A. It is unlawful for a candidate or the candidate's agent to make an expenditure of contributions received, except for the following purposes or as otherwise provided in this section: (1) expenditures of the campaign; (2) expenditures of legislators that are reasonably related to performing the duties of the office held, including mail, telephone and travel expenditures to serve constituents, but excluding personal and legislative session living expenses; (3) donations to the state general fund; (4) donations to an organization to which a federal income tax deduction would be permitted under Subparagraph (A) of Paragraph (1) of Subsection (b) of Section 170 of the Internal Revenue Code of 1986, as amended; (5) expenditures to eliminate the campaign debt of the candidate for the office sought or expenditures incurred by the candidate when seeking election to another public office covered by the Campaign Reporting Act; (6) donations to a political committee or to another candidate seeking election to public office; or (7) disbursements to return unused funds pro rata to the contributors if no campaign debt exists. B. A judge subject to a nonpartisan retention election or a candidate for judicial office shall solicit or accept campaign funds and return unused funds in accordance with the provisions of the Code of Judicial Conduct. C. No contributions solicited for or received in a federal election campaign may be used in a state election campaign. History: 1978 Comp., § 1-19-29.1, enacted by Laws 1993, ch. 46, § 6; 1995, ch. 153, § 6; 2009, ch. 68, § 3. Cross references. — For the Code of Judicial Conduct, see Rule 21-001 NMRA et seq. For Section 170 of the Internal Revenue Code of 1986, see 26 U.S.C.S. § 170. The 2009 amendment, effective November 3, 2010, in Paragraph (6) of Subsection A, after "political", changed "party" to "committee". Severability. — Laws 2009, ch. 68, § 5 provided that if any part or application of this act is held invalid, the remainder or its application to other situations or persons shall not be affected. The 1995 amendment, effective June 16, 1995, deleted "federal campaign funds prohibited in state races" following "use" in the section heading; in Subsection A, deleted "elected official" following "candidate" and inserted "or as otherwise provided in this section"; rewrote Paragraph (5) of Subsection A, which related to donations made to a political party, another candidate, or for the elimination of campaign debt; added Paragraphs (6) and (7) of Subsection A and made related changes; rewrote Subsection B which prohibited the use of contributions received in a federal election campaign in a state election campaign; and added Subsection C. Subsection C of Section 1-19-29.1 violates the First Amendment to the United States Constitution. New Mexicans for Bill Richardson v. Gonzales, Memorandum Opinion and Order, Cv. No. 93-1135 JP (U.S. Dist. Ct. D. N.M. filed August 2, 1996). Ripeness of challenge on first amendment grounds. — Although the congressman had not officially declared a candidacy for state office, this section's prohibition against using funds raised during a federal campaign for a statewide race created a direct and immediate dilemma for the congressman, and he should not have had to risk prosecution under this section before his challenge on first amendment grounds was ripe for judicial action. New Mexicans for Bill Richardson v. Gonzales , 64 F.3d 1495 (10th Cir. 1995). A candidate for an office covered by the Campaign Reporting Act is not prohibited from donating campaign funds to a candidate for a municipal, school board, or special district election. — Although the Campaign Reporting Act excludes from its definition of "election", any municipal, school board or special district election, 1-19-29.1(A)(6) NMSA 1978 permits donations to another candidate seeking election to "public office," a position whose occupant has legal authority to exercise a government's sovereign powers for a fixed period, and municipal, school board, or special district offices meet this definition. Accordingly, 1-19-29.1(A)(6) NMSA 1978 permits donations of contributions received to candidates for public offices, including municipal, school board, and special district offices. 2021 Op. Ethics Comm'n No. 2021-11. The Campaign Reporting Act does not prohibit a state campaign committee from making a donation to a municipal candidate. — Subsection 1-19-29.1(A)(6) NMSA 1978 of the Campaign Reporting Act permits the use of campaign contributions to make "donations to a political committee or to another candidate seeking election to public office"; the Campaign Reporting Act does not make a distinction between a federal, state or local candidate, and a plain reading of the law is that a donation to a candidate for any public office, federal, state or local, is permissible. It is permissible, therefore, under the New Mexico Campaign Reporting Act, for a state campaign committee to make a donation to a municipal candidate or local committee advocating for a municipal candidate. Restrictions of Campaign Committee Contributions to a Municipal Measure Finance Committee (6/17/20), Att'y Gen. Adv. Ltr. 2020-06. A candidate for judicial office is prohibited from using contributions in a subsequent campaign for other public office. — Under the Campaign Reporting Act (CRA), a candidate for judicial office may solicit and accept campaign funds but must return unused funds in accordance with the provisions of the Code of Judicial Conduct, and likewise, 21-404(B) NMRA of the Code of Judicial Conduct permits candidates for elective judicial office to accept contributions to support a campaign for judicial office, but prohibits the retention of contributions received after the election takes place, and therefore the CRA, which incorporates the Code of Judicial Conduct by reference, prohibits a municipal judge who intends to run for county office in 2022 from transferring unexpended contributions received as a candidate for judicial office to a newly-formed campaign committee that supports his candidacy for county office. Moreover, 21-405 NMRA of the Code of Judicial Conduct prohibits a judge seeking appointment or election to a public, nonjudicial office from soliciting or accepting funds, either personally or through a committee, to support the candidacy. 2022 Op. Ethics Comm'n No. 2022-02. A candidate may contract with a family member for bona fide goods or services to the candidate's campaign. — The Campaign Reporting Act, NMSA 1978, §§ 1-19-25 to -37, provides that a candidate may make an expenditure of campaign contributions for campaign expenses, and regulations promulgated by the secretary of state implementing the Campaign Reporting Act prohibit personal use of campaign funds, including payments to a candidate's family, but the regulations except from this prohibition situations where the family member is providing a bona fide service to the campaign and further specifies that any salary in excess of the fair market value of the services provided is personal use, and therefore a candidate may make payments to a member of the candidate's family so long as the family member provides bona fide goods or services to the campaign and is not being paid in excess of the fair market value for those goods or services. 2023 Op. Ethics Comm'n No. 2023-09. A candidate must report the expenditure of personal funds for campaign expenditures, and may be reimbursed for those expenditures if they are a loan to the campaign. — Regulations promulgated by the secretary of state implementing the Campaign Reporting Act require candidates to report the use of personal funds for campaign expenditures. If a candidate expends personal funds on goods or services for the candidate's campaign, the expenditure must be reported either as a contribution or as a loan; if the expenditure is a loan, the candidate may be reimbursed for the expenditure so long as the campaign committee properly itemizes and reports the expenditures. 2023 Op. Ethics Comm'n No. 2023-09. Expenditures for conferences and courses reasonably related to performing the duties of legislative office are permissible. — The Campaign Reporting Act, NMSA 1978, §§ 1-19-25(A)(2), provides that permissible uses of campaign funds includes expenditures of legislators that are reasonably related to performing the duties of the office held to serve constituents, and therefore a legislator may use campaign funds to pay for registration and associated travel to conferences and courses reasonably related to the elected legislative office. "Reasonably related" requires some degree of meaningful connection between the training and the legislative office held, and the use of campaign funds cannot be used for personal uses, which includes the use of campaign funds for personal travel, or travel associated with a training that is so broad or generalized it is not directly connected to the position of the legislative office held. 2024 Op. Ethics Comm'n No. 2024-02. Federal election law expressly preempts state election law with respect to election to federal office. — The Federal Election Campaign Act, 52 U.S.C. §§ 30101 et seq ., expressly provides that it, and the rules prescribed under it, supersede and preempt any provision of state law with respect to election to federal office, and would therefore preempt any interpretation or application of New Mexico's Campaign Reporting Act (act), 1-19-25 to 1-19-36 NMSA 1978, that would prevent a state candidate from donating campaign funds to a candidate for federal office. As a result, the New Mexico secretary of state does not have the authority under the act to restrict donations from a state candidate's campaign funds to federal candidates. Campaign Reporting Act (9/2/21), Att'y Gen. Adv. Ltr. 2021-11.
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