New Mexico House Rejects Anti-Privacy Bill Amid Ongoing Lawsuit

April 26, 2023 | Luke Wachob

New Mexico can be a hard place to support causes doing important work around the state. A state law passed in 2019 forces citizens to surrender their privacy when donating to nonprofits that speak out about public policy. New Mexico not only tracks your giving, it makes that information – along with your name and address – publicly available in an online database where anyone can use and abuse it.

The state is currently being sued by two nonprofit organizations – the Albuquerque-based Rio Grande Foundation and Chicago-based Illinois Opportunity Project – who argue that the law violates their members’ constitutional rights. The Supreme Court has long protected the freedom to privately support social causes as a key component of the First Amendment. When Americans’ beliefs and associations are exposed, they can be harassed into silence, undermining our freedom of speech and weakening our democracy.

Yet believe it or not, the New Mexico Senate actually tried to the make the law even worse earlier this year. Senate Bill 42 would have doubled down on the fundamental flaw in the 2019 law: publicly exposing the names and home addresses of Americans whose giving has nothing to do with campaigns or political expenditures. One of the few exceptions to the general rule of privacy in supporting a cause, after all, is election campaigns. Candidates, political parties, PACs, and super PACs can all be required to report their donors so voters can better judge the choices on their ballot.

New Mexico’s 2019 law, however, requires disclosure of donors to groups that merely mention a candidate in their communications during the months near an election. That means you could lose your privacy if a nonprofit you donated to speaks out about the actions of current government officials or pending public policy issues, even if they had no interest in influencing an election. To protect their supporters, many groups will choose to self-censor.

Senate Bill 42 would have exacerbated the problem by removing any last trace of ambiguity – or respect for the privacy of nonprofit donors – from the law.

“S.B. 42 makes it explicit that donors who give for any purpose – not just ‘a political purpose’ – are required to be reported if an organization makes [independent expenditures],” explained Paul Gessing, President of the Rio Grande Foundation, one of the groups involved in the lawsuit over New Mexico’s 2019 law. “The intent of the bill seems to be to name and shame donors to organizations that speak out about policy issues and to deter those nonprofits from voicing their opinion in public debates.”

Unfortunately, the same could be said for the 2019 law. It effectively allows government officials, big companies, and political activists to put Americans’ beliefs and associations under surveillance. The law makes it trivially easy for bad actors to build enemies lists and target citizens for harassment.

Senate Bill 42 passed the New Mexico Senate in a mostly party-line vote but fortunately died in the House with bipartisan opposition. That’s good news for New Mexicans who hope to see their First Amendment rights make a comeback. At a time when many states are reacting to the Supreme Court’s 2021 ruling in Americans for Prosperity Foundation v. Bonta by reviewing their laws and passing reforms to safeguard the privacy of nonprofit supporters, New Mexico has been among the few to continue pushing in the opposite direction.

New Mexico still has a long way to go, but the demise of Senate Bill 42 was a nice win for the First Amendment. You can read more about it in Gessing’s column celebrating the measure’s defeat at the Santa Fe New Mexican.