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NOM still fighting ’09 campaign-finance violation charges in Maine, ’12 referendum possible

Anti-marriage-equality advocates have a spotless record when it comes to helping prevent voter approval of state laws allowing same-sex marriage: 31 out of 31. Two years ago, Maine had the opportunity to become the first state to break this trend, but voters repealed the Legislature’s May 2009 law in a People’s Veto by a small margin (53 percent vs. 47 percent).

Fast-forward to today, the National Organization for Marriage (NOM) is still involved in an ongoing-but-stalled investigation and lawsuit with the Maine Commission on Governmental Ethics & Election Practices over whether or not the group broke state law when it contributed money to the 2009 “Yes on 1” campaign run largely by the Stand for Marriage Maine Political Action Committee (SMM).

With a new campaign for a possible 2012 referendum on the ban emerging –- coupled with a soon-to-be released behind-the-scenes documentary about the 2009 campaign –- The American Independent takes a look at the case’s two-year course and what the investigation has revealed about the leading organization against legalizing marriage for gay and lesbian couples since 2008.

The investigation

Despite claiming Maine’s marriage-equality reversal as a victory, for the past two years, NOM has fought the state’s attempt to investigate its fundraising records, claiming it did not directly fundraise for the Maine campaign. Attempts made by Maine’s ethics commission to test the veracity of NOM’s claims have been halted by litigation.

On Aug. 13, 2009, political consultant, activist and little-known 2012 GOP presidential contender Fred Karger sent a memo to Jonathan Wayne, executive director of the Maine Commission on Governmental Ethics, requesting an investigation into NOM and the Stand for Marriage Maine PAC. In the original request for investigation, filed on behalf of his organization Californians Against Hate, Karger accused NOM and SMM of “money laundering,” claiming the organizations –- along with other big campaign donors such as the Roman Catholic Diocese of Portland and Focus on the Family — had acted as “fronts” for other individual donors who did not want their identities to be revealed in campaign-finance disclosure reports. Californians Against Hate formed in July 2008 to draw attention to the “mega-donors” in California’s Proposition 8 campaign.

From a memo Karger sent to Wayne, dated Aug. 13, 2009, speaking about Stand for Marriage PAC’s first campaign finance report:

Stand for Marriage PAC reported raising $343,689.50 during the period April 1 to July 5, 2009. We found it very suspicious that of that total, only $400 was given by individuals. The balance of $343,289.50 was contributed by various religious organizations and James Dobson’s Focus on the Family. That means that individual contributions to repeal gay marriage in Maine are only .001% of the total raised. Are the proponents trying to hide the identities of those contributing to their campaign? Are they directing all contributions to existing organizations, who then gave the money to Stand for Marriage PAC? This appears to be the case. If this is true, would it not be considered money laundering?

Maine campaign finance law specifies that all political action committees are required to report the names and addresses of contributors who have given more than $50 to the PAC. The law also specifies that it is illegal for a PAC to “knowingly accept a contribution made by one person in the name of another person.”

In the end, the ethics commission chose not to investigate Stand for Marriage Maine. But where the commission saw potential illegal activity, based on the evidence Karger provided (in the form of fundraising emails and direct mailers sent to supporters throughout the Maine marriage campaign), was with the National Organization for Marriage.

On Oct. 1, 2009, the Maine ethics commission authorized its staff to conduct an investigation regarding whether NOM violated a campaign-finance law provision which states that organizations raising or spending more than $5,000 “for the purpose of initiating or promoting a ballot question” are required to register and to file campaign finance reports as a ballot question committee.

For the ethics commission, the concern was not so much on how much money NOM gave to Stand for Marriage PAC for the Yes on 1 campaign, which totaled approximately $1.9 million (though the commission did not know the full amount before the investigation began); the issue was on how much NOM spent on fundraising efforts specifically targeting Maine. NOM’s argument was that it raised money without specifying where the money was going.

The fundraising emails and direct mailers Karger provided the commission showed where NOM mentioned Maine (along with other states) when asking for donations. Karger also pointed out that NOM repeatedly promised donors anonymity in exchange for “generous donations,” with promises such as, “[U]nlike in California, every dollar you give to NOM’s Northeast Action Plan today is private, with no risk of harassment from gay marriage protesters.”

Additionally, NOM President Brian Brown sat on Stand for Marriage Maine’s five-member executive committee.

Both Stand for Marriage Maine PAC and NOM disputed Karger’s accusations through their shared lawyer Barry A. Bostrom of Terre Haute, Ind.-based litigation firm Bopp, Coleson & Bostrom.

In defense of NOM, Bostrom wrote:

NOM is a national organization that is active in several states across the country. It makes large contributions from its general treasury in several states. By “general treasury” we mean funds not solicited or designated for any specific state or ballot measure. … If the Commission were to launch a pre-election investigation, Karger will likely run ads and issue press releases trumpeting the “news” that the “Yes on Question 1″ campaign is under official investigation for ‘illegal’ activities. … The Commission should not permit itself to be used in this matter, which could potentially impact the outcome of a free and fair election that is of crucial important to the people of Maine.

The day the ethics commission voted (3 to 2) to launch the investigation, NOM President Brian Brown told reporters:

“We look forward to the investigation because we’re gonna be able to prove that we’ve done nothing wrong. We’ve complied with all campaign finance law, and this is nothing more than an attempt to harass people who want to stand up for traditional marriage.”

Watch a WMTW.com video clip on the ruling:

The lawsuits

Brown claimed he “looked forward to the investigation,” but on Oct. 21, before the investigation could even begin, NOM sued the state, claiming the provision of the law it was accused of violating was unconstitutional. The plaintiffs were denied a request for a restraining order to prevent the commission from pursuing its investigation while the state tested the constitutionality of Maine’s campaign-finance law. The investigation went forward, and the commission subpoenaed NOM for documents and information.

Rather than submitting the requested information, NOM filed petitions to “vacate or modify” the subpoenas, objecting to them as “overbroad, irrelevant, and immaterial.”

The commission denied NOM’s request. In a memo, dated Feb. 19, 2010, Wayne wrote to his staff:

NOM contributed $1.93 million to SMM, which ran a successful political campaign expressly advocating in favor of the same-sex marriage people’s veto referendum. NOM provided roughly 62.6% of SMM’s funding.

In a memo dated March 16, 2010, Wayne wrote to his staff:

Mr. Brown also asserts that if he has to answer questions by the Commission staff or counsel regarding communications with SMM, that will “substantially alter how [he] would choose to communicate in the future.” This is plainly not enough to constitute irreparable harm. If it were, then every investigation that involves asking people questions about activities that may trigger certain regulatory obligations would constitute irreparable harm – a notion unsupported by the case law we have reviewed.

Wayne, who has been the executive director of the Maine ethics commission for the past eight years, recently told TAI that he could not remember another entity suing the state to prevent an investigation.

“Most of the time, if there’s a question on whether a political party or political interest group has complied [with the law], most respondents are cooperative and provide information to the state to determine whether there were violations or not,” Wayne said.

He called NOM’s actions “unusual.”

“I think anyone who really wants to understand why NOM is doing this,” Wayne said, “they believe [seeking the identities of their donors] interferes with the political process. That’s motivating the legislation.”

On March 3, 2010, NOM’s team filed another suit in state Superior Court challenging the commission’s Feb. 25, 2010, decision to deny their requests to vacate the subpoenas. This effectively halted the investigation.

What is NOM afraid of revealing?

In August 2010, the U.S. District Court upheld the constitutionality of Maine’s campaign finance law, but NOM refused to concede defeat and appealed the court’s decision. The federal case moves forward next month, when the U.S. District Court will be hearing oral arguments for NOM’s appeal case. The next court date is scheduled for Sept. 14 in Boston, Wayne said.

Last month, Karger wrote a post in the blog Liberaland, suggesting Brown and Gallagher could face prison time depending on the commission’s ruling.

“Some people will absolutely say anything to try to get publicity for themselves,” NOM”s counsel Jim Bopp, Jr., told TAI in an email, in response to Karger’s implication that NOM’s leaders could face jail time. “I guess it worked.”

He did not comment further on the matter.

In response to questions as to why NOM has been fighting this investigation for so long, NOM board chair Maggie Gallagher said she was not familiar enough with the investigation or lawsuit to comment, and President Brian Brown chose not to respond.

Among the materials requested by the Maine ethics commission in last year’s subpoena include: all revenue NOM received in 2009 and where that revenue came from; the identity of any donors to NOM who contributed $5,000 or more in 2009; and all communications between NOM and these donors. The commission also requested all information regarding expenditures made by NOM or by Stand for Marriage Maine PAC related to the people’s veto referendum on same-sex marriage; all communication between NOM and SMM; and minutes from SMM and NOM board meetings throughout 2009.

Most of the above-mentioned information would not be disclosed to the public, Wayne has stated during commission meetings, but NOM has demonstrated it does not even want to disclose documentation to a state agency whose job is to ensure ethics in elections and campaigns.

If Maine’s ethics commission — if it is ever able to continue its investigation — finds that NOM violated the law, at that point, the organization might have to disclose where it got its money to help Maine revoke marriage privileges from same-sex couples.

“The 2009 people’s veto referendum was a high-profile election that affected the civic rights of Maine citizens,” Wayne told TAI. “It’s important in general for Maine voters to know who is influencing elections, where the financing for campaigns is coming from [so that voters] can evaluate the messages in campaigns [that appear] in voters’ mailboxes and on their TV screens.”

In part, the goal of the investigation is to make NOM’s actions in Maine more transparent. Regardless of whether that’s happened, the Maine investigation has challenged NOM’s persistent donation-solicitation promise that contributors’ names will never be revealed.

NOM’s fundraising communications now come with a disclaimer. A recent email, dated Aug. 4, 2011:

Contributions or gifts to the National Organization for Marriage, a 501(c)(4) organization with QNC status, are not tax-deductible. The National Organization for Marriage does not accept contributions from business corporations, labor unions, foreign nationals, or federal contractors; however, it may accept contributions from federally registered political action committees. Donations may be used for political purposes such as supporting or opposing candidates. No funds will be earmarked or reserved for any political purpose.

Meanwhile, the future of legal marriage for gay and lesbian couples in Maine is uncertain.

NOM leaders have stated confidence they will be able to prevent a repeal of the repeal. Gallagher recently told the Associated Press: “We’d be optimistic about winning again if they want to put Maine through another campaign.” And as The American Independent recently reported, NOM is trying to raise between $15 million and $20 million by the end of fiscal year 2011, for all of its anti-marriage-equality efforts across the country.

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