In the tussle over who would control allocation of $61 million in federal funds awarded to New Mexico under the 2003 Jobs Growth and Tax Relief Reconciliation Act, Governor Bill Richardson ended up outflanking and outrunning the Legislature. Despite the Legislature’s exclusive constitutional authority to appropriate funds, Richardson succeeded in exercising sole discretion in how the $61 million would be spent. He is taking a similarly aggressive stance in regards to 2009 Federal stimulus funds. This story provided the background to our reporting on how Lt. Gov. Diane Denish chose to spend $225,000 given her by Richardson from those funds. Those prior reports are available here, here and here.

Through New Mexico Watchdog’s tips line (you’ll find the tab on the tool bar) we have obtained a copy of the statement issued by Richardson to counter legislators’ arguments that he lacked legal authority to allocate funds without authorization from the legislature. The full document is available through this link. The arguments he raised in 2003 are relevant to ongoing tussles in 2009 between the Legislature and the Governor regarding the scope of the Legislature’s appropriation power. At least one legislator accuses the Governor of a “constitutional coup” in his unilateral reworking of the budget after he line-item vetoed the Legislature’s correctons.

Two points relevant to our investigation stand out. First, Richardson argues in this statement that, even though the New Mexico State Constitution grants exclusive power to appropriate funds to the Legislature, the state constitution is preempted by a U.S. Department of Treasury requirement that the executive certify that the funds will be used only for “essential state services,” federally mandated programs and in compliance with the most recently approved state budget. This same argument was raised by South Carolina Governor Mark Sanford in arguing that similar language in the 2009 American Recovery and Reinvestment Act gave the governor greater powers than given him by the state constitution. The South Carolina Supreme Court rejected that argument in Edwards and Williams v. State of South Carolina and Sanford (Supreme Court of South Carolina, No. 26662 6/4/09). The act of certification was found to carry no power to upend state constitutions. It is merely a ministerial act.

Second, Richardson took a swipe at legislators in a section of the statement entitled, “Critical Needs of the State vs. Pork Fest.” Decisions made by Richardson on how to spend this money would be for “critical needs of the State.” Legislators only wanted to spend the money on a “pork fest.” Richardson won the struggle, mostly by default. He spent the money before legislators could do much about it. Whether his appropriations were indeed only for “critical needs of the state” can be disputed. Small examples that could stir debate would be his giving $50,000 for, according to a Department of Finance and Administration report, the “off-road race to Chihuahua,” or $50,000 going to an individual in Tokyo, Japan to work on establishing a trade office, as we have reported elsewhere. More significant points of contention might be the two $1 million appropriations he made to the Rail Runner, expenditures over and above the amounts authorized by the Legislature.

Richardson argued that “Projects to be funded [at his sole discretion] represent critical, time -sensitive needs of the state.” The bold-face appears in the original document.

Which brings us back to the allocation to Lt. Gov. Denish. She spent the funds mostly on public relations and political work for herself and John Kerry’s campaign for President. Were these “critical, time-sensitive needs of the state”? Further, based on the most recent audit of her office, covering FY2008, she still has money from the 2003 allocation left in her account at the State Treasury. Is that compatible with an extraordinary appropriation by the Governor, outside the lines of normal constitutional authority, to address a “time-sensitive” need of the state?

The extent of accountability for how the $61 million in federal funds was no more than Governor Richardson’s certification that the money had been used properly. Because the expenditures were outside the usual course of legislative appropriations, they were made with no need to report back to the Legislature on how the money was spent and what was accomplished with the funds.