The staff of the agency that oversees Maine’s election laws is recommending a record $50,250 fine against the leading national organization opposing same-sex marriage for keeping secret the names of its donors and operations in a statewide referendum in 2009.
Jonathan Wayne, director of the Commission on Governmental Ethics and Election Practices, said Monday that the commission’s staff already knows the names of donors who gave more than $5,000 to the National Organization for Marriage. But Wayne would not release the donor names to the Portland Press Herald, saying he did not want to pre-empt the commission’s vote May 28 on the final investigative report, released Monday.
In addition to the fine, the commission staff is recommending that the National Organization for Marriage be directed to register with the state and file spending reports that disclose the names of individuals and groups that donated to the campaign that kept same-sex marriage illegal in Maine.
The Legislature passed the same-sex marriage law in early 2009, and Gov. John Baldacci signed it. Opponents gathered enough signatures to force a statewide referendum on the law. Fifty-three percent of voters supported repealing it.
In 2012, same-sex marriage advocates gathered enough signatures for a new statewide vote and prevailed with 53 percent support.
The well-financed national organization has battled Maine in court to avoid having to reveal where it got its money for the referendum campaign. Based on a similar case in California, the disclosure of that information could have far-reaching effects on the donors.
Asked if the commission will release information about donors if NOM does not cooperate and register as a ballot committee, Wayne said he couldn’t discuss options before the commission’s ruling.
“Given the history of this matter, NOM and the commission could be in litigation after the decision,” he said. “That is part of the reason the commission staff is proceeding cautiously.”
The organization has argued that it’s protecting the civil rights of its donors by shielding their identities. It also has said that donors could be subject to reprisals and harassment if their names are revealed. Those arguments were central to its court action against Maine’s campaign finance law in 2009.
In 2012, the U.S. 1st Circuit Court of Appeals rejected the organization’s argument. The U.S. Supreme Court later declined to review that ruling.
The National Organization for Marriage filed a separate lawsuit in state court contesting the ethics commission’s right to subpoena the organization for information about donors. In 2013, the Maine Supreme Judicial Court ruled against the organization and said it must comply with the commission’s requests.
In a statement released Monday, the group vowed to fight the commission’s staff recommendations. Chairman John Eastman said the investigation did not prove that contributions were earmarked for the Maine referendum, meaning the donors’ identities are protected by federal laws governing nonprofit “social welfare” organizations.
Such laws have been used by political nonprofits of all stripes to conceal their funding sources and spending in state and federal elections.
“NOM strongly denies the findings of the staff report in Maine,” said Eastman. “We did not raise funds designated for the Maine campaign, and fully complied with Maine law. The staff has ignored uncontested sworn evidence from donors that we did not designate any contributions for the referendum effort and instead has focused on circumstantial evidence to support its conclusion when a fair reading of those circumstances suggests the opposite.”
VAGUE REFERENCES TO DONORS
The 37-page report by the commission’s staff says that NOM supplied about two-thirds of the money for the 2009 campaign and served as the chief organizing authority. Under Maine election laws, the group should have registered as a ballot committee, which would have required it to disclose the names of its officers and key decision-makers, and would have required it to submit regular reports of contributions and expenditures.
The ethics commission’s staff recommends fines for failure to register properly as a committee and failure to file campaign finance reports. It also recommends directing the organization to register as a committee and file campaign finance reports, five years after the fact, for about $2 million in contributions.
“The staff views NOM’s failure to register and file financial reports as a significant violation of law,” the report says. “Maine people deserve to know who is funding political campaigns to influence their vote.”
Wayne, the commission’s executive director, led the investigation into NOM’s activities during the 2009 referendum.
The organization operated what amounted to a shadow campaign within Stand for Marriage Maine, a ballot question committee that did register with the state. According to the report, Brian Brown, the national organization’s executive director, was identified as one of the officers of the state ballot committee.
Wayne said the commission’s staff learned the identities of the organization’s donors through its investigation and through discovery requests the state submitted when the organization filed its federal lawsuit in October 2009.
The staff report issued Monday uses vague terms to describe some of the donors, including a “couple living in Maine” who donated $50,000 to the organization in July 2009. “Donor No. 11” is described as the largest contributor in 2009, giving more than $2.4 million, including two large donations in the months before the vote. The report does not indicate whether Donor No. 11 is from Maine.
The $50,250 fine proposed by the ethics commission’s staff would be nearly twice the largest previous ethics penalty against a state political action committee. In 2011, the commission fined the Republican State Leadership Committee $26,000 for violating the state’s campaign disclosure law.
MAINE VOTE WAS A NOM PRIORITY
NOM made the 2009 referendum a priority, sending a stream of action alerts to donors highlighting the importance of overturning the law to legalize same-sex marriage. The organization promised its donors anonymity.
“We have a major fight on our hands in Maine and throughout our nation to protect God’s vision of marriage,” said one action alert. “With supporters like you, we are confident that we will be victorious.”
The ethics commission’s staff obtained an email sent by executive director Brown to a board member of the organization detailing how Donor No. 11’s contribution would be spent. According to the email, $200,000 was earmarked for the Maine referendum and the rest was targeted at legislative efforts to legalize same-sex marriage in other states.
The Human Rights Campaign, a national gay-rights advocacy group, lauded the commission staff’s report.
“NOM was formed to be an illegal pass-through for a few secret donors to fund discrimination against LGBT Americans,” President Chad Griffin said in a prepared statement. “Maine’s regulators have caught on and said enough is enough.”
Frank Schubert, who co-managed the Proposition 8 campaign in California to ban gay marriage and has been in similar battles in Maine, told The Associated Press in 2009 that identifying donors hampers the ability of gay-marriage opponents to run campaigns.
There has been continued fallout from the California donor list, which is still on the California secretary of state’s website. In April, Brendan Eich resigned as CEO of Mozilla Corp. after an uproar over his $1,000 donation to the campaign to ban gay marriage.
Staff Writer Eric Russell contributed to this report.
Steve Mistler can be contacted at 791-6345 or at: