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State ethics investigators recommend national anti-gay-marriage group be fined $50,250

Marc Mutty, campaign chair of Stand for Marriage Maine, speaks to supporters as they await results in the tight race on Question 1 on Nov. 3, 2009, in Portland, Maine.
Robert F. Bukaty
Marc Mutty, campaign chair of Stand for Marriage Maine, speaks to supporters as they await results in the tight race on Question 1 on Nov. 3, 2009, in Portland, Maine.
Posted May 19, 2014, at 9:46 a.m.
Last modified May 19, 2014, at 3:34 p.m.

AUGUSTA, Maine — Maine ethics investigators are recommending by far the largest campaign finance fine in state history be levied against a national anti-gay-marriage organization for failing to register and disclose its activities in Maine’s 2009 same-sex marriage referendum.

The Maine Ethics Commission will consider whether to impose the $50,250 fine at its May 28 meeting. It would be the largest fine of its kind ever imposed by the ethics board. If the commission accepts the investigators’ recommendation, the group would also be forced to disclose its donors for the first time.

In 2009, an effort to legalize same-sex marriage — approved by the Legislature and signed by then-Gov. John Baldacci — was repealed at the ballot box with 53 percent of the vote.

National Organization for Marriage, based in Washington, D.C., was the largest contributor to the ’09 anti-gay-marriage campaign, and dumped roughly $2 million into the state. That money was integral in defeating the fledgling marriage equality law.

Ethics commission staff launched an investigation into NOM, alleging the group had violated Maine law by not registering as a ballot question committee or providing reports about its fundraising and spending. The investigation was delayed for four years as NOM tried — unsuccessfully — to shield the name of its donors from state ethics investigators and the public, arguing that the right to give money anonymously was protected by the First Amendment.

NOM lost that battle at the highest U.S. and Maine courts.

The group has argued it was not required to disclose anything other than its lump-sum donations to Stand for Marriage Maine, the ballot question committee organized to overturn the same-sex marriage law. Stand for Marriage Maine’s three-member leadership committee included Brian Brown, NOM’s executive director.

The issue hinges on whether NOM raised money from donors with the specific purpose of influencing Maine’s referendum. Maine law requires registration and reporting by any group that raises more than $5,000 to influence the outcome of a ballot question.

In a report to commissioners, ethics commission investigators outline several fundraising emails sent by NOM that specifically mention Maine’s referendum, as well as commitments the group made to donate at least $1 million to fight same-sex marriage in the Pine Tree State.

Records cited in the report also show high-value donations from individual donors — some as large as $50,000 — that were accepted by NOM and transferred almost immediately to Stand for Marriage Maine. One fundraising consultant hired by NOM secured a total of $2 million from one donor. In an email to the donor, which outlined how the money would be spent, the consultant wrote that $200,000 would be spent on Maine’s referendum.

“After consideration of this evidence, there appears to be little doubt that NOM received far more than $5,000 for the purpose of promoting the Maine referendum,” wrote Maine Ethics Commission Executive Director Jonathan Wayne in the report. He also wrote that, “The staff view NOM’s failure to register and file financial reports as a significant violation of law. Maine people deserve to know who is funding political campaigns to influence their vote.”

On behalf of NOM, Joseph Vanderhulst — an attorney with Act Right Legal Foundation — has petitioned the commission not to accept the fine recommendation. He argues that the group’s activities in Maine did not violate the state’s ethics reporting laws.

Vanderhulst said NOM was always clear with donors that donations could not be designated for any specific financial activity. So even though Maine was mentioned in fundraising emails, “a donor could have no reason to believe that a donation to NOM would be used in Maine,” he wrote.

In a statement released Monday, after the ethics investigation papers were published online, NOM Chairman John Eastman said the group “strongly denies” the allegations made by the state.

“We did not raise funds designated for the Maine campaign and fully complied with Maine law,” he wrote. “[The investigators have] 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.”

“We look forward to presenting our case to the full commission,” he wrote.

If the fine is imposed, it would top the previous record, set when the commission imposed a $26,000 fine on the Republican State Leadership Committee in 2011. The RSLC missed several campaign finance reporting deadlines, which led to the delay of state matching funds being distributed to Maine Clean Elections Candidates during the 2010 cycle.

In 2012, Maine voters were again asked to decide whether to legalize same-sex marriage, and approved marriage equality with a majority of 53 percent.

Follow Mario Moretto on Twitter at @riocarmine.

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