The National Organization for Marriage (NOM), a New Jersey-based non-profit political organization dedicated to fighting against same-sex marriage, has lost its constitutional challenges to campaign disclosure laws in Maine and Rhode Island. In a pair of opinions by Judge Kermit Lipez, the Boston-based U.S. Court of Appeals for the 1st Circuit ruled on August 11 that neither of the states' laws suffered from the constitutional defects alleged by NOM.
NOM's lawsuit parallels recent efforts by anti-gay forces in California and Washington State to avoid having to disclose the identity of donors and petition-signers in support of their efforts to oppose same-sex marriage and civil unions in referenda. Last year, the U.S. Supreme Court ruled in Doe v. Reed, 130 S. Ct. 2811 (June 24, 2010), that a state requirement to disclose the identity of petition-signers did not generally violate the 1st Amendment rights of advocacy organizations, finding that a state policy requiring speakers to identify themselves in electoral contests was sufficiently important to overcome whatever deterrent effect disclosure might have, in the absence of evidence of credible threats of harm.
In the Maine and Rhode Island cases, NOM made similar arguments that requiring disclosure of donors would deter political speech unconstitutionally, but it didn't get very far with District Judges Brock Hornby (Maine) or Mary Lisi (Rhode Island), neither of whom accepted the argument. Judge Hornby did grant NOM a small partial victory by finding one portion of the Maine statute unduly vague, but NOM lost that victory on appeal, because the court of appeals found, in light of the definition of the term "for the purpose of influencing" embraced by the Maine enforcement agency, that the term was not too vague to meet constitutional standards.
The court expended most of its effort on the opinion about Maine's law, and then produced a brief opinion on the Rhode Island law relying on its analysis in the Maine case. "After careful consideration of the parties' arguments and key precedents," wrote Judge Lipez for the court, "we conclude that Maine's laws pass constitutional muster. Central to our holding is the nature of the laws NOM challenges here. These provisions neither erect a barrier to political speech nor limit its quantity. Rather, they promote the dissemination of information about those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace of ideas. As the Supreme Court recently observed, such compulsory 'transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages,'" quoting from that court's ruling in Citizens United v. Federal Elections Commission (2010). "While we acknowledge that disclosure can, in some cases, unduly burden or chill political speech," Judge Lipez continued, "there is no evidence that the Maine laws at issue here have had such a deleterious effect on NOM or its constitutents."
NOM attempted to use the Citizens United case, which struck down federal restrictions on expenditures by corporations in federal elections, to attack the Maine and Rhode Island statutes, attempting to use the "strict scrutiny" judicial review standard that the Supreme Court adopted for laws that curtail campaign expenditures. But the 1st Circuit found that this was not the appropriate standard, inasmuch as neither Maine nor Rhode Island was putting a limit on expenditures, much less prohibiting them. Rather, both states were merely trying to make the electoral process more transparent by ensuring that voters would have access to information about who was supporting particular efforts.
NOM played a significant role in helping to pass a referendum that repealed the Maine Marriage Equality Law, which was approved by the legislature and governor but never went into effect because petition signatures were filed before its effective date. In Rhode Island, NOM has actively lobbied the legislature to prevent enactment of a same-sex marriage bill, and was sufficiently successful that legislative leaders withdrew the marriage bill, instead passing a civil union measure over the protest of gay rights forces in the state. These political successes by NOM undoubtedly undercut its credibility in arguing that the disclosure laws were curtailing its ability to influence policy decisions in either of those states.
Judge Lipez explained the rationale for requiring disclosure, derived from the Supreme Court's comments in Citizens United. That case was focused on expenditures to advocate against election of a particular candidate. "However, the information interest is not limited to informing the choice between candidates for political office," wrote Lipez. "As Citizens United recognized, there is an equally compelling interest in identifying the speakers behind politically oriented messages. In an age characterized by the rapid multiplication of media outlets and the rise of internet reporting, the 'marketplace of ideas' has become flooded with a profusion of information and political messages. Citizens rely ever more on a message's source as a proxy for reliability and a barometer of political spin. Disclosing the identity and constituency of a speaker engaged in political speech thus 'enables the electorate to make informed decisions and give proper weight to different speakers and messages,'" he wrote, quoting from Citizens United.
The court also found that the obligations imposed by the Maine and Rhode Island laws were not unduly burdensome, and that NOM could not challenge the dollar cut-off – set relatively low in both states – for reporting requirements, since that represented political judgments that the state legislatures were entitled to make, and that the judiciary should generally defer to such "plausible legislative judgments."
The court also rejected NOM's argument against attribution requirements — mandates that advertisements expressly identify their source of funding. "The requirements are minimal," wrote Lipez, "calling only for a statement of whether the message was authorized by the candidate and disclosure of the name and address of the person who made or financed the communication." The court pointed out that these "are precisely the requirements approved in Citizens United."
As to the dispute about the "vagueness" of requiring funding disclosure for measures intended to "influence" public opinion, the court was satisfied by a Maine Commission interpretation, "in the context of ballot-question campaigns, to 'include communications and activities which expressly advocate for or against a ballot question or which clearly identify a ballot question by apparent and unambiguous reference and are susceptible of no reasonable interpretation other than to promote or oppose the ballot question."
NOM was represented in these appeals by James Bopp, Jr., of the James Madison Center for Free Speech, a conservative litigation group. In the Maine case, state government attorneys enjoyed amicus support from the Maine Citizens for Clean Elections, and, in the Rhode Island case, from Gay and Lesbian Advocates and Defenders and Common Cause Rhode Island.