Dan Boyd: Upfront: Precedent notwithstanding, 'notwithstanding's' standing is reduced

Apr. 18—SANTA FE, N.M. — The notwithstanding days are over — at least for the most part.

I wrote six years ago about how the word "notwithstanding" had slowly crept into the state's annual budget bill like a nighttime critter.

It appeared 36 times in the 2015 budget bill, though a few of those notwithstandings were axed by then-Gov. Susana Martinez's line item vetoes.

The word had also appeared in previous years' budget bills, though not as frequently.

But due to efforts by a few legislators and some public scrutiny, notwithstanding has been gradually pruned out of the budget bill.

In fact, the word appeared just seven times in the initial version of a $7.4 billion budget bill that Gov. Michelle Lujan Grisham signed into law earlier this month.

And all seven of those notwithstandings were removed during the Senate amendment process, meaning the word does not appear a single time in this year's 233-page bill.

"We worked diligently to get rid of that word," Sen. George Muñoz, D-Gallup, the Senate Finance Committee's chairman, said during a March floor debate on the spending bill.

Why all the fuss over a single word, albeit a long one?

Critics have maintained that notwithstanding has been used to circumvent existing laws and, in some cases, give state agencies increased spending flexibility.

Some have even questioned whether the use of the word is an illegal end run around the legislative process, since the state Constitution specifies that annual budget bills "shall embrace nothing but appropriations" for state agencies, public schools and more.

For instance, the 2015 budget bill authorized the state Supreme Court to reduce juror pay as needed to stay within their budget, "notwithstanding" a state law that called for jurors to be compensated at least at the state's minimum wage — then set at $7.50 per hour.

And the 2020 budget bill barred certain administrative fees received by the New Mexico Finance Authority from being deposited into a local transportation infrastructure fund, notwithstanding a statutory requirement such action be taken.

But while notwithstanding was eradicated from this year's budget bill, it still persists in other measures.

The invasive word appears eight times in the cannabis legalization law that lawmakers passed during a two-day special session last month.

Under one usage, it could allow for the governor to import or export cannabis, should it eventually be declassified as an illicit drug by the federal government. That's despite a requirement in a separate section of the bill that all marijuana products be grown or produced in New Mexico.

Meanwhile, though the notwithstanding references were removed from the budget bill even before it reached the governor's desk this year, another word did draw Lujan Grisham's ire.

The governor used her line item veto authority to strike down two separate references to COVID-19 pandemic "shutdowns" that appeared in the $7.4 billion spending bill.

In both cases, Lujan Grisham left the dollar amounts intact — for the New Mexico State Fair — but simply vetoed the word "shutdown" from the bill.

It just goes to show that words matter when it comes to the legislative process, notwithstanding any claims to the contrary.

Dan Boyd is the Capitol Bureau Chief for the Journal and covers the New Mexico Legislature.