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The National Organization for Marriage Case in Rhode Island, Explained

U.S. District Judge Mary Lisi held an in-chambers conference on NOM’s lawsuit against the Rhode Island Board of Elections today. (That’s lawyer-speak for a hearing on scheduling a hearing for the case.) The basic issue is this: NOM hopes to run political ads on behalf of Rhode Island gubernatorial candidate John Robitaille and other local candidates who oppose same sex marriage. The state could potentially prosecute the group for any number of things — like failing to register as a PAC and avoiding disclosure requirements — so the group is arguing for a preliminary injunction against prosecution. The tentative date to hear NOM’s request, according to Jeffrey Gallant, counsel on behalf of NOM for the case, is October 21.

Gallant is an associate at the firm of Bopp, Coleson & Bostrom. The firm’s head, James Bopp, Jr., is the conservative lawyer behind much of the turmoil in election law these days: he argued the Citizens United case at every level up to the Supreme Court, for instance. The firm is currently arguing approximately 50 cases around the country for NOM and other groups that center around the issues of nonprofit organizations, political speech, and their First Amendment rights in the wake of Citizens United.

In short, Gallant told me, groups like NOM, which are registered as 501(c)4 “social welfare organizations” and not political committees, are making the case that states are acting unconstitutionally by compelling them to register as political committees (PACs) when they decide to spend money on elections. The brief that NOM filed on September 14, argues as much; however, it is 42 pages long and full of legalese, so I asked Gallant to explain it a bit.

The first claim NOM makes in its brief is that the group’s “injury is the chill to speech caused by Defendant’s prospective enforcement of Rhode Island law or prosecution of NOM,” and that, therefore, “NOM has standing to seek relief from the chill.” It seems a little odd for the group to claim injury based on the State of Rhode Island potentially enforcing its laws and prosecuting NOM in the future, but Gallant argues that such claims — called “pre-enforcement challenges” — actually aren’t that odd at all:

“That’s typical. It’s what’s called a pre-enforcement challenge and its often recognized in First Amendment contexts in which an organization is faced with either doing its speech and being charged by an enforcement agency or holding off on its speech The speech is said to be ‘chilled’ and the organization can seek relief with a preliminary injunction.”

Another important claim in the brief is that “The Rhode Island Law is Vague, and therefore Overbroad.” Vague and Overbroad, again, are legal terms of special significance, explains Gallant:

“In a First Amendment context, vagueness is a special concern. If a group or individual doesn’t know if what they want to do is regulated, then they take a wide berth around it… Overbreadth is when the law sweeps in conduct or communications that cannot constitutionally be regulated.”

In the case of NOM, Gallant is saying that while NOM might make individual election expenditures that can legally be regulated, it can’t be swept into a state regulatory scheme designed for political action committees because, well, it isn’t one:

“An organization can’t be swept into the political action committee regulatory scheme unless its either under control of a candidate or its major purpose is the election or defeat of a candidate [NOM is neither]. The communication itself may be regulable — in other words it may fall under a constitutionally proper definition of an expenditure — but a lot of states, based on that, sweep the organization itself into regulation as a political committee and you can’t do that.”

Basically, NOM is testing the waters in a number of states, challenging state laws that place restrictions on corporations spending in state elections after the Supreme Court ruled in Citizens United that they have a right to do so. In that same ruling, however, the Supreme Court upheld current federal disclosure laws 8-1, so NOM’s claim that it shouldn’t be compelled to disclose its donors to state election boards seems like it’s on more shaky ground.

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