retake commentary, as needed.

What is Constitutional Amendment 2?

From the LWVNM report:

Constitutional Amendment 2 would amend Article 9, Section 14 (commonly referred to as the “anti-donation clause”) of the Constitution of New Mexico to allow the legislature to enact statutes that authorize the state to spend money to assist in the construction of utility lines or other infrastructure for energy, internet, water, wastewater and similar services for primarily residential purposes. If enacted, these statutes would be required to include provisions to safeguard public money and resources used for the utility line projects. Any provisions specifying the criteria, limitations or scope for such projects would be left to the implementing legislation.

In response to the economic and political dominance of the railroad industry in the late 1800s,many states adopted an “anti-donation clause” or a “gift clause” in their constitutions to prohibit the use of state resources to aid private entities. In New Mexico, Article 9, Section 14 of the Constitution of New Mexico is the state’s anti-donation clause. The anti-donation clause prohibits the state, a county, a school district or a municipality from directly or indirectly lending or pledging its credit or making any donation to or in aid of any person, association or public or private corporation or in aid of any private enterprise for the construction of any railroad, unless a constitutional exception exists.

Over time, many states have found that anti-donation clause prohibitions against state assistance to any non-governmental entity were too restrictive, and those clauses have been amended or construed to give state legislatures more flexibility. Some states have fairly broad exceptions to their constitutional anti-donation or gift prohibitions that allow the state to provide public assistance to private entities if the expenditure is for a “public benefit” or a “public purpose”. For example:

  • Arizona’s “gift prohibition” has been construed to allow state expenditures for the “public benefit” as long as it does not unreasonably subsidize a private entity;
  • California’s anti-donation prohibition has a broad exception for “public purposes” and specific exceptions for aid to orphans or physically disabled individuals; and
  • Colorado’s anti-donation clause has been interpreted as allowing state expenditures for a “public purpose”.

Arguments for the amendment:

For each amendment, the League of Women Voters offered a series of one paragraph arguments for and against the amendments. We offer them verbatim with our comments following in italics.

Argument 1: The amendment would increase access to essential utility services. Broadband internet, energy, water and wastewater services are essential utility services in today’s world, and some communities in New Mexico still lack these basic services. The private sector on its own has been unwilling or unable to invest in utility service line build-outs in many, particularly rural, communities. Unless the current constitutional prohibition on the use of public funding is lifted to allow the state to address this problem, it may never be solved by the private sector. The proposed amendment would not only authorize direct state investment to ensure access to essential utility services by all New Mexicans, but would also allow for the possibility of the creation of public-private partnerships to provide access for these services.

This certainly seems compelling, but there are equally compelling arguments to oppose. Read on!

Argument 2. May increase NM capacity to access federal funds. The current anti-donation prohibition limits New Mexico’s ability to compete with other states regarding rural development and to access federal funding for such development projects. As an example, the communities connected to Interstate 395 along the eastern side of the Sierra Nevada mountain range in California face very similar geologic and population density challenges as many of New Mexico’s mountainous areas. However, California was able to implement a program called “Digital 395” that used state dollars to leverage a federal assistance program created in 2009 for private, nonprofit internet providers to develop internet infrastructure connecting those communities. Because of anti-donation clause prohibitions, New Mexico was not able to implement a similar program to leverage the 2009 federal broadband money. The proposed amendment may give New Mexico the best chance to leverage its share of federal dollars to achieve the broadest access to internet service throughout the state and to access federal funding for the provision of other essential household services.

This argument is even more compelling than argument 1, as it offers a concrete example of an opportunity missed that could have been accessed.

Argument 3.. May assist with ensuring that all New Mexicans have access to the internet.
Adoption of the proposed amendment could be particularly helpful with regard to building high-speed broadband internet infrastructure throughout the state. Now more than ever, access to high-speed internet is essential for distance learning, telemedicine and remote work. However, the Department of Information Technology, in its State of New Mexico Broadband Strategic Plan and Rural Broadband Assessment published in June 2020, reported that “a conservative analysis of State, ISP, and federal data identifies an estimated 196,000 locations in New Mexico that are unserved by broadband, or 20 percent of the State’s approximately 940,000 homes and businesses”. This means that one-fifth of the state’s residents are unable to continue with their studies through remote learning, to work remotely or to access needed health care, not to mention accessing myriad other public and private resources found online.

Another compelling argument for why infrastructure investment is so important, but not necessarily, for creating this amendment. It begs the question: Are there other ways to generate public investment to complete the work, rather than encouraging partnerships with the private sector, ever eager for profit opportunities?

Argument 4. The contours of the implementing legislation would be vetted through the public legislative process. Unlike a blanket “public benefit” exception that some states have applied to their antidonation exemptions, adoption of the proposed amendment would be just the first step in a lengthy process to allow the use of public funds to provide access to essential household services. Similar to the exceptions that created the Local Economic Development Act and mortgage finance programs, both chambers of the legislature would need to pass implementing legislation for a utility assistance program to take effect. The proposed amendment also requires the implementing legislation to “include safeguards to protect public money and other public resources used for the purposes authorized”, and a considerable amount of deliberation will go into developing them. Before the implementing legislation reaches the floor of each house, it will go through the committee process, where it will be debated by the members after ample opportunity for public comment and be subject to amendment throughout the process.

I wish this reassured me more. Let’s let the League weigh in on the arguments opposing before we offer our concerns.

Arguments Against Amendment 2

Argument 1: The proposed amendment lacks clarity and leaves too much discretion for future legislatures in enacting the implementing legislation.
The proposed amendment lacks clarity and leaves the details of the exception to implementing legislation enacted by a future legislature. For example, it is not clear from the text of the amendment exactly what projects state funds will be allowed to be used for, as those specifics will be laid out in the implementing legislation. Further, while the proposed amendment specifically enumerates internet, energy, water and wastewater as essential services, it also includes “other similar services as provided by law”. This broad provision will be subject to wide interpretation by the legislature enacting the implementing legislation or its execution. This language leaves the door open for the provision of public assistance to private entities for services not contemplated in the adoption of the amendment and could be changed based on the political winds of future legislatures. [emphasis ours]

We share this concern and find that the next argument strongly reinforces reasons for our concern.

Imagine a Governor eager to create a hydrogen production facility and wanting to partner with a gas producer to build infrastructure to move natural gas to a hydrogen production facility.

Imagine, a governor and legislature wanting to partner with Avangrid in building out our renewable energy grid. It could possibly happen more quickly with Avangrid investment, but the profit would go to them, not New Mexicans and New Mexicans would be paying for Avangrid profits.

Imagine a GOP governor and legislature creating implementing legislation that defines private prisons or the border wall as projects of public benefit and seeks to partner with the private sector to construct more private prisons and to expand the border wall with public funds!

Argument 2. Public money may not be adequately safeguarded.
The anti-donation prohibition serves a valuable purpose, and any proposed exception should be viewed with caution. The purpose of an anti-donation clause is to ensure that taxpayer money is not being used to support or subsidize private gains without the state receiving something of value in exchange for the transfer of money or property. However, this proposed amendment does not specify how the implementing legislation is to “safeguard public money” nor is there inclusion of a spending cap, so the actual fiscal implications for the state are unknown and could be far reaching. This lack of direction on specific requirements to safeguard public money could result in the legislature enacting implementing legislation that allows the use of state funds to provide a greater benefit to contractors and other businesses
providing essential services rather than to the state residents who are in need of those services.
Such effect would be contrary to the purpose of the anti-donation clause. [emphasis ours]

BINGO!! The heart of the problem with the Amendment is in the bolded text in argument 2,, but the next concern is also troubling.

Argument 3.The anti-donation prohibition serves a valuable purpose, and any proposed exception should be viewed with caution. The purpose of an anti-donation clause is to ensure that taxpayer money is not being used to support or subsidize private gains without the state receiving something of value in exchange for the transfer of money or property. However, this proposed amendment does not specify how the implementing legislation is to “safeguard public money” nor is there inclusion of a spending cap, so the actual fiscal implications for the state are unknown and could be far reaching. This lack of direction on specific requirements to safeguard public money could result in the legislature enacting implementing legislation that allows the use of state funds to provide a greater benefit to contractors and other businesses providing essential services rather than to the state residents who are in need of those services. Such effect would be contrary to the purpose of the anti-donation clause. [emphasis ours]

This is the heart of our concern. Even Democrats advance bad, industry-favoring initiatives, e.g. hydrogen.. This is bad enough now, but imagine a Ronchetti administration!

The question comes down to this: Do you trust government to always work for the best interests of the people and planet or for industry? At this point, I cautiously trust NM Dem. leadership to do the right thing, very cautiously and not always. But what happens when/if the GOP are in charge. Could we find public dollars invested in public-private partnerships to build more private prisons and extend the border wall? I could see it, but prefer not to have our constitution facilitate it.

This is a tough decision, one I’d like readers to weigh in on. On the one hand, there is a clear and pressing need to build out broadband and the energy grid and partnerships with the private sector could accelerate that development. But could this be achieved by investing more state money and steering clear of the possibility of a partnership on a bad project (hydrogen) or with a bad actor (Avangrid)?

For these reasons, Retake is inclined to oppose this amendment as we fear how it can be abused and wonder if there aren’t ways for the state to quickly finance this work itself. But as noted, we welcome other views and could be dissuaded. This is a very tough call and we do not have the option of seeking amendments to the amendment to provide more protection against graft or public funds being used to advance the interests of corporations at the expense of the public.

Where do you stand? Why would you want to approve the Amendment? or why not?

What is Amendment 3?

Constitutional Amendment 3 proposes one substantive change and several technical changes to Article 6, Section 35 of the Constitution of New Mexico. Substantively, Constitutional Amendment 3 proposes to delay the general election for a seat to which a judge is appointed until after that judge has served on the court for one year following appointment by the governor.

Originally, if a vacancy occurred in the office of district attorney, county commissioner, justice of the supreme court or judge of a district court between elections, the vacancy was filled by the governor without any oversight. The governor had absolute discretion in whom to choose to fill the vacancy, in which the judge would serve until the end of the current term. In 1988, the voters approved an amendment that changed the process by which any judicial vacancy was filled. The approved amendment created a nominating commission to recommend nominees. The governor would then appoint the judge from the list of nominees. The appointed judge would serve until the next partisan election, in which the winner of the election would serve out the remainder of the original term. Once the judge had been elected in a partisan election, the judge would only face elections by the voters to choose whether to retain or reject the judge on a nonpartisan ballot.

Arguments for Amendment 3

Argument 1. Voters can face difficulties being informed about candidates and relevant information. If the proposed amendment is adopted, candidates appointed to fill a judicial seat will have at least one year (and as long as three years) to serve on the bench before they face a general election. Appointed candidates who do not otherwise have judicial experience will not only have time to hone their judicial skills, but the public will be better able to observe their conduct as a judge. Armed with the record of performance, voters will be able to make a more educated decision on whether to vote for or against the appointee at the general election. Ideally, this will result in a public that has more knowledge of candidates who were appointed by the time those candidates face election.

While all of the above may be true, the other side to this coin is that a Governor could make a terrible appointment, that voters would never have approved, and would be unable to remove by vote for at least one year and up to three years. A good deal of damage can be done by a terrible judge with up to three years to serve before voters have a chance to weigh in.

Argument 2: Enables greater access by judicial candidates to public financing.
Judicial candidates are authorized to access public financing for elections pursuant to the Voter Action Act. When a judicial appointee must run for the office in a partisan election shortly after being appointed, the time lines for complying with the Voter Action Act are compressed, and, depending on the time between the appointment and the election, the appointee may not be able to meet the deadlines to qualify for the public financing. A purpose of including judicial candidates in the Voter Action Act is to take the influence of big money out of judicial elections, ensuring an independent judiciary. However, this purpose is nullified when appointed judges are unable to qualify for the public financing because deadlines cannot be met due to the timing of the appointment and election. Requiring the election to be held at least one year after appointment provides ample time for an appointed judge to meet the deadlines of the Voter Action Act and qualify for the available public .financing.

This seems a compelling argument, which when combined with the next point would make seeking a judgeship easier for younger, less wealthy candidates and could possibly create a more diverse assembly of judges across the state.

This is certainly a compelling argument, but couldn’t the Voter Action Act be amended to make it easier for judges to access public financing? Is this amendment necessary?

Argument 3: Helps with recruitment and diversity for judgeships.

Allowing an appointed judge to serve in the position for at least one year before having to run for the position in a partisan election will help with the recruitment of qualified, diverse applicants to the judgeship. Under the current language of Article 6, Section 35, the position will be subject to election at the next general election, which may only be a couple of months after appointment. Many people are unwilling to accept an appointment to a judgeship if they have to, for example, close down a private practice and wind up relationships with clients without some assurance of being in the position for the long term. Approval of this proposed amendment would guarantee the appointee at least one year in the position before having to run for the office. This may be particularly beneficial to attorneys who work in private practice who otherwise may not choose to seek judicial positions, as these attorneys may be solo practitioners and might find it difficult to justify seeking appointment if they may serve for a short time. [emphasis ours]

Together, the last two arguments in support of the amendment, offer compelling reasons to approve it, as it does seem that having to face election possibly only a few months after appointment to the bench, would be a significant deterrent to seeking a seat on the bench and that the amendment could encourage a younger, more diverse array of judicial candidates. But let’s examine arguments opposing the amendment before we decide.

Arguments Against Amendment 3

Argument 1:Delaying the election may have unintended consequences.
There could be unintended consequences if an election to fill the vacancy does not take place until the first general election following one year after appointment. For example, depending on when a vacancy is created and when the appointment to fill the vacancy is made, the appointee could serve up to three years in the position before the general election is held. Alternatively, because the person who wins the election serves out the remainder of the term that is in effect at the time of the election, if that term were to expire in December of the same year in which the election takes place, a scenario could be created in which the person who wins the election only serves a few weeks before the term ends at the end of the year, creating a new vacancy in the office that then would need to be filled by the governor. Additionally, a person running against an appointed judge in the general election may be disadvantaged by the appointee having more experience in the position before the election. The appointed judge may have greater name recognition, a record of performance known to the electorate and the benefit of being the incumbent by virtue of having been appointed to fill the vacancy in the position, which ordinarily would not be present in a partisan judicial race. [emphasis ours]

LWVNM offers some very compelling arguments against the amendment, particularly in the bolded language above. It seems the amendment language did not anticipate, a judge with months or weeks left in his/her term, having to run for re-election to complete the term, only to have that term end weeks or months later, precipitating another appointment. This unintended consequence is a significant flaw in the proposed amendment.

Argument 2. Unclear if the new language applies to judges other than appellate judges.
Article 6, Section 35 of the Constitution of New Mexico creates the Appellate Judges
Nominating Commission, while Article 6, Section 36 and Article 6, Section 37 create the District Court Judges Nominating Committee and the Metropolitan Court Judges Nominating Committee, respectively. Both Section 36 and Section 37 state that “each and every provision of Section 35 of Article 6 of this constitution shall apply” to the respective nominating committee; however, it is not clear that the proposed amendatory language to Section 35, providing that a judge serve at least one year before a general election is held for the office to which the judge was appointed, equally applies to district court judges and metropolitan court judges. This is because the proposed amendatory language to Section 35 is not directly related
to the duties of the respective nominating committees, but rather to when an election takes place after an appointment to fill a vacancy is made. This ambiguity could lead to litigation over the application of the amendatory language to district court and metropolitan court judges.

Another flaw in the amendment language creates the likelihood of litigation.

Argument 3. Removes an inherently political decision from the political process for a longer period than the Constitution of New Mexico currently provides.
A potential issue in this proposed amendment is its policy goal of reducing the partisan nature of an inherently partisan, political process, while potentially increasing partisan division. Article 6, Section 35 of the Constitution of New Mexico requires diversity of “majority political parties” and the interests of the state with regard to those members of the Appellate Judges Nominating Commission who recommend appointments. Additionally, Article 6, Section 35 provides that the Appellate Judges Nominating Commission recommends candidates for appointment to the governor, but the governor ultimately appoints a successor in the event of a vacancy. Judicial candidates appointed by the governor face reelection at the next election. Thus, implied in Section 35 is a process that is political in nature, one that is reliant on partisanship, the decision of a governor, usually representing a major political party, and ultimately, the voice of the electorate. However, this amendment would require the public to refrain from participating in the political process for a year, at a minimum, prior to that appointed candidate facing the elective process. It is foreseeable that the public may ultimately associate its view of the appointed judge less on the judge’s merits as shown in the year or more of service on the bench, and instead turn toward the partisan positions of the governor who appointed the judge. This may further politicize what was meant to be an appointment to address a vacancy. Justified by policy ostensibly aimed at increasing candidates from private interests and outcomes that are seemingly speculative, if not entirely aspirational, it is questionable whether this outweighs the interest of the public to provide a quick vote on what was meant to address a mere vacancy. [emphasis ours]

When starting this analysis, we had hoped to be able to make a firm recommendation on both amendments. But, in the end, we are left almost equally swayed by arguments against and in favor of both amendments. But at the end of the day, we conclude:

Amendment 2. The possibility of the amendment opening the door to public investment in initiatives that benefit private corporations on projects but do not primarily benefit New Mexicans leaves us leaning strongly to oppose.

Amendment 3. Flawed language in the amendment introduces unanticipated negative consequences (see the highlighted text in Argument 1). There is no guarantee that the aspirational goals of the amendment would materialize, indeed, LWVNM describes achievement as “speculative.” Plus, it does seem that careless language in the amendment would generate litigation. In the end we lean toward a no vote, but less strongly than with Amendment 2.

Again, we seek your input. We lean toward voting no on two amendments that prior to our deep dive into LWVNM’s analysis we were inclined to support. But the devil is in the details, and approving amendments fraught with potential negative outcomes is unwise, as fixing these amendments would require another amendment to the constitution.

Please weigh in. Are we missing something? or do you find our concerns valid and compelling?

In any case, we hope that this analysis makes you more aware of the nuances involved in even the most well-intended policies and the need to anticipate unintended, negative consequences. It’s those devilish details. They can spoil anything.

In solidarity and hope,

Paul & Roxanne

Categories: Local-State Government & Legislation, Uncategorized

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5 replies

  1. Thanks for the nice comment on the League voter guide. In truth we only reworked the LFC pros and cons to make them more understandable.

  2. 1st, Amendment 2 is so poorly worded, that should give us all pause right there. I was on fence & husband against- but now that you brought up the Avangrid example, I think solid no. #3 doesn’t seem worth amending Constitution either. Seems like better thought should have gone into wording of both.

    • It isn’t by the Leaue of Women Voters. According to the title page, it’s by the New Mexico Legislative Council Service in Santa Fe. They usually do the bill analysis for the Legislature.

  3. “Amendment 2. The possibility of the amendment opening the door to public investment in initiatives that benefit private corporations on projects but do not primarily benefit New Mexicans leaves us leaning strongly to oppose.”
    Shutting the barn door after the horse is stolen? Isn’t there already an exception for economic development that allows all sorts of dumb or harmful projects by private corporations? If we vote down Amendment 2 all we accomplish in shutting off the possibility of helping a low income family to obtain internet or running water or a working septic system.
    The argument against Amendment 2 is the argument against government spending. Thus it is not surprising to find Paul Guessing opposed to the amendment.

  4. As i understand it, there have been other exceptions passed dealing with the same constitutional clause as Amendment 2 and the amendment was proposed by reasonable legislators. Do we know the effect of the previous exceptions granted? I remain undecided.

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