On Monday, the U.S. Supreme Court declined to take up an appeal filed in National Organization for Marriage v. McKee, a lawsuit filed by the national group that has financed campaigns to amend constitutions throughout the country to ban same-sex marriage.
The court’s decision — the highest yet in the 4-year-old, nationwide tug-of-war over the group’s refusal to disclose its donors — means that the Maine campaign finance laws at issue are constitutional and must be complied with. It brings the number of states where the National Organization for Marriage (NOM) has lost a legal challenge to five.
Even so, there is little chance voters here or in Maine, where an amendment to legalize gay marriage is on next month’s ballot, will learn who is financing the campaigns before the election.
“While we are disappointed that the US Supreme Court did not grant review in our challenge to Maine’s application of campaign finance law in 2009, we will be reviewing the state’s requests in light of the ruling,” NOM Chairman John Eastman said in a release.
The group, which contends that disclosure exposes its supporters to harassment, also announced the creation of a website, Keep the Republic and Marriage, where supporters could add their names to a public list of donors.
“Scholars, public figures, and average citizens who publically [sic] defend the institution of marriage as the conjugal union of one man and one woman often face character assassination and occasionally threats of physical violence,” the site explained. “If the calculated use of fear and intimidation is permitted to dominate this important public debate, America will lose not just the time-tested institution of marriage but also endanger our form of government which depends on the free and open exchange of ideas.”
Gay-rights supporters contend that most of the tens of millions of dollars NOM has poured into its fight has come from a handful of wealthy donors, not the grass-roots groundswell it claims.
NOM filed the suit in October 2009, a month before Maine voters passed a marriage ban. It was represented by James Bopp, the attorney behind the high court’s 2010 Citizens United case, which opened the door for corporations to engage in independent political spending.
Argued that disclosure had chilling effect
In the suit, NOM asked a state court to go a step further and declare a Maine law requiring it to report its donations unconstitutional. Using a skein from Citizens United’s reasoning, the group argued that disclosure violated the First Amendment because it had a chilling effect on political speech, among other things.
The group lost in state court, although it succeeded in keeping the trial record sealed until after August 2011, when the U.S. Court of Appeals First Circuit upheld the Maine judge’s decision that the disclosure law is constitutional.
The laws, the court ruled, “neither erect a barrier to political speech nor limit its quantity. Rather, they promote the dissemination of information about those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace of ideas. As the [U.S.] Supreme Court recently observed, such compulsory ‘transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.’”
With the rise of the Internet and the proliferation of political speech, the court added, “Citizens rely ever more on a message’s source as a proxy for reliability and a barometer of political spin.”
Maine’s law left intact
The Supreme Court’s decision not to hear NOM’s appeal of that order leaves Maine’s law intact, but it doesn’t end the state’s battle with the group. At the time it filed the suit, NOM was arguing that it did not have to comply with an investigative subpoena from the Maine Ethics Commission, which oversees campaign finance, because it did not constitute the type of group that was required to disclose.
NOM appealed to an intermediate Superior Court, which upheld the subpoenas [PDF]. It then appealed to the state Supreme Court, which should have both sides’ briefs by January, according to Assistant Attorney General Phyllis Gardiner.
The state’s interpretation of events is that NOM must now respond to the commission’s subpoenas demanding documents it will review privately as part of its decision whether the group’s activities fall under the campaign laws.
“We have a difference of opinion,” Gardiner said Monday. “NOM thinks the subpoenas are still stayed, we think not.”
NOM the subject of Minnesota complaints
NOM’s activities in Minnesota have been the subject of complaints to the state Board of Campaign Finance and Public Disclosure, yet have managed to avoid disclosing the names of donors. Disclosures by its local partner, Minnesota for Marriage, show $117,000 has been spent so far this year on legal fees.
It’s unclear how many complaints may still be pending before the board, which does not publicize undecided complaints. Common Cause of Minnesota, which lodged the complaints and could make them public, is awaiting a new director.
There is one more possible window, according to Gardiner. For this year’s election, NOM formed a Maine political action committee, which is facing a Friday filing deadline.