(CN) - New Mexico's secretary of state engaged in content discrimination when she referred a state senator's donation to a high school student for criminal prosecution under campaign finance laws, the senator told a 10th Circuit panel Tuesday morning.
Jerry Ortiz y Pino, a Democrat, told the three-judge panel that section A(4) of New Mexico's Campaign Reporting Act violates the First Amendment by discriminating what types of charitable contributions an elected official can make with their campaign funds - one can donate only to a 501c3, which, unlike similar organizations, cannot support political candidates or lobby the government as a "substantial part" of its activities.
"That's content discrimination," Ortiz y Pino's campaign secretary and attorney Phillip Baca said.
In the Denver courtroom, Secretary of State Maggie Toulouse Oliver, also a Democrat, countered the law was applied correctly because the donation - a $200 check to pay a student's entry into a summer college and career workshop in 2021 - carried "very little expressive conduct."
Defense attorney Alex Tucker told the panel that other donations can be made only when there is significant political message attached to the conduct. He entertained a hypothetical in which a candidate could use their campaign fund to donate to a woman in need of an abortion, because a political statement about women's health care is inherent to that action.
"Nothing about this donation actually showed expressive value," Tucker said.
U.S. Circuit Judge Joel Carson challenged the secretary's authority to make that judgment call.
"That doesn't scare you at all?" the Donald Trump appointee asked. "She can decide what speech is important and what speech isn't?"
Baca argued that all donations constitute speech and expression and therefore the government cannot discriminate.
"I support a young woman wanting to be a prosecutor," Baca said, referring to the student, who now attends ASU Law School. "That's the speech there."
Tucker also argued that Ortiz y Pino lacks standing to challenge the section of the statute, because, textually, it doesn't ban all other charitable donations, but instead creates legality for donating to 501(c)(3) organizations. That legality would be erased if the statute were to be stricken, he said.
The New Mexico State Ethics Commission filed an amicus brief with the court, explaining that because campaign funds are donated dollars held in trust by a candidate, it's reasonable for donors to expect that candidate to spend it only on conduct outlined in the law.
"But this is not the state's money," Baca argued, so it can't be left up to the state to determine what is and is not appropriate, he said.
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 a referral to both the state ethics committee and the state 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's ability to enforce the statute governing campaign spending and to require her to withdraw her referral.
U.S. District Judge Margaret Strickland, a Joe Biden appointee, granted a preliminary injunction to Ortiz y Pino as to his first request, but later reversed course and issued summary judgment in favor of Toulouse Oliver. Ortiz y Pino later appealed.
U.S. Circuit Judges Harris Hartz, a George W. Bush appointee, and Robert Edwin Bacharach, a Barack Obama appointee, rounded out the appeals panel.
Source: Courthouse News Service
