May 30, 2013

NOM makes final appeal to keep donor names secret

An attorney argues in Maine that the National Organization for Marriage is not a political action committee.

By Scott Dolan
Staff Writer

PORTLAND — A national group opposed to same-sex marriage went before Maine's Supreme Judicial Court on Thursday to make a final appeal for the right to keep donor records from state officials.

click image to enlarge

Assistant Attorney General Phyllis Gardiner addresses the Maine Supreme Judicial Court as it hears arguments Thursday in a case brought by the anti-gay-marriage group National Organization for Marriage, which is seeking to overturn a lower court's ruling that it has to release the identity of its donors.

Shawn Patrick Ouellette/Staff Photographer

click image to enlarge

Kaylan Phillips, an attorney for the anti-gay-marriage group National Organization for Marriage, makes her case to the Maine Supreme Judicial Court on Thursday as the group seeks to overturn a lower court's ruling that it must release the identity of its donors.

Shawn Patrick Ouellette/Staff Photographer

However, the contributors' names could become public within a few months regardless of the court's decision.

The group, the National Organization for Marriage, has fought for more than three years to keep confidential the list of donors who helped bankroll its 2009 ballot campaign that overturned a state law allowing same-sex couples to marry.

NOM has waged its legal fight on two fronts -- in state court as well as federal court. It has already lost the federal case.

NOM was the largest donor to the 2009 campaign, giving $1.9 million to Stand for Marriage Maine, a political action committee that helped overturn legislation that would have legalized same-sex marriage in the state.

Maine's ethics commission has been investigating whether NOM violated the state's disclosure law by failing to register and file reports regarding fundraising and spending in the 2009 campaign, and it has argued that NOM has stonewalled the commission ever since.

The U.S. Supreme Court refused in October to hear NOM's appeal of the Maine law that would require the group to name its contributors. As a result, NOM was forced to release one list of donor names in January to the state ethics commission. The panel is barred from releasing the names before it completes its investigation of NOM's refusal to comply.

Meanwhile, Maine's high court has also refused to delay the release by NOM of donors who contributed $5,000 or more, a group covered by separate language in Maine's disclosure law.

NOM has complied with the latter requirement by releasing a second list of donations to the commission with the names of individual donors listed as "John Does," according to Indiana-based attorney Kaylan Phillips, who represents NOM.

The release of records has allowed Maine's ethics commission to pick up its investigation into whether NOM violated state campaign law, said Jonathan Wayne, executive director of Maine's ethics commission. However, state officials are barred from publicly releasing donor names while the investigation is ongoing, he said.

Wayne said he expects the investigation will conclude in two to three months. Depending on what the investigation finds, the list of NOM donors could be made public then, he said.

"The matter has been the subject of a lot of litigation, and that could continue after the commission reaches its decision," Wayne said. "I don't know what the commission's determination will be. It's premature to say what will or will not be released."

During oral arguments Thursday, Chief Justice Leigh Saufley questioned whether NOM was making the same arguments before the state court that it made in federal court, where it has already lost its bid to shield names.

"Why is this not moot?" Saufley asked.

Phillips, NOM's attorney, argued that NOM should not be considered a political action committee under Maine law and that the First Amendment protects the national organization from having to reveal donor information.

If the ethics commission had the names and addresses of donors, Phillips said, it could contact them and question them, in violation of their constitutional rights to be free from harassment and have privacy in their associations.

Saufley said NOM is effectively saying "trust us" that there was no violation of campaign rules.

"That's not how litigation works in the United States. They have a right to test the credibility of the person saying 'trust us.' How can they do that without asking the donors what was the communication with NOM?" Saufley asked.

Saufley was one of six justices who sat in on Thursday's arguments. The court made no immediate decision on the appeal.

Maine voters approved same-sex marriage in November in a statewide referendum. The law went into effect in December.

Scott Dolan can be contacted at: 791-6304 or at

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