Constitutional Amendment 1: Should N.M. Utility Regulators Be Elected Or Appointed?

Oct 16, 2020

The structure of a commission charged primarily with regulating public utilities in New Mexico is on the ballot this fall as voters weigh Constitutional Amendment 1. If approved, the measure would see the Public Regulation Commission turn from an elected body to one made up of appointed commissioners. Some of the disagreements around the measure reflect differing views on what qualities a commissioner should have and what their priorities should be.

The PRC regulates the companies that provide the public with utility services. All of these companies are monopolies, in part because they require so much infrastructure. PRC Commissioner Cynthia Hall describes the group’s work this way: “If you think of your bills that you get at the end of the month, the rates they charge are regulated by us,” she said. “We stand in the place of competition. The monopolies can’t raise their prices without our permission. We’re like a mini court system.” 

Since its inception in 1996, the commission has been made up of five members, each elected to represent a district of the state for a four year term. New Mexico is one of only 12 states* that elects its utility regulation commission, according to a 2020 voter guide prepared by the Secretary of State's office. The constitutional amendment would change that, doing away with the districts and having the governor appoint three commissioners from a list of nominees made by a bi-partisan legislative committee. They would then need to be confirmed by the state senate before serving six year terms.

One of the arguments over the amendment is about whether commissioners should be subject matter experts with statewide interests in mind, or act as advocates for their own district. “People who live out in rural New Mexico,” said PRC Commissioner Teresa Becenti-Aguilar, “the farmers, the sheepherders – they should have that right to choose their own representative.”

Becenti-Aguilar, a Democrat who represents the rural northwest district of the state, opposes the amendment. She says her life experience and relationships make her better able to advocate for the utility needs of her constituents. She’s Diné and grew up on the Navajo Nation. “In a one-room hogan – no electricity, no telephone, no running water,” she said. “As a child, I saw the shortcomings. It was a battle. I said, ‘I wanted to reach the office that is going to answer to my people.’” 

Democratic Commissioner Cynthia Hall, who’s running for re-election to represent the district that comprises most of Albuquerque, is the only commissioner who’s publicly supporting the amendment right now. She favors appointed commissioners with no districts. “I consider everybody in the state as my constituents,” she explained. “Our duty is to everybody in the state because the utilities we regulate operate across the state.”

Hall argues that expertise in things like the law, economics and engineering is more important than regional affiliation. She’s concerned that the commission has been used as a political steppingstone. “The job became a magnet for people who were good at getting elected,” Hall said. “You had people making decisions who really didn’t know what they were doing.”

Back in 2012, voters approved a measure to increase the minimum qualifications for PRC commissioners and add a continuing education requirement. But Republican Sen. Bill Payne, who co-sponsored last year’s bill to put this amendment on the ballot, says those previous changes were insufficient. “The qualifications aren’t particularly meaningful,” he said. “And the continuing education is whatever the commissioners decide it is; so, it can be a lot, or it can be nothing.” 

Payne says the nominating and appointing process would make for a more competent panel. 

Commissioner Hall says the election process also deters some qualified individuals from serving. “I have talked to numerous people to try to encourage them to run and they just don’t want to run for public office,” said Hall. “So, we are not tapping an important pool of talent and knowledge in our state.”

Commissioner Becenti-Aguilar, who opposes the amendment, argues that the PRC does not lack expertise. “We have talented, professional, expert staff on board,” she said. “And when we make the final decision, we always have our constituents in mind. That’s the important point when it comes to appointed versus elected.” 

Nonpartisan public policy advocacy organization Think New Mexico published a 2011 report on the PRC. The executive director said in an email this week that while appointed commissions “tend to be somewhat more qualified,” elected commissions “tend to be more responsive to consumers’ needs and tend to keep rates a bit lower.”

There are also arguments both for and against the amendment related to the influence of special interest groups on appointments versus elections, and which would result in a more independent commission.

Opponents, including the Republican Party of New Mexico, say that appointing commissioners would consolidate the governor’s power over the PRC and make the panel more vulnerable to influence by special interest groups. Payne, a Republican, argues that the multi-step, bi-partisan process of nominating and confirming appointees would act as a safeguard against such power grabs. 

There have already been accusations of dark money influencing the development and campaign for Constitutional Amendment One. Think New Mexico points to the over $260,000 spent by the Committee to Protect NM Consumers on mailers in support of the amendment without disclosing its donors. The Albuquerque Journal reports a board member of the organization says they will disclose their donors after the election. 

In an op-ed published in the Las Cruces Sun News in March, Commissioner Becenti-Aguilar and Commissioner Jefferson Byrd pointed to the involvement of the Public Service Co. of New Mexico (PNM), which is regulated by the PRC, in the development of the 2019 legislation. They say PNM “met in secret” with lawmakers before the legislation was proposed.

Sen. Payne confirmed PNM’s involvement in a working group, but said it was not secret and a wide variety of stakeholders were invited in an effort to get buy-in before proposing the legislation to ensure its success.

As New Mexico embarks on a 25-year transition to renewable energy and ratepayers face new economic hardships, PRC commissioners – whether elected or appointed – will play an important role in meeting the utility needs of the state. 

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* A 2019 report by the National Conference of State Legislatures says that voters in 11 states currently elect their public utility commissioners. 

Early in-person voting begins Sat., Oct. 17 in New Mexico. The Secretary of State’s office recommends mail-in ballots be postmarked by Oct. 27. Learn more at NMvote.org. And if you're looking for information on any of the candidates or ballot questions, check out the New Mexico League of Women Voters' 2020 guide.