New Mexico Political Journal

Missing the Mark on Campaign Finance Reform: Senate Bill 96 is Fake Reform, at Best.

02/24/2017

It has long been the position of New Mexico Political Journal that New Mexico’s Campaign Reporting Act is a mess, filled with unconstitutional provisions and vague language, all of which has made our campaign finance laws generally unenforceable and therefore virtually useless.

The Current Situation: New Perspectives

In 2016, New Mexicans at least gained considerable ability to view some of the problems first hand and analyze the situation, even if the campaign finance laws themselves remained useless.

Beginning last year, for the first time members of the public were able to do more than just view the PDF image files of campaign reports filed with the Secretary of State’s office. Changes to the online reporting system made it possible for New Mexicans to download all contributions and expenditures onto spreadsheets and take a good look at them.

What became obvious is that there are tons of hidden money being used to finance our campaigns, and hundreds of sleight-of-hand transactions taking place to try to make sure no one can figure out who is pulling the strings behind the scenes.

Senator Wirth and Senate Bill 96

Senator Peter Wirth has long been the legislator working hardest to try to do something to at least to make our campaign finance laws useful in some way. Over the past seven years, he has repeatedly introduced comprehensive proposals to fix our broken system, but has come up short.

However, this year’s effort, Senate Bill 96, unfortunately does not even come close to turning our governing statutes into useful tools for this very important and highly contentious area of law.

It is our view that the problems of hidden money in New Mexico elections will actually be made worse by Senate Bill 96. Much worse.

Reasons why SB 96 makes things Worse

One of the things Wirth’s bill attempts to address is “coordination” between candidates and third parties. In New Mexico, there are limits on the amount of money a candidate can receive from a single person or entity, so if a third party surreptitiously or secretly pays for advertising that benefits a candidate, that candidate receives an unfair advantage over his opponent.

One objective that SB 96 is trying to accomplish is to make any “coordinated expenditure” be treated as an in-kind contribution to the candidate, so that the public policy goal behind the contribution limits we now have cannot be evaded.

That’s the idea, but unfortunately the bill doesn’t accomplish that purpose—and in missing the mark it also appears to infringe on First Amendment rights.

Going after the Little People, But Leaving the Fat Cats Free to Prowl

Senate Bill 96 creates a definition of coordination for candidates and political parties that is stricter than the federal law. But while it does that, it reduces the requirements for PACs and fails to establish any definition at all for one critical activity known as “earmarking.”

This means that certain requirements in this bill will only be applied to the least effective participants in the political process, the relatively small—in many cases inconsequential—spenders who are not routinely engaged in political speech. The proposed requirements hit the amateurs, so to speak.

Meanwhile the big money people — the multitude of PACS who are deeply engaged in conduit and channeling activities that would be prohibited at the federal level — get to keep hiding stuff. In other words, the little people are reined in while the professionals run wild.

The upshot of such provisions is that they will discourage participation and free speech for smaller voices that cannot afford the vast array of accountants and lawyers specifically trained in campaign finance law.

On the other hand the well-funded PACs and special interests with big out-of-state dollars—oftentimes out-of-state unions and special interests backed by one singularly large individual contributor, will continue to be free to continue playing the shell game already so prevalent in New Mexico.

That means that people like the Koch Brothers, George Soros, Tom Steyer, Michael Bloomberg, Sheldon Adelson, and Warren Buffet will be able to continue hiding the true sources of campaign contributions from New Mexico voters.

Examples of Why SB 96 Just Makes things Worse: Dark Money Still Reigns

In 2009, when the contribution limits were first established, there were about 25 PACs operating in New Mexico. (By “PACs” we are referring to political committees — the term used in New Mexico statutes. The acronym actually stands for “political action committees.)

By the time of the 2016 election, we had at 270 PACs registered to operate in our state. That exponential growth in the number of PACs has dramatically increased the sheer volume of fund transfers between and among this bewildering array of PACs.

These entities are moving money from PAC to PAC to PAC, totally obscuring the true sources of funds that pour into our state. In fact in many instances this ability to hide contributions is probably a major reason for the creation of a new PAC.

The Same People Appear Over and Over

When we look at these PACs, we see that oftentimes multiple PACs are operated by the same people or small group of people. We also see PACs that appear to get their contributions from the same small group of contributors, and contribute to the same small group of candidates.

As an example, let’s look at Mayor Bloomberg’s New York PAC, Everytown for Gun Safety. In the last 60 days of last year’s General Election, that out-of-state PAC contributed over $190,000 to 14 different in-state New Mexico PACs.

Some of those PACs also turned around and contributed directly to candidates.
Some of those PACs paid for advertising that was ostensibly “independent” of the candidates.

So the sponsor of the Bloomberg bill, Representative Stephanie Garcia-Richard (D-Los Alamos) received $2,500 from the New York PAC, but she received almost $20,000 more from PACs that Everytown for Gun Safety contributed to. In other words, Garcia-Richard received hidden PAC to PAC to PAC dollars to fund her campaign.

Earmarking Made Worse

We have provisions in the existing Campaign Reporting Act to address issues like “earmarking,” just as are found in federal law — provisions that should prevent the use of conduits and intermediaries to funnel contributions to candidates in ways that obscure the sources.

But based on the campaign finance reports from 2016, the New Mexico provisions are certainly not being interpreted by the Attorney General or the Secretary of State in the same way as the federal provisions against “earmarking,” or those provisions that prohibit contributions made through conduits or intermediaries.

Senate Bill 96 actually allows PACs to further obscure their activity by deleting existing language in the Campaign Reporting Act. The deleted language currently requires PACs to disclose “the name, address and relationship of any connected or associated organization or entity.” For whatever reason, that's gone from the new proposal. That's just plain wrong.

Everybody is “All-in” for these Latest Promises of “Reform.” But Why?

Senator Wirth, Common Cause, the current Secretary of State, and some prominent politicians appear to be “all-in” for this latest purported promise of campaign finance reform.

But of course the bill does not address the most basic “coordination” activities that take place right in front of our eyes. The bill does nothing to address the interlocking relationships that distribute the big, out-of-state dollars — the shell games involving endless transfers of money from PAC to PAC to PAC.

Failing to address these most egregious abuses that we have does not serve the public interest.

What the legislature will be saying is that those kinds of abuses — the kinds that they supposedly want corrected — are just fine and dandy. They are saying that, despite a lot of talk about “reform,” the shell games are just hunky dory.

Why?

Is it because the current Secretary of State’s own campaign treasurer was also the treasurer for six — count ‘em — 6 PACs? (All of them engaged in PAC to PAC to PAC shell games.)

If the New Mexico legislature is truly concerned about unlawful coordinated activities and earmarking between candidates and third parties, it should adopt constitutionally sound and tested federal standards instead of giving a pass to its biggest political contributors while targeting the small fry — the individuals and non-profits this bill is zeroing in on.

In summary, under the First Amendment to the U.S. Constitution and decisions of the U.S. Supreme Court, laws regarding campaign finance disclosures must be tied to informing the public about what groups are seeking some particular electoral outcome in our elections.

This bill fails to meet that requirement

Email us (at nmpj@dfn.com) with your feedback, comments, questions and ideas.

Intelligent Political Discourse—for the Thoughtful New Mexican

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Jeb Bush gets religion.

"They said he got religion at the end, and I'm glad that he did." — Tom T. Hall. The Year Clayton Delaney died.

Well, it's official. Jeb Bush has changed quite of few of his positions on illegal immigration. The single most significant is that he no longer endorses the "path to citizenship" for those who came here illegally.

This is, after all, the key portion of any proposal aimed at "reforming" our existing illegal immigration situation.

No sensible citizen can see any point in trying to deport between 12 and 16 million people currently living in America illegally. And no candidate for any office that we know of supports that. What the average American wants is for the country to "get a handle on it." They want it stopped, our borders secured and future illegal immigration prevented. It is a national security issue.

The Path to Legal Status

The only way to accomplish the above goals, is to identify current illegal immigrants, get them accounted for, have them documented, and placed on a path to legal status. Neither they nor their children or spouses should live in a state of fear or anxiety.

But a path to "citizenship" is not the right course. It is not morally or legally correct. A merciful and compassionate nation can provide the safeguards of legal status without sending the message to the rest of the world that all you have to do is cross our border and you will eventually get to become a citizen, thus circumventing the legal framework scores of millions of Americans have followed, honored and respected.

If someone who is granted legal status eventually wants to become a citizen, that person should have to return to his or her country of origin and wait in line like 20 million people around the world are doing at any given time. Failing that, America will forever send the signal that anyone in the world can "jump the line," and that there is no reason at all to obey our immigration and naturalization laws.

We Like Jeb Bush

We are glad Jeb Bush has learned this lesson. He is a fine speaker, and can eloquently explain his positions on complex issue. If he were not named "Bush" he would be an actual top tier candidate—in all that that title would entail, including likelihood of acceptance and support of and from the American people in the primaries, and in any theoretical general election.

We also recognize that he already is a de facto top-tier candidate because of his fame and his fundraising.

If he were to be the nominee of the Republican Party we would heartily support him and endorse him. We hope, however, that he is not, as he does not give the center-right coalition the best chance of winning.

The Major League Baseball Playoffs are not realistic, and destroy the actual meaning of the sport.

Major League Baseball is unique in this respect—its postseason is markedly different from the way the game is played normally. No other major league sport suffers from this flaw.

Not that much is wrong with baseball. In some respects it's the most well thought-out sport there is. The "perfect game" many aficionados say.

But the Major League Baseball postseason experience is unique in the world of professional sports, and not in a good way.

In fact the playoffs are flawed in such a way as to detract from the sport itself and diminish the game and what it means to be the world champion of the sport.

Among the Big Four team sports of North America: football, hockey, basketball and baseball—and all the 122 professional major league teams competing in the NFL, NHL, NBA and MLB respectively—it is in baseball alone that the postseason turns the sport itself on its head and makes it reflect something that it is not. This article will explain why that happens and why it is wrong-headed.

Background on the The Frequency of Play

The 30 teams in both the National Hockey League and the National Basketball Association teams play a very similar schedule. On average, each team has a day off between games, sometimes two days off. Though there are back-to-back games, they are relatively infrequent. NBA teams play between 14 and 22 back-to-back games a season, and for the NHL it usually ranges between 9 and 19. The NFL has a full week between games, the exception being the new Thursday games that each team plays once, leaving them only four days' rest once a year.

But baseball players play every single day. Ten days straight, then a day off, then seven more games, then a day off, then ten more games. Typically a baseball team plays 27 games every 30 days. For the NHL and NBA it would be 14 per month, and for the NFL the number would be 4.

Getting to the Playoffs: It's a grind

In all four sports, getting to the postseason requires a total team effort—in fact an all-out total organizational effort. Teams must be deep, have bench strength and the capability of moving players in and out of the lineup, and on and off the roster, who can take the place of key players who go down for an injury, or who have to miss games for whatever reason. While this is true of the other three major sports as well, it is most certainly even more of a concern for baseball teams because of the sheer volume of games in which a team must field a competitive lineup.

Each league's regular season* is a marathon, not a sprint. NFL teams play for 17 weeks, 16 games. The NHL has an 82-game season over six months, paralleled by an NBA season of 84 games over the same timeframe. Baseball is the biggest marathon of all—a true test of resilience and endurance—162 games usually starting around the beginning of April and finishing about the end of September.

NHL teams carry 23-man rosters, of which 20 can be active for any particular game. The NBA is similar, with 15-man rosters of which 13 can be on the bench for a given game. In the NFL, the teams have 53 players on a roster, but only 46 can suit up on game day. In Major League Baseball, teams have a 25-man active roster, and all 25 are at the park every day.

The Postseason Playoffs: Sport by Sport

The National Football League:

Of the 32 teams, 12 qualify for the playoffs. The playoffs are conducted in the exact same manner as the regular season. Each team plays once a week, the exception being that the four top teams get the first week off. For a typical qualifier to reach the Super Bowl, the team must play three consecutive weeks. At that point both remaining teams have two weeks off before the Super Bowl.

In short, the playoffs, with a game each week, reflects the same means of advancement as is present in regular season grind.

The National Hockey League:

16 of the 30 teams qualify for the postseason. The playoffs are conducted in the exact same manner as the regular season: a game, a day off, a game, a day off, a game, a day off, and so on. Just as in the regular season, there are occasionally two days off. But the playoffs require the same stamina, the same approach as that required to make the playoffs.

The National Basketball Association

Major League Baseball

10 of the 30 teams qualify for the postseason. (Although four of those teams qualify only for a one-game do-or-die play-in game.)

Here is where all similarity to baseball ends.

Unlike the other three sports whose playoffs mirror the test of the regular season, and whose conditions are the same as the regular season, Major League Baseball playoffs in no way resemble the sport itself. In hockey, basketball and football, the teams win playoff games and reach the pinacle of the sport in exactly the same way that they qualify to try to do so.

Not so in baseball. They are two entirely different concepts. Teams make the playoffs only because they have depth, five-man pitching rotations and can play day-in and day-out at a high level. But the baseball playoffs suddenly become a kind of "all-star" game within each team's roster. MLB playoffs are conducted in a way that more closely follows the NBA and the NHL. Teams have enormous numbers of days off.

Here's the key point: No Major League Baseball team could even qualify for the postseason if they played the same way during the regular season that they do in the playoffs. None.

In the regular season Major League Baseball teams have to use a 5-man starting rotation, with pitchers pitching every 5th day. There are not enough days off to have even a four-man rotation, let alone a team with three pitchers. Even the best team in baseball using only a 4-man rotation, would wear them out, and most likely end up with a record of something like 66-96, or 70-92—and that would be if they were otherwise teh best team in the sport.

The 2014 Baseball Postseason is Typical

As examples, last year's World Series teams the Kansas City Royals played only 15 games in 30 days, and the San Francisco Giants played only 17 games in 30 days. The 12 to 15 days off in the non-baseball fantasy world of the MLB postseason, means that teams can turn to three pitchers and give all of them plenty of rest. But it isn't the way baseball really works.

At one point, the Royals had 5 consecutive days off, and the Giants had 4. This never happens in the regular season. Even the All-Star break is only three days. Very rarely is there anything beyond a one-day break, and even that happens only a couple of times a month.

What this means is that neither team used the team that got them to the playoffs. (The NFL, NBA and NHL teams ALL used the very same teams that got them to the playoffs.)

Baseball teams use a three-man pitching rotation in the playoffs. Sometimes, they essentially opt for two pitchers only—conceding the likelihood that some of their games are going to be lost—when their third-, or rarely fourth-best pitcher has to face one of their opponents' two-man or three-man rotation members.

Imagine an NFL team using only one running back and three wide receivers, instead of rotating through their roster in the course of a playoff game—or using only 4 defensive backs and 4 linebackers, instead of rotating 8 or 9 DBs and 6 or 7 linebackers? In hockey, would a team use only two or three of their forward lines? Would an NBA team use only the starting five? They would never make the post season if they tried to present that product to their fans during the regular season.

Those are the equivalents of what Major League Baseball sets up every fall. No other sport drags its playoffs out in such a way as to completely change the playing field—completely change the dynamics of its game.

Why Does Baseball Do This?

MLB does this because the TV networks want to drag out the games so that they can try to have one game each day This requires an unnecessary staggering of games, and creates the phenomenon of 15 off-days in a month.

What about travel days?

What about them? Baseball has travel days constantly. A team may play in Chicago one day and in Miami the next, or in New York one day and Phoenix the very next day. Travel days as a routine part of the game are again, a phenomenon of television, and stretching out the playoffs.

In years past, travel days were employed only when necessary. The famous "subway series" games were played on seven consecutive days. Why? Because there was no "travel day" required to go from Brooklyn to the Bronx. Today, they would put in artificial travel days.

Even fairly long train trips didn't necessarily matter. The 1948 World Series between the Cleveland Indians and the Boston Braves was played in six consecutive days, October 6 & 7 in Boston, October 8, 9 & 10 in Cleveland, and October 11 back in Boston.

This reflects actual baseball, the way the teams play day-in and day-out, and the kind of unique test that baseball presents to its athletes, its managers and management, and to its fans.

In the modern world of charter planes, teams fly from coast to coast to play games on consecutive days. The artificial "travel day" should be eliminated so that teams can play in the playoffs in the same way that got them there in the first place.

*All these leagues also have pre-seasons and training camps, which add an additional 6-8 weeks to each player's year.

Email us with your feedback, comments, questions and ideas.

Missing the Mark on Campaign Finance Reform: Senate Bill 96 is Fake Reform, at Best.

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