Anti-Koering ads raise question: Should NOM be registered with campaign finance board?

Two campaign mailers targeting openly gay Republican Sen. Paul Koering raise questions about the National Organization for Marriage’s activities in Minnesota. NOM has been active in its opposition to candidates it perceives as supportive of gay marriage, but it hasn’t registered with the state, a requirement for groups that spend more than $100 to support or oppose political candidates.

NOM’s activities in Minnesota are akin to what it’s been doing in other states, including Maine, where a judge said Thursday that NOM’s refusal to disclose its activities “would yield perverse results” to that state’s political system.

In partnership with the Minnesota Family Council, NOM distributed a mailer in Minnesota Senate District 12 just before the Aug. 10 primary. The mailer stated that “Minnesota’s pro-family and pro-life organizations trust Paul Gazelka” and offered voters a choice between Gazelka or “Sen. Paul Koering who dates gay escorts/porn stars and supports same-sex marriage.” (Koering, drawing ire from gay marriage advocates, has repeatedly said he wouldn’t vote for gay marriage).

Gazelka, whom the groups supported, distanced himself from the postcards, calling them “frustrating and disappointing.”

And though the anti-gay marriage groups presumably spent considerable amounts of money on those ads, there’s no way to tell for sure: Without a filing at the Minnesota Campaign Finance and Public Disclosure Board, there’s no public record of New Jersey–based group’s activities or spending here.

Mike Dean, head of the non-partisan, non-profit election watchdog Common Cause Minnesota, finds one line on the mailer problematic, according to a report by TheColu.mn reporter James Sanna: “What kind of Senator do we want?” Since groups not registered to lobby in Minnesota can’t directly for or against candidates, the phrase raises a red flag.

Dean told the Minnesota Independent on Wednesday that the group’s radio ads and television ads were legal thanks to a loophole in campaign finance law.

But, after looking at the anti-Koering fliers, another expert said he thinks NOM should be registered with the state.

“Once they receive contributions or make expenditures in excess of $100 they are required to register with the campaign finance board,” said David Schultz, professor at Hamline University and expert on campaign ethics. “Either the group does not know this or they know it and perhaps are seeking to challenge the state disclosure requirements.”

NOM officials didn’t respond to the Minnesota Independent’s request for comment about their knowledge of the disclosure requirements, but their activities in other states suggest they understand the requirements and are seeking to challenge them.

On Thursday, a judge in Maine rejected a lawsuit by NOM, filed to try to prevent the state’s campaign finance board from investigating its activities. NOM had spent hundreds of thousands of dollars on political activities in Maine but had not registered with the state. The group challenged the constitutionality of laws that direct political groups to disclose their donors.

Judge D. Brock Hornby ruled that the State of Maine “has a compelling reason for compiling information about PACs – the goal of providing information to Maine voters about the interest groups that spend money referring to candidates in an election – and indeed Maine has polling data demonstrating the public’s interest in such information.”

Hornby said that “NOM’s desire to limit campaign finance disclosures … would yield perverse results, totally at odds with the interest in ‘transparency’ recognized in Citizens United.”

Minnesota has a similar campaign finance reporting system, and on Wednesday the Minnesota campaign finance board released an advisory opinion (PDF) on exactly the kind of political activity that NOM is engaged in.

“If an organization spends more than $100 to influence the nomination or election of candidates, the organization must register a political fund with the Board and make all of its campaign expenditures through that fund,” the opinion reads.

The board continued:

It is well established that a communication expressly advocating the nomination or election (or defeat) of a clearly identified candidate is a communication to influence the nomination or election of a candidate. However, when a communication clearly identifies a candidate, it is not necessary that the communication use specific words of express advocacy, such as “vote for”, “elect”, “support” or others for it to be for the purpose of influencing the nomination or election of a candidate. A communication that omits the specific words of express advocacy may, nevertheless, be found to be for the purpose of influencing to influence the nomination or election of a candidate based on an examination of the communication.

Here are the ads distributed in Senate District 10 (click to enlarge):