WASHINGTON -- The National Organization for Marriage (NOM) is one of the best known and well funded anti-gay marriage advocacy groups in the country. It is also one of the biggest opponents of campaign finance disclosure laws in the country: NOM has repeatedly refused to reveal its donors and has filed multiple lawsuits in an attempt to block and reverse disclosure laws.
Since 2007, NOM has led numerous state-level ballot efforts and campaigns to block marriage equality rulings and to support anti-gay marriage candidates. But as the organization fights against the tide of moving public opinion, it has also begun opposing disclosure provisions for political donors. Since January 2009, NOM has been involved in no less than seven lawsuits in state and federal courts or before state ethics boards to block the disclosure of its donors.
NOM has not just attempted to roll back disclosure laws in the states, it has also purposefully failed to disclose the identities of its donors, often times in violation of the law, triggering state-level investigations, court cases and appeals cases.
"What's going on here is an attempt to allow national and out-of-state interests to influence elections, ballot measures, and referenda without having to disclose," said Adam Skaggs, senior council for the Brennan Center for Justice. "They'd rather do the spending in the dark."
The most recent court decision against NOM came on Aug. 11. NOM violated Maine law by refusing to disclose the donors to its $1.8 million campaign to oppose a 2009 ballot referendum on gay marriage. The Maine Ethics Commission began an investigation into NOM's donor structure, resulting in the organization filing a retaliatory lawsuit trying to block the commission's work. The First Circuit Court of Appeals ultimately ruled against NOM.
"These [disclosure] provisions neither erect a barrier to political speech nor limit its quantity," the appeals court opinion stated. "Rather, they promote the dissemination of information about those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace of ideas."
Elizabeth Ray, a spokesperson for NOM, declined to comment for this article.
Open government groups say NOM's record of poor disclosure is clear. NOM has lost case after case after breaking disclosure laws under claims that its supporters face threats and harassment. In the process, the organization has given its ideological opponents a new, distinctive hook. Gay rights advocates are now using NOM's anti-disclosure tactics against the group.
The Human Rights Campaign, one of the graybeard institutions pushing the cause of marriage equality, released a memo to the press Wednesday accusing NOM of conducting a "secrecy crusade."
"For some reason, NOM thinks it doesn't have to comply with the donor disclosure laws," said Joe Solmonese, HRC President. "NOM's aggressive legal strategy to keep its donors secret begs the question, what are they hiding? They must realize it's no longer popular to be openly anti-gay."
NOM’s anti-disclosure efforts have failed to convince judges and ethics boards across the country.
In 2009 a federal court rejected NOM's suit in California attempting to block the disclosure of donors to the group's campaign in favor of Proposition 8, the ballot initiative that rolled back the California Supreme Court's ruling in favor of marriage equality.
In 2010 a federal court ruled that NOM must disclose donors to its effort in support of 2010 New York Republican gubernatorial candidate Carl Paladino.
The First Circuit Court upheld a ruling by a Rhode Island court upholding the application of the state's disclosure laws to NOM's anti-gay marriage campaign spending in 2011.
The Minnesota Campaign Finance and Public Disclosure Board ruled that NOM must abide by state disclosure laws after a federal court rejected NOM's appeal in 2011.
A state board in Iowa informed NOM in 2009 that it would have to disclose its donors after the group sent a nationwide email to supporters asking for donations to be used in a ballot campaign against gay marriage in the state with a helpful reminder: "best of all, NOM has the ability to protect donor identities."
NOM has not suffered financially or among supporters as a result of these violations of state disclosure laws and subsequent court losses. The group pulled in more than $7 million in 2009, up from around $500,000 the group raised in its first year, according to their 2009 non-profit status filing. Almost all of the 2012 Republican presidential candidates have signed onto NOM's pledge to support a constitutional amendment banning gay marriage.
While NOM has maintained support from conservative politicians and donors, its fight against transparency has proven futile due to one unlikely obstacle.
The 2010 Supreme Court decision in the Citizens United v. Federal Election Commission case is known for allowing corporate contributions to political action committees and for expanding the opportunities for secret spending in elections. But the ruling, penned by Justice Anthony Kennedy, also included strong supporting statements in favor of disclosure of campaign donors.
"The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way," Kennedy wrote. "This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."
Citizens United has been cited in nearly every court ruling against NOM's repeated challenges to disclosure laws.
In Washington, NOM and the group Protect Washington Marriage took their attempts to shield donors from disclosure all the way to the U.S. Supreme Court. In the case Doe v. Reed, the Court upheld the disclosure of donors in Washington state with a nod to Kennedy's finding in the Citizens United case.
The only dissenter on the disclosure sections of both the Doe and Citizens United rulings was Justice Clarence Thomas, who used NOM's assertions of threats and harassment against anti-gay marriage donors as evidence enough to rule against public disclosure. Even Scalia, one of the Court’s most conservative judges, balked at NOM's efforts to avoid disclosure.
"For my part," Scalia wrote, "I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."
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