Restructure Legislature for Efficacy

(Published in the Santa Fe New Mexican on Jan. 3, 2010.)

Gov. Richardson has made a eminently sensible proposal—a statewide ban on the use of hand-held cell phones while driving. He said he’ll introduce a bill when the Legislature convenes in January.

Why wait?

Well, as everyone knows, New Mexico government is structured in such a way that very little gets done except when the Legislature meets (and some might say very little gets done then anyway). And so everything is crammed into a 30-day or a 60-day session—or isn’t acted on at all.

I’d like to suggest that we hold a constitutional convention and bring New Mexico’s governing structure into the 21st century.

What changes would I propose?

We might have a fulltime legislature, meeting or on call from the day after Labor Day until the day before Memorial Day. That way we don’t have to wait for the annual session to have problems addressed (and solved—or not).

If for some reason, the Legislature must convene beyond Memorial Day, the legislators work for free. There’s no such thing as overtime pay, not even per diem. Get the people’s work done in nine months and go home.

I’d also suggest that the new legislature be unicameral like Nebraska, which has about 200,000 fewer residents than New Mexico and does just fine with a one-house legislature and 49 senators (compared to 112 legislators for New Mexico). Checks and balances will occur naturally, even within a one-party structure. (Think Democrats and health care reform.)

And one more thing: term limits. Eight years is enough. It works at the county level; why can’t it work at the state level?

(R Thomas Berner, a former town councilman in another state, now lives in Santa Fe.)


  1. When the Territory of New Mexico was seeking Statehood, the idea of concentrating power in the legislature was to have it be in the body that is closest to the people. This was common thinking of the day and across the states.

    A lot of our stagnation and inactivity is related to the historical framework of our government: we have a very antiquated constitution. A very conservative constitution that to some extent prohibits: innovation and partnerships in any new endeavors; and the inevitable campaign finance reform that brings the power of the citizenry back.

    The New Mexico State Constitution was crafted in the period before statehood (New Mexico. was admitted to the Union on January 6, 1912), and represents the model of best practices for the times (having been drafted in the period 1908-1910). By this time, the original thirteen states had Constitutions dating back to 1776, and most had not incorporated the Bill of Rights which was only adopted in 1791. These constitutions were crafted for the most part over one hundred years previously, and had not incorporated the thinking of the industrial revolution, the growth of modern cities, the end of slavery and the decline of the family farm. Yet, the New Mexico Constitution of Statehood in 1912, was considered as one of the most progressive and innovative of the times.

    When the Constitutional Convention was convened in 1910, it was at least the third formal attempt of the state to achieve statehood since the 1870's. The Constitutional drafts were researched carefully and were crafted on the best thinking of the Constitutions of the day, among those of the 1880’s, 1890's and 1900's. The framers of the Constitution knew that New Mexico’s chances of becoming a state were slim, based on its wild west image of Billy the Kid and raiding Apaches, and the fact that the majority of residents were of Hispanic and Native American origin and had favored the losing side in the Mexican-American War of 1846-48. The framers had to craft a Constitution which would show to the federal government that an organized and conservative state would emerge from their endorsement. Thus, our Constitution is grounded with a very conservative character which has plenty of checks and balances and the majority of power to a popularly elected legislature, so that no one group could dominate the new state.

    The government of New Mexico has been created as a “Plural Executive” system by our New Mexico State Constitution. This arising from a time circa 1908-1912 where the nation was still reeling from the assassination of President William McKinley and the widespread government corruption which led to it (a disgruntled job seeker who worked on McKinley’s campaign shot him on September 6, 1901, when he did not receive anything from the “spoils” system). Vice President Theodore Roosevelt ascended to the Presidency and set out on a reform movement. Major pieces of this reform were to divorce the influence of “big business” on government, to create a civil service, and to create reform commissions in the major departments of the federal government.

  2. Back in the early 1900's, New Mexicans just didn’t trust the majority of power in the hands of just one man---in the hands of the Governor; so they created an elected Secretary of State, Attorney General, State Auditor, State Treasurer, Land Commissioner, Corporation Commission and Public Utilities Commission (now the Public Regulation Commission). This created what was deemed the “Broad Ballot” or a government that was in general popularity elected by the people. The thinking was that it would give a variety of political parties elected from all parts of the state, thus making it less likely that one group of people could control the government and spend money in ways that were not generally accepted by the public. If the Governor acted on something and it involved money, the State Auditor and State Treasurer also had to review it at one time or another. If the Governor signed a law, the Secretary of State had to also sign off on it. If the Governor wanted to move more money into education, he needed the support of the Land Commissioner, State Treasurer and state Board of Education. The Attorney General and State Auditor could review the actions of all. Before the State Board of Finance, numerous commissions existed that oversaw the funding of the state and had the same types of members: Governor, Land Commissioner, State Treasurer, Attorney General and State Auditor. No one person was given excessive power or control. A huge set of checks and balances were created.

  3. The first Constitutional Convention occurred in 1941, barely 29 years after statehood. It is apparent that early government leaders thought that the state Constitution needed to be changed even that early in our state’s history. The next Constitutional Convention was called for by Governor Jack M. Campbell in 1963, when a “Constitutional Revision Commission” was instituted. The final report of the Commission in 1967 recommended that a Constitutional Convention be convened and the Convention was finally held in 1969. The result of the Convention was a new Constitution that was summarily defeated by the voters. The campaign that was run against adoption of the new Constitution was that it concentrated too much power in too few hands.

    This Position Paper proposes to change the New Mexico Constitution with a Constitutional Revision Commission. So why change the New Mexico Constitution? Why would ordinary citizens want such changes? Why put the changes in front of an uninformed electorate that rejected the last Constitutional Convention’s work in 1969; and is furious with the cluttered ballots like the one of 2002?

    This Position Paper will answer these questions and will establish the idea that a more modernized New Mexico Constitution will help to improve the way our government operates and will assist in economic development.

    A majority of other states have changed their “plural executive” systems, citing them as too inefficient and costly, to give more power to the governor. This enables the Governor to have more power but then requires him to be more accountable for the use of this power (i.e., a trade off). Limitations on the governor are placed on them by: term limits, recall elections, and referendum ballot initiatives, impeachment process provisions---all of which tend to balance the Governor’s power. This is beyond the “separation of powers” built into governments by having Executive, Legislative and judicial branches.

    In New Mexico, we attempted to reduce the plural executive system in the 1969 Constitutional Convention which failed in its entirety at the ballot box. Former Gov. Bruce King details this in his book Cowboy in the Roundhouse, and says that the Constitutional Convention was his real one failure. The Convention delegates voted to send the Constitution en masse instead of by area by area, because they didn’t think that the voters had the patience for a long ballot. Gov. Bruce King was instrumental in setting up a Constitutional Revision Commission in 1994. Speaker of the House, Rep. Raymond Sanchez, who was one of the Constitutional Convention’s lawyers in 1969 (the other was David Townsend, who became the Constitutional Revision Commission’s Chairperson) , was very willing to tackle the job again. The Constitutional Revision Commission ended its work in 1995 and delivered it to neophyte Governor Gary Johnson and his inexperienced legal staff (Johnson’s chief attorney was just out of law school several months and had not yet passed the New Mexico Bar or practiced at any firm or agency). So only two of 26 provisions of this statewide work group wound up as 1996 ballot initiatives (most notable was the creation of the Public Regulation Commission to replace the Corporation Commission---often called the “Corruption Commission”).

    This conservative approach of the state constitution has extended into other areas of N.M. State Law and agency regulations. Under state law, County governments have many of their functions that counties do in other others, reserved by the state. Municipal governments are regulated by the N.M. Department of Finance and Administration and the Taxation and Revenue Department. Powers are granted to the Acequia Commission and Soil and Water Districts that have popularly elected local members with staffing from the state. This explains the large size of New Mexico State Government.

  4. The “anti-donation clause” (Article IX, Section 14) of the Constitution is very often blamed as preventing economic development and transfers between public agencies. The clause is generally a good one in a conservative state, however, some fine tuning in this area, will enable more ability to creatively fund economic development ‘without giving away the farm.’

    In New Mexico, the N.M. State Legislature is king, and the Governor is the figurehead. He is the steward that takes care of the government when the legislature is out of town. Until the Executive Reorganization Act of 1978 (by Gov. Jerry Apodaca), the Governor even had less control over his agencies than he does today. The Governor’s job is mainly leadership............

    The Governor is the main cheerleader for the State of New Mexico in it’s:

    - economic development, he is the primary force in attracting new businesses;
    - education, he is the champion of enhancing excellence and requiring reform;
    - tourism, he is the salesperson to get more people to visit;
    - public safety, he is the General in charge who can project the confidence in our law enforcement officials and disaster preparedness.

    The Governor leads in his participation in the many boards and commissions he sits on (State Investment Council, State Land Commission, and on the Board of Regents of each university as an Ex-Officio member; in addition his cabinet secretaries sit on the Commission of Public Records, Health Policy Commission, etc.).

    The major change required in the Constitution is in the structure and duties of the legislature. The legislature has powers and exemptions that have been given to it by themselves---in possibly a trade off in the fact that they are a part-time citizen legislature and not a paid full-time one.

    Currently, legislators are so indebted to lobbyists that they can’t be fully independent. The role of the lobbyist has evolved from an industry advocate who came up to Santa Fe once a year to speak for his profession on issues of pending legislation. They often became an expert witness on a bill because they were the only ones that had the industry statistics and could do a cost-benefit analysis on why a bill was good or bad. Legislators began to trust lobbyists for information. The Legislative Council Service called on them for facts for bill drafting and for testimony in public hearings. It was a positive relationship that helped a conservative state like New Mexico avoid poorly drafted laws. But the evolution has taken a number of dangerous turns:

    - The lobbyist is usually an attorney connected with a lobbying firm that represents dozens of industries and not just a single industry that they had first hand knowledge of.
    - Lobbyists are now drafting the bills rather than just offering advice.
    - Past Legislative Council Service employees are now lobbyists.
    - The money from lobbyists has a corrupting influence on legislators and is pricing the funding level of an election out of reach of the common man.