It shall not be lawful for a member of the legislature to use a pass, or to purchase or receive transportation over any railroad upon terms not open to the general public; and the violation of this section shall work a forfeiture of the office.

New Mexico Constitution, Article IV, Section 37

This is not a particularly ambiguous provision of our state constitution. At least for someone who is not a lawyer or a bureaucrat. But, as it turns out, it is not so clear to our Attorney General’s office.

The Attorney General is advising his clients, legislators invited on a junket by a private railroad, that it is just fine to ignore the plain text of the State Constitution.

You have requested our advice regarding the constitutionality of legislators and other public officers accepting an invitation to travel on the newly constructed Abo Canyon rail line in one of Burlington Northern Santa Fe Railway’s (“BNSFR’s”) trains.  Your request indicates that this is a one-time offer to inspect the new railway and that BNSFR does not provide passenger services in New Mexico.  Based on our examination of the relevant constitutional, statutory, judicial and other legal authorities from New Mexico and other states, and on the information available to us at this time, we conclude that the New Mexico constitution probably does not preclude legislators and other public officers from accepting BNSFR’s one-time offer to ride the train at no cost for the purpose of inspecting or touring the newly constructed Abo Canyon rail line.

Article IV, Section 37 and Article XX, Section 14 of the New Mexico Constitution prohibit legislators and certain other public officers from obtaining a free pass for transportation over any railroad upon terms not open to the general public.

Read the full advisory letter–complete with substantial legalese, dodging, and reference to our state high court’s apparent disdain for the text of their governing document.

Given the consequences imposed by the Constitution (removal from office, no exceptions), a competent private attorney not protected by sovereign immunity would never give such advice to a client.  There is no wriggle room whatsoever in the Constitution.  Only a public lawyer, hiding behind sovereign immunity, making the arrogant assumption that the State’s courts would back him up rather than enforce the law, could give such advice.

In an atmosphere where good-faith compliance with the law was considered to be a virtue, no legislator aware of this Constitutional prohibition would dare accept such a gift and no lawyer would tell him he could.  Here the law is treated as an obstacle to be sneered at and circumvented.

Even the AG’s public policy argument is hopelessly weak.  The letter states that preventing an archaic form of “subtle bribery” is the basis of this rule, but fails to make any sort of case that the railroad in this case isn’t attempting exactly the same sort of bribery on these 21st century legislators.  What, we’re supposed to believe that a legislative “inspection” of this rail line is so imperative that the Constitution should be suspended to allow it?  Which legislators are going?  Are they all engineers competent to inspect a rail line?

This is in a context where the current AG has been invisible during his term of office.  While important, high-profile, matters languish, the AG somehow managed to churn out this low-profile advisory letter to help his political chums go on a train trip.  A train trip!  Poor New Mexico.

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Ellis Wyatt is not the only frequent flier on this website supporting Ned Fuller for the NM Court of Appeals. Ned is an experienced, capable and conscientious New Mexico lawyer who will enforce the law in an intelligent, evenhanded and fair manner.  We heard that Ned was about to start the media-intensive part of his campaign and thought we’d help him out with a few slogan suggestions.  Ned had nothing whatsoever to do with compiling these and, so far, has not endorsed or used any of them.  Feel free to suggest more in the comment section.

VOTE FULLER, NOT EMPTIER

 

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Have a Fuller Life,

 

VOTE FOR NED

 

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THE GLASS WILL BE HALF-FULLER

 

WITH JUDGE NED

 

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The Law Is A Disease,

 

NED FULLER IS THE CURE!

 

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BETTER NED THAN DEAD

 

(Cold War oldie)

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CRIMINALS HATE NED FULLER!

 

(recycled from GOP ad campaign of some years back)

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NED FULLER vs. CRIME

 

See, Stratton v. McNeil (1986)

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KEEP SERIAL MURDERERS IN JAIL

 

VOTE FOR NED FULLER

 

ELIMINATE CRIME

 

Ned Fuller for Court of Appeals

 

(a little possible “puffing” is ok, in our opinion)

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If Governor Martinez Doesn’t Veto that 

 

Unconstitutional Crap,

 

JUDGE FULLER WILL!

 

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JUDGE FULLER WILL CLEAN UP THE

 

ENTIRE FILTHY, STINKING MESS!

 

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Mayor Bloomberg spent $92.60 per vote in the last NY mayoral election, barely winning. I have been advised that NM Senator Rod Adair’s opponent spent $111.03 in the last election in an effort to unseat Mr. Adair (who ended up winning by 7 points). These dollar amounts got me thinking about the relative value of the votes being “purchased” through campaign spending and the prices paid to “purchase” them.

Let’s simplify the issue: What if it was legal (and possible) to sell votes on ebay? Let’s say anyone could sell his or her vote, for any given election contest. It is up for auction. The candidate or anyone else could buy it. What do you think the market rate would settle at? It would depend on the particular contest, but I doubt it would ever exceed $100 in any election, assuming good liquidity. Note that the marginal value of a vote to a candidate should go to zero once one candidate has purchased or otherwise controls 50% +1 votes (assuming perfect information as to who the purchaser(s) are or who will benefit from the purchased votes when they are cast). I predict that the market would be flooded by low issue content voters, keeping prices down.  In Senator Adair’s case, it is likely his opponents would have outbid his supporters, and NM would have lost one of its best Legislators.  In an ebay election, it is also likely that Senator Adair’s opponents would have spent less to unseat him than they did in their losing effort.

It’s nice to think that ebay elections would help people realize the true value of their votes and encourage them to hang on to them. Doubt it, but any improved understanding of true value might drive up prices. Or, in NM, might at least lead to a greater outrage at the ease at which these infininitely valuable things are counterfeited.

The overall societal value of 50% + 1 votes, over all elections, is arguably infinite, since our country can unfortunately be destroyed by its leaders (imagine the old Soviet Union being able to buy US votes in my hypothetical). The value of one vote is a fraction of infinity (still infinite). On the other hand, I have no doubt that a market price could be determined for any vote in any election contest (and even for whole ballots!) Kind of a paradox, existing because under the democratic model, the individual normally does not benefit from his or her single vote except by the diffuse but important benefit of being a member of the group that bestows power.

In the US, votes are the raw material of power and those favored with their power will easily and inevitably convert some of their infinite value into wealth. Often, power for themselves now means wealth for their friends now and wealth for the powerful later.

This is a case where a governmental prohibition is a good thing (i.e. prohibiting buying and selling votes). People need to be protected from selling one of their most precious rights.  The benefit of the secret ballot becomes more apparent as well — harder to enforce a “vote buying contract” when the final product (ballot) is visible only to the voter.  Another reason “card check” is a bad idea (opens the door to enforceable vote contracts, and verifiable compliance with vote extortion).

The point of all this is the following question: If campaign spending is now exceeding what the market price of a vote would be, does that have implications for our democracy? Is this a back-door vote market? Or is campaign spending completely unrelated to the natural market price of a vote?

Surely it is related, millions in campaign expenditures yield billions in government expenditures. This post is not intended to discount the ideological considerations of voters in casting their votes, just to leave them out of the equation for discussion purposes.

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