SCOTUS Refuses to Review NOM’s Challenge to Maine’s Campaign Finance Disclosure Law


I didn’t have a chance to blog SCOTUS’s decision not to grant cert. in the case, NOM v. McKee, which grew out of a an investigation launched by the Maine Ethics Commission in 2009 after the National Organization for Marriage (NOM) failed to disclose its donors in its effort to defeat Question 1, which overturned marriage equality in the state.

Here’s a link to a series of discussions about the case by Rick Hasen on his ElectionLaw blog.

Back in the spring of 2010, I provided some pro-bono assistance to attorneys in the Maine Attorney General, drawing on my work on campaign finance disclosure in similar lawsuits in California, Colorado, and Florida, and my Election Law Journal article with Beth Garrett, Veiled Political Actors.



Don’t Overlook Off-Year Bellwether Ballot Measures

Election Day 2011 is fast approaching. Most eyes will be focused on the the regularly-scheduled off-year gubernatorial elections in Kentucky, Louisiana, Mississippi, as well as a special gubernatorial election in West Virginia. There are also legislative races Louisiana, Mississippi, New Jersey, and Virginia. Some pundits suggest that the collective results of these off-year races may serve as a bellwether for the 2012 general election.

Equally, if not more important, though, are the results of the referred and initiated statewide measures on the ballot.

Citizens in nine states–Arkansas, Colorado, Louisiana, Maine, Mississippi, New Jersey, Ohio, Texas and Washington–will have the opportunity to cast ballots in October on 34 ballot measures, including a dozen measures put on the ballot by citizen.

In terms of ballot bellwethers, topping all other campaigns is “Issue 2” on the ballot in Ohio. The popular referendum is an effort by citizens to repeal the anti-worker Senate Bill 5 that was signed into law by Governor Kasich. If Issue 2 goes down, it should be interpreted not only as a blow against conservatives in Ohio, but also Republicans pushing anti-worker policies in others states, including Florida, Indiana, New Jersey, and especially Wisconsin.

Social conservatives and pro-choice advocates will be turning their attention south, as Mississippi voters will confront an extreme anti-choice “personhood” amendment. Voters in Colorado have defeated a similar measure. Suffice to say, Mississippi is not Colorado.

The Huffington Post has good overviews of both of these issues:

A third measure to watch out for is a popular referendum in Maine that will overturn a Republican-sponsored law ending same-day voter registration in the state. Same day voter registration is a good governance issue, not a partisan issue, though Republicans in the state seem to think otherwise.  The Sun Journal has an update on the campaign, here: People’s veto probably a close to a slam-dunk.

Finally, anti-tax crusader Tim Eyman in Washington has an initiative on the ballot that fiscal conservatives around the country will be taking stock. Fearful of all things public-infrastructure, his pet-project would cut tolls used to pay for new bridges and highways in the state.  As it has done in the past, the business community has spoken up, joining Democrats and organized labor to oppose Eyman’s latest slash and burn measure, as the Seattle Post-Intelligencer reports:  The Association of Washington Business has come out against the Tim Eyman-sponsored Initiative 1125.

Rather than only reading the tea leaves from the 2011 candidate races, pundits should also consider the results of these ballot measures.  All four measures, as well as several others, will have implications for candidate races in 2012, from state legislative races to campaigns for Congress and the presidency.  As campaign consultants and pundits are increasingly realizing, ballot measures have a range of “educative effects,” as they can ply candidates with salient issues to support or oppose during their campaigns, mobilize turnout, and even prime candidate support.

For more on the scholarship of the “educative effects” of direct democracy, here’s a primer.

NOM v. McKee: Another Victory for Campaign Finance Public Disclosure Laws

Earlier this week, the 1st Circuit Court of Appeals in Boston issued an important decision upholding Maine’s campaign finance public disclosure laws. The opinion in NOM v. McKee is available here.  (Disclosure: In 2010, ElectionSmith provided pro bono assistance to Thomas A. Knowlton and Phyllis Gardiner, Assistant Attorneys General, Office of the Maine Attorney General).

The appellate court affirmed the constitutionality of several of Maine’s election laws governing the registration and campaign finance public disclosure of the activities of political action committees (“PACs”).  The National Organization for Marriage (“NOM”), a New Jersey-based nonprofit opposed to same-sex marriage (and represented by attorney James Bopp), appealed a district court’s ruling that broadly rejected NOM’s facial and as-applied challenge that Maine’s public disclosure laws  supposedly chilled the group’s First Amendment rights to influence elections. In 2009, NOM spent more than $1.8 million in Maine in an effort to overturn the state’s recently enacted same-sex marriage law, but it refused to disclose its donors.

Here’s a snippet of the NOM v. McKee decision:

After careful consideration of the parties’ arguments and key precedents, 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.” Citizens United v. FEC, 130 S. Ct. 876, 916 (2010). 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.

We agree with the appellees that the use of “for the purpose of influencing” in the statutes at issue, given the appropriately limited reading offered by Maine’s Commission on Governmental Ethics and Election Practices, is not unconstitutionally vague, and therefore we vacate the district court’s holding as to that phrase and the consequent severance of  portions of Maine’s statutes. We otherwise affirm the district court’s judgment in its entirety.

The 1st Circuit Court of Appeals’ three-judge panel rightly drew upon the US Supreme Court’s Citizen United decision affirming the constitutionality of public disclosure laws; in Citizens United, the majority held that disclosure laws “impose no ceiling on campaign-related activities” and “certainly in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption.”

As I’ve written before, most notably in my 2005 Election Law Journal article with Elizabeth Garrett, “Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy,” campaign finance public disclosure laws shed light on otherwise subterranean activities, and in doing so, provide information brokers—and by extension, voters—with insight into the financial interests promoting or opposing ballot measures. They are an essential bulwark against unregulated and anonymous special interest involvement in ballot issue campaigns.  I expect a similar ruling from the U.S. District Judge Robert Hinkle in the Florida public disclosure case, Worley v. Roberts, which I write about here.