NOM Challenge to Maine's Disclosure Law

In 2009, during the referendum campaign to overturn Maine's marriage equality law, the National Organization for Marriage (NOM) filed a lawsuit to overturn Maine's campaign finance disclosure laws. NOM donated almost $2 million to Stand for Marriage Maine, and the Ethics Commission received a complaint that they had not registered and made certain disclosures under the Ballot Question Committee law. When the Commission began to investigate, NOM sued to overturn the disclosure requirements, arguing that to be forced to reveal the names of their donors would be an infringement of their First Amendment rights.

The lawsuit was expanded after the November 2009 election, with NOM stating that since it now intended to spend money in Maine's 2010 candidate elections, it wanted the Court to overturn many additional disclosure laws. MCCE became a Friend of the Court because one of the provisions that NOM sought to overturn was the reporting of independent expenditures - a key part of the Clean Elections matching funds system.

Wanting to better understand public attitudes about disclosure, MCCE engaged Critical Insights, a nonpartisan Portland research firm, to conduct a comprehensive poll about transparency in campaign finance laws. We found that a majority of Maine voters overwhelmingly value disclosure. The poll was submitted to the Court and cited in briefs, and MCCE presented the information in testimony before the Ethics Commission. It has since been used by other organizations in efforts to pass the federal DISCLOSE Act.

Read MCCE's testimony before the Ethics Commission and related press release.

After many months of delay, the district court proceedings finally came to a head in August, 2010. The plaintiffs requested a decision by the end of the month, so the schedule was expedited, but things didn't go NOM's way. With two limited exceptions, the district court upheld Maine's campaign finance disclosure laws and rules. The judge found one phrase in Maine's law to be unconstitutionally vague, and he struck that down. He also found one element of our independent expenditure reporting schedule to be overly burdensome, so he struck that, too. One of the cases cited repeatedly by Judge Hornby in upholding Maine's disclosure statues is none other than Citizens United. The silver lining in that otherwise black cloud was the U.S. Supreme Court's affirmation of the constitutionality of disclosure in campaign finance law, which figured prominently in Judge Hornby's reasoning.

NOM appealed the decision to the First Circuit Court of Appeals.

On August 11, 2011 the Court of Appeals issued a decision upholding Maine's disclosure law with respect to candidate elections. Writing for the First Circuit, Judge Kermit Lipez stated that Maine's disclosure laws "promote the dissemination of information about those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace of ideas. As the Supreme Court recently observed, such compulsory transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages." Like Judge Hornby, Judge Lipez also relied on the Citizens United decision.

In a further victory for disclosure, the First Circuit actually went beyond the district court and upheld statutory language which Judge Hornby had held to be unconstitutionally vague. The phrase in question - "for the purpose of influencing" - is a critical part of the system for determining when disclosure requirements are triggered. Unlike Judge Hornby, Judge Lipez (a Maine native) determined that that phrase was comparable to other standards that have been upheld by the Supreme Court and therefore not unduly vague.

On February 1, 2012, NOM lost again on a separate but related appeal.  In this decision, the First Circuit also upheld the part of Maine's law that requires that groups that raise or spend more than $5,000 to influence elections must register as a Ballot Question Committee and disclose their donor list.

On February 28, 2012, the Supreme Court refused to hear NOM's appeal on the ruling pertaining to disclosure in Maine's candidate elections. Seeking to enforce the law, the Ethics Commission attempted to subpoena documents related to the source of its donors. NOM sought a motion for a stay of proceedings in state court, which was denied.

On May 22, 2012 NOM filed a cert petition requesting Supreme Court review the First Circuit decision pertaining to disclosure in ballot q uestions.That cert petition was denied by the Supreme Court on October 1, 2012.

In state court, on June 27, 2012, Justice Michaela Murphy affirmed the Ethics Commissions' subpoenas of NOM information. The opinion agrees that NOM may feel chilled by the subpoena, but goes on to say that "the Commission has a compelling interest in fulfilling its legislatively mandated obligation to enforce disclosure requirements against those entities bound by them, including BCQs."

NOM appealed that decision to the Maine Supreme Judicial Court which rejected the appeal on May 30, 2013. The Court affirmed the ruling of Justice Murphy. Chief Justice Saufly wrote: "Our review of the extensive record, the Superior Court's well-reasoned opinion, and the detailed analysis of related issues by our federal court colleagues leads us to conclude that, on the facts of this case, the Commission did not err."

With no further obstacles to its investigation, the Ethics Commission is finally able to prepare its report on NOM's fundraising activities in the 2009 campaign. A report is expected later in the Summer of 2013.

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