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Commentary: The Power To Decide Who May Authorize Spending


  State Treasurer Tim Eichenberg has apparently decided that if the weak and subservient New Mexico Legislature will not stand up for itself, he’ll do it for them.


Eichenberg, who previously served in the state Senate, has written a court brief in support of a lawsuit filed by two senators, Republican Greg Baca and Democrat Jacob Candelaria, challenging the authority of Gov. Michelle Lujan Grisham to spend federal relief money without going through the legislative process.

This is the second time in the last few weeks that I’ve written about a case before the state Supreme Court, and I feel like I need to add the same qualifier this time as I did then. I’m not an attorney, and I don’t know which side is right legally.


The Governor’s Office says the state Constitution only gives the Legislature the authority to appropriate state funds, not federal funds, such as those flowing through the recently passed pandemic relief bill. They say a court ruling nearly 50 years ago regarding federal funding for universities backs up their position.


Eichenberg says that’s a misreading of the Constitution. But his most effective argument was not to the kaw, but rather to good government.

Removing the Legislature from the process would, “allow disbursement of public funds without necessary oversight and public accountability,” he argued.


If the issue is strictly good government, it would seem obvious that decisions made by 112 elected officials representing the entire state are better than those made by just one elected official.


But, it’s not clear that the Legislature wants the authority being sought, or could quickly and effectively appropriate those funds if given that authority. Baca undoubtedly has the support of all members of the Republican caucus, but Candelaria just as undoubtedly does not have the support of his fellow Senate Democrats.


Sen. Finance Committee Chairman George Munoz, one of the most conservative Democrats left in the Senate following the 2020 election, has said only that it would be good to have a final ruling on the issue by the Supreme Court.


Democrats in the Legislature made it clear during this year’s session that they will not act to defend their Constitutional powers, if those powers are being taken by a governor from their party.


A bill by Baca would have empowered the Legislative Council Committee, which is made up of leaders from both parties and meets once a month, to vote on any emergency health order issued by the governor after 45 days. 


The bill was heavily amended during the committee process, through good-faith negotiations on both sides. Democrats who helped shape the final bill and supported it in committee, later voted against it after the governor threatened a veto.


““The governor retains the right to veto whatever we pass,” explained Sen. Gerald Ortiz y Pino. “Do you really think it’s worth taking the time of this body to debate at length a measure that we know is dead upon arrival?”


There is always going to be a power imbalance between a part-time Legislature that works eithert 30 or 60 days a year, versus a governor’s office that’s going year-round. The compromise involving the Legislative Council Committee would have been a way to give lawmakers a voice during the months when they aren’t meeting.


None of this should be seen as a criticism of how Gov. Lujan Grisham has exercised her emergency powers or spent the federal dollars. But, if our democracy calls for three co-equal branches, no one person should have that power alone.