[00:00:00] Speaker 04:
our last oral argument of the day, 25-2016, Ortizipino versus Oliver.

[00:00:10] Speaker 04:
Mr. Baca.

[00:00:11] Speaker 02:
Yes, Your Honor.

[00:00:12] Speaker 02:
Proceed.

[00:00:13] Speaker 02:
Thank you.

[00:00:15] Speaker 02:
Philip Baca on behalf of the good senator, Jerry Ortizipino.

[00:00:19] Speaker 02:
In Holmans versus City of Albuquerque, this court stated Buckley versus Valio concluded with a broad holding

[00:00:26] Speaker 02:
that government does not have the right to pass judgment on how or why a person expands campaign resources.

[00:00:34] Speaker 02:
That broad holding is the cornerstone of this appeal.

[00:00:38] Speaker 02:
And that's because contrary to Homans, the district court and the secretary of state, contrary to Homans, assert that the secretary of state has the right to pick and choose which charitable campaign expenditures are protected by the First Amendment.

[00:00:57] Speaker 02:
And more precisely, the decision below expressly stated that Section 1-19-29.1A4 does not restrict speech, due exclusively to the Secretary of State's promise

[00:01:18] Speaker 02:
to, as she put it, consider any funds spent for the purpose of conveying the political viewpoints of a candidate to be permissible expenditures of the campaign.

[00:01:29] Speaker 02:
And as an example of this, the Secretary of State reassured the district court, and the district court accepted his reassurance, that a campaign, charitable campaign expenditure to a young woman seeking an abortion

[00:01:43] Speaker 02:
would be protected by the First Amendment and would therefore be a permissible campaign expenditure.

[00:01:48] Speaker 02:
And yet at no time, either in the district court opinion, either by the secretary of state below or here on appeal, at no time has either the district court or the secretary of state explained, well, what about Senator T. C. Pino's charitable campaign expenditure to a young girl seeking to be a prosecutor?

[00:02:10] Speaker 02:
Why is that not protected by the First Amendment?

[00:02:13] Speaker 03:
How is that speech?

[00:02:15] Speaker 03:
What's the speech?

[00:02:17] Speaker 02:
The speech is, I support a young woman seeking a public service career as a prosecutor.

[00:02:24] Speaker 02:
That's the speech.

[00:02:26] Speaker 03:
What if the senator wanted to give $200 to a spouse and just hand it to him?

[00:02:36] Speaker 03:
What would the speech be there?

[00:02:37] Speaker 02:
There is no speech there.

[00:02:39] Speaker 02:
Right.

[00:02:40] Speaker 02:
That's because that is money given to oneself.

[00:02:44] Speaker 02:
And the US Supreme Court decided that held that in Brown versus, no, I'm sorry.

[00:02:49] Speaker 02:
District Court, O'Donnell versus FEC is that district court opinion on that case.

[00:02:55] Speaker 02:
If you're giving money to yourself, that's not a speech.

[00:03:00] Speaker 03:
Okay, so fair enough.

[00:03:01] Speaker 03:
So you would agree, wouldn't you, that the Secretary of State has to have some role in determining whether something is speech or not speech under the statute?

[00:03:15] Speaker 02:
No, that's not delegated.

[00:03:17] Speaker 02:
That is entirely self-delegated.

[00:03:19] Speaker 03:
Then how could it ever be regulated?

[00:03:24] Speaker 03:
It could be regulated.

[00:03:25] Speaker 03:
She has to regulate the expenditures

[00:03:29] Speaker 02:
Yes, and she has to regulate the expenditures based on neutral criteria.

[00:03:35] Speaker 02:
That's what the US Supreme Court has said.

[00:03:36] Speaker 02:
There have to be criteria in the statute.

[00:03:39] Speaker 02:
So she just can't exercise unbridled discrimination, unbridled discretion to decide what is and what is not speech.

[00:03:46] Speaker 03:
But I guess, go ahead.

[00:03:54] Speaker 02:
Yes.

[00:03:54] Speaker 01:
Well, can I ask a follow-up question, Judge Carson?

[00:03:59] Speaker 01:
So what if he didn't give $200 to his spouse, but perhaps the young girl was a neighbor and lost a friend at school who was destitute and couldn't afford the funeral and donated the campaign resources to the girl in order to give to her friend to pay for the funeral expenses?

[00:04:25] Speaker 01:
Would that be protected speech?

[00:04:28] Speaker 02:
Yes.

[00:04:28] Speaker 02:
And in fact, here in Mexico, you frequently see people, groups of people collecting money for funerals.

[00:04:35] Speaker 02:
And in fact, there have been scandalous killings here in New Mexico in which the victims are unable to afford a funeral.

[00:04:43] Speaker 02:
So money has been collected.

[00:04:44] Speaker 02:
And so, yes, a campaign contribution to those would be a First Amendment speech.

[00:04:50] Speaker 01:
All right.

[00:04:51] Speaker 01:
So you mentioned one instance.

[00:04:53] Speaker 01:
Oh, I'm sorry.

[00:04:54] Speaker 01:
Please go ahead.

[00:04:55] Speaker 01:
So you mentioned so far two instances that would be covered by the statute that would be protected speech.

[00:05:02] Speaker 01:
That one in the first example, the example that Judge Carson gave would be covered by the statute, but would not be protected.

[00:05:11] Speaker 01:
So I take it that there are instances

[00:05:13] Speaker 01:
that would be captured by the statute that would involve protected speech and some examples that would not be protected speech.

[00:05:21] Speaker 01:
Is that fair?

[00:05:24] Speaker 02:
um yes but it but the statute i mean keep in mind the statute doesn't state that the statute is very odd i mean if the legislature wants to make these exceptions and clarify just as the federal government has done and just as other states have done as noted in the meekest brief that has to be done by the legislature those have the exceptions have to be carved out yeah and so that and that's the problem with the statute

[00:05:50] Speaker 01:
Well, that may be a problem with the statute, but as I understand it, that the statute covers both protected speech and unprotected acts, correct?

[00:06:02] Speaker 01:
No, the only so far, the only one that Judge Carson mentioned, and you said that's not speech.

[00:06:07] Speaker 02:
That is not speech.

[00:06:08] Speaker 02:
And there's and there's a case law that giving money to yourself is not speech.

[00:06:14] Speaker 01:
But that's covered by the statute, correct?

[00:06:16] Speaker 02:
You cannot donate to individuals, that's correct.

[00:06:19] Speaker 02:
So there is an overlap there.

[00:06:21] Speaker 01:
So if the statute covers both protected speech and unprotected acts, the example that Judge Carson gave,

[00:06:29] Speaker 01:
That might support an as-applied challenge, but that's pending, that's not before us.

[00:06:35] Speaker 01:
Why isn't it preclusive of a facial attack if the statute covers both protected speech and unprotected acts?

[00:06:47] Speaker 02:
Because under FEC versus Cruz and under Homans and under Republican Party versus King, there has to be a showing that the legislature was concerned about quid pro quo corruption.

[00:07:00] Speaker 02:
There has to be evidence of that.

[00:07:01] Speaker 02:
It just can't be conjecture that that's a problem.

[00:07:05] Speaker 02:
There actually has to be a problem, a documented problem.

[00:07:08] Speaker 02:
And the statute has to be narrowly tailored.

[00:07:11] Speaker 02:
And that's the fundamental problem here, is the statute is not narrowly tailored.

[00:07:15] Speaker 02:
It has to be narrowly tailored.

[00:07:17] Speaker 04:
Let me back up a little bit.

[00:07:19] Speaker 04:
There's speech and then there's speech.

[00:07:22] Speaker 04:
It matters what sort of speech we're talking about.

[00:07:25] Speaker 04:
Yes.

[00:07:25] Speaker 04:
And in Homans, it wasn't you can't spend your money for this purpose or that purpose.

[00:07:30] Speaker 04:
It was an overall cap on how much you could spend.

[00:07:34] Speaker 04:
Am I correct about that?

[00:07:35] Speaker 04:
Yes, that's absolutely correct.

[00:07:36] Speaker 04:
So it's a little different context.

[00:07:38] Speaker 04:
But the Supreme Court has treated contributions

[00:07:43] Speaker 04:
as having some First Amendment protectionist speech, but not that much.

[00:07:49] Speaker 04:
Let me read you from Federal Election Commission versus Beaumont.

[00:07:54] Speaker 04:
This is a 2003 opinion.

[00:07:58] Speaker 04:
And there they were talking about restrictions on political contributions, which are probably as much speech as you get.

[00:08:05] Speaker 04:
And the court said, let me see,

[00:08:11] Speaker 04:
The petitioner argues that application of the ban on its contributions should be subject to a strict level of scrutiny on the ground that the statute does not merely limit contributions, but bans them on the basis of their source.

[00:08:26] Speaker 04:
This argument, however, overlooks the basic premise we have followed in setting First Amendment standards for reviewing political financial restrictions.

[00:08:34] Speaker 04:
The level of scrutiny is based on the importance of the quote,

[00:08:38] Speaker 04:
political activity at issue to effective speech or political association.

[00:08:43] Speaker 04:
Then it turns specifically to political contributions.

[00:08:47] Speaker 04:
Restrictions on political contributions have been treated as merely marginal speech restrictions, subject to relatively complacent review under the First Amendment, because contributions lie closer to the edges than to the core of political expression.

[00:09:06] Speaker 04:
While contributions may result in political expression if spent by a candidate or an association, the transformation of contributions into political debate involves speech by someone other than the contributor.

[00:09:19] Speaker 04:
And this is the core thing.

[00:09:21] Speaker 04:
And this is, I think, the key to how we have to analyze this.

[00:09:24] Speaker 04:
What is the standard of review?

[00:09:26] Speaker 04:
Says, this is the reason that instead of requiring contribution regulations to be narrowly tailored to serve a compelling governmental interest,

[00:09:36] Speaker 04:
A contribution limit involving significant interference with associational rights passes muster if it satisfies the lesser demand of being closely drawn to match a sufficiently important interest.

[00:09:51] Speaker 04:
And it seems to me that that reasoning would apply just as much to a contribution made by a political committee as a contribution to a political committee.

[00:10:02] Speaker 04:
So do you want to respond to that?

[00:10:05] Speaker 04:
Yes.

[00:10:07] Speaker 02:
First of all, this was never this was never asserted by the district court and the decision below.

[00:10:12] Speaker 02:
But secondly, and most significantly, this is not a contribution.

[00:10:15] Speaker 02:
This is an expenditure by the candidate.

[00:10:19] Speaker 04:
And it's not the same about a contribution.

[00:10:21] Speaker 04:
No, you're talking about an expenditure to a young girl who wants to go to law school.

[00:10:28] Speaker 04:
That's the expressive content of that is very limited.

[00:10:33] Speaker 04:
And the restriction on expression is very limited.

[00:10:36] Speaker 04:
Mr. Ortiz Center or TC Pino could say, I'm very much in favor of this woman going to college, and I would like other people to contribute.

[00:10:45] Speaker 04:
He can say all that.

[00:10:47] Speaker 04:
He's not restricted from saying that.

[00:10:49] Speaker 04:
The fact that he gives her some money himself does have an expressive component to it.

[00:10:55] Speaker 04:
But it's not much, according to the analysis in the Beaumont case.

[00:11:00] Speaker 04:
And that's why the standard review isn't as strict as you're saying.

[00:11:04] Speaker 04:
It seems to me, I realized that Beaumont was not cited by the parties, but we've got to decide.

[00:11:14] Speaker 04:
And I think it's a very fundamental part of this issue.

[00:11:17] Speaker 04:
What is the standard of review we're supposed to apply here?

[00:11:20] Speaker 04:
And as I read that, it's saying that the fact that you spent money, gave money to someone is not very, it's expression.

[00:11:29] Speaker 04:
or can be, but it's not much, because it doesn't really keep you from speaking your mind about whatever you want.

[00:11:37] Speaker 02:
Except that all of the cases that have addressed this issue, campaign, charitable campaign expenditures, like, for example, the Eighth Circuit and the Florida case, they applied exacting scrutiny.

[00:11:50] Speaker 02:
They treat all of these as expenditure cases, not under the contribution analysis.

[00:11:56] Speaker 02:
The same thing with cases of giving money to people waiting in line.

[00:12:02] Speaker 02:
Those have all been analyzed under exacting scrutiny.

[00:12:07] Speaker 02:
So nobody is saying that this is a

[00:12:12] Speaker 02:
a contribution.

[00:12:14] Speaker 02:
Look at Cornelius versus NAACP.

[00:12:18] Speaker 04:
That was solicitations by the Charitons.

[00:12:22] Speaker 04:
And that's clearly speech.

[00:12:24] Speaker 04:
That's clearly speech.

[00:12:25] Speaker 04:
When you're seeking, if this student was seeking contributions from the campaign, that's speech.

[00:12:32] Speaker 04:
That's clearly speech.

[00:12:35] Speaker 04:
Making a contribution is much less so.

[00:12:38] Speaker 04:
Pardon?

[00:12:39] Speaker 02:
But the Supreme Court in Cornelius did not make that distinction.

[00:12:42] Speaker 02:
They said specifically that responding to that speech is also protected speech.

[00:12:48] Speaker 02:
And so they didn't diminish that some speech is less than other speech.

[00:12:54] Speaker 02:
They put that on the same order.

[00:12:57] Speaker 02:
Cornelius was not an expenditure case, but they did address that.

[00:13:01] Speaker 02:
Responding to that solicitation is protected speech, First Amendment protected speech.

[00:13:06] Speaker 04:
Let me address the second component.

[00:13:08] Speaker 04:
And I have a hunch we're gonna go over your time.

[00:13:10] Speaker 04:
Don't worry too much about that.

[00:13:13] Speaker 04:
These are important and I think difficult issues to address.

[00:13:20] Speaker 04:
You seem to say that the only justification for these restrictions is the potential for corruption.

[00:13:30] Speaker 04:
And the amicus brief

[00:13:34] Speaker 04:
suggests otherwise and I thought it made some some decent points and I'd like to expand upon that.

[00:13:42] Speaker 04:
Here you have money that you could say is held in trust by the campaign committee or by the candidate.

[00:13:49] Speaker 04:
Someone has contributed to your campaign and what the statute does is say

[00:13:55] Speaker 04:
You hold this, I think in effect what it's saying is, you hold this money in trust and you can spend it for these things.

[00:14:03] Speaker 04:
And one is for campaign purposes.

[00:14:08] Speaker 04:
Another is if the candidate is a public official, there may be expenses incurred by the public official that should be, that can be reimbursed.

[00:14:19] Speaker 04:
And you can give money to the state coffers.

[00:14:23] Speaker 04:
If you have some money left over, you can give it to the general fund.

[00:14:27] Speaker 04:
You can repay it to the contributors pro rata and kind of a sea prey provision.

[00:14:38] Speaker 04:
If nothing else is available, you can give it to a charity, to a 501c3 charity.

[00:14:44] Speaker 04:
And is that not

[00:14:47] Speaker 04:
a strong public interest in saying that if someone has money contributed to the campaign, then the state can say, we're going to enforce the understanding of the contributor about how that money can be used.

[00:15:02] Speaker 04:
Is that not a significant interest?

[00:15:05] Speaker 02:
This is not the state's money.

[00:15:06] Speaker 02:
You're right.

[00:15:08] Speaker 02:
It's held in trust.

[00:15:09] Speaker 02:
for the people who donated the money.

[00:15:11] Speaker 02:
But it's the First Amendment that governs, for example, the distinction between a 501C3 and say a 50C4, for example.

[00:15:19] Speaker 02:
That's content discrimination.

[00:15:22] Speaker 02:
That is clear content discrimination.

[00:15:23] Speaker 02:
The state can't say, well, you can give to Planned Parenthood's 501C3 organization, but you can't give to Planned Parenthood's 50C4, which engages in advocacy.

[00:15:34] Speaker 02:
You cannot donate to that.

[00:15:36] Speaker 02:
That's content discrimination.

[00:15:38] Speaker 04:
Does that mean, is it, can the state not at all regulate the use of campaign money based on the legislature's understanding of what a contributor would expect to be done with the money?

[00:15:58] Speaker 02:
Is that an important interest?

[00:16:01] Speaker 02:
This is governed purely by the First Amendment, campaign expenditures, and the statute refers to these as expenditures.

[00:16:12] Speaker 02:
These expenditures are governed by the First Amendment.

[00:16:15] Speaker 02:
The First Amendment tells the states what limited authority they have.

[00:16:19] Speaker 02:
They are not free to decide based on public interest.

[00:16:22] Speaker 02:
To regulate a campaign expenditure, there has to be quid pro quo corruption.

[00:16:31] Speaker 02:
There has to be evidence of that.

[00:16:32] Speaker 02:
It cannot be conjecture.

[00:16:35] Speaker 02:
And there can be content discrimination.

[00:16:38] Speaker 02:
It's not up for the state or the Secretary of State to pick and choose.

[00:16:41] Speaker 02:
That's viewpoint discrimination.

[00:16:44] Speaker 02:
When you get down to that level, how come the Secretary of State and the District Court have never explained why Senator T.C.

[00:16:52] Speaker 02:
Pino's contribution is not protected by the First Amendment?

[00:16:56] Speaker 02:
There's never been any explanation for that.

[00:16:59] Speaker 02:
That's viewpoint discrimination when you're making those kinds of distinctions.

[00:17:03] Speaker 02:
And the Supreme Court has said so.

[00:17:06] Speaker 04:
Does the other members of the panel have any questions?

[00:17:09] Speaker 01:
I do, if you don't mind.

[00:17:12] Speaker 01:
I just want to follow up.

[00:17:16] Speaker 01:
You do rely, as I understand it today, and certainly in your briefing on strict scrutiny predicated on content-based discrimination.

[00:17:28] Speaker 01:
You haven't made an alternative argument for intermediate scrutiny, which is your prerogative as the appellant.

[00:17:38] Speaker 01:
If we decide, as the Supreme Court did in TikTok versus Garland, that it wasn't content-based discrimination, do we affirm?

[00:17:47] Speaker 01:
We don't have, theoretically, there could be an appeal in which we have alternative briefing on intermediate scrutiny, but we would be venturing on our own without the input of anything.

[00:18:00] Speaker 01:
So if we do, I understand you want us to say that it is content based and you make a strong argument to that regard, but if it's not content based discrimination, do we affirm?

[00:18:13] Speaker 02:
No, you can remand for the court to consider an alternative.

[00:18:18] Speaker 02:
alternative level of scrutiny.

[00:18:20] Speaker 02:
But keep in mind, the district court originally applied strict scrutiny when she granted the preliminary injunction.

[00:18:26] Speaker 02:
She saw this as a standard campaign finance case involving campaign expenditures.

[00:18:32] Speaker 02:
That's how it was originally viewed.

[00:18:34] Speaker 02:
And it wasn't until the secretary of state promised to view a campaign expenditure to women seeking abortion as protected speech, it wasn't until then that the district court changed.

[00:18:46] Speaker 01:
And then why, let me, can I ask, if I ask you a second?

[00:18:51] Speaker 01:
Sure, go ahead.

[00:18:52] Speaker 01:
So why, you know, give me your best argument for why it is content-based discrimination under A4 when it seems to me that you're talking about the mechanism for a, to take your point, an expenditure of the campaign, you know, if,

[00:19:13] Speaker 01:
If there was a donation to an individual that's not a 501c3 entity, let's say for an abortion fundraiser, then that presumably would be under A1.

[00:19:31] Speaker 01:
That would be an expenditure of the campaign.

[00:19:36] Speaker 01:
If there is a donation to a 501c3 entity that funds young kids going to pre-law, and they didn't donate to this young lady, and the senator's donation to this young lady for the $200 doesn't count,

[00:19:59] Speaker 01:
why isn't it a reasonable view to say it's not because of animosity to pre-law kids.

[00:20:06] Speaker 01:
It's just a preference for giving an exception under 501C3 because to take Judge Carson's original point, 501C3 has a tax rule that specifically prescribed self-dealing.

[00:20:26] Speaker 01:
which is not true for this particular expenditure.

[00:20:29] Speaker 01:
So why is this content based as opposed to just a reasonable difference in the protections that are afforded to 501c3 entities and just individuals that don't have those safeguards under the tax code and the associated rules?

[00:20:48] Speaker 02:
I'm sorry, are you saying why is a donation of 501c3?

[00:20:51] Speaker 01:
Why is this content based as opposed to

[00:20:55] Speaker 01:
based on the difference in the protections that are afforded to 501c3 entities versus other recipients of expenditures.

[00:21:07] Speaker 02:
Well, why is there, well, and let me be clear on this point.

[00:21:11] Speaker 02:
Senator Ortiz Epino in the record below testified that he has given campaign contributions to 50C4 organizations and he intends to, wants to after this litigation.

[00:21:23] Speaker 01:
Yeah, I'm not talking about just his ability.

[00:21:25] Speaker 01:
I'm talking about on the merits.

[00:21:27] Speaker 01:
Why is it not yet based?

[00:21:29] Speaker 01:
when there are specific safeguards under 501c3 and the tax rules that are not available to non-501c3 entities like 501c4 entities.

[00:21:40] Speaker 02:
But why, see, and here's a perfect example.

[00:21:44] Speaker 02:
The safeguards in the 503 are purely tax-based.

[00:21:49] Speaker 02:
The federal and the Supreme Court has held this in Regan.

[00:21:52] Speaker 02:
The legislature has decided to give tax subsidies to people who give to 50C3.

[00:21:58] Speaker 02:
So that's why there's protections there.

[00:22:00] Speaker 02:
And there's limitations on what a 50C3 can do.

[00:22:03] Speaker 02:
They cannot lobby the legislature, for example.

[00:22:05] Speaker 02:
A 50C4 can.

[00:22:07] Speaker 02:
A 50C4 can engage in advocacy.

[00:22:11] Speaker 02:
So for example, there was a ballot question here in Albuquerque on late-term abortion.

[00:22:17] Speaker 02:
The 50C4 Planned Parenthood got

[00:22:21] Speaker 02:
involved in that now if senator tcpino makes a contribution to that and we have a different secretary of state who decides no i don't think that's protected speech that's the therein lies the problem with the unbridled discrimination who is making that determination it's not in the statute the statute doesn't give any guidance on that point and so that's why the supreme court has always said unbridled discrimination is unconstitutional mr bach we want to

[00:22:49] Speaker 04:
I'm glad you aired your views, but we're already well over time.

[00:22:52] Speaker 04:
So I think you've made that point very clear.

[00:22:56] Speaker 04:
Thank you.

[00:22:57] Speaker 04:
Any other questions from the panel?

[00:22:59] Speaker 01:
No, I appreciate that, Mr. Buckhead.

[00:23:01] Speaker 01:
I appreciate that, Judge Harts.

[00:23:03] Speaker 04:
Thank you, Your Honor.

[00:23:04] Speaker 04:
Thank you, Mr. Buckhead.

[00:23:07] Speaker 04:
Mr. Tucker?

[00:23:12] Speaker 01:
Oh, you're on mute.

[00:23:15] Speaker 04:
You're on mute, Mr. Tucker.

[00:23:17] Speaker 04:
We haven't heard a word you've said.

[00:23:19] Speaker 01:
We haven't disagreed with anything you've said.

[00:23:22] Speaker 04:
Mr. Tucker, you're muted.

[00:23:26] Speaker 00:
My apologies.

[00:23:28] Speaker 00:
My name is Alex Tucker, and I represent Secretary Oliver, along with my colleague, Larry Marcus, on the brief.

[00:23:34] Speaker 00:
May it please the court?

[00:23:35] Speaker 04:
Let me start by getting some background straight, because this statute talks about payments by campaign committees or candidates.

[00:23:48] Speaker 04:
So apparently in New Mexico, a candidate doesn't have to have a campaign committee to receive political contributions.

[00:23:56] Speaker 04:
They can be made just directly to the candidate.

[00:23:59] Speaker 04:
Am I correct about that?

[00:24:01] Speaker 04:
Or is there something I'm missing in the law?

[00:24:03] Speaker 00:
I'm not sure about that, Your Honor.

[00:24:05] Speaker 00:
Typically, a candidate collects and spends funds through a campaign committee.

[00:24:10] Speaker 00:
And if we look at the definitions in 11926, the campaign committee

[00:24:18] Speaker 00:
typically is always making expenditures towards the actual campaign operations and political speech.

[00:24:25] Speaker 04:
But the statute does not seem to restrict itself in these requirements we're talking about to campaign committees.

[00:24:34] Speaker 04:
It says candidate or campaign committee, does it not?

[00:24:38] Speaker 04:
And so I was just wondering how that worked.

[00:24:40] Speaker 04:
How can you tell when somebody gives money to a candidate whether that's a personal gift

[00:24:45] Speaker 04:
It says it is unlawful for a candidate or the candidate's agent to make an expenditure of contributions received except for the following purposes or as otherwise provided in this section.

[00:24:56] Speaker 04:
So if a candidate can accept political donations, how do you know when that candidate spends money, whether that's money that was made as a campaign contribution, or maybe if the senator is known for being generous with students who want to go to law school or whatever,

[00:25:20] Speaker 04:
that I'll contribute to that for the senator.

[00:25:24] Speaker 04:
I'm not interested in this campaign.

[00:25:26] Speaker 04:
How do we distinguish that?

[00:25:28] Speaker 04:
Or am I missing something and every candidate has to have a campaign committee through which the contributions are funded?

[00:25:38] Speaker 00:
Your honor, I'm actually not familiar enough with the statute to touch on that issue considering that this is a facial challenge only

[00:25:45] Speaker 00:
to subsection A4 of 11929.1.

[00:25:48] Speaker 00:
I would be happy to offer additional briefing to the extent that would assist the court.

[00:25:57] Speaker 00:
But I did want to focus on why.

[00:26:00] Speaker 04:
I realize that's a little outside.

[00:26:02] Speaker 04:
It is outside the specifics of this case.

[00:26:05] Speaker 04:
But it makes it very difficult for me to analyze this.

[00:26:10] Speaker 04:
If a candidate can't make a contribution to help someone go to college, but the, but the candidate doesn't have a campaign committee.

[00:26:22] Speaker 04:
So the money just is going to the candidate and the candidate.

[00:26:31] Speaker 04:
can't distinguish between what's a gift to the candidate for use for anything, or it's a campaign contribution that's restricted by this law.

[00:26:40] Speaker 04:
If you could, if the parties could give some guidance on that, I would find that relevant and perhaps helpful.

[00:26:51] Speaker 00:
Thank you, Your Honor.

[00:26:52] Speaker 00:
I'm not sure I can provide that right now on the spot.

[00:26:55] Speaker 04:
No, no, no.

[00:26:56] Speaker 04:
28-J letters are fine.

[00:26:58] Speaker 04:
Do that within a week, though.

[00:27:00] Speaker 04:
Do it before Thanksgiving.

[00:27:01] Speaker 04:
We'll give you until Wednesday before Thanksgiving.

[00:27:04] Speaker 04:
Is that enough time?

[00:27:06] Speaker 04:
Yes, sir.

[00:27:07] Speaker 04:
Mr. Baca?

[00:27:09] Speaker 02:
Your Honor, I'm flying out this afternoon for Thanksgiving.

[00:27:14] Speaker 02:
Could we extend it to the first week of December 1st?

[00:27:21] Speaker 04:
If you're not happy with what Mr. Tucker provides, then yeah, let us know by then.

[00:27:26] Speaker 04:
OK?

[00:27:27] Speaker 02:
OK, thank you, Your Honor.

[00:27:30] Speaker 04:
Okay, now we're ready to, you can start with the argument you were planning to make, Mr. Tucker.

[00:27:36] Speaker 00:
Thank you, Your Honor.

[00:27:38] Speaker 00:
I want to remind the court first that at issue today is only a First Amendment facial challenge, specifically to subsection A4 of Section 1-19-29.1 of New Mexico's Campaign Reporting Act.

[00:27:52] Speaker 00:
And I'm going to refer to that statute as New Mexico's personal use statute because the purpose and function of this statute is not to regulate speech or things that would actually be considered legitimate campaign expenditures protected by the First Amendment, but the types of improper use of campaign funds for non-campaign purposes that do not necessarily create a message or further political messaging or operation of an actual campaign.

[00:28:20] Speaker 00:
The district court recognized as much in granting summary judgment to Secretary Oliver.

[00:28:25] Speaker 00:
This court should affirm for two reasons.

[00:28:29] Speaker 00:
The first is because plaintiff does not have standing to bring his facial challenge.

[00:28:34] Speaker 00:
The second reason is because his facial challenge fails on the merits.

[00:28:39] Speaker 00:
And I'll start with standing.

[00:28:41] Speaker 00:
And I'm going to go a little bit out of order because I think redressability is really the fatal flaw here.

[00:28:47] Speaker 00:
But there's also some issues with injury, in fact.

[00:28:50] Speaker 00:
But I'll start with redressability.

[00:28:52] Speaker 00:
The plaintiff's case functions on a fundamental misreading of subsection A4.

[00:28:57] Speaker 00:
Instead of reading the statute as a whole and in relation to its other parts, plaintiff reads subsection A4 as creating a de facto ban on any and all campaign expenditures to 501C4 organizations.

[00:29:11] Speaker 00:
Accordingly, in his complaint, the relief he seeks is a declaration providing that only subsection A4 violates the First Amendment of the Constitution, as well as a permanent injunction enjoining the state from ever enforcing subsection A4.

[00:29:29] Speaker 00:
But the Senator has misunderstood that A4 creates a de facto ban on donations to 501C4 organizations if an expenditure

[00:29:41] Speaker 00:
would further the operations or messaging of the campaign, of course,

[00:29:45] Speaker 00:
that wades into political speech and will be allowed under other subsections of the statute.

[00:29:52] Speaker 00:
Again, if you read a foreign vacuum, sure, you might be able to construe it the way my colleague does, but that's not what case law tells us to do.

[00:30:02] Speaker 00:
In a facial challenge, we have to first look at a statute to see how it operates.

[00:30:07] Speaker 00:
And part of that is following basic canons of construction that provide that we need to read a statute in relation to its other parts.

[00:30:13] Speaker 00:
And so any expenditure to a 501C4 that would legitimately further a campaign and therefore be covered by the First Amendment is usually going to fall under subsection A1.

[00:30:24] Speaker 01:
That's only if we subscribe to the District Court's interpretation of A1, right?

[00:30:30] Speaker 00:
Sorry, Your Honor, I missed the first part.

[00:30:32] Speaker 01:
It's only if we subscribe to the District Court's interpretation of A1, which is a merits-based inquiry, right?

[00:30:40] Speaker 00:
The district court's interpretation, a one, your honor is a reasonable interpretation that case law instructs courts to reach.

[00:30:46] Speaker 01:
I understand that, but that's it.

[00:30:48] Speaker 01:
But I thought you were addressing standing and instead of the merits of his first amendment claim.

[00:30:55] Speaker 00:
I am.

[00:30:55] Speaker 00:
I'm getting there, your honor.

[00:30:56] Speaker 00:
The standing address ability issue arises from this misunderstanding of the statute.

[00:31:02] Speaker 00:
A4 by itself just creates a presumption of legality for money going from a campaign account to a 501C3.

[00:31:10] Speaker 00:
And so if this court gives plaintiff everything he wants, and that's a declaration that A4 is invalid and unenforceable, all that would do is just remove the presumption of legality for expenditures to 501C3 organizations, which would not...

[00:31:27] Speaker 01:
Okay, sorry to talk over you, but because you made that argument in your brief very well, and I understand that.

[00:31:35] Speaker 01:
But the plaintiff in their, the Senator in his complaint also asks in his prayer for any other such relief as he may be entitled to under Rule 54C,

[00:31:48] Speaker 01:
And Rule 54C says, every other final judgment should grant relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.

[00:31:58] Speaker 01:
So I do understand, and even if we credit your argument, that the relief requested to eliminate A-4 would not redress his injury,

[00:32:13] Speaker 01:
The substance of his claim is that the prescription of these expenditures, which is the entirety of the provision, should be invalidated as a violation of the First Amendment.

[00:32:26] Speaker 01:
Is that fair?

[00:32:29] Speaker 00:
I don't think that's fair, Your Honor.

[00:32:30] Speaker 00:
I think in plaintiff's brief itself, he actually emphasized that the challenge is only to subsection A4.

[00:32:37] Speaker 00:
And

[00:32:38] Speaker 00:
I think if we observe traditional principles of judicial restraint when weighing facial challenges to state statutes, the considerations of severability and basically only touching the statute to the extent absolutely necessary to render it constitutional would apply here.

[00:32:55] Speaker 00:
And so to the extent the court would be looking at any further relief than what plaintiff has asked for,

[00:33:00] Speaker 00:
I think one, there's a problem because there hasn't been meaningful record or argument developed as to those issues.

[00:33:05] Speaker 00:
And two, he just simply hasn't met any burden to show that A4, let alone larger parts of New Mexico's personal use statute or larger parts of the Campaign Reporting Act, have more unconstitutional applications than not.

[00:33:24] Speaker 00:
And that's his burden in a facial challenge.

[00:33:30] Speaker 00:
Just to recap addressability, once again, the reported injury is that the Senator wants to spend money left in his campaign accounts, perhaps to individuals, perhaps to 501C4s.

[00:33:43] Speaker 00:
Eliminating A4 would not have the effect of allowing him to do that because the statute, when properly read as a whole and in relation to other parts of the Campaign Reporting Act, targets conduct, not speech.

[00:33:55] Speaker 00:
it encompasses and allows anything that would constitute First Amendment protection.

[00:34:02] Speaker 04:
So you're saying if a statute prohibits conduct, then there's no First Amendment interest to be addressed?

[00:34:13] Speaker 04:
I mean, even in O'Brien, where the Supreme Court upheld the ban on burning draft cards, the court acknowledged there was an expressive element to it.

[00:34:23] Speaker 04:
and had a way of reviewing whether such bans on conduct can survive First Amendment review.

[00:34:33] Speaker 04:
They didn't say that because it's conduct burning a draft card that therefore it can't be speech.

[00:34:42] Speaker 04:
The Supreme Court said you can't ban flag burning, for example.

[00:34:45] Speaker 04:
I'm sure you're familiar with that case.

[00:34:47] Speaker 04:
So why do you say this is just conduct when some of it

[00:34:51] Speaker 00:
can be expressive santa in fact it would be yeah yes well maybe i shouldn't have painted so broadly your honor

[00:35:01] Speaker 00:
What we're saying is that gifts to individuals that aren't directly related to campaign purposes have very little expressive conduct.

[00:35:10] Speaker 00:
And I understand that your honors acknowledged that in the questioning to my colleague.

[00:35:16] Speaker 00:
But there's some.

[00:35:17] Speaker 04:
There's some.

[00:35:18] Speaker 00:
There may be some.

[00:35:19] Speaker 00:
But even though there may be some, we have examples.

[00:35:22] Speaker 00:
where there is very little expressive value and the state has a serious interest in preventing self-dealing or other quid pro quo uses or improper uses of campaign funds, that these types of statutes, even if they operate to regulate in some instances the fringe of constitutional speech, they're still assessed under rational basis review.

[00:35:42] Speaker 00:
And that's the O'Donnell case out of the District of Delaware, which is one of the only cases in federal law where we're dealing with

[00:35:48] Speaker 00:
at least somewhat on point analogy to a facial challenge to a personal use statute.

[00:35:55] Speaker 00:
The other cases that plaintiff rely on are in the category of cases that I would call a hard limit or hard amount cases where the reasoning of Buckley kicks in because when you limit the amount of money that a campaign can spend, you are necessarily limiting any speech that would proliferate as a consequence of spending that money on additional campaign operations.

[00:36:16] Speaker 00:
But this speaks to the larger purpose of New Mexico's personal use statutes and personal use statutes across almost all 50 states and in federal law is that they don't target and are not intended to target.

[00:36:31] Speaker 00:
Actual protected political speech.

[00:36:33] Speaker 00:
They're intended to protect to target conduct that is not protected by the First Amendment, and that is the use of campaign funds for matters that are not campaign uses and do not necessarily

[00:36:44] Speaker 00:
further any sort of political speech.

[00:36:48] Speaker 00:
Spending money by itself isn't speech, particularly in the campaign context, unless you get into the money being used to further the operations and messaging of a political campaign, then it's speech.

[00:37:05] Speaker 04:
But otherwise... You're saying the only type of speech that counts is political speech?

[00:37:09] Speaker 04:
If a contribution

[00:37:11] Speaker 04:
is speech or has a speech component because it advances your political cause, then why can't, why is it not speech if your contribution advances some other cause that's not political?

[00:37:28] Speaker 00:
Well, it may or it may not.

[00:37:29] Speaker 00:
And the court doesn't have to engage in that speech line drawing to actually affirm the district court.

[00:37:34] Speaker 00:
Because if we look at New Mexico's statute, just because the statute allows certain expenditures,

[00:37:40] Speaker 00:
does not mean that those expenditures would also necessarily enjoy First Amendment protection.

[00:37:45] Speaker 00:
It just means that New Mexico chooses to allow them.

[00:37:47] Speaker 00:
But anything that would enjoy First Amendment protection, including certain expenditures to 501C4 organizations, would typically be encompassed under other subsections of New Mexico's personal use statute and not necessarily subsection A4.

[00:38:02] Speaker 04:
Let's get to specifics.

[00:38:04] Speaker 04:
One thing Mr. Baca focused on is

[00:38:08] Speaker 04:
Under your analysis, the Secretary of State can make a decision that providing campaign funds to help someone get an abortion is protected.

[00:38:18] Speaker 04:
It's not prohibited by the statute.

[00:38:21] Speaker 04:
But using campaign funds to help someone go to law school is not protected.

[00:38:27] Speaker 04:
Is he characterizing correctly what the Secretary of State's position is?

[00:38:33] Speaker 04:
He is not, Your Honor.

[00:38:34] Speaker 04:
What's his error?

[00:38:37] Speaker 00:
The problem is that, so if we go to the abortion hypothetical,

[00:38:43] Speaker 00:
In that hypothetical, the secretary considered it an expenditure of the campaign because, and if we look at the district court's discussion of that hypothetical, the donation itself carried with it significant indicia of speech and support of the campaign and the political message of the candidate.

[00:39:00] Speaker 04:
And again, why does that not also apply to the expenditure to allow

[00:39:12] Speaker 04:
to help this woman go to law school.

[00:39:14] Speaker 04:
Why is that different from the expenditure to help this person go to law school?

[00:39:21] Speaker 04:
Doesn't that convey a strong support for higher education?

[00:39:25] Speaker 00:
Not in and of itself, Your Honor.

[00:39:28] Speaker 04:
The only indication... So the Secretary of State has that

[00:39:33] Speaker 04:
authority to decide, well, I don't think that expenditure, the expressive aspect of that expenditure is protected, but this other expenditure, expressive component is protected.

[00:39:51] Speaker 04:
You're really going to let the Secretary of State decide those things?

[00:39:54] Speaker 00:
And she's not necessarily deciding what is and isn't speech, your honor.

[00:39:59] Speaker 00:
Neither the statute nor the secretary decides what's protected by the First Amendment.

[00:40:03] Speaker 04:
Let me focus that.

[00:40:06] Speaker 04:
Did she distinguish between the two types of expenditures, money going for an abortion and money going to help someone go to law school?

[00:40:13] Speaker 04:
Did she make a distinction between those two and one's prohibited and one's allowed?

[00:40:19] Speaker 04:
Whatever her reasoning, did she make that distinction?

[00:40:22] Speaker 04:
She might have a good reason, but did she make that distinction?

[00:40:27] Speaker 00:
The distinction was based on the level.

[00:40:29] Speaker 04:
I'm not interested in the in her reasoning behind it.

[00:40:32] Speaker 04:
We can get to that later.

[00:40:34] Speaker 04:
Did she say this one is allowed and this one is not?

[00:40:38] Speaker 04:
Did she reach that conclusion?

[00:40:41] Speaker 00:
She said that under her interpretation of the statute and the regulations she promulgated, because it carried the indicia of political speech with her.

[00:40:48] Speaker 04:
You're not answering my questions.

[00:40:50] Speaker 04:
I just said, don't give me her reasoning.

[00:40:51] Speaker 04:
I want to know her bottom line.

[00:40:54] Speaker 04:
Was her bottom line that the money to help this woman go to college or law school was prohibited by the statute, but money to help somebody get an abortion was allowed under the statute?

[00:41:07] Speaker 04:
Was that her bottom line?

[00:41:09] Speaker 04:
Yes or no?

[00:41:10] Speaker 04:
No, your honor.

[00:41:14] Speaker 04:
It was okay.

[00:41:14] Speaker 04:
So she said, then why did she, what was, what was the difference?

[00:41:21] Speaker 04:
What was the difference?

[00:41:23] Speaker 04:
Did she, she, she, she did say that the money going to help this woman go to law school,

[00:41:30] Speaker 04:
is permitted under the statute.

[00:41:31] Speaker 04:
That's what you're saying.

[00:41:32] Speaker 04:
She made a decision that Senator T.C.

[00:41:36] Speaker 04:
Pino could use campaign funds to help this woman go to law school, whatever it was.

[00:41:41] Speaker 04:
She said that's OK?

[00:41:44] Speaker 00:
She did not say that was OK, but nor did she decide that it necessarily violated the statute.

[00:41:48] Speaker 00:
All she did and all she can do is refer for prosecution.

[00:41:55] Speaker 04:
And the reason why, OK, and did she?

[00:41:58] Speaker 04:
But she wouldn't refer for prosecution, an expenditure to help someone get an abortion.

[00:42:03] Speaker 04:
Is that correct?

[00:42:05] Speaker 00:
In this specific circumstance raised before the district court where that donation to the student to get an abortion carried with a significant public political speech, that's that was the difference maker there.

[00:42:18] Speaker 00:
And although the circumstances of the $200 donation at issue in the senators as applied case, that's not before this court.

[00:42:26] Speaker 00:
This court is dealing with a facial challenge, but just for the sake of argument, we can go back and look at the record and nothing about this donation.

[00:42:35] Speaker 00:
Actually showed any expressive value.

[00:42:37] Speaker 00:
It was a gift to an individual.

[00:42:39] Speaker 00:
That by itself had very little disclosure in any contribution.

[00:42:46] Speaker 04:
Every contribution is a gift and the expressive content is by giving this money.

[00:42:52] Speaker 04:
Do I show support for this cause?

[00:42:55] Speaker 04:
and in one case you support the cause of abortion, and the other you support for choice, and the other you support the cause of letting indigent or less well-off people get higher education.

[00:43:10] Speaker 04:
What's the difference in the expressive content in the two?

[00:43:16] Speaker 04:
Except that she might approve of one and not the other.

[00:43:22] Speaker 00:
The difference your honor again if we go so I guess how can I frame this.

[00:43:29] Speaker 00:
this to save the stat we don't need to do any line drawing there or look at that hypothetical to save the statute from constitutionality because even this gift to the student itself it might not the abortion gift might not have first amendment protection but that doesn't mean that new mexico's campaign reporting act can't allow it and that the secretary can't promulgate and reasonably interpret the statute

[00:43:54] Speaker 00:
to understand that gifts that carry with it the indicia of political speech.

[00:44:00] Speaker 04:
This doesn't scare you at all that the state official can decide I think that speech is important and that speech isn't.

[00:44:07] Speaker 00:
and she's she's not decided to prosecution in one case but not the other that that doesn't disturb you as being fundamentally contrary to first amendment principles well your honor this is not unbridled discretion we're talking about the regulations and what the district court recognizes a reasonable construction of new mexico's personal use rules is built into the plain language of the statute and not just 119 29.1

[00:44:37] Speaker 00:
set together, but also in the definitions of 11926, the secretary, those regulations and that interpretation that it carries with it, the addition of speech acknowledges that the expenditure has a political purpose.

[00:44:53] Speaker 00:
And that's in 11926, we have a subsection W, subsection F, subsection G, and probably most importantly, subsection P for the purpose of applying

[00:45:06] Speaker 00:
A 1 of 1, 1929.1 and subsection P defines an expenditure.

[00:45:14] Speaker 00:
And a 1 of the personal use rule.

[00:45:17] Speaker 00:
Allows all expenditures of the campaign, but the important part.

[00:45:21] Speaker 00:
Of the definition of expenditure is that it must always have a political purpose.

[00:45:25] Speaker 00:
And so we can tell that something has a political purpose when a candidate shows that they're giving expressive value, particularly in the context of their campaign uses of campaign money to further the messaging and operations of the campaign.

[00:45:40] Speaker 00:
So we can tell that in the abortion example because that example had carried with it a measure of publication, a measure of expressive support.

[00:45:50] Speaker 00:
Whereas if we look at the actual record of the senator's donation, he in no way publicly made this donation.

[00:45:56] Speaker 00:
This was a quiet $200 gift to an individual labeled with a very nondescript charitable donation to scholarship or something along those lines.

[00:46:05] Speaker 00:
And so

[00:46:06] Speaker 00:
It's very difficult for us to achieve the purposes of a prophylactic statute like 119.29.1 without flagging donations like that and at least digging a little deeper.

[00:46:21] Speaker 04:
I think you made your point.

[00:46:25] Speaker 04:
We're way over time.

[00:46:26] Speaker 04:
So I'd like to make sure my colleagues have a chance to ask any questions they have.

[00:46:31] Speaker 01:
Thank you, Judge.

[00:46:32] Speaker 04:
None for me.

[00:46:36] Speaker 04:
Okay.

[00:46:40] Speaker 04:
I think that does it then.

[00:46:42] Speaker 04:
Thank you, Mr. Tucker.

[00:46:44] Speaker 04:
Did Mr. Baca have any time remaining?

[00:46:47] Speaker 01:
Mr. Baca was eight minutes over as well.

[00:46:50] Speaker 01:
Okay.

[00:46:50] Speaker 04:
Oh, okay.

[00:46:51] Speaker 04:
So it worked out very evenly.

[00:46:53] Speaker 04:
You each got 23 minutes.

[00:46:54] Speaker 04:
So that's good.

[00:46:59] Speaker 04:
even if we were fair and inadvertently, at least it ended up being fair.

[00:47:03] Speaker 04:
Okay, thank you very much, council.

[00:47:06] Speaker 04:
Case is submitted, councilor excused.

[00:47:08] Speaker 04:
Have a good vacation, Mr. Baca.

[00:47:10] Speaker 04:
Thank you, thank you, your honor.

[00:47:12] Speaker 02:
So there will be an AJ letter, 28J letter.

[00:47:16] Speaker 04:
I'd like a 28J letter from Mr. Tucker for Thanksgiving by next Wednesday, a week from Wednesday.

[00:47:24] Speaker 04:
Yes, your honor.

[00:47:26] Speaker 04:
That may be all we need.

[00:47:27] Speaker 04:
I'm just curious what the,

[00:47:28] Speaker 04:
What the law is about candidates, uh, raising money without a campaign committee.

[00:47:36] Speaker 00:
So the question your honors to clarify is under the campaign reporting act can candidates raise money without a. Campaign committee.

[00:47:44] Speaker 04:
Yeah, it's because of those language in one 1929.1 a, it is unlawful for a candidate or the candidates agent to make an expenditure of contributions received that may be candidate make an expenditure out of the.

[00:48:02] Speaker 04:
campaign committee funds, I'm not sure what it's referring to, but I couldn't find anything and I will miss something that requires candidates to have a campaign committee to accept the donations and make expenditures.

[00:48:21] Speaker 04:
Great.

[00:48:21] Speaker 04:
Thank you, Your Honor.

[00:48:22] Speaker 04:
Thank you.

[00:48:24] Speaker 04:
Very good.

[00:48:26] Speaker 04:
Case is submitted.

[00:48:27] Speaker 04:
Counselor excused.

[00:48:29] Speaker 04:
We'll be in recess until 9 AM tomorrow morning.