New Mexico Register / Volume XXXIII, Issue 6 / March 22,
2022
This
is an amendment to 1.10.13 NMAC, Sections 2, 6 through 8, 10 through 13, 15,
18, 21 through 22, 25, 29 through 30, and 32, and new Section 33, effective
3/22/2022.
1.10.13.2 SCOPE: This rule applies to all persons, candidates
and committees covered by the Campaign [Practices] Reporting Act,
Sections [1-19-1] 1-19-25 through 1-19-37 NMSA 1978.
[1.10.13.2 NMAC - N, 10/10/2017; A, 3/22/2022]
1.10.13.6 OBJECTIVE: The objective of this rule is to provide
clear guidance regarding the application and implementation of the provisions
of the Campaign [Practices] Reporting Act, Sections [1-19-1
through 1-19-37] 1-19-25 through 1-19-36 NMSA 1978 to affected
parties while also providing for clear and specific guidance to the secretary
of state in administering and enforcing the law.
[1.10.13.6 NMAC - N, 10/10/2017; A, 10/29/2019; A, 3/22/2022]
1.10.13.7 DEFINITIONS:
A. [“Advertisement” pursuant to Subsection
A of Section 1-19-26 NMSA 1978, means a communication referring to a candidate
or ballot question that is published, disseminated, distributed or displayed to
the public by print, broadcast, satellite, cable or electronic media, including
recorded phone messages, internet videos, paid online advertising, recordings,
or by printed materials, including mailers, handbills, signs and billboards,
but "advertisement" does not include:
(1) a
communication by a membership organization or corporation to its current
members, stockholders
or executive or administrative personnel;
(2) a
communication appearing in a news story or editorial distributed through a
print, broadcast, satellite, cable or electronic medium;
(3) a
candidate debate or forum, or a communication announcing a candidate debate or
forum, paid for on behalf of the debate or forum sponsor; provided that two or
more candidates for the same position have been invited to participate, or
provided that the single candidate is invited in the event that there is only
one candidate for that position;
(4) nonpartisan
voter guides allowed by the federal Internal Revenue Code of 1986 for Section
501(c)(3) organizations; or
(5) statements
made to a court or administrative board in the course of a formal judicial or
administrative proceeding.
B.] “Agent” means a person with express or
implied authorization to engage in campaign related activities on behalf of a
candidate or committee.
[C.] B. “Aggregate contributions” means the sum
total of all contributions given to a candidate, campaign committee, or
political committee by the same donor in [the same] a primary or
general election cycle. Aggregate
contributions may not exceed contribution limits.
[D. “Ballot question” means a constitutional amendment,
bond, tax or other question submitted to the voters in an election, as defined
in Subsection C of Section 1-19-26 NMSA 1978.
E.] C. "Clearly identified" means: (1) the name of the
candidate or ballot question appears; (2) a photograph or drawing of the
candidate appears; or (3) the identity of the candidate or ballot question is
otherwise apparent by unambiguous reference.
[F.] D. “Committee” means a political committee
or campaign committee covered under the Campaign Reporting Act.
[G.] E. “Contribution or coordination political committee” means a type of political committee that makes
contributions or coordinated expenditures to candidates or committees.
[H. “Coordinated
expenditure” means an expenditure that is made by a person other than a
candidate or campaign committee at the request or suggestion of, or in
cooperation, consultation, or concert with, a candidate, the candidate’s
campaign committee or a political party or any agent or
representative of a candidate, campaign committee or political party, including
a legislative caucus committee
for the purpose of:
(1) supporting
or opposing the nomination or election of a candidate; or
(2) paying
for an advertisement that refers to a clearly identified candidate and is
published and disseminated to the relevant electorate in New Mexico within 30
days before the primary election or 60 days before the general election in
which the candidate is on the ballot.
I.] F. “Debt” means an outstanding expenditure
or loan which is not fully paid at the time it is reported in the campaign
finance information system and is therefore reported as unpaid debt.
[J.] G. “Donor” means
contributor.
[K.] H. “Earmarking”
means making a contribution in which the original donor expresses an intention
for the contribution to pass through some other person to a specific candidate
or committee or to be used for a specific purpose, such as funding independent
expenditures.
[L. “Election cycle” for purposes of
applying the disclosure of reporting requirements of the act and this rule, the
definition of this term is the definition set forth in Subsection A of Section
1-1-3.1 NMSA 1978 and means the period beginning on January 1 after the last
general election and ending December 31 after the general election.
M.] I. “Expressly advocate”
means that the communication contains a phrase including, but not limited to,
"vote for," "re-elect," "support," "cast
your ballot for," "candidate for elected office," "vote
against," "defeat," "reject," or "sign the
petition for," or a campaign slogan or words that in context and with
limited reference to external events, such as the proximity to the election,
can have no reasonable meaning other than to advocate the election, passage, or
defeat of one or more clearly identified ballot questions or candidates.
[N.] J. “Final report”
means the last report electronically filed under the Campaign Reporting Act in
accordance with Subsection F of Section 1-19-29 NMSA 1978 indicating that:
(1) there
are no outstanding campaign debts
(2) all
money has been expended in accordance with the provisions of Section 1-19-29.1
NMSA 1978; and
(3) the
bank accounts have been closed.
K. “Finding”
means a determination made by the secretary of state based upon an
administrative examination or inquiry.
[O.] L. “Foreign nationals” means an individual
who is not a citizen or a national of the United States (as defined in 8 U.S.C.
§1101(a)(22)) and who is not lawfully admitted for permanent
residence, as defined by 8 U.S.C. §1101(a)(20).
[P. “General election
cycle” means the period beginning on the day after the primary election and
ending December 31 after the general election.
Q. “Independent expenditure” pursuant to Subsection N of
Section 1-19-26 NMSA 1978, means an expenditure that is:
(1) made
by a person other than a candidate or campaign committee;
(2) not
a coordinated expenditure as defined in the Campaign Reporting Act; and
(3) made
to pay for an advertisement that:
(a) expressly
advocates for the election or defeat of a clearly identified candidate or the passage
or defeat of a clearly identified ballot question;
(b) is
susceptible to no other reasonable interpretation than as an appeal to vote for
or against a clearly identified candidate or ballot question; or
(c) refers
to a clearly identified candidate or ballot question and is published and
disseminated to the relevant electorate in New Mexico within 30 days before the
primary election or 60 days before the general election in which the candidate
or ballot question is on the ballot.
R.]
M. “In-kind
contributions” means goods or services or anything
of value contributed to a candidate or committee other than money. The provision of any goods or services
without charge or at a charge that is less than the usual and normal charge for
such goods or services is an in-kind contribution. Examples of such goods or services include,
but are not limited to: securities, facilities, equipment, supplies, personnel,
advertising services, membership lists, and mailing lists.
[S.] N. “Legislative Caucus Committee” means a
political committee established by the members of a political party in a
chamber of the legislature pursuant to the provisions of Subsection O of
Section 1-19-26 NMSA 1978 and Section 2-21-1 NMSA 1978. A legislative caucus committee is also a
political committee pursuant to Subsection Q of Section 1-19-26 NMSA 1978.
[T.] O. “Loan” means an extension of credit to
a candidate or committee by any person, including the candidate themselves, for
use as monies spent toward the election of a candidate or other political
purpose.
[U.] P. “Members” means all persons who are
currently satisfying the requirements for membership in a membership
organization, affirmatively accept the membership organization's invitation to
become a member, and either:
(1) have some financial attachment to the membership
organization; or
(2) pay membership dues at least annually, of a specific amount
predetermined by the organization; or
(3) have an organizational attachment to the membership
organization that includes: affirmation of membership on at least an annual
basis and direct participatory rights in the governance of the
organization. For example, such rights
could include the right to vote directly or indirectly for at least one
individual on the membership organization's highest governing board; the right
to vote on policy questions where the highest governing body of the membership
organization is obligated to abide by the results; the right to approve the
organization's annual budget; or the right to participate directly in similar
aspects of the organization's governance.
[V.] Q. “Membership organization”
means an unincorporated association, trade association,
cooperative, corporation without capital stock, or a local, national, or
international labor organization that:
(1) is composed of members;
(2) expressly states the qualifications and requirements for
membership in its articles, bylaws, constitution or other formal organizational
documents;
(3) makes its articles, bylaws, constitution or other formal
organizational documents available to its members;
(4) expressly solicits persons to become members;
(5) expressly acknowledges the acceptance of membership, such as
by sending a membership card or including the member's name on a membership
newsletter list; and
(6) is not organized primarily for the purpose of influencing
the nomination for election, or election, of any individual for offices covered
under the Campaign Reporting Act.
[W.] R. “Mixed purpose political committee”
means a type of political committee that makes independent expenditures and
coordinated expenditures or contributions and that segregates funds used for
coordinated expenditures and contributions subject to contribution limits into
a separate bank account from funds used for independent expenditures.
[X. “Person”
means individual or entity pursuant to Subsection P of Section 1-19-26 NMSA
1978.
Y.] S. “Pledge” means a
promise from a contributor to send or deliver a contribution by a specified
time.
[Z. “Political
party” means an association that has qualified as a political party
pursuant to the provisions of Section 1-7-2 NMSA 1978.
AA. “Primary election cycle” means the
period beginning January 1 after the last general election and ending on the
day of the primary election.
BB.] T. “Primary purpose” means
the purpose for which an entity or committee:
(1) was
created, formed or organized; or
(2) has made
more than fifty percent of its expenditures during the current election cycle
exclusive of salaries and administrative costs; or
(3) has devoted
more than fifty percent of the working time of its personnel during the current
election cycle.
[CC.] U. “Relevant
electorate” means the constituency eligible to vote for the candidate or
ballot question.
[DD. “Reporting individual” means a public
official, candidate or treasurer of a campaign committee or a treasurer of a
political committee pursuant to Subsection V of Section 1-19-26 NMSA 1978.
EE.] V. “Solicit” means to ask
that another person make a contribution, donation, transfer of funds, or
otherwise provide anything of value, whether it is to be made or provided
directly to the candidate or committee, or through a conduit or intermediary.
[FF.] W. “Sponsoring organization” means an
organization that has provided more than twenty-five percent of the total
contributions to a political committee as of the time the committee is required
to register under this rule.
[GG.] X. “Special
event” means a barbeque, tea, coffee, dinner, reception, dance, concert or
similar fundraiser where tickets costing twenty-five dollars ($25) or less are
sold and no more than one thousand dollars ($1,000) net contributions are
received.
[HH.] Y. “Statement of no activity” means the
prescribed form used by a reporting individual to indicate that no
contributions were raised or expenditures were made during a particular
reporting period.
[II.] Z. “Treasurer”
means an individual explicitly designated by a candidate or committee to
authorize disbursements, receive contributions, maintain a proper record of the
campaign finances, and who, along with the candidate, is personally liable
for discrepancies in the finances and reports of the committee.
AA. “Unresolved discrepancy” means a finding of an actual or
perceived inconsistency, conflict, or contradiction that is not resolved after
attempts to seek voluntary compliance.
[1.10.13.7 NMAC - N, 10/10/2017; A, 10/29/2019; A, 3/22/2022]
1.10.13.8 CANDIDATE CAMPAIGN COMMITTEE REGISTRATIONS:
A. A candidate
for a non-statewide office shall register the candidate’s campaign committee
with the secretary of state within 10 days of receiving contributions or
expending one thousand dollars ($1,000) or more for campaign expenditures or
filing a declaration of candidacy; whichever occurs earlier.
B. A candidate
for statewide office shall register the candidate’s campaign committee with the
secretary of state within 10 days of receiving contributions or expending three
thousand dollars ($3,000) or more or filing a declaration of candidacy;
whichever occurs earlier.
C. All
candidates shall complete a campaign committee registration form [and submit
the completed form to the secretary of state, or otherwise with the proper
filing officer, if completed at the time the declaration of candidacy is
submitted] online via the registration process in the campaign finance
information system (CFIS). Following acceptance of the campaign committee
registration form, the secretary of state will create a user account for the
candidate in [the campaign finance information system (CFIS)] CFIS
and will issue the candidate a unique CFIS user identification [and password].
D. A candidate is responsible for
entering accurate and current contact information in CFIS, including mailing
address and email address. Failure to
provide accurate or current contact information does not limit the candidate’s
liability regarding fines and civil actions against the candidate or public
official related to campaign reporting.
E. Section 1-19-27 NMSA 1978 requires that all campaign
finance reports be filed electronically with the secretary of state’s
office. In order to file electronically,
the candidate must, at all times, maintain a valid email address on file with
the secretary of state.
F. A
candidate may serve as the candidate’s own treasurer. If the candidate does not serve as the
candidate’s own treasurer, then the candidate shall appoint a treasurer who
shall be jointly responsible as a reporting individual with the candidate for
the campaign committee.
G. If the
candidate does not serve as the candidate’s own treasurer, in the event of a
vacancy in the position of treasurer, the candidate shall appoint a successor
treasurer within 10 days of the vacancy by updating the information
electronically in CFIS.
H. The candidate is deemed to have
authorized and approved each report entry submitted to CFIS.
I. A candidate may only have one campaign committee at a
time [Any candidate campaign committee registration form received will
result in the secretary of state moving the last reported campaign balance,
including debts, to the new campaign committee account in CFIS] unless the
candidate is seeking public financing and must keep a previous campaign account
open and separated.
J. A
candidate seeking re-election to the same office is not required to submit a
new campaign committee registration form if the candidate already has an open
campaign account.
K. A
candidate seeking election to a new office covered by the campaign reporting
act than what the candidate previously registered is required to submit a new
campaign committee registration form. If
a new candidate campaign committee registration form is submitted by a
candidate with an open campaign committee for a new office, the candidates
shall expend all funds in accordance with the Campaign Reporting Act or
transfer any remaining funds from the old campaign committee to the new
campaign committee and file a final report to close the old campaign committee
within ten days from the date the registration form is accepted by the
secretary of state unless the candidate is seeking public financing and must
keep a previous campaign account open and separated.
[1.10.13.8 NMAC - N, 10/10/2017; A,
10/29/2019; A, 3/22/2022]
1.10.13.10 POLITICAL COMMITTEE REGISTRATIONS:
A. Registration.
(1) Prior to receiving or making any
contribution or expenditure for a political purpose. All political
committees shall complete a political committee registration form/statement of
organization online via the registration process in CFIS and submit the
completed form, along with a fifty dollar ($50) filing fee, to the secretary of
state. The form shall include:
(a) the full
name of the political committee, which shall fairly and accurately reflect the
identity of the committee, including any sponsoring organization;
(b) the physical
address of the political committee, a mailing address if different from the
physical address, and an email address;
(c) a statement
of the purpose for which the political committee was organized; under this
section, the committee shall designate the type of expenditures it will be
making; the committee will have the option of registering as:
(i) an
independent expenditure political committee;
(ii) a
contribution or coordination political committee; or
(iii) a mixed
purpose political committee; [or
(iv) other;
if a political committee selects other, then the political committee shall
submit a written explanation to the secretary of state as to why the categories
of independent expenditure political committee, contribution or coordination
political committee, and mixed purpose political committee do not apply]
(d) the names
and addresses of the officers of the committee;
(e) an identification of the bank(s)
used by the committee for all expenditures or contributions made or received;
this shall include the name of the bank(s), business address(es) of the branch
office(s) where the account(s) was/were opened, and telephone number for the
bank(s); and
(f) the
treasurer’s name, mailing address, email address, and contact information.
(2) Following
acceptance of the political committee registration form, the secretary of state
[will create a user account for the political committee in the (CFIS) and]
will issue the treasurer a unique CFIS user identification [and password].
(3) The
provisions of this section do not apply to a political committee that is
located in another state and is registered with the federal election commission
(FEC). If the political committee is
located in another state and reports to the FEC, the committee shall file a
copy of either the full report or the cover sheet and the portions of the
federal reporting forms that contain the information on expenditures for and
contributions made to reporting individuals in New Mexico with the secretary of
state within 10 days of filing the report to the FEC.
(4) If a
political committee is located in another state and is making contributions and
expenditures to New Mexico reporting individuals, but is not registered with
the FEC, then the out-of-state political committee must register and report its
New Mexico contributions and expenditures in accordance with the provisions of
the Campaign Reporting Act and this rule.
(5) If
a political committee is located in New Mexico and is required to register as a
political committee under this rule, the political committee must register with
the secretary of state even if it is also registered with the FEC.
(6) The
political committee’s treasurer is responsible for carrying out the duties
described in the Campaign Reporting Act and this rule [, and should
understand the responsibilities and potential liabilities associated with those
duties. Under the Campaign Reporting
Act, the treasurer is a reporting individual who can be named in a complaint or
official action by the secretary of state.
Additionally, a treasurer may be found] and may be personally
liable if he or she knowingly and willfully violates the Campaign Reporting
Act.
(7) [If
a change is made to a treasurer of a political committee, the political committee shall appoint a successor treasurer
within 10 days of the vacancy by updating the information] An individual who resigns as treasurer of a political
committee shall submit a resignation statement on a form prescribed by the
secretary of state. An individual’s
resignation is not effective until a replacement treasurer is appointed, and
the treasurer’s information is updated electronically in CFIS.
(8) A
political committee shall not continue to receive or make any contributions or
expenditures unless the name of the current treasurer is on file with the
secretary of state by [filing an updated political committee registration
form] updating the information in CFIS.
(9) A
political committee is responsible for entering accurate and current contact
information in CFIS, including mailing address and email address. Failure to provide accurate or current
contact information does not limit the political committee’s liability
regarding fines and civil actions related to campaign reporting.
(10) Any
changes to the information provided in the registration form/statement of
registration shall be [reported to the secretary of state] filed in
CFIS within 10 days.
B. Section 1-19-27 NMSA 1978 requires that all campaign
finance reports be filed electronically with the secretary of state’s
office. In order to file electronically,
the political committee must maintain a valid email address on file with the
office.
C. Political party registration: Qualified political parties that file rules in
accordance with Article 7 of the Election Code with the secretary of state or
county clerk are required to complete and file the political committee
registration form with the secretary of state and must adhere to the provisions
of the Campaign Reporting Act and this rule.
D. Legislative caucus committee registration: a legislative caucus committee is required to
complete and file the political committee registration form with the secretary
of state and must adhere to the provisions of the Campaign Reporting Act.
E. Notice of cancellation:
(1) A political committee, other than a political
party or a legislative caucus committee, that has not received any
contribution or made any coordinated or independent expenditures for a
continuous period of at least one year [may cancel its registration
as a political committee by completing and submitting a prescribed cancellation
form to the secretary of state] pursuant to Subsection G of Section
1-19-29 NMSA 1978 shall be advised of their right to cancel the political
committee’s registration without obligation to file a final report. The political committee shall notify the
secretary of state of the political committee’s intention to remain active or
will otherwise be marked as inactive by January 1 of the next even numbered
year.
(2) A political committee that has
cancelled its registration pursuant to Subsection G of Section 1-19-29 NMSA
1978, shall submit a new registration [in the event that its future
activities meet the requisites for registration pursuant to Section 1-19-26.1
NMSA 1978.
(a) a political committee submitting
a new registration must file with the secretary of state] within 24 hours of receiving any
contribution or making any expenditure for a political purpose.
[(b) a] A new
registration shall include:
[(i)]
(a) current bank account
balance(s); and
[(ii)]
(b) a certification that
no contributions have been received or any expenditures made for a political
purpose during the period wherein the political committee’s registration was
cancelled pursuant to Subsection G or Section 1-19-29 NMSA 1978.
[1.10.13.10 NMAC - N, 10/10/2017; A, 10/29/2019; A, 3/22/2022]
1.10.13.11 REPORTING OF INDEPENDENT EXPENDITURES:
[A. A person who makes an independent expenditure
not otherwise required to be reported under the Campaign Reporting Act shall
file a prescribed report with the secretary of state within:
(1) three days of making the
expenditure if the expenditure, by itself or aggregated with all independent
expenditures made by the same person during the election cycle, exceeds one
thousand dollars ($1,000) in a non-statewide election(s) or question(s) or in
an amount that exceeds three thousand dollars ($3,000) in a statewide race(s)
or ballot measure(s).
(2) 24 hours of making the
expenditure if the expenditure is in an amount of three thousand dollars
($3,000) or more and is made within seven days before a non-statewide election.
B. The report required by Subsection A of this section
shall include:
(1) The name and address of the person
who made the independent expenditure.
(2) The name and address of the person to
whom the independent expenditure was made and the amount, date and purpose of
the independent expenditure. If no
reasonable estimate of the monetary value of a particular expenditure is
practicable, a description of the services, property or rights furnished through
the expenditure;
(3) The source of the contributions used
to make the independent expenditure as provided in Subsections C and D of this
section.
C. A person who makes independent expenditures totaling
three thousand dollars ($3,000) or less in a non-statewide election or ballot
question, or nine thousand dollars ($9,000)or less in a statewide election or
ballot question, shall report the name and address of each person who has made
contributions of more than a total of two hundred dollars ($200) in the
previous 12 months that were earmarked or made in response to a solicitation to
fund independent expenditures, and shall report the amount of each such
contribution made by that person. For purposes of this
Subsection C, of 1.10.13.11 NMAC, a contribution is earmarked or made in
response to a solicitation to fund independent expenditures, if the person
making the contribution:
(1) designates, requests, or suggests
that the amounts be used for independent expenditures. A person “designates,
requests, or suggests” that amounts be used for independent expenditures if, at
any time, there is an agreement, suggestion, designation, instruction, or
encumbrance, whether direct or indirect, express or implied, oral or written,
that all or any part of the transfer or payment be used to fund independent
expenditures;
(2) provided the amounts in response to a
solicitation or other request, whether direct or indirect, express or implied,
oral or written, for a transfer or payment to fund independent expenditures; or
(3) knew or had reason to know from the
surrounding circumstances that the amounts would be used to fund independent
expenditures.
D. A person who makes independent expenditures totaling more
than three thousand dollars ($3,000) for a non-statewide election or ballot
question or more than nine thousand ($9,000) for a statewide election or
ballot question during an election
cycle, in addition to reporting the information specified in Subsection C of
this section, shall report the following information:
(1) if the expenditures were made
exclusively from a segregated bank account that contains only funds contributed
to the account by individuals for the purpose of making independent
expenditures, the name and address of, and the amount of each contribution not
previously reported for, each contributor who contributed more than two hundred
dollars ($200) in the aggregate to the account in the election cycle; or
(2) if the expenditures were made in
whole or in part from funds other than a bank account of the kind described in
Paragraph (1), the name and address of, and amount of each contribution made
by, each contributor who contributed more than a total of five thousand dollars
($5,000) during the election cycle, to the person making the independent
expenditures; provided, however, that a contribution is exempt from reporting
pursuant to this paragraph if the contributor requested in writing that the
contribution not be used to fund independent or coordinated expenditures or
make contributions to a candidate, campaign committee or political committee.
E.] A. A person
reporting an independent expenditure [under this section] that is not
otherwise required to register as a political committee or report under the
Campaign Reporting Act shall complete the online registration process [prescribed
by the secretary of state in order to access the required disclosure reporting
system. All reports of independent
expenditures under this section shall be filed using the required system.] in
CFIS for setting up an account as an independent expenditure filer.
[F.] B. Time requirements:
(1) An independent expenditure is
considered to be made on the first date on which the communication or
advertisement is published, broadcast or otherwise publicly disseminated.
[(2) If
any person making independent expenditures incurs subsequent independent
expenditures, the person shall report such expenditures pursuant to this
section.
G.] C. No person
may make contributions or expenditures with an intent to conceal the names of
persons who are the true source of funds used to make independent expenditures,
or the true recipients of the expenditure.
[H.] D. Both
a person who makes an independent expenditure pursuant to Section 1-19-27.3 NMSA
1978 or a registered political committee that files reports in accordance with
Section 1-19-29 NMSA 1978 is required to disclose the candidate(s) or ballot
question(s) being supported or opposed by each independent expenditure made.
E. If
a person declines to identify a contributor pursuant to Paragraph (2) of
Subsection D of Section 1-19-27.3 NMSA 1978 on the basis that the contributor
requested in writing that the contribution not be used to fund independent or
coordinated expenditures or to make contributions to a candidate, campaign
committee, or political committee, the person making the independent
expenditure shall, contemporaneously with the filing of the report required
under this Section and Section 1-19-27.3 NMSA 1978, submit to the secretary of
state a statement under penalty of perjury that:
(1) a
contributor requested that a contribution not be used to fund independent or
coordinated expenditures or to make contributions to a candidate, campaign
committee, or political committee; and
(2) the
person making the independent expenditure, coordinated expenditures, or
contributions to a candidate, campaign committee or political committee did not
use any of the funds received from the contributor for those purposes.
[1.10.13.11 NMAC - N, 10/10/2017; A, 10/29/2019; A, 3/22/2022]
1.10.13.12 GENERAL REPORTING RULES:
A. Candidate campaign committees.
(1) All campaign
committees shall file reports according to the schedule set forth in Section
1-19-29 NMSA 1978. Reports shall be accepted
until midnight mountain time on the date of filing without penalty. In the event that a filing deadline falls
on a state holiday, the report shall be made on the following day. Beginning after 12:01 a.m. mountain time on
the day after the due date of the report, penalties for late filing shall begin
to accrue.
(2) Campaign
committees shall report all contributions, in-kind contributions known to
the campaign committee, loans, expenditures, loan repayments, and debt
forgiven by the lender.
(3) Coordinated
expenditures made on behalf of the candidate or campaign committee shall be
reported by the campaign committee as in-kind contributions received from the
coordinating political committee and are subject to contribution limits. Any committee reporting an expenditure
that is in-kind to another committee registered pursuant to the Campaign
Reporting Act is required to disclose the name of the committee benefiting from
the in-kind contribution.
(4) Candidates must file all required
reports while they are an active candidate and continue to file timely reports
until such time as they meet the requirements to file a final report. For example, a primary election candidate
that loses the primary election must file all reports included in the primary
election cycle and continue to file reports until the candidate files a final
report. Losing an election does not
terminate a candidate’s requirement to file under the Campaign Reporting Act.
(5) A
candidate’s personal funds spent in support of a candidate’s own campaign are
considered a contribution and shall be disclosed by filing the required reports
in CFIS; however, these funds are not subject to contribution limits.
(6) Upon
request by the secretary of state, the campaign committee shall provide a copy
of bank statements, for all accounts, for any reporting period.
(7) Candidates
benefiting from independent expenditures or in-kind contributions the
candidate has no knowledge of have no obligation to report the [independent
expenditure] item as a contribution to the candidate’s campaign
committee.
B. Political committees.
(1) [All political]
Political committees shall file reports according to the schedule set
forth in Section 1-19-29 NMSA 1978.
Reports shall be accepted until midnight on the date of filing deadline
without penalty. In the event that a
filing deadline falls on a state holiday, the report shall be made on the
following day. Beginning after 12:01
a.m. mountain time on the date after the filing deadline of the report,
penalties for late filing shall begin to accrue.
(2) Political
committees shall report all contributions, in-kind contributions known to
the political committee, loans, expenditures, loan repayments, and debt
forgiven by the lender.
(3) In
addition to disclosing the information required by the Campaign Reporting Act
for expenditures, a political committee making coordinated expenditures,
including in-kind, shall also disclose the name of the candidate, campaign
committee, or political committee with whom the expenditure is being
coordinated or is benefitting.
(4) Upon request
by the secretary of state, the political committee shall provide a copy of bank
statements, for all accounts, for the political committee for any reporting
period.
C. Hardship
waivers.
(1) All
reports required by these rules shall be filed electronically in the manner and
on forms as prescribed by the secretary of state. Reporting individuals required to file
reports may apply to the secretary of state for exemption from electronic
filing in case of hardship by submitting a hardship waiver request form prescribed
by the secretary of state. The secretary
of state may approve or deny this request.
Approval may be granted at the discretion of the secretary of state only
if the reporting individual has no way to access CFIS.
(2) Upon
approval of a hardship waiver, the reporting individual shall submit the report
on a prescribed paper form. Approval of
a hardship waiver by the secretary of state, authorizes the secretary of state
to enter the report into the electronic system on behalf of the reporting individual. A copy of the electronic report entered by
the secretary of state will be mailed to the reporting individual once it has
been entered into CFIS.
(3) Submission
of a hardship waiver request does not constitute meeting the reporting
requirements including the statutory reporting deadlines. Failure to adhere to a report deadline may
still result in fines pursuant to Section 1-19-35 NMSA 1978. Reporting individuals shall make arrangements
for hardship approval with the secretary of state in advance of report
deadlines to ensure timely filing.
[1.10.13.12 NMAC - N, 10/10/2017; A, 10/29/2019; A, 3/22/2022]
1.10.13.13 NO ACTIVITY:
A. All
candidates are required to register and file reports in CFIS according to the
reporting schedule outlined in the Campaign Reporting Act once a declaration of
candidacy has been filed, even if the candidate does not raise or spend any
funds. Candidates who have collected no
contributions and made no expenditures shall file a statement of no activity.
B. Candidates
who do not raise funds are not required to open a campaign bank account.
C. Receiving
funds as a publicly financed candidate pursuant to the Voter Action Act is
considered raising funds for the purpose of this rule.
D. Candidates who maintain a zero
balance in CFIS for the duration of a primary or general election cycle shall
be administratively closed by the secretary of state.
[1.10.13.13 NMAC - N, 10/10/2017; A, 3/22/2022]
1.10.13.15 LATE FILING OF REPORTS:
A. If a
reporting individual or person required to file a report [under 1.10.13.11
NMAC] pursuant to Section 1-19-27.3 NMSA 1978 fails to timely file a
report in CFIS, or fails to file a report, a written notice will be sent by the
secretary of state to the reporting individual or person required to file a
report explaining the violation and the fine imposed.
B. The
reporting individual or person required to file a report is afforded 10 working
days from the date of the written notice to file, if needed, and provide a
written explanation within CFIS indicating why the violation occurred.
C. If a timely
explanation is provided and the report is filed within the timeframe provided
by the notice, the secretary of state will make a determination whether good
cause exists to fully or partially waive the fine.
D. If
the reporting individual or person required to file the report fails to provide
a written response or fails to file a report within the timeframe provided by
the notice, the secretary of state shall issue a notice of final action
requiring the reporting individual or person required to file the report to
file the late report, provide a written explanation of why the violation
occurred, and pay the fine owed.
E. Fines
for late filing will accrue beginning the day after the filing deadline until
the report is filed at the statutory rate of fifty dollars ($50) per day up to
a maximum fine [of five thousand dollars ($5,000)] pursuant to
Subsection H of Section 1-19-35 NMSA 1978 per report. Candidates required to file supplemental
reports are subject to additional fines pursuant to Subsection C of Section
1-19-35 NMSA 1978.
[F. The
reporting individual or person required to file the report may challenge the
imposition of a fine within 10 working days of the date of the notice of final
action by filing a request for arbitration on the prescribed arbitration
request form. The arbitrator shall
conduct the hearing within 30 days of the request for arbitration. The arbitrator may schedule the arbitration
beyond the 30-day timeframe with the agreement of the parties.
G. The arbitrator
shall issue a binding written decision in accordance with Subsection F of
Section 1-19-34.4 NMSA 1978, which shall be a public record. The decision shall be issued and filed with
the secretary of state within 30 days of the arbitration hearing.]
F. If a reporting individual or person
required to file a report desires to come into voluntary compliance after a
notice of final action has been issued but prior to a referral pursuant to
Section 1-19-34.6 NMSA 1978, the secretary of state may, at the secretary of
state’s sole discretion, file a petition with the court requesting the court to
waive fines for good cause.
[H.] G. Failure to
respond to the notice of final action [may] shall result in a
referral to the [attorney general’s office or district attorney’s office, or
effective January 1, 2020, the] state ethics commission.
[1.10.13.15 NMAC - N, 10/10/2017; A, 10/29/2019; A, 3/22/2022]
1.10.13.18 IN-KIND CONTRIBUTIONS:
A. In-kind
contributions must be reported with the actual value of the contribution. If an actual value is not available, an
estimated value of the contribution may be used.
B. Coordinated
expenditures are treated as in-kind contributions and must be reported as such.
C. If a
committee or person makes an in-kind contribution that benefits multiple
candidates, each candidate must report the estimated benefit received per
person.
D. Goods, such
as facilities, equipment, or supplies, are valued at the price the item or
facility would have cost, given its age and condition, at the time the
contribution was made.
E. If goods or services are provided at
less than the usual and normal charge, the amount of the in-kind contribution
is the difference between the usual and normal charge for the goods or services
at the time of the contribution and the amount charged to the candidate or
committee.
F. The value of
in-kind contributions from a political party or legislative caucus committee to
a candidate nominated by that party in a general election cycle do not apply to
the limitations on contributions to candidates or campaign committees.
G. If a committee makes an expenditure that is reported as
coordinated or in-kind to another campaign or political committee, the
committee making the expenditure must disclose the candidate or political committee
that is benefitting from the expenditure.
[1.10.13.18 NMAC - N, 10/10/2017; A, 10/29/2019; A, 9/28/2021; A, 3/22/2022]
1.10.13.21 [CANDIDATE DESIGNATIONS OF
CONTRIBUTIONS OVER THE LIMIT:] [RESERVED]
A. When a
person makes a contribution above the contribution limits to a candidate in the
primary cycle, the candidate may re-designate the excessive portion to the
general election cycle if the contribution:
(1) is made
during that candidate's primary election cycle;
(2) is not
designated in writing for a particular election;
(3) would be
excessive if treated as a primary election contribution; and
(4) if
re-designated, does not cause the contributor to exceed any contribution limit.
B. If a
candidate receives a contribution for the general election prior to the start
of the general election cycle that candidate must segregate those funds and not
use them until the start of the general election cycle.
C. A
candidate who receives funds in the primary election cycle that are designated
for use in the general election cycle and who loses the primary election must
return the funds to the original donor or must donate the excessive
contribution to the public election fund.
A candidate or committee must disclose refunds of contributions in
reports filed in CFIS using the refund contributions option.]
[1.10.13.21 NMAC - N, 10/10/2017; Repealed, 3/22/2022]
1.10.13.22 EXCESSIVE OR PROHIBITED
CONTRIBUTIONS:
A. Excessive
or prohibited contributions shall [may] be returned to the donor upon
receipt, without penalty to the reporting individual [, if the candidate
or committee voluntarily returns the contribution without a finding of
violation by the secretary of state].
However, if the secretary of state discovers a discrepancy or
otherwise makes a [formal] finding that an excessive or illegal
contribution has been received by a candidate or committee, the candidate or
committee shall forfeit the excessive or illegal contribution in accordance
with [Subsection D of Section 1-19-34 NMSA 1978 or] Subsection G of
Section 1-19-34.7 NMSA 1978. A
candidate or political committee shall disclose refunds of contributions or expenditures
to the public election fund in CFIS in the reporting period in which the refund
was made.
B. Excess anonymous funds pursuant
to Subsections B and C of Section 1-19-34 NMSA 1978 shall be donated pursuant
to the requirements of Subsection D of Section 1-19-34 NMSA 1978. The candidate or political committee shall
disclose the details of the disbursement of excess anonymous funds in CFIS in
the reporting period in which the disbursement was made.
[B.] C. The reporting individual must check
committee records regularly to reasonably ensure that aggregate contributions
from one contributor do not exceed the contribution limits of the Campaign
Reporting Act.
[C.] D. When an
excessive contribution is made via written instrument with more than one
individual's name on it, but only has one signature, the permissible portion
may be attributed to the signer and the excessive portion may be attributed to
the other individual whose name is printed on the written instrument, without
obtaining a second signature. This may
be done so long as the reattribution does not cause the other contributor to
exceed any contribution limit.
[D.] E. An excessive contribution which is not
designated for either the primary or general election cycle, and which is made
after the primary, but before the general election, may be applied to the
outstanding debts from the primary election cycle if the campaign committee has
more net debts outstanding from the primary election cycle than the excessive
portion of the contribution. The
re-designation must not cause the contributor to exceed any contribution
limits.
[E.] F. Contributions and donations may not be solicited,
accepted, received from, or made directly or indirectly by, foreign nationals
who do not have permanent residence in the United States.
[1.10.13.22 NMAC - N, 10/10/2017; A, 10/29/2019; A, 3/22/2022]
1.10.13.25 CANDIDATE EXPENDITURES:
A. Candidates
who use the candidate’s own personal funds for expenditures of the campaign
committee must report the funds as either contributions to the campaign
committee, which cannot be repaid to the candidate, or as loans to the campaign
committee, which can be repaid from other campaign contributions received by
the campaign committee. A candidate may
also pay for expenditures of the campaign committee out of personal funds and
obtain reimbursement from the campaign committee, but the campaign committee must
itemize the expenditures reimbursed and otherwise comply with the disclosure
requirements of Section 1-19-31 NMSA 1978 including disclosure of the original
payee. A candidate may not, for
instance, report a single payment to a credit card in lieu of reporting each
individual expenditure paid for out of personal funds. Use of a credit card specifically designated
for campaign expenses is permissible but expenditures must be itemized when
reported.
B. Permissible expenditures.
(1) Use of
campaign funds must be in accordance with Section 1-19-29.1 NMSA 1978. Candidates and committees must provide a
purpose or description detailed enough to associate the expense to the
campaign. For example, an expense of
“taxi” is not appropriately descriptive to determine that it is related to a
campaign. Such an expense should be
reported as “taxi for travel to campaign meeting.”
(2) Expenditures
that are reasonably attributable to the candidate’s campaign and not to
personal use or personal living expenses are permissible campaign
expenditures. Personal use of campaign
funds is any use of funds in a campaign account to fulfill a commitment,
obligation or expense of any candidate or legislator that would exist regardless
of the candidate's campaign or responsibilities as a legislator. If the expense would exist even in the
absence of the candidacy, or even if the legislator were not in office, then it
is not considered to be a campaign-related expenditure. The following is a non-exhaustive list of
items considered to be per se personal use and are, therefore, not allowable
expenditures:
(a) household food items or supplies;
(b) funeral, cremation, or burial
expenses except those incurred for a candidate or an employee or volunteer of
an authorized committee whose death arises out of, or in the course of,
campaign activity;
(c) clothing, other than items of de
minimis value that are used in the campaign, such as campaign t-shirts or camps
with campaign slogans;
(d) tuition payments, other than those
associated with training campaign staff;
(e) mortgage, rent or utility payments:
(1) for any part of any personal
residence of the candidate or a member of the candidate’s family; or
(2) for real or personal property that is
owned by the candidate or a member of the candidate’s family and is used for
campaign purposes, to the extent the payments exceed the fair market value of
the property usage.
(f) admission to a sporting event,
concert, theater or other form of entertainment, unless part of a specific
campaign or officeholder activity;
(g) dues, fees, or gratuities at a
country clubs, health club, recreational facility or other nonpolitical
organizations, unless they are part of the costs of a specific fundraising
event that takes place on the organization’s premises;
(h) payments to candidate’s family unless
the family member is providing a bona fide service to the campaign. If a family member provides bona fide
services to the campaign, any salary payment in excess of the fair market value
of the services provided is personal use; and
(i) a vacation.
(3) [Legal
expenses specifically related to the campaign or legislative office are
permissible uses of campaign funds. Such
expenses include, but are not limited to, presenting a legal challenge to an
opponent’s qualifications for election, participating in such a challenge or
defending such a challenge. Permissible
legal expenditures also include defending or filing a complaint with the office
of secretary of state or any ethics authority.
(4) Candidates
and public officials shall not use campaign funds to pay any fine or penalty
imposed by the secretary of state or any court of competent jurisdiction.] Legal expenses reasonably attributable to the
candidate’s campaign are permissible campaign expenditures.
[(5)] (4) Candidates and
political committees may use campaign funds to [pay fines and penalties imposed
by the secretary of state] satisfy fines and other non-criminal
penalties as a result of violating a provision of the Campaign Reporting Act.
[(6)] (5) Wear and tear on
a vehicle is a permissible expense of the campaign and candidates shall claim
mileage rather than actual repairs for travel solely related to the
campaign. Mileage shall be calculated at
no more than the published rate pursuant to the Mileage and Per Diem Act. Candidates must keep a log for the
candidate’s own records regarding miles traveled for campaign purposes and
calculate the per diem based on this log.
Mileage rates are meant to account for both wear and tear on a vehicle
as well as costs for gas; therefore, candidates may not charge for both gas and
mileage.
[(7) A candidate, candidate’s agent, or committee’s agent may
seek an agency opinion or declaratory ruling from the secretary of state on the
lawfulness of expenditures made prior to the campaign committee facing an
enforcement action. A declaratory ruling
made by the secretary of state shall be issued in accordance with the
Administrative Procedures Act, Section 12-8-9 NMSA 1978. To the extent that an expenditure is
determined unlawful pursuant to an agency declaratory ruling, the campaign
committee shall be given the opportunity to amend any inconsistent reports and
take other necessary steps to come into voluntary compliance]
[1.10.13.25 NMAC - N, 10/10/2017; A, 3/22/2022]
1.10.13.29 RECORDS RETENTION:
A. A reporting
individual shall obtain and preserve all records, including bank statements and
receipts, necessary to substantiate the campaign finance reports required
pursuant to the Campaign Reporting Act for a period of two years from the date
of the filing of the report containing such items.
B. A reporting
individual shall make such records available to the secretary of state, state
ethics commission, attorney general or district attorney upon written
request.
[1.10.13.29 NMAC - N, 10/10/2017; A, 3/22/2022]
1.10.13.30 RANDOM REPORT SELECTION AND REPORT REVIEW
PROCESS:
A. Pursuant
to Section 1-19-32.1 NMSA 1978, a randomly selected list of current and past
candidates and political committees is computer generated by the secretary of
state.
B. The
secretary of state conducts a review of the reports filed during the election
year or reporting period being reviewed for compliance with 1.10.13 NMAC and
the Campaign Reporting Act. Areas of
review during the report examination include:
(1) Campaign
committees or political committees who fail to register or fail to register
timely.
(2) Contributions,
including loans and anonymous contributions, which exceed allowable
contribution limits.
(3) Expenditures
that may not be permissible.
(4) To
the extent possible, cross checking with other reporting entities including
those filing under the Lobbyist Regulation Act.
(5) Other report errors such as
incomplete reporting or failure to disclose the originating donor of a
contribution.
C. Pursuant
to Section 1-19-32.1 NMSA 1978, the secretary of state shall notify potential
violators that a possible discrepancy has been found and allow the candidates
or committees 10 working days from the date of the notice to submit a written
explanation and come into voluntary compliance.
[D. After a written response is received, the secretary of
state will issue a notice of final action which may include dismissal of the
finding upon explanation or correction or could include a penalty pursuant to
Section 1-19-34.4 NMSA 1978.
E. Upon] D. After the secretary of state deems
efforts at voluntary compliance have been exhausted and upon completion of
the random review, the secretary of state shall [generate a report that
details the findings and actions taken by the candidates, committees, and the
secretary of state which shall be made publicly available] prepare a
report that includes the committees included in the random examination, the outcome
of voluntary compliance efforts, and any unresolved discrepancies. The report
shall be maintained and forwarded pursuant to the requirements set forth in
Subsection B of Section 1-19-32.1 NMSA 1978.
[1.10.13.30 NMAC - N, 10/10/2017; A, 3/22/2022]
1.10.13.32 LEGISLATIVE
CAUCUS COMMITTEE:
A. Only one
legislative caucus committee may exist for the majority and minority of each legislative
chamber.
B. The speaker and
the minority floor leader of the house of representatives and the majority
floor leader and the minority floor leader of the senate shall be the
designated leaders of the legislative caucus committees for the members of
their political party in their legislative chamber unless:
(1)
two-thirds of the members of a political party in a legislative chamber vote to
designate a different leader from among their members; and
(2) the
results of that vote are recorded with the secretary of state.
C. A legislative
caucus committee must comply with all statutes and rules applicable to
political committees, with the exception of in-kind contributions from a
legislative caucus committee to a candidate nominated by that party in a
general election cycle, which do not apply to limitation on contributions.
D. No funds
belonging to a legislative caucus committee shall be expended by the committee
unless a current designated leader of the committee is on file with the
secretary of state using the campaign registration form prescribed by the
secretary of state.
E. Funds belonging
to a legislative caucus committee shall be managed by the designated leader or
the leader’s designee as designated on the campaign registration form prescribed
by the secretary of state.
F. A legislative
caucus committee cannot be dissolved or cancel its registration as a political
committee pursuant to Subsection G of Section 1-19-29 NMSA 1978.
[1.10.13.32 NMAC – N, 10/29/2019; A,
3/22/2022]
1.10.13.33 PROHIBITED
PERIOD: Candidates and officeholders impacted by the prohibited
period pursuant to Section 1-19-34.1 NMSA 1978 are not required to cancel or
pause automatic recurring contributions that were solicited and established prior
to the start of the prohibited period.
[1.10.13.33 NMAC – N, 3/22/2022]
HISTORY
OF 1.10.13 NMAC: [RESERVED]