The nation’s leading anti-gay group, the National Organization for Marriage, opposes marriage and civil unions for gay and lesbian couples, and earlier this month, many of the leading Republican presidential candidates signed NOM’s pledge calling for a constitutional amendment to ban gay marriage.
NOM has filed a raft of lawsuits to shield its donors from public disclosure. But, as this memo outlines, courts and state election boards have consistently disagreed and rejected NOM’s challenges.
Donor disclosure is uniformly required across the country for federal, state and local campaigns and is widely accepted as a vital means to ensure that elections are conducted transparently and fairly.
The latest in NOM’s string of legal defeats came on August 11 when the 1st Circuit Court of Appeals rejected the group’s challenges in Maine and Rhode Island.
On its Law Blog, the Wall Street Journal put the cases into perspective.
“The 1st Circuit issued rulings in two cases that raise an important campaign finance issue: the extent to which states can require advocacy groups to report details about their expenditures in support of candidates or political causes.”
Given the recent historical record, states do in fact take disclosure, and legal compliance, in earnest. NOM has unsuccessfully challenged disclosure laws in Maine, Minnesota, New York, California, Rhode Island, and Iowa.
Throughout 2009, NOM provided $1.8 million to oppose the ballot referendum on marriage equality in Maine, but it illegally failed to disclose where the money came from. Maine law requires that any funds raised to support or oppose a ballot question be made public.
The Main Ethics Commission launched an inquiry and unanimously denied NOM’s request to dismiss the state investigation into the organization’s finances. NOM sued the Commission in February of this year, but a federal judge sided with the Commission and upheld Maine’s campaign finance disclosure law as constitutional.
NOM then took its case to the 1st Circuit Court of Appeals, which sided with the State of Maine earlier this month. (NOM remains under investigation by state officials.)
In June 2011, the Minnesota Campaign Finance and Public Disclosure Board ruled that groups advocating for or against a ballot measure on gay marriage are subject to certain disclosure requirements under state law.
NOM had falsely argued that supporters of marriage equality would harass and intimidate their donors, and cause property damage if they were made public. The Board rejected NOM’s bid for nondisclosure. The Board’s decision followed a federal court ruling in September 2010 that upheld the state’s campaign finance disclosure laws against challenge by NOM’s lawyers.
NOM wanted to run ads in support of Carl Paladino for Governor in 2010 but didn’t want to make donors’ names public. Under New York law, running ads in support of any candidate could classify the group as a political committee.
As a political committee, it, like every other organization, would then be subject to several reporting and disclosure requirements. NOM refused and filed suit. U.S. District Judge Richard Arcara rejected NOM’s suit in February.
In January 2009, NOM sued the California Secretary of State in federal court to avoid disclosing donors to the Proposition 8 ballot initiative. California law requires campaign committees to report information for any contributors of $100 or more, which is then made publicly available.
Rather than follow the decades-old California Public Records Act, NOM suggested that it was entitled to a blanket exemption. The court rejected NOM’s suit, upholding California’s campaign finance reporting laws and noting that “disclosure… prevents the wolf from masquerading in sheep’s clothing.”
Last September, NOM sued the state of Rhode Island to keep its donors secret, arguing the state’s restrictions on political advertising and campaign finance disclosure requirements were unconstitutional and overly broad.
A district judge disagreed, and the 1st Circuit Court of Appeals Judges upheld the district judge’s ruling.
In 2009, NOM fought to get a constitutional amendment on the ballot that would reverse the state Supreme Court’s unanimous decision recognizing marriage equality.
NOM asked its supporters to contribute to the Iowa campaign in a nationwide email by saying that “…best of all, NOM has the ability to protect donor identities.” The e-mail and subsequent complaints prompted a letter from the Iowa Ethics and Campaign Finance Board stating that state law requires disclosure of political contributions solicited for the Iowa campaign.
Why NOM doggedly fights donor disclosure is unclear. It has argued that complying with campaign finance laws is burdensome and unconstitutional.
It has also argued that gay rights advocates and their supporters will harass, intimidate, even damage property of the donors should their identities be known. Serious scrutiny of these claims has revealed only isolated incidents, questionable reports and, more often than not, legitimate acts of public criticism typical of any hard-fought campaign.
In California, for example, a federal court debunked NOM’s harassment allegations, pointing out that “numerous of the acts about which [they] complain are mechanisms relied upon, both historically and lawfully, to voice dissent… This court cannot condemn those who have legally exercised their own constitutional rights in order to display their dissatisfaction with [NOM’s] cause.”
Ultimately, vilifying the LGBT community is part of the group’s fake victimization crusade.
Even U.S. Supreme Court Justice Antonin Scalia has come down on the side of public disclosure and against NOM’s secrecy crusade.
In Doe v. Reed, Scalia wrote: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously…and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”