Battle beginning over campaign finance and the marriage amendment

The Minnesota for Marriage coalition, which is pushing a 2012 constitutional amendment to define marriage as between one man and one woman, is mobilizing against state campaign finance rules that require disclosure of donors. This isn’t the first time groups involved in the coalition like the National Organization for Marriage (NOM) have tried this tactic. NOM has tried to block spending and donor disclosure in almost every state in which it’s operated.

Minnesota campaign finance board requires disclosure
In 2010, the Minnesota Legislature unanimously passed, and Gov. Tim Pawlenty signed into law, legislation that outlined disclosure requirements in the wake of the United States Supreme Court decision in Citizens United that gave corporations the right to make expenditures in political campaigns, including ballot initiatives. Minnesota had previously banned corporate involvement in elections, and the state needed a new set of requirements.

Earlier this month, the Minnesota Campaign Finance and Public Disclosure Board released guidance for organizations working to gain support or opposition to ballot measures on how to disclose contributions and which donors should be disclosed.

In the Star Tribune on Friday, John Helmberger, chair of Minnesota for Marriage and CEO of the Minnesota Family Council, blasted the campaign finance board rules saying they would chill the free speech of churches.

“Nobody disagrees that voters are entitled to know who contributes to the marriage campaign. But the changes the Campaign Finance Board proposes are not authorized by law and would mislead the public, resulting in the disclosure of people who did not contribute to the campaign,” Helmberger wrote.

Minnesota for Marriage refuses to disclose
Minnesota for Marriage says it will not comply with the board’s requirements in the run-up to the 2012 election.

“Nobody disagrees that voters are entitled to know who contributes to the marriage campaign,” Helmberger wrote in Friday’s opinion piece, but the group was singing a different tune earlier this year.

At a public hearing by the campaign finance board involving rules regarding ballot initiatives, representatives of NOM and the Minnesota Family Council argued against any disclosures.

“To require groups, non profits like the Minnesota Family Council, to disclose their donors and make their donors names public would have a significant chilling effect on free speech. Even in Minnesota already it’s gotten heated in some respects,” said Tom Prichard of the Family Council. “The concern is harassment, property damage, a chilling effect. If I know I have to disclose my name, I’m not going to get involved with the Minnesota Family Council.”

He added, “I don’t think our organization should have to disclose our donors, period. We just don’t believe we should be forced to.”

Minnesota for Marriage sent an email to supporters on Monday claiming that the disclosure rules—which apply to both sides—were an attack on religious people.

The email title read, “Star Tribune Escalates Attack on Churches and Religious People” in reference to a Star Tribune editorial earlier this month in support of the campaign finance rules.

“Clearly, this is a blatant attempt to intimidate churches and other groups that take a stand for marriage and silence discussion of the marriage amendment; a clear violation of religious freedom and free speech,” wrote Helmberger. “Now that the marriage amendment has qualified for the ballot, the board is all of a sudden trying to change the rules of the game despite the fact there has been no change in state disclosure laws.”

Raising the specter of persecution
One of Helmberger’s main arguments is that if it’s required to disclose its donors, members of the LGBT community will attack those donors.

“Regrettably, some gay-marriage activists have seen that intimidation can be an effective campaign tactic, and it has become standard fare in any marriage campaign,” he wrote. “Evidence in various court proceedings document case after case of harassment—phone calls at home and work, calls and e-mails to employers, boycotts of someone’s employer, calls to clients, etc.”

But on Monday, a federal court in Washington found that claims by NOM, a member of Minnesota for Marriage, that it’s donors were harassed to be without merit. In that case, Doe v. Reed, NOM argued it didn’t have to disclose signers of a referendum petition for fear that people who sign the petition would be subject to harassment and violence. The court strongly disagreed:

Applied here, the Court finds that Doe has only supplied evidence that hurts rather than helps its case. Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made. This is a quite different situation than the progeny of cases providing an as-applied exemption wherein the government was actually involved in carrying out the harassment, which was historic, pervasive, and documented. To that end, the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by R-71 signers cannot be characterized as “serious and widespread.”

Setting up for a lawsuit
Transparency groups like Common Cause say that Minnesota for Marriage’s protestations are likely laying the groundwork for a lawsuit challenging the disclosure rules. NOM has filed suit in a half dozen states to try to shield its donors in ballot initiatives, elections, and lobbying efforts. It has yet to succeed.

“This is just another attempt to strike down Minnesota disclosure law,” said Mike Dean. “NOM has a long history of unsuccessfully challenging disclosure laws across the country.”

Rep. Ryan Winkler, DFL-Golden Valley, echoed Dean’s sentiments in his own opinion column in the Star Tribune.

“Given these groups’ actual record of avoiding disclosure and suing to block disclosure laws, the concern expressed by Helmberger about innocent small donors is an obvious smokescreen. The Minnesota rules they challenge already protect small donors, and protect donations made without an earmark for political spending,” Winkler wrote. “Here’s a good rule of thumb: Never trust a well-funded group hiring lawyers to hide information from the public. Especially if their only argument is the need to protect the privacy of donors whose donations are already safely hidden.”

The law Winkler refers to was a campaign finance bill passed by the Minnesota Legislature and signed by Gov. Tim Pawlenty in response to the U.S. Supreme Court’s Citizens United decision.

Dean wondered why groups like Minnesota for Marriage wanted to shield their donors from disclosure.

“Being part of a democracy is about standing up for what you believe in, not cowering in the bushes because you are afraid of what others will think. The real question is, what do these groups have to hide?”

Open government advocates say current regulations inadequate
Contrary to Helmberger’s claims, a churchgoer’s donation would likely never be reported to any government entity as long as her church never asked her to specifically contribute to the church’s efforts to pass the amendment.

For transparency groups like Common Cause Minnesota, that’s a problem.

“The Campaign Finance Board, against Common Cause’s advice, is actually making it easier for groups to avoid disclosure,” Common Cause’s Mike Dean told the Minnesota Independent. “They have said that those groups only need to disclose if they make an explicit request of financial support for the constitutional amendment.”

Dean said the campaign finance board watered down a statute passed in 2010 that called for stringent disclosure rules. In a letter to the board earlier this month, the group argued that the “express” and “implied” request scenarios were confusing and unnecessary and gave groups a loophole to get out of disclosing contributions.

“Instead of requiring organizations to comply with this lengthy and multi-pronged definition, the board could simply require disclosure of contributions made in response to any solicitation that mentions a ballot question—end of story,” Common Cause wrote. “The current definition, with its discussion of ‘express’ and ‘implied’ requests, is unnecessarily confusing and complicated. Moreover, the fact that the board believes it is obligated to include such a distinction suggests that the Board is taking a far more conservative approach to disclosure than is required or warranted.”

Dean said the board’s current rules would “open up an enormous and unnecessary loophole in Minnesota law.”

“Experience under comparable federal rules has shown that sophisticated donors are able to exploit such loopholes to avoid the transparency that is necessary for a well-informed democracy,” Dean said.