May 25, 2018
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Court hears oral arguments on release of donor names in ’09 gay marriage repeal

By Judy Harrison, BDN Staff

PORTLAND, Maine — It’s now up to the Maine Supreme Judicial Court to decide if the National Organization for Marriage must turn over to a Maine commission its donor list from the 2009 referendum campaign that repealed the state’s same-sex marriage.

The justices heard oral arguments Thursday morning in a case that the U.S. Supreme Court has refused to hear and concerns a political issue that’s already settled.

Maine voters in November approved a gay marriage referendum by a vote of 53 percent to 47 percent, but the question of whether the National Organization for Marriage must turn over to the names of donors who contributed to the repeal effort three years ago has not been decided.

Based in Virginia, NOM is a major, national opponent of gay marriage legislation. It raised about $1.9 million, the vast majority of the $2.5 million spent in the 2009 campaign that repealed gay marriage in Maine. The Roman Catholic Diocese of Portland contributed more than $500,000 to that campaign, according to previously published reports.

NOM did not register as a political action committee, as the state’s campaign finance laws required, according to the Maine Commission on Governmental Ethics and Election Practices, which oversees election finances. If NOM solicited funds from donors specifically for the Maine repeal effort, it would have to turn over to the commission the names, address and other information about those contributors.

The organization maintains that revealing the names of its donors would violate the First Amendment and that the subpoenas issued by the commission seeking the information are overly broad and irrelevant. NOM also has said that it does not earmark funds for specific campaigns.

Chief Justice Leigh I. Saufley said that the federal court in Maine appeared to have decided the First Amendment issue and found the state’s campaign disclosure law constitutional. She indicated that the Maine’s high court would decide the case on that constitutional issue.

Stephen Whiting, the Portland attorney who wrote NOM’s brief, said that revealing the names also could subject donors to harassment. He cited threats allegedly made against the leaders of the campaign repeal campaign as as example of why the donors’ identities should remain private.

The organization complied with the state’s campaign finance laws in the 2012 election, according to previously published reports.

Thursday’s arguments before the state’s high court “is the continuation of NOM’s efforts to stonewall a lawful investigation” Assistant Attorney General Phyllis Gardiner wrote in his brief on behalf of the commission.

She told the justices that NOM’s argument about harassment and reprisals had been rejected by federal courts in Washington state, California and Maine. She urged the state court justices to do the same.

Gardiner said that the commission needs to know the names of donors so they can be interviewed about what Brian Brown, head of NOM, said to them when he personally solicited funds more than three years ago to oppose same-sex marriage initiatives.

While the ethics commission’s investigation was pending, NOM challenged the constitutionality of Maine’s campaign finance law in federal court in Portland.

In 2010, U.S. District Judge D. Brock Hornby upheld the state’s disclosure laws as they relate to ballot committees. Early last year, the 1st U.S. Circuit Court of Appeals agreed with Hornby’s ruling. In August 2012, the U.S. Supreme Court declined to take up NOM’s appeal.

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