Secretary of State Tries End Run Around The Constitution
Michael P. DeGrandis, Las Cruces Sun- News
“I’m Just a Bill” is an iconic episode from the 1970s Schoolhouse Rock educational series. The catchy tune taught us how a bill becomes a law where he “wait(s) in line, with a lot of other bills” for the executive to sign. It also explains that a vetoed bill will only become law with an override in the Legislature.
Based on her actions of late, it would appear that New Mexico Secretary of State Maggie Toulouse Oliver missed the cartoon. She seems to think that an administrator such as herself may “veto a veto” by simply turning a dead bill’s policies and strictures into a regulation. That’s not how the Constitution works.
Oliver’s end-run around New Mexico’s Constitution started when the Legislature passed Senate Bill 96, which proposed to amend the state’s Campaign Reporting Act by adding an independent expenditure reporting requirement to the existing law. When the Legislature presented the bill to Gov. Susana Martinez, however, the governor vetoed it because she feared that the new reporting requirements cast such a wide net that they could discourage individuals from giving to charities.
The veto did not deter Oliver. “I’m left with no other choice,” she said, than “to go forward utilizing my rulemaking authority to address many of these much needed reforms before the next statewide election.”
As constitutionally unhinged as this statement may be, the secretary deserves credit for being a woman of her word. The adopted regulation is materially identical to SB96, creating new campaign finance reporting rights and duties for a new class of regulated citizens, as if the governor’s veto had never happened.
This regulation poses a grave threat to the essential nature of constitutional government in New Mexico. It violates New Mexico Constitution Article III, Section 1, the separation of powers, which guarantees that governmental powers are divided into three distinct departments—and that no branch may exercise any powers properly belonging to either of the others.
The secretary has violated this essential principle several times over by usurping legislative policymaking and lawmaking authority, by pre-empting the legislative veto override authority, and by annulling the gubernatorial veto prerogative.
The secretary has put the Legislature and the governor in the untenable position of responding to, rather than initiating, core public policy choices because she hijacked their constitutional functions.
Separation of powers is designed to prevent this coalescing of tyrannical power, and it is an essential feature of our constitutional system. Without a constitutionally defined structural separation, there can be no checks and balances to ward off overreach by ambitious legislators, judges—or even secretaries of state.
If the secretary is permitted to invalidate the SB96 veto and circumvent legislative action on the veto, the constitutional requirements of bicameral bill passage and presentment of such bills to the governor for signing will cease to have any practical importance. This dangerous outcome would neutralize much of the liberty-preserving checks and balances scheme and jeopardize the viability of the republican form of government established by New Mexico’s Constitution, and guaranteed to all Americans under Article IV, Section 4 of the U.S. Constitution.
The “sad little scrap of paper” named Bill, hoping he would become a law, feared a veto because a veto would send him back to the legislature where “they vote on me again, and by that time it’s … very unlikely that you’ll become a law!” I’m Just a Bill makes no mention of a secretary of state’s role in this process because administrators have no roles to play. This is the constitutional design, where the separation of powers coordinates a system of checks and balances between a governor and a Legislature to make policy and law. If vetoes don’t have consequences reconciled through these two branches, the entire constitutional system is turned on its head, and our civil liberties won’t be far behind.
Michael P. DeGrandis is senior litigation counsel at the New Civil Liberties Alliance, a nonprofit civil rights organization that recently filed a Petition for a Writ of Mandamus in the Supreme Court of New Mexico on behalf of several senators and representatives asking the Court to declare the regulation unconstitutional.
December 27, 2018
