United States District Court District of Maine National Organization For

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US District Court judge concludes that NOM has little chance of success on the merits regarding any of their challenges to Maine statute and denies NOM’s request for a temporary restraining order.
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  UNITED STATES DISTRICT COURTDISTRICT OF MAINE   NATIONAL ORGANIZATION FOR )MARRIAGE AND AMERICAN )PRINCIPLES   IN   ACTION, ))P LAINTIFFS ))v. ) C IVIL  N O . 09-538-B-H)WALTER F. McKEE, in his official  ) capacity as member of the    ) Commission on Government Ethics  ) and Election Practices  , ET AL  ., ))D EFENDANTS )   DECISION AND ORDER ON PLAINTIFFS’MOTION FOR TEMPORARY RESTRAINING ORDER   This case assesses Maine’s attempt to strike the proper balance between theright to free expression enshrined in the First Amendment and Maine’s interest inhaving its voters informed as they make their decisions at the polls this November(or earlier, if they vote absentee) on a particular ballot initiative. I NTRODUCTION   Under Maine law, any person or entity that solicits and receivescontributions or makes expenditures over $5,000 “for the purpose of initiating,promoting, defeating or influencing in any way a ballot question” must registerand file reports with the Maine Commission on Governmental Ethics and ElectionPractices. Maine’s November 3 ballot asks Maine voters to decide whether to vetoa recent Maine statute that permits gay marriage. The plaintiffs here are two    2 nonprofit corporations that operate nationwide. One describes itself as “dedicatedto preserving the traditional definition of marriage,” and says that it has beenreceiving contributions connected in part to the Maine November 3 election. Theother says that it is “dedicated to promoting equality of opportunity and orderedliberty,” and that it proposes to make expenditures in connection with televisioncommercials about the Maine ballot question. State election officials recently havebegun an investigation of one of the two plaintiff nonprofits to determine whetherit has illegally failed to register and report. As a result, the plaintiffs have filedthis lawsuit against a variety of state officials, asking me to declare that the FirstAmendment makes the Maine registration and reporting statute unconstitutional. They have asked for the emergency relief of a temporary restraining order againstenforcement because the election is imminent, and they wish to make solicitationsand expenditures that exceed the $5,000 threshold without registering orreporting. I conducted an expedited hearing on Monday, October 26, 2009. The critical question on a request for a temporary restraining order is thelikelihood of success on the merits. Notably for First Amendment purposes, thechallenged Maine statute does not limit contributions or expenditures inconnection with ballot initiatives. Instead, it requires that they be reported whenthey exceed a certain threshold. Although these requirements impose someburden on the plaintiffs in pursuing their First Amendment rights of associationand speech, Maine has a very strong interest in providing its voters withinformation about the source of the money that funds the campaign on either sideof a ballot issue. To achieve that goal, it imposes only a minimal burden on    3 persons or entities that contribute money or make expenditures. I conclude thatthe plaintiffs have failed to show a likelihood of success on their claim that theMaine statute violates the First Amendment. I therefore D ENY the motion for atemporary restraining order. 1 The case will proceed in the ordinary course. S UMMARY OF M AINE E LECTION L  AWS FOR B ALLOT I NITIATIVES   According to § 1056-B of Maine's election statute, “any person not definedas a political action committee who receives contributions or makes expenditures,other than by contribution to a political action committee, aggregating in excess of $5,000 for the purpose of initiating, promoting, defeating or influencing in any way a ballot question must” register as a Ballot Question Committee with theMaine Commission on Governmental Ethics and Election Practices (the“Commission”) and file reports with the Commission. 2 A “contribution” includes:A. Funds that the contributor specified were given in connection with a ballot question;B. Funds provided in response to a solicitation that would leadthe contributor to believe that the funds would be usedspecifically for the purpose of initiating, promoting, defeating orinfluencing in any way a ballot question;C. Funds that can reasonably be determined to have beenprovided by the contributor for the purpose of initiating,promoting, defeating or influencing in any way a ballot 1 At oral argument, the plaintiffs agreed that the scheduling of the TRO hearing had granted theirmotion for expedited relief and that no further action on that motion is necessary. 2 21-A M.R.S.A. § 1056-B. A “person” is defined as “an individual, committee, firm, partnership, (continued on next page)       4 question when viewed in the context of the contribution andthe recipient's activities regarding a ballot question; andD. Funds or transfers from the general treasury of an organizationfiling a ballot question report. 3   The registration form requires the Ballot Question Committee to name its“Treasurer,” “Principal Officer,” “Primary Fundraisers and Decision Makers,” andrequires a “Statement of Support or Opposition,” indicating “whether thecommittee supports or opposes a candidate, political committee, referendum,initiated petition or campaign.” 4 The registration form also instructs that a reportmust be filed at registration, and that a Ballot Question Committee must report“all contributions and expenditures” including “expenditures such as thoseassociated with the collection of signatures, paid staff time, travel reimbursement,and fundraising expenses.” 5 Thereafter, Ballot Question Committees must filequarterly reports according to the statute’s regular schedule for reporting, 6 listingthe name, mailing address, occupation and employer 7 of any “contributor”donating more than $100. 8 The report also requires the documentation of allexpenditures “to support or oppose” made to “a single payee or creditoraggregating in excess of $100,” identified according to categories provided by the corporation, association, group or organization.” 21-A 1 M.R.S.A. § 1001. 3 21-A M.R.S.A. § 1056-B(2-A). 4 Registration: Ballot Question Committees: For Persons and Organizations Other Than PACsInvolved in Ballot Question Elections (Ex. 7 to Verified Compl. (Docket Item 1)). 5 Id. 6 21-A M.R.S.A. § 1059. 7 The report requires the listing of employer whereas the statute makes reference to the “principalplace of business.” 21-A M.R.S.A. § 1056-B(2). 8 2009 Campaign Finance Report – Ballot Question Committees: For Persons and OrganizationsInvolved in Ballot Question Elections (Other Than PACs) (Ex. 8 to Verified Compl.).
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