The National Organization for Marriage, the Washington, D.C.-based nonprofit that provided the majority of funding to the campaign to defeat same-sex marriage in 2009, came under attack last week from a familiar nemesis. But sources say their opponent may be jumping the gun.
Fred Karger, a California-based gay-rights activist and unsuccessful Republican presidential candidate, has sent a letter to U.S. District Court Judge D. Brock Hornby asking him to find NOM in contempt of court for failing to disclose individual donors in the current election cycle, as possibly required by recent U.S. Supreme Court rulings in the case.
Karger also sent letters to the American Bar Association and its state-level counterparts in Maine, California and South Dakota asking that NOM chairman John Charles Eastman, a constitutional lawyer and law professor, be disciplined for the same reason.
“Even after being ordered to do so by the Supreme Court ruling, NOM continues to thumb its nose at Maine elections laws,” Karger wrote Judge Hornby. “Some sort of meaningful action needs to be taken immediately to avoid NOM skirting the law yet again in Maine.”
Sources familiar with the case say NOM is not currently in violation of any court rulings or state laws in regard to this year’s election cycle, during which the organization has donated $250,000 to defeat same-sex marriage.
NOM maintains this year’s contribution came entirely from its general treasury. Under Maine law, the organization is not required to disclose the sources of such donations, provided the funds were not solicited for a specific political purpose.
The federal court rulings have “not required that NOM disclose donors to its general treasury, any more than the Supreme Court and other courts have required disclosure of donors to the ACLU or Human Rights Campaign, which are supporting Question 1,” Eastman said in a statement earlier this month.
“NOM is in absolute compliance,” says Carroll Conley Jr., co-chairman of Protect Marriage Maine, which received the organization’s $250,000 donation. “The Supreme Court did not require them to reveal the names of their donors who gave to their general fund.”
The state ethics commission has received no formal complaints in regard to NOM’s activities this election cycle, according to the commission’s executive director, Jonathan Wayne.
“The commission staff’s investigation concerning NOM’s 2009 fundraising is ongoing, and because of this year’s ballot question we are reviewing the financial activities of all the PACs acting on the marriage ballot question to make sure they are compliant based on their reporting,” he said.
David Farmer, director of communications for Mainers United for Marriage, which supports same-sex marriage, said his colleagues are concerned that NOM may not be fully in compliance. He points to online solicitations by the group to defeat same-sex marriage ballot measures in Maine and three other states, and a Web portal it set up that forwards online donations to Protect Marriage Maine or its counterparts in other states.
“It looks to me on the surface that if they are raising money and earmarking it for Maine, they should be disclosing,” Farmer said, but added that his group wouldn’t be diverting time or resources to a possible complaint until after Election Day.
“It doesn’t make sense for us to spend time and money when there’s no chance of the issue being resolved before the Nov. 6 election,” Farmer said.
Conley said all donations of $50 or more made to his group via NOM’s “Stand for Marriage America” portal are automatically reported to Maine authorities. “But if somebody gives to NOM for their general mission, it doesn’t have to be reported,” he said.
In 2009, NOM donated $1.94 million, or 64 percent of all funds, to defeat same-sex marriage in Maine, but refused to disclose the source of these funds. After Karger presented emails suggesting NOM had been raising funds specifically targeted at the Maine ballot question, the state ethics commission launched an investigation.
The investigation revealed that NOM received three large donations just weeks before the 2009 election: $300,000 on Oct. 1, $1 million on Oct. 5 and $400,000 on Oct. 9. Questioned by Maine investigators as to the identity of the donors, NOM President Brian Brown said he could not recall, an official transcript shows.
NOM sued Maine in federal court, claiming Maine’s disclosure requirements were an undue burden on the group’s First Amendment rights, and asking the courts to freeze the ethics investigation. When Hornby ruled against it, NOM appealed all the way to the U.S. Supreme Court, which ultimately upheld Maine’s law.
NOM is still fighting to keep the identity of its 2009 donors secret, having challenged the ethics commission’s subpoena powers in state court. A lower court has ruled against them, but they are appealing.
Assistant Attorney General Phyllis Gardiner, who has represented the ethics commission, says NOM wouldn’t be compelled to report its 2009 donors until the commission is able to finish its investigation, which had previously been suspended by the court proceedings.
“The commission has to complete their investigation and then make a determination if NOM is a ballot question committee based on its activities in 2009,” she said. “If so, it would be required to file reports disclosing contributions and expenditures.”
“That,” she says “is the step that hasn’t occurred yet.”
Staff Writer Colin Woodard can be contacted at 791-6317 or at: [email protected]