US Supreme Court rejects anti-gay marriage group’s appeal of Maine’s donor disclosure law

AUGUSTA, Maine — An anti-gay marriage group’s federal challenge to the constitutionality of Maine’s campaign finance laws effectively ended Monday.

The U.S. Supreme Court on Monday declined to take up the National Organization for Marriage’s appeal of a federal judge’s decision to uphold Maine’s campaign finance disclosure law. The high court’s decision could force NOM to reveal a list of donors who contributed to a 2009 people’s veto of gay marriage in Maine. The organization contributed roughly $1.9 million to Stand Up for Marriage Maine, a ballot question committee formed to advocate for the repeal of a gay marriage law passed by the Maine Legislature in 2009.

After choosing in February not to review NOM’s arguments that Maine’s campaign finance laws are too vague, the high court on Monday rejected the group’s request to rule on the portion of Maine’s law that requires ballot question committees to disclose contributors’ names.

“We are thrilled that the Supreme Court upheld disclosure,” said Andrew Bossie of Maine Citizens for Clean Elections. “We think this is a win for democracy and a win for the people. You can’t have democracy if people don’t know who is filling their airwaves with political messages.”

The Supreme Court’s decision not to hear the appeal clears the way for the Maine Ethics Commission, which oversees compliance with the state’s campaign finance laws, to move forward with an investigation of the National Organization for Marriage, which did not file as a ballot question committee or provide names of its donors to the commission in 2009.

“The decision by the U.S. Supreme Court not to take this appeal is a helpful development,” said Jonathan Wayne, executive director of the Maine Ethics Commission. “It’s a further affirmation of the constitutionality of Maine’s campaign finance laws. … This decision will assist the commission in wrapping up its investigation.”

John Eastman, chairman of the National Organization for Marriage, released a statement Monday in response to the high court’s decision.

“While we are disappointed that the U.S. Supreme Court did not grant review in our challenge to Maine’s application of campaign finance law in 2009, we will be reviewing the state’s requests in light of the ruling,” Eastman said. “In their briefs before the U.S. Supreme Court, the state appeared to have substantially narrowed the type of information they were requesting from NOM. Had the state taken the position they took recently back in 2009, this litigation might well have been avoided. We will be reviewing the requests for information that the state has made in light of the narrow interpretation the state has now provided to its own statute.”

NOM also previously filed suit in state court attempting to challenge the commission’s subpoenas, according to Wayne.

“This is a very unusual circumstance,” Wayne said, referring to the level of litigation involved with NOM’s 2009 involvement in the people’s veto campaign. “Usually, the commission can wrap up campaign finance investigations pretty quickly. … The commission will proceed with its investigation, although there could be developments in the state courts that could affect our investigation.”

Wayne said it’s premature to discuss possible sanctions against NOM given the ongoing nature of the investigation.

Maine’s campaign disclosure law requires groups that raise or spend more than $5,000 with the intent of influencing elections to register as ballot question committees and disclose donors in a manner similar to what candidates and political action committees are required to do.

In arguments to U.S. District Judge D. Brock Hornby and then to a federal appeals court in Boston, NOM’s attorneys challenged the constitutionality of Maine campaign finance law requiring election-related advocacy groups to register and disclose the names of donors.

In August 2010, Hornby granted a summary judgment upholding Maine’s campaign disclosure laws as they pertain to ballot committees such as NOM.

Represented by nationally influential conservative attorneys James Bopp Jr., Stephen Whiting and the James Madison Center for Free Speech, NOM took its case to the U.S. Court of Appeals for the 1st Circuit in Boston.
They challenged the Maine law’s constitutionality on the grounds that it “imposes substantial burdens on political speech and association.”

NOM’s legal team also argued against the constitutionality of the registration requirement, the law’s $100 reporting threshold and its “unconstitutionally vague and overbroad” definition of “contribution.”

In January of this year, the federal appeals court rejected those arguments.

“In sum, we see no constitutional problem with expecting entities like appellants to make pragmatic, objective judgments about the nature of the contributions they receive where their own conduct and communications are the primary elements in the determination,” the appeals court ruled.

NOM subsequently took its case to the U.S. Supreme Court. In February, the high court turned away NOM’s request to rule on whether Maine’s campaign finance laws are unconstitutionally vague.

On Monday, the first day of its 2012 session, the court chose not to hear the remaining portion of NOM’s appeal, which challenged the constitutionality of the state law’s contribution disclosure requirement.

Mainers will vote again Nov. 6 on whether to legalize same-sex marriage. Question 1 on the ballot derives from a referendum petition drive by proponents of same-sex marriage.

“It really doesn’t affect the 2012 campaign,” Carroll Conley, executive director of the Maine Christian Civic League, said of Monday’s rebuff of NOM’s appeal. “It would be disingenuous to say we’re not disappointed, but when the Supreme Court makes a decision, there will always be people who agree and disagree.”

Conley said that Protect Marriage Maine, a political action committee created to convince voters to oppose same-sex marriage this year, will report donations on financial disclosure statements filed with the Maine Ethics Commission.

In the statement he released Monday, Eastman said the court’s ruling “has no bearing on NOM’s participation in the 2012 campaign to defeat Question 1 since it relates to rulings from 2009.”

A National Organization for Marriage Maine PAC is listed as a ballot question committee on the Maine Ethics Commission’s website. Its most recent financial summary for 2012 shows a $10,324 in-kind contribution of mailing list information to Protect Marriage Maine.

“Today’s announcement by the Supreme Court isn’t related to the 2012 campaign, and has no bearing on Protect Marriage Maine’s campaign to defeat Question 1,” Bob Emrich, chairman of Protect Marriage Maine, said in a statement. “We remain focused on preserving marriage in Maine as the union of one man and one woman. We are confident that we will prevail in this fight just as we did in 2009, and as we have in 32 out of 32 public votes across the country.”