NOM Strikes Out In Two Disclosure Cases

The National Organization for Marriage (NOM), which wages battles nationwide against the advance of marriage equality, has lost its constitutional challenges to campaign disclosure laws in Maine and Rhode Island.

The group’s defeats came in a pair of August 11 rulings from the Boston-based US Court of Appeals for the 1st Circuit, with both opinions authored by Judge Kermit Lipez.

NOM’s lawsuits paralleled 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 ballot efforts against same-sex marriage and civil unions.

Last year, the US Supreme Court ruled that Washington State’s requirement that advocacy groups disclose the identity of petition-signers did not generally violate their 1st Amendment rights. Requiring speakers to identify themselves in electoral contests, the court found, was sufficiently important –– absent a credible threat of harm –– to overcome any deterrent effect on speech such a mandate might have.

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 D. Brock Hornby, in the Maine case, or Mary Lisi, regarding Rhode Island.

Hornby granted NOM a small, partial victory, finding one portion of the Maine statute unduly vague, but the group lost that victory on appeal, when the court of appeals found that the state’s enforcement agency interpreted the phrase “for the purpose of influencing” in a manner that avoided any constitutional concern on that point.

The appeals court analyzed the Maine law in the greatest detail, and then produced a brief opinion on the Rhode Island statute relying on its analysis in the Maine case.

Regarding the Maine disclosure law, Lipez wrote, “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.”

Then quoting from the 2010 Supreme Court ruling in Citizens United v. Federal Elections Commission, which struck down US government restrictions on expenditures by corporations in federal elections, he added, “Such compulsory ‘transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.’ While we acknowledge that disclosure can, in some cases, unduly burden or chill political speech, there is no evidence that the Maine laws at issue here have had such a deleterious effect on NOM or its constituents.”

NOM had attempted to use Citizens United to attack the Maine and Rhode Island statutes, arguing that the “strict scrutiny” applied to laws that curtail campaign expenditure were appropriate to evaluating the states’ disclosure laws. The 1st Circuit didn’t buy that analogy, noting that the laws being challenged place no limits on expenditures. They merely aim to ensure that voters have access to information about who was supporting particular campaigns.

“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,” Lipez wrote. “Citizens rely ever more on a message’s source as a proxy for reliability and a barometer of political spin.”

He continued, once again quoting from Citizens United, “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.’”

The court rejected NOM’s argument against requirements 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.”

NOM’s argument that the Maine and Rhode Island laws curtailed its ability to influence policy decisions was undoubtedly undercut by the group’s success in the two states. In Maine, the group won its referendum fight that repealed the 2009 marriage equality law before it ever went into effective.

In Rhode Island, NOM has lobbied to prevent enactment of a same-sex marriage bill, and earlier this year, legislative leaders pulled a marriage bill and instead enacted a civil union law opposed by the gay community.

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