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Ethics Commission hits anti-gay marriage group with record fine, orders disclosure of donors from ’09 campaign

Robert F. Bukaty | BDN
Robert F. Bukaty | BDN
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.
By Mario Moretto, BDN Staff
Updated:

AUGUSTA, Maine — After a five-year investigation, the Maine Ethics Commission on Wednesday ruled that a national anti-gay marriage group violated campaign finance law during the 2009 marriage referendum and imposed on the group the largest fine in its history.

After a nearly three-hour-long and sometimes fiery hearing, the commission accepted state ethics investigators’ recommendation that a $50,250 penalty be imposed on the National Organization for Marriage, and ordered the group to file campaign finance reports and disclose its donors’ identities, which the group has shielded.

Commission Chairman Walter McKee, a Hallowell Democrat, said that in its arguments, NOM made a “mockery of our disclosure laws.”

However, the donors’ names will likely remain outside the public realm, at least in the short term, because NOM has pledged to appeal the commission’s ruling in Superior Court.

In 2009, the Legislature passed a law legalizing same-sex marriage. After then-Gov. John Baldacci signed the measure into law, opponents of the new law quickly petitioned to put the issue to a public referendum.

NOM established a PAC here called Stand for Marriage Maine, which led the campaign against marriage equality. The group’s executive director, Brian Brown, served on the PAC’s three-member leadership committee, and NOM gave $2 million to the group over the course of the campaign — about one-third of all the money the PAC received. The group never disclosed the source of its money.

The groups were successful in seeing the state’s fledgling same-sex marriage law overturned, with 53 percent of those who voted opposing the law.

In October 2009, the commission opted to move forward with an investigation of NOM after a California activist named Fred Karger filed a complaint, saying that NOM should have been required to file as a ballot question committee and disclose its donors.

That investigation was delayed for four years as NOM tried — unsuccessfully — to shield the names of its donors from state investigators. NOM lost that battle in the highest U.S. and Maine courts.

At issue was 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. Ethics investigators cite several emails and other documents that they say prove NOM raised and spent money specifically for Maine’s referendum.

NOM has argued the money spent by the group in Maine came from its general treasury, and was not earmarked for Maine. That would put its activity under the jurisdiction of federal law governing nonprofit political organizations, which are allowed to keep their donors anonymous.

On Wednesday, NOM stressed that while Brown was intimately involved in the fundraising operations of both Stand for Marriage Maine and its parent group, he always made the distinction clear to donors.

“To any donor I did speak with, I unequivocally stated … that we would not accept any gift designated for the initiative in Maine,” Brown said. Instead, he told donors that if they wanted to earmark their money for the Maine referendum, they must give to Stand for Marriage Maine.

That argument didn’t hold much water for Commissioner Michael Healy, a Freeport Republican. Often, Healy was the most aggressive in questioning Brown and John Eastman, NOM’s chairman and legal counsel.

Healy said that while Brown may have nominally been wearing “two hats” during the campaign, the effect of his involvement was that NOM controlled Stand for Marriage Maine’s activity. He said several big-dollar donors in Maine would have no reason to believe their money would not be spent in Maine.

He also said that because NOM contributed two-thirds of Stand for Marriage Maine’s funds, that gave Brown a huge say in how the PAC operated.

“These large contributions come in, and these people are told it’s not designated, but that doesn’t mean you can’t designate it for Maine [as the chairman of NOM],” Healy said. “The reason they’d give to NOM instead of the PAC is they want to stay anonymous. That’s it.”

Commissioners also pointed to bank records showing several large sums of money being received by NOM and immediately transferred to the Stand for Marriage Maine PAC. That was damning evidence, they argued, that the money was raised specifically for Maine.

“To suggest it’s just a pure coincidence that it happened this way … really strains the credibility,” McKee said. “That’s a tough set of facts for you.”

Brown said those large donations — totaling about $940,000 — were part of recurring contributions made to NOM to do with whatever it saw fit, and were not specifically earmarked for Maine. He said that given the immense national importance of Maine’s referendum, it shouldn’t surprise anyone how quickly the money flowed into the state.

“It was October, so if we got large gifts in, Maine was the critical fight,” he said.

Brown said that not only would the group appeal the commission’s rulings, but that NOM would be filing its own complaint against the Human Rights Campaign, which he claimed operated in exactly the same way as NOM.

Brown also said he thinks Maine’s campaign finance laws must be revised because they are too vague. He cited former ethics commissioner James Friedman’s statements in 2009, which indicated that NOM’s activities were within the bounds of the law.

“We took it to the bank and relied on it, and now it turns out we can’t, and we’re going to be hit with a $50,000 fine for not anticipating that other members of the commission are going to disagree,” he said. “I think you’ve got a problem with the law.”

Three years after NOM’s victory in 2009, Maine voters again went to the ballot box to consider same-sex marriage. That year, voters chose to allow gay and lesbian couples to marry.

Follow Mario Moretto on Twitter at @riocarmine.


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