This story appears in both The Paper and the Santa Fe New Mexican through a partnership to bring our readers the best in reporting from the legislature.
Milan Simonich The Santa Fe New Mexican
Losing doesn’t have to be bad. At least that’s what state Rep. Daymon Ely has told himself.
Ely, D-Corrales, has introduced a proposed constitutional amendment to create the state Office of Consumer Affairs. All august government agencies need a big shot. This one would be led by the commissioner of consumer affairs.
What role or duties would the boss have?
None, Ely said.
His proposal, House Joint Resolution 8, is as vague as an envelope with no mailing address.
Ely is confident his pitch for a consumer protection office won’t make the ballot. In fact, he doesn’t want to put it before voters.
A 64-year-old lawyer who is not running for reelection, Ely is using the proposed constitutional amendment to draw attention to what he calls a monstrous problem of the state failing to protect consumers. It starts with money and, Ely says, extends to political influence.
Attorneys general in New Mexico during the last three election cycles have accepted an escalating amount of campaign contributions from out-of-state lawyers. The same trend has occurred across the country, but Ely doesn’t like seeing it in New Mexico.
By his accounting, Democratic Attorney General Gary King received $114,000 from out-of-state lawyers in the 2010 election. King’s successor, Hector Balderas, also a Democrat, accepted $156,000 in 2014 and $222,000 in 2018.
“Why would a lawyer in New York City care about the attorney general’s race in New Mexico if they don’t think they’re going to somehow benefit from it?” Ely asked.
He says the answer is straightforward: Cases are handed to out-of-state lawyers who donate to attorneys general.
What’s more, Ely told lawmakers on the House Consumer and Public Affairs Committee, many more campaign contributions might be linked to these lawyers. People with the same last name as contributing attorneys often show up on campaign finance reports.
Ely and Balderas had a nasty confrontation regarding the attorney general’s choice of outside counsel in a high-profile consumer case. Balderas’ office commissioned a Pennsylvania law firm, Barrack, Rodos & Bacine, to assist in a civil lawsuit against Vivint Solar Inc.
The state’s complaint, filed in 2018, accused Vivint of using deceptive marketing practices to reel in and cheat customers. That same year the Pennsylvania law firm donated $5,000 to Balderas’ reelection campaign.
A $1.9 million settlement eventually ended the Vivint case. Ely says the victims were shortchanged as lawyers profited.
More than a half-million dollars in legal fees were awarded to outside counsel. Recipients included the firm that donated $5,000 to Balderas’ campaign.
“Not a bad return on your investment,” Ely said.
Another $1.2 million stayed with the Attorney General’s Office.
Some 2,200 New Mexicans who claimed they were defrauded by Vivint fared poorly.
“The consumers received nothing,” Ely said.
He has other criticisms. State District Judge Clay Campbell sealed more than 1 million documents in the Vivint case. The company wanted the confidentiality order, and Balderas’ office agreed to it on grounds that it protected consumers’ privacy.
Ely last year denounced the deal-making. In return, Balderas filed a state ethics complaint against Ely, claiming he violated the Governmental Conduct Act.
Balderas’ allegation was tossed out. Ely professes to be a little disappointed.
“I welcomed the complaint against me. It brought attention to the case,” he said.
Ely figured he was doing work media and open-government organizations should have taken on. He said those groups haven’t been aggressive in trying to unearth the settlement records.
His frustration with the Vivint case and others overseen by Balderas led Ely to introduce his specious proposal to establish a state Office of Consumer Affairs.
Making the move in a legislative session gave Ely a giant megaphone. His proposed constitutional amendment cleared its first committee on a bipartisan 5-0 vote.
Ely says his legislative proposal for consumer protection has gone far enough.
What he would like to happen, he said, is a ban on out-of-state lawyers contributing to candidates for attorney general. That system creates what Ely calls a pay-to-play government. He admits it might not be constitutional to prohibit donations from outside New Mexico.
As for his constitutional amendment, he’s ready to kill it. Ely said he shouldn’t continue pushing a measure only to make a point.
“I don’t want to lockdown this body when we have so many other things going on,” he said. “I shouldn’t be wasting 70 members’ floor time.”
At least he’s magnanimous in defeat.
Ringside Seat is an opinion column about people, politics and news. Contact Milan Simonich at email@example.com or 505-0986-3080.