May 14, 2010

Judge appears cool to disclosing names

Battle over identifying donors

By Susan M. Cover
State House Bureau

AUGUSTA -- Disclosing the names of donors would discourage citizens from political involvement, a lawyer said Thursday in court.

Josiah Neeley, who represents the National Organization for Marriage, told Justice Donald Marden in Kennebec County Superior Court that donors in other states have been harassed for giving money in the fight against gay marriage.

"Anonymity is something you can't get back once it's lost," said Neeley, a lawyer with Bopp, Coleson & Bostrom, an Indiana law firm.

The group sued the state in federal and state court after the Maine Commission on Governmental Ethics and Election Practices launched an investigation into its fundraising tactics in December.

National Organization for Marriage gave more than $1.9 million to Stand for Marriage Maine, the largest political action committee involved in the successful campaign to overturn the state's same-sex marriage law.

The ethics commission is investigating whether National Organization for Marriage should have filed as a ballot question committee -- a designation that applies to groups seeking to influence elections.

The group has argued it did not raise funds specifically for the Maine campaign but contributed money from its general operating budget to help Stand For Marriage Maine.

Fundraising totals from the campaign show opponents of same-sex marriage spent $3.8 million to repeal the law -- nearly $2 million of which came from National Organization for Marriage. Gay-marriage supporters spent $5.8 million on the failed attempt to uphold the law.

Maine Assistant Attorney General Phyllis Gardiner said the commission is bound by law to investigate whether the group should have filed campaign finance reports. The commission needs the names of all of National Organization for Marriage's donors to find out whether the group solicited funds specifically for the Maine fight, she said.

The state believes much of the fundraising was done verbally, so there's no record of e-mails or newsletters to show the complete picture of the group's activities, Gardiner said.

"The only way the commission can evaluate how the contributions were solicited is to speak to (donors)," she said. "The notion of campaign finance laws is that the public has a right to know where the money is coming from."

Gardiner said all of the information gathered by the commission would be kept confidential during the investigation.

Only if the commission finds that the group should have filed reports with the state would the names become public, she said. If that happens, National Organization for Marriage can take the case back to court to fight to keep the names from being released, Gardiner said.

Marden wanted to know more about how the names would be kept confidential during the investigation.

"There's no denying that, across this country, there has been some pretty nasty stuff going on when people exercise their rights to influence a referendum question," he said.

Neeley said even if the names aren't released publicly, future donors may worry that they will be part of an investigation or face a deposition.

"Now you could potentially be forced to fly to Maine to be put under oath to answer questions," he said. "The information could leak out."

He said National Organization for Marriage would be willing to list donations as long as they don't include names or addresses.

Gardiner said that won't work, because the state needs to find out where the group got the money in the final weeks of the campaign -- a sum she described as "hundreds of thousands of dollars."

"It's difficult to believe those dropped from thin air," she said.

Marden did not set a timetable for a ruling on Neeley's request for a stay of the investigation or Gardiner's motion for dismissal.

The judge said he worries about the privacy of those who want to participate in the political system.

"The court is really queasy in light of recent history of what it does to a person's 1st Amendment right when they contribute to a campaign," he said. "What are we doing with privacy these days?"


Susan Cover -- 620-7015

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