Editorial: Constitutional amendments are a mixed bag - Albuquerque Journal

Editorial: Constitutional amendments are a mixed bag

Here are the Journal’s recommendations on constitutional amendments proposed by the Legislature. Each requires a simple majority of “yes” votes to become part of the state Constitution, although Amendment 1 also requires congressional action. For election information, including candidate Q&As, district maps and news stories, go to the Journal Election Guide at abqjournal.com.

Constitutional Amendment 1 — No

The language of Amendment 1 states it would provide additional money from the permanent school fund “for enhanced instruction for students at risk of failure, extending the school year, teacher compensation and early childhood education.”

What it doesn’t say is that raiding the state’s largest endowment fund, also known as the Land Grant Permanent Fund, would hurt future beneficiaries of the $21.6 billion fund, including public schools, universities, hospitals, penitentiaries and the state hospital.

The misguided proposal would increase the annual draw from 5% to 6.25%, adding hundreds of millions in extra funding as soon as this fiscal year. This year’s estimate is an extra $211 million. The “tipping point” — when the smaller LGPF would distribute less money annually than if left alone — is estimated to hit in the 2040s.

Granted, that is two decades away. But proponents also fail to mention the state is transitioning away from oil and gas, which fuels the fund. The future is when we need these funds the most.

Moreover, raiding the fund for early childhood programs and K-12 isn’t necessary. The state’s budget has grown from $6.3 billion in fiscal 2019 to $8.5 billion in fiscal 2023. The state will have an estimated $2.5 billion in additional new revenue next year. And lawmakers created an Early Childhood Education and Care Fund in 2020 that has grown from $300 million to an estimated $4.8 billion by the end of 2023 to nearly $9 billion in 2027.

Also of concern is the lack of a plan for spending the additional money to truly deliver results for our children. This is another disappointing give-us-more-money-and-we’ll figure-out-how-to-spend it proposal.

The N.M. attorney general says it may even be illegal to use money from the LGPF to fund privately-run early childhood schools and programs currently funded through state contracts. The state has dramatically increased funding for early childhood programs from $179 million to $579 million over a 10-year period and is struggling to find enough program providers.

On the surface, taking more money out of the LGPF sounds like it’s good for kids. But the state already has more education money than it can spend — schools have left almost $1 billion on the sidelines in the past year — and raiding the fund will shrink the corpus and, thus, annual payouts down the road. It is far more responsible to allow the LGPF to continue to grow from compound interest, investments and leases on state lands, and to rely on the higher payouts from the bigger corpus, as well as on the exponential growth of the early childhood fund.

Voters should vote “no” on Constitutional Amendment 1 — specifically for the sake of New Mexico’s children.

Constitutional Amendment 2 — Yes

Voters are being asked to add another exception to the state’s constitutional “anti-donation clause” that prohibits the state, a county, a school district or a municipality from directly or indirectly lending or pledging its credit or making any donation to or in aid of any person, association or public or private corporation.

Since 1971, the anti-donation clause has been amended six times to give the state Legislature more flexibility in dedicating public funds to projects that provide a public benefit. For example, voters have said “yes” to lawmakers providing scholarships to veterans, contributing public assistance to affordable housing projects or underwriting projects that foster job growth and economic development.

This year, voters are asked to authorize the state to spend money to assist in the construction of utility lines or other infrastructure for energy, internet, water, wastewater and similar services for mainly residential purposes. We’ve long advocated for critical infrastructure, especially in communities that lack basic services.

We urge passage of the amendment because it “could be particularly helpful with regard to building high-speed broadband internet infrastructure throughout the state,” as the N.M. Legislative Council Service noted in an analysis of the amendments on the ballot. A “yes” vote could assist the state with leveraging federal funding. Because of anti-donation clause prohibitions, we were unable to leverage 2009 federal broadband money.

The proposal requires the implementing legislation to “include safeguards to protect public money and other public resources used for the purposes authorized,” according to the LCS. “Before the implementing legislation reaches the floor of each house, it will go through the committee process, where it will be debated by the members after ample opportunity for public comment and be subject to amendment throughout the process.”

And that appears to address our underlying concern — that the legislative process provide real guardrails that ensure no private entity is unreasonably subsidized.

Constitutional Amendment 3 — No

Constitutional Amendment 3 proposes to delay the general election for a newly appointed judge until at least one year from the appointment.

While there are decent arguments for making this change, we are opposed for the potential unintended consequence that could arise should the amendment pass; chiefly that an appointee could serve up to three years before the general election is held. That’s too long for an unelected official to wield the power of an elective government seat. And while it’s not certain to happen, the mere possibility that it could leaves us cold.

It’s useful to understand how judicial appointments work. Nominating commissions recommend candidates for judicial appointments, which the governor makes from the list of qualified nominees. Appointed judges serve until the next partisan election. Once a judge has been elected in a partisan election, the judge faces a retention vote on a nonpartisan ballot after serving a six- or eight-year term (six for district judges, and eight for Court of Appeals and the Supreme Court). Judges standing for retention must receive 57% voter approval.

Arguments for the change, as enumerated by the N.M. Legislative Council Service, are that it allows a judge more time to build a record before voters judge them on the merits of their performance; it enables greater access by judicial candidates to public financing; and it helps with recruitment and diversity for judgeships. Some qualified candidates turn down an appointment because of the possibility they’ll only serve for a short time — in some cases a few months before the partisan election is held.

But we think the cons outweigh the pros on this. In addition to the potential three years before voters weigh in, it’s unclear if the new language applies beyond appellate judges and “this ambiguity could lead to litigation over the application of the amendatory language to district court and metropolitan court judges,” the LCS notes.

We urge a “no” vote on Amendment 3.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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