Since 2008, NOM and its allies have engaged in a radical, nationwide plan to flout long-established campaign finance disclosure laws. This is nothing short of a strategic, coordinated plan to hide their political activities from voters and state offices charged with monitoring campaign spending. This effort has prompted several state investigations and resounding legal defeats for NOM.
NOM also has a curious, financial relationship with Common Sense America (CSA) where both Maggie Gallagher’s son and Brian Brown have worked.
Finally, Gallagher seems to have gone outside accepted charitable guidelines in collecting her salary.
Maine: Ethics Concerns
NOM has faced campaign finance complaints in a number of states in which it has operated. In Maine, NOM is being investigated for not disclosing its donors as required by law. NOM insists it is not required to follow Maine campaign finance laws.
NOM remains under investigation by the Maine Ethics Commission for failing to register with the state as a ballot question committee and refusing to disclose the donors to its campaign to overturn Maine’s marriage equality law in 2009.
NOM provided more than $1.8 million of the $3 million spent by opponents of marriage equality to pass Question 1 – but it illegally failed to disclose where the money came from. Public disclosure laws create transparency by informing voters who is behind a campaign effort. Maine’s law does this by requiring that any funds raised to support or oppose a ballot question be made public.
NOM flouted this law, first by soliciting funds from donors to overturn marriage equality in Maine, and then by refusing to disclose the contributions. As a result, NOM deliberately hid from the public almost two-thirds of the total money the Yes on 1 campaign spent to run its deceptive campaign to overturn marriage equality.
Based on an initial complaint filed by Fred Karger of Californians Against Hate, the Maine Ethics Commission launched a formal investigation into NOM’s fundraising tactics in late 2009. NOM has refused to cooperate with the state inquiry each step of the way, stonewalling requests to turn over documents to the Ethics Commission. The Commission’s executive director defended the inquiry in February 2010: “NOM donated almost $2 million in support of the referendum. The Commission needs to understand how NOM solicited the funds in order to determine whether campaign finance reporting was required.” In June 2010, the Ethics Commission unanimously denied NOM’s latest request to dismiss the state investigation into the organization’s finances.
NOM has also attempted unsuccessfully to halt the state investigation in court, suing to prevent release of its Maine campaign donors and, in a far-reaching effort, to dismantle Maine’s campaign disclosure laws. A federal district judge and the U.S. Court of Appeals for the First Circuit have soundly rejected NOM’s attempts to evade the ethics investigation and ordered NOM to produce records to the state. The First Circuit ruled that the state has “a compelling interest in defending Maine’s election laws” and that the state’s “interest extends to review of the documents in question.” NOM said it would appeal to the U.S. Supreme Court. The public interest group Maine Citizens for Clean Elections has called the lawsuits “an attack on the will of the people” and said that NOM and its allies “have set their sights on overturning … laws that seek to protect the American people from corruption and undue influence of moneyed interests in elections.”
Rhode Island: Rules Don't Apply
In September 2010, NOM filed suit in Rhode Island seeking to spend thousands of dollars on TV and radio ads for and against gubernatorial and General Assembly candidates - all free from the state's reporting requirements. NOM is framing the issue as a matter of free speech. In its court filing, NOM says it intends to "engage in multiple forms of speech in Rhode Island" in advance of the November 2 elections, "including radio ads, television ads, direct mail and publicly accessible Internet postings."
Rhode Island law permits "independent expenditures" from organizations like NOM - but forbids these groups from coordinating any strategy or ads with candidates. Republican gubernatorial candidate John Robitaille stands to benefit most from NOM's ads - he opposes same-sex marriage.
All other major gubernatorial candidates - Frank T. Caprio, Lincoln D. Chafee and Ken Block - support same-sex marriage. Caprio and Block have explicitly pledged to sign same-sex marriage legislation into law as governor, according to the Providence Journal.
NOM's suit asks the court to issue one or more orders releasing NOM from the alleged "extensive reporting requirements" that Rhode Island requires of organizations engaging in the political process. NOM says it won't spend money on political activities unless it knows it can do so without public disclosure. And it asks the court to make Rhode Island taxpayers pay its own attorney fees and court costs. Shortly after NOM filed the suit, a federal judge gave the organization one week to refile - calling the lawsuit "disorganized, vague and poorly constructed." According to the Boston Globe, the judge said the relevant allegations were "buried" in the lawsuit.
California: Forced Disclosure
In California, NOM was a major player in the multi-million dollar effort to eliminate marriage equality, contributing more than $1.8 million to the effort to pass Prop. 8 and maintaining deep ties with ProtectMarriage, the campaign organization established to support the initiative.
In January 2009, NOM and ProtectMarriage sued the California Secretary of State in federal court to avoid disclosing Prop. 8 donors. California law requires campaign committees to report information for any contributors of $100 or more, which is then made publicly available. 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.
Rather than follow the decades-old California Public Records Act, NOM suggested that it was entitled to a blanket exemption. NOM falsely claimed that its contributors had been subject to threats, reprisals and harassment. 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.
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.” The court stated that the disclosure NOM was seeking to eviscerate was “critical to the proper functioning of the state’s system of direct democracy.” As to NOM’s claim of threats and intimidation, the court found the occurrences alleged to be, at best, “relatively minimal” and not “ris[ing] to the level ... to justify the exemption sought.”
Ultimately, the court debunked NOM’s claims, 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.”
While NOM and ProtectMarriage sought in court to avoid their legal obligations to report their donors, the Prop. 8 campaign also deliberately covered up the enormous contributions of NOM’s close ally, the Mormon Church. In a November 2008 complaint filed with California’s Fair Political Practices Commission (FPPC), Fred Karger of Californians Against Hate documented the Mormon Church’s extensive undisclosed involvement in the Prop 8 campaign. Only after the election and after the FPPC announced that it would open a formal investigation did the Mormon Church finally acknowledge involvement in the Prop 8 campaign and disclose nearly $190,000 of previously unreported contributions.
In June 2010, the FPPC fined the Church $5,539 for failing to disclose more than $36,000 in late contributions in the weeks before the election, as it was required to do by law. At the same time, the Prop 8 campaign failed to report receipt of the Mormon Church’s support, as it was required to do by law.
Iowa: Evading Campaign Finance Law
In Iowa, NOM’s pattern of evading campaign laws prompted a strong written warning from the state ethics agency.
NOM spent a staggering $86,000 in 2009 in a single legislative special election, part of its effort 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 email 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. The board’s director and counsel wrote to NOM that he wished to “avoid potential problems in light of questions the Iowa Ethics and Campaign Disclosure Board has received concerning a solicitation statement made by your organization” and warned that the “independent expenditure process in Iowa is not a vehicle to shield political contributors.”
Washington: Covering the Money Trail
In Washington State, NOM and its allies waged a coordinated legal battle to hide the names of those who signed the petition to qualify Referendum 71, and those who donated to the campaign to eliminate Washington’s domestic partnership benefits. In doing so, NOM lawyers attempted to dismantle the nation’s public disclosure system, as it currently exists until the U.S. Supreme Court rejected their claims.
On the same day that NOM’s lawyers sued to overturn Maine’s campaign finance laws, a mysterious group called “Family PAC,” represented by the same lawyers, sought to circumvent Washington’s campaign contribution limits and keep secret the names of donors to the campaign. The lawyers cited false claims of harassment directed at supporters of Prop. 8 in California as justification for hiding their donors.
The judge rejected the NOM lawyers’ claims, stating that, "The State has a real and vital interest in showing the money trail... I do not believe it is in the public interest for the court to intervene and change the rules of the game at the last minute."
NOM’s lawyers took a second case, challenging Washington’s public records law that permits inspection of referendum petition signatures, all the way to the U.S. Supreme Court – and lost. The lawyers falsely argued that public scrutiny of their signatures would result in harassment and intimidation by those who support LGBT equality. But what they presented were a series of one-sided accusations, trivial grievances and hearsay. NOM and its allies have launched a fake victimization crusade – in Washington state and across the country – to justify operating secretly and away from public view and accountability.
The Supreme Court didn’t buy it. In an 8-1 decision, written by Chief Justice Roberts, the Court upheld the state’s disclosure laws as constitutional. Rejecting the position taken by NOM’s lawyers, Justice Scalia wrote in his concurring opinion: “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.”
Despite the Court’s decision and all the other legal setbacks, NOM is likely to keep up the fight. And the questions linger: what are NOM and its allies covering up and why are they all of a sudden engaged in such a fierce effort to evade and dismantle the law?