November 12, 2015: This article has been corrected.
In 2010 Dianna Duran ran for secretary of state as a reform candidate who would clean things up in the wake of scandals that had plagued the office’s two previous occupants. As a county clerk in rural Otero County and later a state senator, Duran had earned a reputation for cool-headed competence. She was endorsed by most of the state’s newspapers and even the left-leaning editorial board at The Santa Fe New Mexican gave her a thumbs up, citing a “solid record of integrity.” When she won, Duran became the first Republican to hold the secretary of state’s office in 80 years.
That was then. In late October, just a year into her second term, Duran, the state official in charge of overseeing elections, campaign finance and ethics, resigned and pleaded guilty to felony embezzlement charges related to personal use of campaign funds. After the hearing, Duran told reporters that some of her decisions “were not healthy.”
It was a shock to veteran political observers at the Capitol, known as the Roundhouse, and a special blow to the image of the state Senate, where a Democratic lawmaker of 18 years had recently resigned in the face of allegations that he used his office to benefit from a land deal.
Even without those late-breaking charges against the secretary of state, New Mexico scored only 61, a letter grade of D-, and landed tied for 34th place in the 2015 State Integrity Investigation, an assessment of state government accountability and transparency conducted by the Center for Public Integrity and Global Integrity. Behind the score: widespread and systemic weaknesses in overseeing ethics, campaign finance and lobbying.
The state did rise from its 39th place ranking in 2012, but otherwise the 2015 tally hardly changed from how New Mexico fared in the inaugural investigation: a score of 62. The two scores aren’t directly comparable, however because of changes to improve and update the project and methodology, such as eliminating the category for redistricting, a process that generally occurs only once every 10 years.
A wide gap
What really stands out is that of all 50 states, New Mexico has the widest gulf between the laws that are on the books and the vigor with which they’re implemented: the so-called “enforcement gap.” The striking enforcement gap in the Land of Enchantment punctuates a broader conclusion: when it comes to ethics and campaign finance, it can be pretty easy for bad actors to get away with breaking the rules in New Mexico.
For example, the State Integrity Investigation found that New Mexico has pretty muscular laws guaranteeing the public’s right to know. But there is no hard deadline to produce records, and the attorney general’s office (which provides legal representation to public bodies) historically hasn’t made enforcement a priority. The AG’s office rarely levies fines, instead relying on members of the public to hire lawyers and sue. And so the government can effectively skirt the law simply by repeatedly ignoring requesters and delaying their responses.
When it comes to campaign finance oversight, the state Legislature has failed to address serious shortcomings that came about as a result of the U.S. Supreme Court’s Citizens United ruling and other recent decisions, meaning vast amounts of money flow virtually unimpeded — and untraceable — into the political system. In New Mexico, super PACs and other outside groups can operate with extraordinary freedom because although they are technically prohibited from “coordination” with candidates, state law doesn’t define what coordination is. So these groups raise and spend money on politics with little fear of legal repercussions.
For example, in 2014, Gov. Susana Martinez’s operations director, who is also married to the governor’s deputy chief of staff, stepped down to run New Mexico Competes, a nonprofit effectively supporting the governor. The group ran radio ads praising Martinez and sent mailers criticizing a school superintendent who had irked her. The previous year, Democrats had asked the IRS to investigate the group, saying it was “illegally coordinating with and attempting to conceal campaign contributions on behalf of New Mexico Gov. Susana Martinez with the intent of violating New Mexico law limiting campaign contributions to candidates.”
At the time, the group’s executive director told the New Mexican that it was a nonpartisan educational group and that it did not “advocate for or against the election of any public official.”
Like its predecessors, the current secretary of state administration, which oversees campaign finance, has said its goal is “education” rather than enforcement, largely turning a blind eye to politicians and candidates who break the law.
Most importantly, the State Integrity Investigation shows that New Mexico fails spectacularly at ethics enforcement, ranking 45th. Supporters of creating an independent ethics commission have for years pointed to the success of the Judicial Standards Commission, an independent state agency that handles allegations of misconduct against state and local judges. Nothing like it exists for the legislative or executive branches, meaning there is effectively no transparent, public mechanism for investigating and resolving ethics complaints. The state also ranked near the bottom of all states in terms of holding members of those two branches accountable to the public.
For example, in 2014, state Sen. Phil Griego orchestrated legislative approval for and then voted to approve the sale of a piece of state property in Santa Fe. Just one month later, Griego, who is also a real estate agent, then took a $50,000 commission for brokering the deal on behalf of the business that bought the property. He was allowed to serve for eight months after the allegations were made public, and he then resigned rather than face any reprimand. Griego admitted he violated the constitution, but said it was unintentional. The day of his resignation, leadership of both parties and both houses of the Legislature released statements saying they had no comment — and explaining that they’d asked their members not to comment either. Immediately after resigning, Griego began drawing a legislative pension of $1,300 per month.
Good government groups such as Common Cause have been trying to persuade the state Legislature to create an independent ethics commission for more than a decade, but lawmakers from both parties have repeatedly declined to act. The scandals involving the secretary of state and Griego prompted renewed calls for an ethics commission, but if similar cases in the past didn’t persuade the Legislature of the need for one, it seems unlikely these recent developments will turn the tide.
New Mexico also ranked near the bottom of the list for lobbying disclosure, tied for 43rd. That’s in part because lobbyists aren’t required to tell the public what issues they’re working on or how much they make. When they do fill out required forms listing their expenses, they often don’t list even the barest minimum of details — and the secretary of state’s office has rarely penalized them for it.
Despite New Mexico’s overall abysmal grade, the investigation showed that the state does do a few things well. New Mexico earned a B- for its internal auditing systems, placing it tied for 17th. Although the state earned a D for the management of its civil service (the state workers who are not political hires), most other states fared worse, so the state ended up tied for 14th place.
And in terms of judicial accountability, New Mexico is third in the nation. That’s partly because of the work of the Judicial Standards Commission, the independent agency that handles allegations of misconduct against judges and has succeeded in educating, reprimanding or removing judges who are found to have acted improperly. For example, when former District Judge Michael Murphy of Las Cruces was under investigation for making offensive and biased remarks to court employees — and then indicted on bribery charges — the commission persuaded him to resign and agree that he would never again work as a judge in New Mexico, despite the outcome of the criminal case against him.
“The legal community is too small to violate those ethics and codes of conduct because it will ruin your reputation,” said Rachel Higgins, a lawyer who serves on the board of the New Mexico Trial Lawyers Association.
Outside of Albuquerque, Santa Fe and a few smaller cities, New Mexico is a vast state made up mostly of small, close-knit communities: thousand-year-old Indian pueblos, faded ranching towns, bustling oil patches and villages where many people still speak the Spanish of their colonial ancestors. Although boosting entrepreneurship and innovation is a perennial goal of the political class, federal, state and municipal government remain the biggest employers. Some believe limited competition and shallow worker pool contribute to a climate in which nepotism, cronyism and favoritism occur with greater frequency than in more populous and prosperous states. As Paul Gessing, executive director of the Rio Grande Foundation, a libertarian-leaning policy group, put it: “In a one horse town where the one horse is government, the level of interest and desire for those high paid government jobs will be accompanied by some level of horse trading.”
But others say the vast majority of public officials here are solid, honest people marred by the unethical actions of a few. “It’s a self-fulfilling prophecy,” said Viki Harrison of the good government group Common Cause. “We hear that we’re corrupt. We throw our hands up and say nothing can be done. And then we get to another scandal and start the conversation again.” Harrison believes the charges against the secretary of state will push the Legislature toward considering reforms. Although New Mexico tends to move slowly and conservatively toward change, it has shown itself capable of making great leaps when the time is right.
Correction, November 12, 2015, 9:40 a.m.: An earlier version of this article incorrectly referred to New Mexico Competes as a political committee. The story has been corrected and clarified.