As the Maine Secretary of State determines whether marriage equality proponents have submitted enough valid signatures to put a proposal for marriage equality before the legislature and then on the November 2012 general election ballot, the Boston-based U.S. Court of Appeals for the 1st Circuit again addressed the question whether Maine campaign funding disclosure laws would violate the constitutional rights of the National Organization for Marriage, Inc. (NOM), and American Principles in Action, Inc., organizations that have announced their intention to direct funds towards defeating the marriage equality initiative. Last year, the 1st Circuit rejected a constitutional challenge by NOM to the state's disclosure requirements applicable to political action committees, in National Organization for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011). On January 31, 2012, the court again rejected such a challenge to Maine's law regarding disclosure obligations of Ballot Question Committees, i.e., organizations raising and spending money in order to influence the outcome of a ballot question vote. National Organization for Marriage v. McKee, 2012 Westlaw 265843.
Not surprisingly, the court, in an opinion by Senior Circuit Judge Kermit K. Lipez, concludes that its prior ruling already disposes of most of the questions raised by NOM and APA in this new case. Affirming the ruling by District Judge D. Brock Hornby (D. Maine), the court upheld the grant of summary judgment in favor of the defendants, state officials charged with enforcement of the law.
The law requires any organization that receives or spends over $5,000 "for the purpose of initiating or influencing a [ballot-measure] campaign" to keep detailed financial records and file periodic reports with the state disclosing the identity of any source giving over $100 "in any election." The information that is filed is a public record subject to disclosure. In order to determine whether a particular donation is "counted" for the purpose of triggering the record-keeping and reporting requirements, it must fall within one of four categories set out in the relevant statute, Me. Rev. Stat. Ann. tit. 21-A, section 1056-B.
Category A consists of contributor "specified" donations; donations that are essentially earmarked for the purpose of a particular ballot-measure campaign. Category B are donations made in response to a solicitation that would lead the contributor to believe that the funds would be used for that purpose. Category C are donations that "can be reasonably determined to have been provided by the contributor for the purpose of initiating or influencing a campaign when viewed in the context of the contribution and the recipient's activities regarding a campaign." Category D refers to "funds or transfers from the general treasury of an organization filing a ballot question report." NOM argued that the definitions in Categories B and C are unconstitutionally vague, failing to give adequate notice of how particular donations should be treated. And, it argued, the burdens of compliance with this record-keeping and disclosure scheme and the potential effects of disclosing donor identities impose an unconstitutional burden on political speech, violating the 1st Amendment overbreadth doctrine.
Rejecting the overbreadth claim, the court rested largely on its prior decision concerning Political Action Committees, reiterating the importance of transparency to aid voters in figuring out what credibility to give to the advocacy funded by the donations. NOM argued that the very definition of a "ballot question committee" was too broad, just as it had argued with respect to PACs, but the court wasn't buying the argument, and found that the state had an important, legitimate purpose in requiring disclosure, asserting that "citizens evaluating ballot questions must 'rely ever more on a message's source as a proxy for reliability and a barometer of political spin,'" quoting from the 2003 9th Circuit Court of Appeals ruling, California Pro-Life Council, Inc. v. Getman, challenging similar California disclosure requirements.
"We agree with the district court that such transparency is a compelling objective 'in a climate where the number of ballot questions Maine voters face is steadily increasing,'" wrote Lipez, quoting Judge Hornby, who had also stated, "knowing which interested parties back or oppose a ballot measure is critical, especially when one considers that ballot-measure language is typically confusing, and the long-term policy ramifications of the ballot measure are often unknown." The court concluded that the same state interests justifying applying such rules to PACs, formed to support the election of particular candidates, also supported applying them to ballot question committees. The court also rejected NOM's contention that the $100 reporting threshold for individual donations was irrational or arbitrary.
Finally, the court addressed the contention that the language describing which donations "count" for reporting purposes was unduly vague. First, it noted, since NOM's written funding solicitation materials clearly fell within the scope of the challenged language, NOM was not in a position to mount a facial challenge to the language. Only a statute whose asserted vagueness would make it difficult for an individual to figure out whether their conduct is covered can be challenged by that individual as facially vague. And, since the statutory language clearly applied to NOM's solicitations, an as-applied challenge would not work, either.
But the court decided to take the extra step, despite NOM's lack of standing to bring a facial vagueness challenge, to explain its view that the language was not, in fact, vague at all, but clearly communicated which donations were covered, since the descriptions in B and C focused not on the subjective intent or understandings of particular donors, but rather on that favored creation of the law, the "reasonable person in the circumstances," which is generally deemed an objective test. If a reasonable person receiving a solicitation would construe the funds they contributed to be for the purpose of funding a campaign to pass or defeat a ballot measure, then they clearly come within the reporting and disclosure requirements. Thus, the court found that the statute is not sufficiently ambiguous to raise constitutional concerns.
Press reports about reaction to this ruling indicated that NOM plans to pursue whatever appellate avenues remain open to it in its desperate struggle to be able to influence the outcome in Maine without disclosing the source of its funds. They could petition for en banc reconsideration, which seems unlikely given the unanimity of this panel and its agreement with last year's ruling on the PAC case, and/or they could petition the U.S. Supreme Court for review. Meanwhile, time marches on in Maine, as the proponents of marriage equality filed almost twice as many signatures as required to get their measure on the ballot.