A state agency in charge of enforcing campaign finance laws is recommending that a national anti-gay marriage group be forced to pay over $50,000 in fines for flouting campaign finance laws in its efforts to influence Maine's 2009 same-sex marriage referendum. In a 37-page investigative report, staff at the Commission on Governmental Ethics and Elections concluded that the National Organization for Marriage (NOM) violated election laws by failing to register with the state and refusing to file financial reports disclosing the identity of its donors.

In addition to the fine, the staff is recommending that NOM be forced to register with the state and file finance reports that disclose the individuals and groups that spent money on the campaign. The recommendation will be taken up and voted on by the five-member commission at a meeting on May 28. The NOM case, which has been mired in litigation for the past six years, is expected to have far-reaching implications in the realm of campaign finance disclosure law.

"The staff views NOM's failure to register and file financial reports as a significant violation of law," wrote the authors of the report. "Maine people deserve to know who is funding political campaigns to influence their vote."

The marriage law, which was passed by the Legislature and signed into law by then-Gov. John Baldacci in 2009, was repealed the following November at the ballot box with 53 percent of the vote. It passed by the same percentage in another referendum in 2012.

Maine's campaign disclosure law requires that groups that raise or spend more than $5,000 to influence a statewide ballot question must register with the state as a "ballot question committee" and disclose the identity of their donors. According to the report, NOM paid $2 million to local political action committee Stand for Marriage Maine, which accounted for two-thirds of its political support in 2009. NOM's executive director, Brian Brown, was also on SFMM's executive committee. In August 2009, California marriage equality activist Fred Karger filed a complaint arguing that "the four funders of [NOM] are merely conduits for those wishing to hide their contributions. These entities are laundering money to evade the disclosure of the actual contributions to Stand for Marriage Maine." In 2009, NOM raised 75 percent of its money from 14 major donors, totaling over $5.5 million.

In a series of court challenges, NOM has claimed that revealing the source of its funding could subject donors to harassment and have other negative effects on fundraising and therefore constituted a threat to "free speech." It also argued that as long as it mixed all of its donations together in a general account, did not earmark funds for a particular purpose and didn't tell any donor how it would spend that money, the organization could legally keep secret the identity of its donors.
However, according to the Ethics Commission report, while most of the solicitations to major donors were made orally, the staff has evidence of written communications leading donors to believe their money would be used specifically for the campaign. The commission also cited written evidence suggesting that NOM reassured its donors that their identities would be protected. Maine was one of the first states in the country to pass gay marriage, and for opponents the state was a battleground in combating the notion that marriage equality was "inevitable."

The organization hired longtime ultra-conservative attorney James Bopp, best known as the lawyer behind the Citizens United victory in the Supreme Court, in which the Court sided with Bopp's contention that corporate spending on political campaigns is a form of "free speech" and thus protected under the First Amendment.

In August 2010, a U.S. District Court in Boston rejected NOM's arguments that Maine campaign finance laws constituted a threat to Constitutionally protected free speech. In January 2012, a federal appeals court also ruled against NOM, and in February of that year the U.S. Supreme Court turned down NOM's request for a ruling. Finally, in October of 2012, the Supreme Court rejected another of NOM's appeals for a ruling on the specific part of Maine's law requiring donor disclosure.

In a written statement released on May 19, NOM chairman John Eastman said his group is contesting the Maine Ethics Commission staff's recommendation.

"We did not raise funds designated for the Maine campaign and fully complied with Maine law," said Eastman. "The staff has 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."

While staff at the Maine Ethics Commission has been able to retrieve some identities of the donors through court discovery requests, they would not say whether they would release the names if NOM fails to comply with an order.

BJ McCollister of the group Maine Citizens for Clean Elections hailed the recommendation. "What it shows is that Maine yet again has proved itself to be a leader in the world of campaign finance reform and that we're not going to let out-of-state organizations come in here and hide their donors when they want to play in Maine politics," said McCollister. He added that his group is currently collecting signatures for a new initiative that would apply the same standard of disclosure for the top three donors in any independent campaign expenditures. "Not only do we have a law that the Ethics Commission is working on enforcing, but we're also looking at building on that law with this initiative to ensure that you don't have this problem with disclosure happening in future elections."