On Thursday, New Mexico was stopped from wrongly treating advocacy groups as political entities. The ruling for the case of New Mexico Youth Organized v. Herrera came from the 10th Circuit Court, whose geographical jurisdiction includes Kansas.
Two New Mexico groups sought relief when the state Attorney General acted on complaints about their informational mailings (“issue advocacy”) as being “express advocacy” or “electioneering” for candidates. The latter activities require state registration, fees and reporting burdens. The court ruled:
New Mexico’s attempt to classify a group as a “political committee,” based upon the fact that it spends at least $500 a year for political purposes, is not constitutionally permissible.
The U.S. Supreme Court has repeatedly admonished that only organizations that have “the major purpose” of electing or defeating a candidate may be forced to register as political organizations.
As the Court has explained, governmental registration and reporting burdens are so onerous that many organizations, rather than complying with them, will just forego their political speech. This is at odds with the Supreme Court’s repeated holdings that political speech is at the very core of what the First Amendment protects.
“This is another victory for free speech,” said James Bopp, Jr., general counsel for the James Madison Center for Free Speech, which had provided an amicus brief (a “friend-of -the-court” opinion) for the plaintiffs. The Tenth Circuit now joins many courts that have recognized that a legislated spending threshold cannot automatically convert organizations into political committees.
In the New Mexico cases, neither group was structured for electioneering and the portion of their budget spent on mailers with legislative information was 1/2% for one group and and 7% for the other group.
The climate for muzzling politically incorrect speech has spawned the current federal anti-constitutional DISCLOSE act and several state attempts that were narrowly defeated by pro-life Kansas Senators this past spring. That’s why this 10th Circuit Court ruling is so welcome for Kansas.