Alabama, New Mexico Voters Eye Constitutional Amendments for Broadband Funding

Alabama and New Mexico voters will soon be given the midterm option of changing their state constitutions to help boost broadband funding and deployment, albeit in notably different ways. 

In Alabama, voters will head to the polls on November 8th to vote on a Broadband Internet Infrastructure Funding Amendment that would amend the state's constitution "to allow local governments to use funding provided for broadband internet infrastructure under the American Rescue Plan Act (ARPA) and award such funds to public or private entities."

County leaders have spent much of this year warning that Section 94 of the Alabama Constitution bans the state from granting public money or “things of value” to local governments for public and private use. That’s a significant problem when it comes to the $276 million in ARPA funds Alabama Governor Kay Ivey earmarked for broadband expansion last March.

Programs such as the USDA’s ReConnect and the FCC’s Rural Digital Opportunity Fund (RDOF) haven’t run afoul of the Alabama Constitution because they both involve the federal government directly doling out funds for broadband expansion. But ARPA funding allows local municipalities to distribute a portion of state-allocated funds.

“The legislature shall not have power to authorize any county, city, town, or other subdivision of this state to lend its credit, or to grant public money or thing of value in aid of, or to any individual, association, or corporation whatsoever, or to become a stockholder in any such corporation, association, or company, by issuing bonds or otherwise,” the Constitution reads.

Modifying the state's constitution requires a three-fifths vote by the Alabama state legislature and a public vote. If approved on November 8, the Alabama constitution will be amended to read:

The state, a county, or a municipality is authorized to grant federal award funds or any other source of funding designated for broadband infrastructure by state law to any public or private entity for the purpose of providing or expanding broadband infrastructure. The granting of funds by a county or a municipality to a private entity pursuant to this section must be approved at a public meeting held by the appropriate county or municipality.

Alabama’s $276 million in ARPA funding for broadband is being administered by the Alabama Department of Economic and Community Affairs (ADECA). The state is also expected to get upwards of $2 billion dollars through the Infrastructure Investment and Jobs Act (IIJA).

Amending the state constitution to allow for county and city governments to use public funds for the expansion of high-speed Internet service has the backing of the Alabama League of Municipalities and the Association of County Commissions of Alabama.

Another indication the measure is likely to pass at the ballot box: the bill to put the amendment on the ballot, sponsored by Republican State Rep. Randall Shedd, passed both houses without a single dissenting vote.

New Mexico

New Mexico voters are also being asked to modify the state Constitution to ensure the easy flow of broadband funding. A 1900s era portion of Article IX of New Mexico’s constitution restricts "lending, pledging credit, or donating to any person, association, or public or private corporation."

The proposal, which was approved by the New Mexico state legislature last February, would add an exception to the state's anti-donation clause to allow the state legislature to appropriate state funds through a majority vote in each chamber for infrastructure that provides essential services such as water, sewer, electricity, and broadband. 

If passed, the New Mexico Constitution would be amended to read:

Nothing in this section prohibits the state from expending state funds or resources for the purpose of providing essential services primarily for residential purposes if the assistance is granted pursuant to general implementing legislation approved by a majority vote of those elected to each house of the legislature. The implementing legislation shall provide for accessibility to essential services primarily for residential purposes and include safeguards to protect public money and other public resources used for the purposes authorized in this subsection. As used in this subsection, 'essential services' means infrastructure that allows internet, energy, water, wastewater or other similar services as provided by law.

FCC data indicates that 42 percent of New Mexico residents still can’t access broadband and the FCC’s already dated definition of 25 Megabits per second (Mbps) downstream, 3 Mbps upstream. The dated provision in the state constitution has helped contribute, effectively hamstringing the subsidization of private sector rural broadband deployments. 

“I’m confident that the voters will support this important measure to improve access to essential infrastructure for every New Mexican,” New Mexico state Rep. Christine Chandler (D-Los Alamos) told media outlets earlier this year. “Every family should have access to clean water, reliable electricity and broadband internet.”

Earlier this month, Chandler co-authored an op-ed published in the Albuquerque Journal with State Rep. Anthony Allison, that urges voters to pass the amendment to “give our state the ability to better grow, attract and retain job-creating businesses, and increase the power of small- and home-based businesses to compete in local, national, and even international, markets.”

The editorial board of the Albuquerque Journal concurred, reminding voters that it was the state’s “anti-donation clause prohibitions” that prevented New Mexico from being able “to leverage 2009 federal broadband money.”