Constitutional Amendment 2 would revise New Mexico's anti-donation clause

If it passes, the Legislature would have to pass legislation to roll it out, allowing for more public input and deliberation.

Megan Kamerick

KUNM / Source New Mexico

This story was previously published by Source New Mexico, through a partnership with KUNM.

Last year, the superintendent of Albuquerque Public Schools had to walk back a promise to use $6 million in federal relief dollars for staff bonuses. The state auditor told him it might violate the state’s anti-donation clause, which prohibits government entities from donating or lending to “any person, association or public or private corporation or in aid of any private enterprise for the construction of any railroad, unless a constitutional exception exists,” according to the Legislative Council Service.

The issue, in this case, was timing. APS planned to give the extra funds at the end of teachers’ contracts. State Auditor Brian Colón said the anti-donation clause does not allow public employees to get additional compensation for work they had already done. So APS decided to pay the teachers bonuses at the beginning of the school year.

The anti-donation clause pops up in many ways around New Mexico, from Otero County declining to pay for legal representation for former Commissioner Couy Griffin in a lawsuit to remove him from office, to restrictions on giving funds from the Gold King Mine spill settlement to individuals harmed by the pollution and the allocation of elk hunting licenses to private landowners.

The clause has not been really tested in the courts, said Kathy Brook, co-president of the League of Women Voters of New Mexico.

“It’s somewhat up in the air as to what the clause means or how it would be interpreted. It’s often just cited as ‘No, you can’t do that, because of the anti-donation clause,’” she said.

But over the years, there have been many exemptions tacked onto the clause, and now Constitutional Amendment 2 seeks to modify it further by allowing the state to provide funds and other resources for “essential services,” mostly for residential purposes. Those include infrastructure for the internet, energy, water and sewer.

The origins of this clause here and in other Western states lie with the railroad boom in the late 19th century, where powerful corporations were granted public money for private ventures. But since then, other states have relaxed some of the restrictions in these clauses to allow for projects that serve the public good, according to the LCS.

In New Mexico, it has been amended six times to allow funds for things like helping sick or impoverished people, local economic development, some scholarship programs, and building affordable housing.

Proponents say this latest amendment could help boost access to essential services, especially in rural areas. It could also help the state leverage more federal money for rural development, as other states have done.

If it passes, the Legislature would have to pass legislation to roll it out, allowing for more public input and deliberation.

But opponents say that leaves too much discretion to future legislatures and too much uncertainty about how the funds would be used. The amendment could mean public money is not adequately protected. Paul Gessing with the libertarian Rio Grande Foundation wrote in an op-ed that the amendment could lead to more corruption with public funds and more “corporate welfare,” using public funds to give special benefits to private companies.

His group wants to see the anti-donation clause made stronger rather than see more amendments to it.

Megan Kamerick is the news director of KUNM.

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