AUGUSTA, Maine — The Maine Ethics Commission is moving to staunch the flow of “dark money” in elections through supporting legislation aiming to unmask anonymous donors to political causes.
Anonymous funding in elections always has been a controversial topic, but scrutiny has been heightened since the Supreme Court’s Citizen’s United case, which broadened the ability of corporations to engage in political activity.
The ethics commission will vote Thursday whether to pursue legislation — which has been suggested by the commission’s staff. This decision will by no means end the debate — the bill would require legislative approval — but if the legislation is successful, it could be remembered as the beginning of the end of unnamed donors influencing Maine elections.
What’s the proposal?
Ethics Commission Director Jonathan Wayne outlined it in a recent memo to the commission.
The proposed legislation is aimed at political action and ballot question committees whose primary purpose is something other than influencing Maine elections. Those include national political organizations, such as the National Organization for Marriage or the Democratic or Republican governors associations. Currently, organizations such as those are required to report only contributions made to specifically influence a Maine election.
“The result is that insufficient information is available to Maine people about who funds these organizations’ efforts to influence how they vote,” said Wayne in the memo.
The proposal sets a $5,000 threshold for donor disclosures. The affected groups would include only those that spent more than $5,000 to support a candidate or influence a ballot question.
It requires a “last-in, first-out” reporting method. If a group with a larger mission than affecting just Maine elections funnels money here, it would be required to list its donors of more than $1,000 in reverse chronological order, until it reaches the amount spent in Maine. This method also is used in California, Massachusetts and Michigan.
There would be exceptions. Not all organizations that make contributions to elections would qualify as political action committees and therefore would not be subject to the proposed reporting requirements. Organizations that spend less than $25,000 in a calendar year or raise less than $5,000 would be exempt.
How big of an issue is this in Maine?
In 2014, just the top five donor organizations spent $13.6 million. That figure was pulled from Maine-based PACs and ballot question committees that listed national organizations as donors of cash and in-kind contributions.
— The Humane Society of the United States and the Humane Society Legislative Fund gave Mainers for Fair Bear Hunting more than $2 million, most of which was spent on advertising. The bear hunting referendum failed.
— The Republican Governors Association funneled more than $5.1 million to the Republican Governors Association Maine PAC.
— The Democratic Governors Association gave nearly $3 million to the Democratic Governors Association Maine PAC and Maine Forward.
— The NextGen Climate Action Committee gave more than $2.4 million to the NextGen Climate Action Committee-Maine, which used the money in support of or opposition to various candidates.
— The League of Conservation Voters and League of Conservation Voters Action Fund gave about $1 million to the Maine Conservation Voters Action Fund, which used the money in support of or opposition to various candidates.
Why this? Why now?
Maine just won a major legal victory that has been in litigation for years. In August, the Maine Supreme Judicial Court forced the National Organization for Marriage, which supported a people’s veto of Maine’s 2009 same-sex marriage law, to disclose its donor list. The National Organization for Marriage had already paid a fine of more than $50,000, a record in Maine, and later in August revealed its donor list, which consisted of five names.
At the time, the National Organization for Marriage’s attorney had strong words for the Maine Ethics Commission, illustrating from the organization’s perspective why donors are kept confidential in the first place. It also illustrated why the commission could choose to pursue the law change.
“This is unprecedented,” said Joseph A. Vanderhulst, one of the National Organization for Marriage’s attorneys, to the Bangor Daily News at the time. “The commission is stretching the definitions that are in Maine law in a way that they have not applied it to other organizations that have done the same thing.”
The proposed law has its supporters. Maine Ethics Commission Chairman Walter McKee called the National Organization for Marriage’s conduct a “mockery” of Maine campaign finance disclosure law.
Maine Attorney General Janet Mills also put it this way: “The people of Maine have a right to know who is paying to influence our elections.”
What could derail this plan?
Some donor groups might not like it. Because of donor sensitivity about being identified, Maine’s law could stymie some fundraising efforts. This was the motivation for the National Organization for Marriage’s court battle with Maine. In addition, national groups that pour funding into multiple states could find it an administrative burdensome to identify money given specifically for Maine elections.
The question raises a fundamental argument about political activism. Is donating to a political cause a form of free speech? Is forcing someone to be identified for doing so an infringement of that right? While many people do favor more campaign disclosure, some lawmakers who support personal freedom principles could balk at the proposed law. Others who advocate for less government interference in all aspects of life might also say Maine would be too aggressive if it became one of a handful of states to implement a law like this.
The Ethics Commission staff has already provided some variations of the proposal. A new memo from Wayne, posted to the ethics commission’s website on Wednesday, acknowledged that preliminary discussions about the proposal have uncovered some potential stumbling blocks. For example, instead of the “last in, first out” reporting method identified above, Wayne wrote the commission could go another route, such as requiring the disclosure of the top 10 donors in the six months before the spending in Maine.
Alternatively, Wayne said the commission could opt for higher thresholds to trigger disclosure, or implement a system of pulling the relevant data from reports that organizations already file with the Internal Revenue Service or the Federal Election Commission.
Wayne said it’s possible that the commission will suggest changes to the proposed bill, which will go to the Legislature in January.
