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Should Voters Amend the Anti-Donation Clause of the Constitution?

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Commenatary:

With the fall election season upon us, voters will want to be aware that there are several issues on the ballot beyond the list of candidates vying for office. Included among these are three proposed amendments to the New Mexico Constitution. Amendment 2 on the ballot proposes to amend Article 9, Section 14, making an additional exception to the anti-donation clause.

A web search generates numerous references to the clause. Those that appear near the top of the search list are from public agencies in New Mexico, such as universities. State employees are informed that public funds cannot be used for gifts/donations. Gifts include anything of value such as food, lodging, transportation, tickets to entertainment and sporting events. These gifts are not allowed because they provide benefits to private individuals and entities more than to the public interest.

Inclusion of the anti-donation clause in the Constitution is attributed to experiences with the expansion of railroads in the late nineteenth century. So eager were communities to have the railroads that they borrowed to subsidize the new enterprises. Their investment sometimes left them without a railroad and without the funds to repay what they had borrowed.

The proposed amendment would add an exception to allow “public investment to provide access to essential household services, including internet, energy, water, waste water and other similar services as provided by law...” That is, state funds could be used to provide better access for individuals and others to various utilities. The League of Women Voters of Southern New Mexico does not have a position on the proposed amendment, but offers this discussion to assist voters in deciding how to vote.

Supporters of the proposal note many New Mexicans have limited access to essential services, a problem that has been highlighted during the pandemic. Amending the anti-donation clause could enable state government funding to extend services in rural areas and state funds could serve as matching money for federal grants. This sort of “donation” to improve the lives of New Mexicans is substantially different from donations of entertainment.

Those opposing the amendment note the lack of specificity about essential services and who should be able to benefit from the expenditures. Before any funds could be spent based on the amendment, the Legislature would have to pass legislation defining the conditions under which public money could be spent for essential services. This means that passage of the amendment would be followed by further debate about its implementation.

Already there are exceptions to the clause, one of the most recent being expenditures to support local economic development. Expanding the list of exceptions brings the rule itself into question. That could be seen as an argument for voting against this amendment to stop the accumulation of exceptions or an argument to eliminate the anti-donation clause altogether and leave spending decisions in the hands of our elected legislators and governor.

Preparing to vote on amending the anti-donation clause encourages voters to stop and think about the beneficiaries of public expenditures and the extent to which the benefits serve the public.

Kathy Brook and Eileen VanWie, Co-Presidents
League of Women Voters of Southern New Mexico
September 2022