STATE OF MAINE COMMISSION ON GOVERNMENTAL ETHICS AND ELECT ION PRACTICES 135 STATE HOUSE STATION AUGUSTA, MAINE 043330135 IN THE MATTER OF: National Organization for Marriage COMMISSION DETERMINATION I. Introduction and Procedural History In 2009, advocates for traditional marriage waged a $3 million political campaign in support of a people?s veto referendum to suspend a recently enacted Maine law that would have allowed same?sex marriage (?the Maine referendum?). A coalition political action committee, named Stand for Marriage Maine, was formed to promote the November 3, 2009 referendum. The National Organization for Marriage (NOM) is a national organization dedicated to preserving the institution of marriage as between one man and one woman. NOM made contributiims of roughly $2 million to Stand for Marriage Maine. Cash provided by NOM paid for around two?thirds of the political campaign in support of the 2009 referendum. NOM was also a chief organizer of the campaign. Its executive director, Brian Brown, was one of three individuals who comprised the executive committee for Stand for Marriage Maine. In spite of primary role in funding the pro?referendum campaign, NOM did not register or ?le ?nancial reports with the Ethics Commission as a ballot question committee pursuant to 2l?A M.R.S.A. Accordingly, it did not publicly report its donors or any expenditures it made to in?uence the referendum (other than by contributions to Stand for Marriage Maine), and did not ful?ll other key obligations of ballot question committees, such as disclosing of?cers and decision-makers and certifying that its ?nancial reports were complete. Beginning on August 13, 2009, the Commission received correspondence from California activist Fred Karger alleging that NOM and other organizations were concealing the sources of their political funding by not registering and ?ling campaign ?nance reports with the I OFFICE LOCATED AT: 45 MEMORIAL CIRCLE, AUGUSTA, MAINE WEBSITE: ETHICS PHONE: 28734179 FAX: (207) 287?6775 Commission. NOM responded to the allegations through written submissions dated September 21 and 26, 2009 and an October 1, 2009 presentation to the Commission, arguing that it was not required to register as a ballot question committee because all donations it made in support of the Maine campaign were from the organization?s general treasury, and the vast majority of the donations it had received were not ?designated? for any particular state campaign. On October 1, 2009, the Commission decided to investigate 2009 activities to determine whether NOM was required to register and ?le ?nancial reports as a ballot question committee. The Commission?s investigation of NOM was signi?cantly delayed by two lawsuits initiated by NOM. On October 21, 2009 (roughly two weeks before the people?s veto referendum), NOM challenged the constitutionality of Maine?s campaign ?nance laws in the US. District Court for the District of Maine (Nat? Org. for Marriage, Inc. v. McKee, Civil No. NOM initially sought relief from the statute requiring registration and ?nancial reporting by ballot question committees, and later expanded the suit to challenge PAC reporting requirements for candidate elections, as well as the attribution and disclaimer law and independent expenditure reporting requirements. During the litigation, NOM claimed that compelled disclosure of donors (even for purposes of discovery) would have a substantial negative effect on ability to raise funds and asserted a ?First Amendment privilege? not to disclose any information concerning its donors in discovery. Although this federal litigation took more than three years to be resolved, all of the statutes challenged by NOM ultimately were upheld as constitutional, including the ballot question committee reporting statute} In the course of the federal lawsuit challenging the constitutionality of Maine?s campaign ?nance laws, NOM provided deposition testimony through its executive director Brian Brown on 1 The District Court found that a regulation of the Commission requiring 24-hour disclosure of all independent expenditures greater than $250 in candidate elections was unconstitutionally burdensome. The Commission did not appeal this ruling and amended the regulation. Also, the US. Court of Appeals interpreted the term ?influence? in the campaign finance statutes narrowly, consistent with the Commission?s guidance to PACs and BQCS, in order to avoid censtitutional due process concerns of vagueness. Nat? Org. for Marriage 11. McKee, 666 F. Supp. 2d 193 (D. Me. 2009) (denying plaintiffs? request for a temporary restraining order); Nar?l Org. for ilzIarr-iage, Inc. v. McKee, 723 F. Supp. 2d 245 (D. Me. 2010) (upholding the challenged PAC provisions as constitutional, except for uses of ?in?uence?); Nat? Org. for Marriage, Inc. v. McKee, 765 F. Supp. 2d 33 (D. Me. 2011) (upholding constitutionality of ballot question committee statute); Na! Org. for Marriage, Inc. v. McKee, 649 F.3d 34 (lst Cir. denied, 132 S. Ct 1635 (2012) (upholding all challenged statutes related to candidate elections, after narrowing the term ?in?uence?); Nat? Org. for Marriage, Inc. v. McKee, 669 F.3d 34 (1 st Cir. 2012), cert denied, 133 S. Ct 163 (2012) (upholding constitutionality of ballot question committee statute). May 26 and June 23, 2010.2 The Commission also received documents relating to ?nancial activities in 2009. For roughly three years, the Commission was precluded from using this information for purposes of the Commission?s investigation, under Section 5(a) of a Consent Con?dentiality Order issued by the US. District Court on February 16, 2010. In 2013, after federal lawsuits had been fully adjudicated and all appeals exhausted, the District Court granted the Commission limited permission to use the relevant discovery documents for the Commission?s investigation. As part of its investigation, on January 28, 2010, the Commission issued subpoenas to obtain documents and deposition testimony from NOM and Brian Brown. NOM, Stand for Marriage Maine and Brian Brown ?led petitions with the Commission, raising a number of legal objections, including that the subpoenas sought information that was privileged under the First Amendment of the U.S. Constitution and that disclosure of personal donor information could subject donors to harassment and other negative consequences which could have a chilling effect on donations and activities. After considering petitioners? arguments, on February 25, 2010, the Commission declined to modify or vacate the subpoenas. On March 3, 2010, NOM (along with Stand for Marriage Maine and Brian Brown) initiated a proceeding in the Superior Court of Maine under Rule 80C of the Maine Rules of Civil Procedure, requesting that the court review the Commission?s decision not to vacate or modify the investigative subpoenas. NOM continued to argue that it had a First Amendment privilege not to disclose its donors to the Commission as part of its investigation. On March 31, 2010, NOM moved the Superior Court to stay the Commission?s enforcement of its investigative subpoenas. On June 10, 2010, the Superior Court ordered the Commission to stay its entire investigation and enforcement proceeding while the court was considering Rule 80C petition. In January 201 1, the court-modi?ed the stay to allow the investigation to move forward, but ordered the Commission not to enforce its subpoenas to the extent that the subpoenas sought information that would reveal donors. This prevented the Commission from seeking information that was highly relevant to the investigation. Ultimately, on June 27, 2012, the Superior Court upheld the Commission?s subpoenas, ?nding that the information sought was rationally and substantially related to important public 2 References to the combined transcript for the deposition of executive director and corporate designee, Brian Brown, held on May 26 and June 23, 2010, are abbreviated as ?Brown Dep.? foilowed by the page and line reference as ?Brown Dep. Bank account numbers in the transcript have been redacted. interests, and that the Commission had a compelling need for the information. Nai?! Org. for Marriage v. Comm ?n on Governmental Ethics and Election Practices, 2012 WL 7992438 (Me. Super. June 27, 2012). On May 30, 2013, the Maine Supreme Judicial Court reached the same conclusion in response to petitioners? appeal. Naf?l Org. for Marriage v. Comm ?n on Governmental Ethics and Election Practices, 2013 ME 53, 4-5, 66 A.3d 579 (2013). During 2013, the Commission staff made several requests to legal counsel for information and documents concerning ?nancial activities in 2009, including expenditures made from general fund and income received by NOM based on email solicitations. After considering the responses from counsel, the Commission staff compiled and analyzed the relevant information in an investigative report dated April 9, 2014. The report recommended concluding that NOM was required to register and ?le campaign ?nance reports in 2009 as a ballot question committee and assessing penalties against NOM totaling $50,250. NOM was given 27 days to respond. NOM responded through a letter-memorandum from its legal counsel dated May 6, 2014. _Among its arguments, NOM contended that funds received by NOM in response to email solicitations should be pro?rated based on the proportion of the email that' discussed the Maine referendum, and that the Commission staff had improperly counted revenues from at least one of emails that did. not mention the 2009 people?s veto referendum. NOM argued that the evidence presented by the Commission staff was insuf?cient to show that major donations received by NOM were ?contributions? as de?ned by Maine law. NOM maintained that major donors did not designate contributions for any speci?c purpose such as the Maine referendum, and NOM did not reserve donations for that purpose. In support of its arguments, NOM submitted affidavits from one of its fundraising consultants, two of?ce staff members and one donor. The Commission staff prepared a memo in reply, dated May 16, 2014. The Commission met on May 28, 2014 to consider the evidence and legal arguments. On behalf of NOM, the Commissioners received a presentation from John C. Eastman of the ActRight Legal Foundation (also the Chair of Board of Directors) and executive director, Brian Brown. Mr. Eastman argued that because NOM has a policy of not allowing donors to earmark their contributions for any speci?c purpose, all of the funds NOM contributed to the Maine campaign should be treated as coming from general treasury ~just as if the funds had been sitting in bank account before the Maine referendum campaign began in May 2009. He also raised, for the ?rst time, an argument that because certain major donors had made multi?year pledges to NOM before the Maine referendum campaign began, their donations could not have been for the speci?c purpose of in?uencing the Maine referendum.3 At the conclusion of the presentations, the Commission voted to adopt the conclusions of law set out below and directed the staff to draft ?ndings of fact and an order for the Commission?s consideration at its next regular meeting on June 25, 2014. 11. Legal Requirements for Ballot Question Committees under M.R.S.A. 1056-3 Under 21-A M.R.S.A. 1056-13, organizations which do not meet the de?nition of political action committee (PAC) are required to ?le campaign ?nance reports with the Commission as a ?ballot question committee? if they receive contributions totaling more than $5,000 for the purpose of initiating, promoting, defeating or in?uencing in any way a ballot question. During the 2009 election season, the following version of was in effect? 1056-3. Ballot question committees Any person not de?ned as 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 in?uencing in any way a ballot question must ?le reports with the commission in accordance with this section. Within 7 days of receiving contributions or making expenditures that exceed $5,000, the person shall register with the commission as a ballot question committee. For the purposes of this section, expenditures include paid staff time spent for the purpose of in?uencing in any way a ballot question. The commission must prescribe forms for the registration, and the forms must include speci?cation of a treasurer for the committee, any other principal of?cers and all individuals who are the primary ?md-raisers and decision makers for the committee. In the case of a municipal election, the registration and reports must be ?led with the clerk of that municipality. 1. Filing requirements. A report required by this section must be ?led with the commission according to the reporting schedule in section 1059. After completing all ?nancial activity, the committee shall terminate its campaign 3 NOM also argued, in writing on May 6 and orally on May 28, that several organizations advocating against the 2009 referendum should have registered and ?led as ballot question committees under the staff?s interpretation of The Commission noted that wishes to request an investigation into whether other organizations complied with Maine?s campaign ?nance laws, it may do so, but that is not grounds for reaching a different statutory interpretation here. 4 The version of 1056-13 set out below re?ects statutory changes in P.L. 2009, Chapter 190 that took effect September 12, 2009. ?nance reporting in the same manner provided in section 1061. The committee shall file each report required by this section through an electronic ?ling system developed by the commission unless granted a waiver under section 1059, subsection 5. i 2. Content. A report must contain an itemized account of each expenditure made to and contribution received from a single source aggregating in excess of $100 in any election; the date of each contribution; the date and purpose of each expenditure; the name and address of each contributor, payee or creditor; and the occupation and principal place of business, if any, for any person who has made contributions exceeding $100 in the aggregate. The filer is required to report only those contributions made to the ?ler for the purpose of initiating, promoting, defeating or in?uencing in any way a ballot question and only those expenditures made for those purposes. The de?nitions of ?contribution? and ?expenditure? in section 1052, subsections 3 and 4, respectively, apply to persons required to ?le ballot question reports. 2.A. Contributions. For the purposes of this section, ?contribution? includes, but is not limited to: A. Funds that the contributor speci?ed were given in connection with a ballot question; B. Funds provided in response to a solicitation that would lead the contributor to believe that the funds would be used speci?cally for the purpose of initiating, promoting, defeating or in?uencing in any way a ballot question; C. Funds that can reasonably be determined to have been provided by the contributor for the purpose of initiating, promoting, defeating or in?uencing in any way a ballot question when viewed in the context of the contribution and the recipient?s activities regarding a ballot question; and D. Funds or transfers from the general treasury of an organization ?ling a ballot question report. 3. Forms. A report required by this section must be on a form prescribed and prepared by the commission. A person ?ling this report may use additiOnal pages if necessary, but the pages must be the same size as the pages of the form. 4. Records. A person ?ling a report required by this section shall keep records as required by this subsection for four years following the election to which the records pertain. A. The ?ler shall keep a detailed account of all contributions made to the ?ler for the purpose of initiating, promoting, defeating or in?uencing in any way a ballot question and all expenditures made for those purposes. B. The ?ler shall retain a vendor invoice or receipt stating the particular goods or services purchased for every expenditure in excess of $50. Campaign ?nance law contains a penalty provision (2l-A M.R.S.A. that applies when a ballot question committee or PAC has failed to ?le a campaign ?nance report required by 105613 or 1059. Under this provision, the Commission staff noti?es the committee of the amount of the late??ling penalty that may be assessed, calculated according to a formula in The formula considers three factors, multiplied together: (I) the number of days after the deadline on which the report was ?led, (2) the total amount of contributions or expenditures that were not reported on time (whichever is greater), and (3) a percentage that increases if the committee has ?led late reports on more than one occasion during a two-year period: Basis for penalties. The penalty for late ?ling of a report required under this subchapter is a percentage of the total contributions or expenditures for the ?ling period, whichever is greater,lmultiplied by the number of calendar days late, as follows: A. For the ?rst violation, B. For the 2nd violation, and C. For the 3rd and subsequent violations, Any penalty of less than $10 is waived. Violations accumulate on reports with ?ling deadlines in a two~year period that begins on January of each even-numbered calendar year. Waiver of a penalty does not nullify the ?nding of a violation. A report required to be ?led under this subchapter that is sent by certi?ed or registered United States mail and postmarked at least two (2) days before the deadline is not subject to penalty. A required report may be provisionally ?led by transmission of a facsimile copy of the duly executed report to the commission, as long as an original of the same report is received by the commission within ?ve calendar days thereafter. One of the factors in the formula is the number of days after the ?ling deadline on which the report was ?led. So, the amount of the penalty increases over time unless a maximum penalty applies. Through September 11, 2009, sections contained maximum penalties that applied to PACs that were late in ?ling reports under 1059, but contained no maximum penalty for ballot question committees that were late in ?ling campaign finance reports required under 1056?13. On September 12, 2009, an amendment took effect which established a uniform $10,000 maximum penalty for all reports filed late by PACs and ballot question committees. (PL. 2009, c. 190, This $10,000 maximum remained in effect until 2011, when the Legislature determined that if the amount of ?nancial activity reported late exceeds $50,000, the maximum late-?ling penalty is 1/5 of the amount reported late. (P.L. 2011, c. 389, 49) (eff. June 20, 2011). Findings of Fact 1. Organization and Revenues NOM is a non-profit corporation currently headquartered in northern Virginia. Its published mission is ?to protect marriage and the faith communities that sustain it.? It advocates for a traditional view of marriage as being between one man and one woman, and it is opposed to same-sex marriage. (Brown Dep. 4721-15) NOM was founded in June 2007 in Princeton, New Jersey. Brian Brown has been its first and only executive director. Prior to becoming the executive director of NOM, Mr. Brown was the executive director of The Family Institute of Connecticut and the treasurer of that institute?s PAC. In 2009, Mr. Brown was a member of ?executive committee,? which made the operational decisions for the organization. (Brown Dep. 166:7~12) The executive committee consisted of Mr. Brown and three members of board of directors: 0 Maggie Gallagher, syndicated columnist and President of NOM in 2009 0 Robert (?Robbie?) George, a professor at Princeton University, who was the Chair of NOM in 2009 Luiz Tellez, the president and founder of the Witherspoon Institute, a research and educational organization based in Princeton, New Jersey. (Brown Dep. 54:5-21) In 2009, Mr. Brown reported to board of directors, which consisted of 10 members. (Brown Dep. 52:20-53:10) As of 2009-2010, the board met annually in July. (Brown Dep. 53:15-20) The board established strategic focus on a broad scale, leaving to Brian Brown and the executive committee the task of determining involvement in speci?c projects or activities. (Brown Dep. 59:2?22) In 2010, Mr. Brown became a member of board of directors and President of the organization. (Brown Dep. 51 :25-52: 1) In 2009, the executive committee held a weekly telephone conference on Mondays. Other board members were welcome to participate, but most did not have the time. (Brown Dep. 67: 10-13) Political consultants hired by NOM also participated in the weekly calls. (Brown Dep. 87:12-17) NOM is tax-exempt under Section 501(c)(4) of the Internal Revenue Code. This designation allows NOM to be involved in a range of electoral projects, including advocating for the election or defeat of candidates. NOM has a separate, af?liated organization, the NOM Education Trust, which has a different tax status (exempt under Section The trust works on ?educational outreach? on marriage issues. According to testimony from Mr. Brown, the NOM Education Trust is not involved in electioneering. (Brown Dep. 108:22-23) revenues grew quickly in the first three years of its existence from mid-2007 to 2010. It has posted ?lings with the Internal Revenue Service (Form 9908) on its website showing the following total revenues and the amounts received from ?major donors? who gave NOM $5,000 or more in a calendar year:5 Total Received from . . Ma. or Donors May or Donations as Year Total Receipts . Percent of Total (number of maJor . Receipts donors) 2007 $518,667 $492,500 (15) 95% 2008 $2,968,880 $2,171,000 (52) 73% 2009 $7,372,981 $5,540,805 (14) 75% 2010 $9,566,255 $8,427,500 (22) 88% 2011 $7,207,412 $5,257,425 (17) I 73% 5 NOM provided a copy of its Form 990 for 2009 with a version of Schedule prepared by NOM in which the names of major donors have been redacted and replaced with John Doe numbers. The Commission agreed not to identify donors by name in its ?nal determination and has used these numerical designations instead. In 2009, NOM controlled three state-based PACs in California, New York and New Jersey. Brian Brown was the treasurer for the New York and New Jersey PACs, and the. chairman for the California PAC. These positions gave him the authority to make decisions about the activities. (Brown Dep. 11924-23) Rhode Island also had a PAC run by NOM employee Christopher Plante. did not have corporate control over the activities of the Rhode Island PAC. (Brown Dep. 117211?11812) I In 2009, NOM was a highly sophisticated political advocacy organization with experienced communication, fundraising, and record-keeping capabilities. It received advice from attorneys who specialize in campaign ?nance law and who had examined Maine Law. (Brown Dep. 116:2-11) 2. Critical Leadership Role in the 2009 Referendum Campaign NOM and its executive director Brian Brown had critical leadership roles in the Maine referendum, and NOM clearly conveyed that leadership role to its donors. As noted by the US. Court of Appeals, ?the relationship between NOM and Stand for Marriage Maine was extremely close during the 2009 campaign,? which the court found signi?cant in evaluating donations to NOM. Nat? Org. for Marriage, Inc. v. McKee, 669 F.3d 34, 49 (lst Cir. 2012). During the 2009 legislative session, the 124th Maine Legislature considered L.D. 1020, An Act to End Discrimination in Civil Marriage and Af?rm Religious Freedom, which would have allowed same-sex couples to marry. In April 2009, the bill received a public hearing and was reported out of committee. LI). 1020 was enacted and signed into law by Governor John Baldacci on May 6, 2009, as P.L. 2009, Chapter 82. On May 6, 2009, NOM announced that it would join a coalition of advocates for traditional marriage to begin organizing a people?s veto referendum that would suspend the law from taking effect and refer it for a vote by the people of Maine. A PAC named Stand for Marriage Maine was formed on May 29, 2009 to ?nance the petition signature?gathering effort and the political campaign to support the referendum. The petition effort was successfulf' and a vote was scheduled for November 3, 2009. 6 On July 31, 2009, organizers of the petition drive submitted a sufficient number of valid signatures to the Secretary of State?s of?ce to suspend the effect of the law, and on September 2, 2009, the people?s veto referendum was of?cially approved for placement on the November ballot. 10 The Stand for Marriage Maine PAC (?Stand for Marriage Maine?) was led by an ?executive committee? made up of three individuals: 0 Brian Brown, the executive director of NOM, 9 Marc Mutty, the former director of the Public Policy Office of the Roman Catholic Diocese of Portland (on leave during the campaign), and 0 Pastor Bob Emrich, the chairman of the Christian Civic League of Maine. When Stand for Marriage Maine registered, it listed Mr. Brown as one of the primary fundraisers and decision-makers. Political consultants close to NOM had critical positions within the Maine referendum campaign. The campaign manager for Stand for Marriage Maine was Frank Schubert, a principal in a public affairs consulting firm that provided services to NOM, including purchasing advertising time. (Brown Dep. 88:12 89:9) Mr. Schubert managed the 2008 political campaign in support of Proposition 8 in California, a state constitutional amendment to limit marriage to one man and one woman. He sometimes participated in the weekly telephone calls of executive committee. (Brown Dep. 87:14-17) The ?nance director for Stand for Marriage Maine was Steve Linder, a partner in a Michigan political consulting firm, Sterling Corporation. Mr. Linder raised money for NOM in 2009 and 2010. He was ?in constant contact? with NOM during 2009 and also participated in the weekly telephone calls of executive committee. (Brown Dep. 284:7-8) NOM was by far the largest donor to Stand for Marriage Maine. In total, NOM donated $2,017,5 80 to Stand for Marriage Maine, which represented 64% of the total amount spent by the PAC. (NOM provided $1,993,411 in cash to Stand for Marriage Maine, and NOM provided services or made expenditures totaling $24,169 that constituted in-kind contributions.) 7 Stand for Marriage Maine spent a total of $3,152,073 in support of the Maine referendum (including expenditures in 2010 and 2011 to retire campaign debts). On November 3, 2009, the referendum passed by a vote of 300,848 to 267,828, thereby vetoing the law authorizing same- sex couples to marry. During the investigation, NOM stated that it made no expenditures to promote the Maine referendum other than by contributions to Stand for Marriage Maine. Documents produced by 7 These contribution totals include $63,511.33 in cash that NOM provided to Stand for Marriage Maine in May 2010 and May 2011 to discharge campaign debts of Stand for Marriage Maine. 11 NOM in the spring of 2013, however, revealed that in May 2009 one of regular political vendors, ccAdvertising, prepared a script for a very large automated telephone call campaign to households in Maine, in which the recorded voice of Brian Brown would discuss the Maine referendum and raise money for NOM. According to the script, recipients of the automated calls who indicated a willingness to contribute to NOM to support the Maine referendum would later receive information from NOM by direct mail. Around May 6, 2009, ccAdvertising prepared an invoice for NOM listing an amount due of $29,966.76, for 461,027 calls to Maine households. NOM paid this invoice on July 22, 2009 as part of a larger payment to ccAdvertising for telephone campaigns in multiple states. NOM maintains that the ?rm did not actually conduct the telephone survey in Maine and that there were no subsequent direct mail solicitations. Mr. Eastman contended in his May 28 presentation that the survey was abandoned, based on the advice of legal counsel that all expenditures should be made through the Maine PAC (ta, Stand for Marriage Maine). In the summer of 2013, the Commission staff interviewed ccAdvertising personnel who referred to the invoice as a billing mistake. Both NOM and ccAdvertising have stated that they could ?nd no . record of any phone calls made to Maine voters. Nevertheless, the plans for the'telephone campaign indicate an intention by NOM to be signi?cantly involved in the Maine referendum, as early as the ?rst week of May 2009. 3. The Importance of the 2009 Maine Referendum for NOM Many of 2009 communications both to donors and internally among its board members show that beginning in the spring of 2009, NOM viewed winning the Maine referendum in November as a critical project for the organization in the coming year. As of 2009, no state electorate had chosen to adopt same-sex marriage through a ballot measure. Thus, if NOM had lost the 2009 referendum in Maine, it would have been the ?rst time that the voters of a state not the legislature or the courts chose to make same-sex marriage legal. NOM made it clear to the public and to major donors that the Maine referendum was a ?must?win? campaign, because NOM needed to demonstrate that no political majority for same?sex marriage existed anywhere in the country. Throughout 2009, NOM never wavered in its commitment to the Maine campaign. 12 The critical nature of this effort to national strategy is demonstrated by the proportion ofNOM?s 2009 total spending that was devoted to the Maine campaign. 2009 contributions to Stand for Marriage Maine represent 32% (roughly one-third) of expenses for program services that year.8 NOM exhausted its ?nancial resources to win the Maine campaign, according to own statements to the public in the days following the election: The importance of the win in Maine nationally can not be overstated. From the beginning NOM saw how high the stakes were for Maine. That ?s why we devoted such resources to the e?ort. We are the single largest donor to Stand for Marriage Maine. We gave nearly 1.8 million, emptying our bank account because of the serious needs in Maine. (Nov. 4, 2009 email, Doc. #118990) The National Organization for Marriage has again, because of your support and work, played a key role in changing the course of history on marriage. As the largest contributor to the Yes on 1 effort in Maine, spent almost all that it had ?iterally), a total of $1 .8 million dollars, because we know the singular importance of a victory in rl/[aine (Nov. 6, 2009 email, Doc. ##1118-20) While funds for our New Jersey campaign have already been set aside, we need your help to replenish our emergency fund for the days ahead. We poured everything we had into Maine (and would do it again in an instant) to assure victory there. (Nov. 24, 2009 email, Doc. ##1191-92) In Maine, NOM played a pivotal role NOM stepped forward, ultimately contributing more than half the Maine campaign budget of $3 million. We literally emptied our cojj?ers to make victory possiblewat the end of August we had exactly $1,000 in the bank. (Direct mail solicitation letter, Doc. Indeed, from the initial phases of the referendum through the ?nal days of the campaign and beyond, Brian Brown and NOM made many statements that winning the Maine referendum was ?important? or ?critical? to national strategy of stopping same-sex marriage. NOM underscored the priority of the Maine campaign in a report of planned activities dated August 11, 2009 (?National Strategy for Winning the Marriage Battle,? Doc. that NOM distributed to major donors and other friends of the organization: Maine is strategically important because it presents the only opportunity in 2009 to use a ballot measure to nullify a legislatively-enacted same-sex marriage law 3 contributions to Stand for Marriage Maine during calendar year 2009 totaled $1,954,169. NOM reported spending $6,093,670 for program services in Part of its Form 990 for 2009. (In the form, program spending refers to total spending minus management and fundraising expenses.) 13- passed this spring and thus demonstrate?contrary to what the national press would have us believewthat once again, when the people are allowed to decide, they support traditional marriage .. .. (Doc. ##117?118, emphasis added) A victory in 2009 in Maine is critical to stopping the momentum of the same?sex marriage movement in the Northeast. The total budget for Maine is $3.5 million. We cannot designate any money given to NOM to the Maine effort because of disclosure requirements. But we do plan to contribute a total of $1 million to the campaign. (Doc. #118, emphasis added) This report referred to below as the ?8/1 1/2009 National Strategy document? - explained and justi?ed an ambitious fundraising goal of $20 million for late 2009 and 2010. NOM expressed the importance of the Maine referendum to 'a wider audience in national newsletters and fundraising solicitations distributed by email. NOM tried to use Maine as an opportunity to rebut the sense that same-sex marriage was inevitable. ?It?s going to be a big ?ght in Maine; we understand that. But if you will help, together we can show the naysayers and the doomsday predictors that even in blue states like Maine, the American people do not want judges and politicians messing around with marriage.? (7/10/2009, Email from Brian Brown, Doc. ##959-63) ?Maine is about more than Maine,? and ?[w]hat Maine will prove to the doubting Thomases and the politicians standing on the sidelines is that there is no majority for gay marriage anywhere in these United States.? (7/31/2009, Email from Brian Brown, Doc. ##992-1004) ?Maine is our number one priority? and ?Maine is crucial? (N OM Marriage News: October 9, 2009, Doc. ##1174~79) ?If we lose marriage in Maine, we risk losing marriage everywhere.? (10/15/2009, NOM Emergency Alert, Doc. 180-81) ?The importance of the win in Maine nationally can not be overstated. (11/04/2009, Email from Brian Brown, Doc. ##1189-90) Yet we won in Maine by an even larger margin than in California. And understand this: If we can win in Maine, WE CAN WIN (1 1/06/2009, Email from Brian Brown, Doc. ##11 18?1 120) In his 2010 deposition, Brian Brown acknowledged that during the period of September October 2009, the Maine referendum was ?the most important issue to (Brown Dep. 278:8-279:16) Mr. BroWn stated that when Stand for Marriage Maine asked executive committee to increase funding for the Maine referendum from $1,000,000 to $1,800,000, 14 ?[t]here was complete consensus that this was an important ?ght and that we should increase what we originally thought we were going to give.? (Brown Dep. 195:18-22) When acknowledging that NOM mentioned the Maine referendum in conversations with its major donors, Mr. Brown stated ?There?s obviously no way not to have Maine was going to be discussed because the whole nation was looking at Maine.? 9 (Brown Dep. 279:11-13) (italics added) The above communications and testimony leave no doubt that the Maine referendum was a strategically important issue for NOM, Brian Brown and other members of executive committee in the latter half of 2009. Through its strategy documents, blog posts and fundraising emails, NOM conveyed to its donors, constituent groups and members its belief regarding the importance of the Maine referendum to mission and the defense of traditional marriage. 4. Financial Commitment to Stand for Marriage Maine NOM made a speci?c financial commitment to spend a very signi?cant amount on the Maine referendum a commitment which never wavered during 2009. This establishes that part of purpose in soliciting and raising money from its donors in 2009 was to promote the Maine referendum. Initial. Commitment 0f$1 Million Brian Brown, executive director, was a member of the executive committee of Stand for Marriage Maine, which functioned as the fundraising committee for the PAC. (Brown Dep. 191 :25?19223) Mr. Brown shared the responsibility to raise money for the projected expenditures of $3.5 million. It was understood that Mr. Brown would provide funds from NOM to partially fund Stand for Marriage Maine. ?One of the functions I had was to have - you know, to have NOM give money to Stand for Marriage Maine when it was when it was needed and to also make sure that there was other fundraising going on.? (Brown Dep. Mr. Brown 9 pie-election views concerning the strategic importance of a victory in Maine were repeated in a retrospective report of the organization?s accomplishments prepared for its Suly 2010 meeting of its board of directors, entitled the 2009?2010 Board Update. Doc. ##266-280 (?Given the critical nature of this race, NOM put everything we had on the line (literally!) to ensure that we did not lose Maine due to lack of funding at the last minute. The institutional risks for NOM were substantial but the risks of losing the marriage vote in Maine were even more crucial.?) Doc. #267. 13 As early as June 1, 2009, Stand for Marriage Maine expected that NOM would provide financial support. That day, Marc Mutty, the chair of Stand for Marriage Maine, emailed Brian Brown in emphatic terms that ARE 15 asserted in his presentation on May 28 that NOM did not control the Stand for Marriage Maine PAC, but he did not refute that he was a key fundraiser and decision?maker for the PAC as well as for NOM as the major funder. These were roles that he carried out simultaneously, as salaried chief executive. At his deposition, Brian Brown testi?ed that early on, NOM made a ?nancial commitment to make a ?very substantial gift to give a million dollars to [the Maine campaign].? (Brown Dep. 194:4?9) This $1 million commitment is con?rmed in the 8H 1/2009 National Strategy document, which was prepared for major donors and other close friends of the organization. (Doc. ##110-143) The purpose of this national strategy document was to describe - national strategy in 2009 and to justify a fundraising pitch to raise $20 million in late 2009 and 2010. The document contains a description of 18 projects and the projected cost of each project to NOM. NOM describes the Maine referendum and leadership role on pages 7-8 of the 8/11/2009 National Strategy document, and states that ?we do plan to contribute a total of $1 million to the campaign.? That amount is highlighted in a gray bar on page 8. projected contribution of $1 million is also mentioned on page 27 in a table entitled ?Budget Fundraising:? The table indicates that NOM had allocated $100,000 for the Maine campaign of moneys already received or pledged. Of future revenues expected for the latter part of 2009, NOM indicated that it planned to allocate an additional $900,000 for the Maine campaign: Project Raised July July 2009 December 2009 NOM Maine 501(c)(4) $100,000 $900,000 Decision by OM to Increase Donation During the summer of 2009, NOM found that it was being ?greatly out spent in Maine,? similar to its experience in the 2008 Proposition 8 campaign in California. (Brown Dep. 194211- 13). The campaign manager of Stand for Marriage Maine, Frank Schubert, told the PAC that it .needed to raise more money.? (Brown Dep. 194:22-195:2) So, the expectation that NOM would contribute $1,000,000 changed. Mr. Brown testified ?In order to keep up and get our message out, we had to do more?there had to be more money.? (Brown Dep. 194:7?15) In the late DESPERATE AND NEED FUNDS TRANSFERRED TO STAND FOR MARRIAGE MAINE Mr. Brown replied that ?We will be transferring $60,000 today.? Doc. ##199-202. 16 summer or fall of 2009, Stand for Marriage Maine turned to NOM for funding ?repeatedly,? according to Mr. Brown. (Brown Dep. 207:2-5) When asked as to frequency, Mr. Brown responded: ?Well, I mean, it was clear it was clear that extra money was needed so I don?t know that there was every week an ask. It was just always there.? (Brown Dep. 207:20?22) In light of the urgent ?nancial needs of Stand for Marriage Maine, the executive committee of NOM decided to increase its denation to the PAC. ?There was a complete consensus [among executive committee] that Maine was an important ?ght and that we should increase what we originally thought we were going to give. (Brown Dep. 195: 1822) By the time of the election on November 3, 2009, NOM had donated a total of $1,954,169 in cash and in-kind contributions to Stand for Marriage Maine a doubling of its initial commitment. NOM ultimately donated a total of $2,017,580 in cash and in-kind to Stand for Marriage Maine (including $63,511.33 contributed in 2010-11 to retire campaign debt incurred by Stand for Marriage Maine). This amount represented 64% of the total amount spent by Stand for Marriage Maine. Moreover, the results of this investigation show that NOM did not have all of these funds in its general treasury at the start of the Maine campaign. It had to raise the funds that it ultimately paid to Stand for Marriage Maine for the purpose of initiating and promoting the Maine referendum. (See, erg, references (infra at 13) to ?emptying bank account because of the serious needs in Maine?) 5. Policy on Protecting Anonymity of its Donors In 2009, NOM reassured its major donors that NOM would not publicly disclose their names in campaign ?nance reports. In the 8/1 112009 National Strategy document, NOM asserted that state donor disclosure laws were a ?serious hurdle? in obtaining funds needed for candidate and ballot initiative campaigns in states such as Maine, California, Iowa, and New Hampshire, because of alleged threats of intimidation received by donors who supported traditional marriage in California in 2008. (Doc. #112) NOM promised donors that if they gave to NOM and did not designate their donation for a speci?c project, NOM would not disclose their names publicly: Given the threats of intimidation to donors who support marriage in California and nationwide, we face a serious hurdle in getting state ballot initiatives and candidate campaigns funded because donors must be disclosed. However, if 17 NOM makes a contribution from its own resources that are not speci?cally designated for one of these efforts, donor identities are NOT disclosed. (Doc. #112) As Brian Brown explained, NOM did not allow its donors to expressly designate funds for any particular purpose. Thus, NOM intentionally set up its fundraising strategy to avoid donor disclosure laws under a theory of not designating contributions. Maine?s ballot question committee law is not limited to earmarked donations, however. 12 In his oral presentation to the Commission on May 28, counsel raised the possibility of harassment as grounds for protecting the anonymity of donors, and he referenced examples of problems that occurred in California during the Proposition 8 referendum campaign in 2008. When asked, Eastman could not identify any such incidents of harassment occurring in Maine. The Commission has previously found in this matter that the af?davits and newspaper accounts submitted by NOM with its objections to the Commission?s subpoenas were insufficient to support a ?nding of reasonable probability that disclosure of contributors? names will subject them to threats, harassment, or reprisals, which is the legal standard set forth in the case law cited by Mr. Eastman. See Brown v. Sociafz'sf Worker ?3 ?74 Campaign Committee, 459 U.S. 87, 100 (1982); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958). Federal courts in California and Washington state have likewise concluded that these same af?davits and newspaper articles were insufficient to support such a finding.13 arguments that donor anonymity is required either have been made by NOM and rejected in the litigation described above as part of the procedural history of this matter, or could have been made and were not. See National Org. for Marriage v. McKee, 666 .Supp. 2d 193, 206, n.74 (D. Me. 2009) (noting that NOM did not make a ?colorable claim? of First Amendment harm due to threats of harassment, in its as applied challenge to the constitutionality of Maine?s 11 The af?davits fundraising consultant and of?ce staff reiterate this policy ?see Exhibits G, and to letter-memorandum of May 6, 2014 and Donor #1 ?s af?davit indicates that he was told this as well. 12 The First Circuit Court of Appeals rejected argument that a state may regulate only explicitly earmarked funds, noting that ?[sluch a limitation would allow entities to easily evade disclosure requirements by guiding the content of donors? messages, defeating the State?s compelling interest in informing voters}: 669 F.3d at 47, n. 13. 13 Protectmarn?age.cam v. Bowen, 830 F.Supp.2d 914 2011), afd in part, dismissed in part, 2014 WL 2085305 (9?h Cir. 2014), and Doe v. Reed, 823 F.Supp.2d 1195 (W.D.Wash. 2011), appeal dismissed, DoeNo. I v. Reed, 697 F.3d 1235 (9?h ca. 2012). 18 ballot question committee law). In any event, the Commission ?nds no basis on this record to support exempting NOM from Maine?s ballot question committee law. 6. NOM Quali?ed as a Ballot Question Committee through Contributions from Major Donors (those giving $5,000 or more) A. In 2009, NOM Raised 75% of its Revenue from 14 Major Donors through Solicitations made by Telephone and in Person During 2009, the largest share of revenue came from 14 major donors (de?ned here as donors who gave $5,000 or more to NOM during a calendar year) who contributed a total of $5,540,805 to NOM, as shown on the Form 990 tax ?ling. 14 total revenue in 2009 was $7,372,981. In his deposition, Mr. Brown explained that NOM developed relationships with major donors though phone calls, visits, and events held at a person?s home or at a hotel. (Brown Dep. 244:24?245:19) The NOM of?cers primarily responsible for fundraising in 2009 were the four members of executive committee: Brian Brown, Maggie Gallagher, Luiz Tellez, and Robert George. In 2009 and 2010, major donors to NOM were also approached by fundraising consultant Steve Linder. Mr. Linder typically participated in the weekly telephone conferences of executive committee. (Brown Dep. 284:7?8) In 2009, solicitations to major donors were made orally - by telephone or in person. (Brown Dep. 248:21~249:15) Mr. Brown testi?ed that 70%-80% of the solicitations to major donors were made by telephone. (Brown Dep. 248:5-9) Because the solicitations to major donors were not made in writing, it is not possible to confirm the exact language that NOM used to communicate with individual donors. Nevertheless, the basic elements of communications are known, and they indicate that NOM told major donors in 2009 about activities in support of the Maine referendum and commitment to financially support the Maine referendum. NOM transmitted written strategy documents to major donors and close friends of the organization that detailed ?nancial commitment to partially fund the Maine campaign. 14 The total amounts given by each of these 14 major donors in 2009 are listed in a redacted version of Schedule to Form 990 (Doc. In the Schedule B, donors? names have been replaced with John Doe numbers. In addition, counsel provided the specific dates and amounts of each 2009 donation from a major donor in Attachment to an April 3, 2013 letter. 19 Thus, any major donor receiving these communications would reasonably believe that part or all of his 01' her donation would be used to support the referendum in Maine. B. Donor #2 (Married Couple in Maine) In mid to late July 2009, NOM received a $50,000 donation from a married couple living in Maine, whom NOM designated as Donor #2 in documents provided to the Commission. (Doc. ##213 and 214) This large donation was solicited for NOM by its fundraising consultant Steve Linder. The funds were received during the phase of the referendum in which signatures were being gathered on petitions to place the referendum on the ballot. On July 30, 2009, Brian Brown wrote a thank you note to the couple, addressed to them by ?rst name, that highlights planned activities in support of the Maine referendum. (Doc. #220) The language of the thank you note demonstrates that the couple had already discussed commitment to spend money in the upcoming Maine campaign with Mr. Linder (italics added): Thank you so much for your most generous contribution of $50,000 to the National Organization for Marriage of July 15, 2009. As you know, NOM is leading the ?ght to protect marriage nationally and is aiso committed to hetping key states Zike Maine. As you know from your discussions with Steve Linder; NOM has atready contributed over 3250, 000.00 in the effort to project marriage in Maine. Happily, support of the effort in Maine is already bearing fruit. We are excited to announce that this week Stand for Marriage Maine will turn in signatures far beyond the necessary state requirement to place a People?s Veto on the ballot: over 100,000 signatures of Mainers devoted to protecting our most basic institution in just a few weeks. Amazing! We have a major ?ght on our hands in Maine and throughout our nation to protect God?s vision of marriage. With supporters Zike you, we are con?dent that we will be victorious. commitment to spend money on the Maine referendum was clearly conveyed to the couple: with money from ?supporters like you,? NOM would stop same-sex marriage in Maine the donors? home state. The references to the couple?s discussions with Steve Linder also strongly suggest that the solicitation was made in a way that would reasonably lead the couple to believe that their donation would be used, at least in part, specifically for the purpose of promoting the Maine referendum campaign. '20 The check for $50,000 from Donor #2 was deposited in principal bank account on Friday, August 10, 2009. (Doc. #419) On the very next business day, August 13, 2009, NOM transferred $50,000 from that account to Stand for Marriage Maine. (Doc. #420) In his af?davit of May 5, 2014, submitted by NOM in response to the staff? 3 investigative report, Mr. Linder asserts as a general matter that ?in his communications with major donors in 2009, [he] did not use any language that would lead the donor to believe that the funds would be used speci?cally for the purpose of initiating or in?uencing a ballot question election in Maine.? See Exh. to letter-memorandum of May 6, 2014. This generic statement, made nearly ?ve years after the fact, accurately states policy and legal position, but it is not persuasive factual evidence. The Commission agrees with the staff (see May 16 reply memorandum at 2-3), that we should give greater weight to contemporaneous documents prepared by NOM for its donors in 2009, which communicated to any reasonable contributor that their donated funds would be used, in full or in part, to promote passage of the ballot question in Maine. Applying the objective test, the Commission ?nds that this donation of $50,000, given in response to the communications and in the context described above, meets the de?nition of ?contribution? in A majority of the Commission also ?nds that it meets the de?nition in This donation, by itself quali?ed NOM as a ballot question committee by mid to late July, 2009. C. Donor #11 (N Largest Contributor for 2009) Donor #11 is a long-standing major donor to NOM who was largest contributor in 2009. (Brown Dep. 274:3?22) At some point during 2009 (by July at the latest), Donor #11 pledged $2 million to NOM. One million dollars was pledged as an outright gift, and another $1,000,000 was pledged contingently, based on success in raising money from other donors. Ultimately, Donor #11 gave a total of $2,475,000 during 2009, including two large contributions in the last month before the November 3, 2009 referendum election: ?5 Commissioner Healy joins the finding with respect to paragraph C, but not paragraph B. 21 4/6/09 $100,000 5/14/09 $80,000 5/15/09 $45,000 7/9/09 $750,000 10/5/09 $1,000,000 10/13/09 $500,000 oral $2,475,000 Cash provided by this donor accounted for 34.8% (or roughly one-third) of total receipts in 2009. - On July 2009, Brian Brown sent to NOM board member Luiz Tellez an email containing a draft of a proposed budget to be provided to Donor #1 1 for a proposed $2 million gift. (Doc. ##424-426) The draft budget breaks down, in specifics, how NOM would spend the $2,000,000 to be received from Donor #11: $200,000 promoting the Maine referendum $300 000 in?uencing legislative elections in Iowa, with the goal of ?f1ip[ping] the Legislature? $600 000 ?killing? a same-sex marriage bill anticipated to arise in a lame duck session of the New Jersey Legislature in November 2009 $300 000 defeating Governor John of New Hampshire and to ?ip both houses of the New Hampshire Legislature $300 000 for a grass roots recruitment project of developing 2 million activists and 50,000 donors by the election of 2010 $250 000 creating a reserve fund which could be used for future projects in different states donation to the American Principles Project a separate nonprofit Unspeci?ed16 corporation that was chaired by Robert George in 2009 that promoted ?founding principles.? The July 7, 2009 email clearly conveyed that NOM would be spending a sizeable amount to promote the Maine referendum. The email also conveys the critical importance of blocking same-sex marriage in Maine: victory in 2009 in Maine is critical to stopping the momentum of the same~sex marriage movement in the Northeast. The total budget for Maine is $3 million. We cannot designate any money given to NOM to the Maine effort because of disclosure 16 Brian Brown clarified in a follow?up email the next day that this amount was $250,000, which Donor #1 I should send directly to the American Principles Project. All other amounts listed in this table were to go directly to NOM. (Doc. #425) 22 requirements. But we do plan on contributing at least $200,000 over the next few months.? This email demonstrates a willingness by executive director to provide very speci?c information to largest donor concerning how NOM would use the donation to fund projects such as the Maine referendum. Two days after Brian Brown sent the draft budget, Donor #11 gave $750,000 to NOM. (A thank you letter from Brian Brown refers to the contribution with the date of July 9, 2009.) The donation was deposited into bank account on July 15, 2009. (Doc. #412) The text of Brian Brown?s July 7 email is consistent with the messages conveyed in the national strategy documents that Brown testi?ed were distributed to major donors and other close friends of the organization. (Brown Dep. 206 :1 1-12) As noted above, the National Strategy document dated August 11, 2009, set forth a speci?c ?nancial commitment to contribute $1 million to promote the Maine referendum (later increased to close to $2 million). A detailed $3.5 million budget for Stand for Marriage Maine was attached to the 8/ 1 1/2009 National Strategy document. As largest donor and the source of one-third of 2009 revenue, Donor #11 would have received this strategy document, along with oral I communications from NOM consistent with the strategy document. 1? Brian Brown testified that he discussed national strategy with Donor #11 during a phone call that occurred earlier in 2009. President Maggie Gallagher and Chair Robbie George also participated in the telephone call. Based on the telephone call, NOM understood that a $1 million gift was ?coming in October.? (Brown Dep. 275:1-4; 278:2-7) This expectation was ful?lled when, on October 5, 2009, Donor #11 transferred $1,000,000 to NOM. (Doc. #344) Email communications from members of executive committee on October 6, 2009 reveal that Donor #11 expressed a willingness to provide an additional $500,000 if needed. A week later, on October 13, 2009, the same donor gave NOM another $500,000. (Doc. #346) NOM transferred the entire amount of this gaff to Standfor Marriage Maine on the very next day (October 14, 2009).13 (Doc. #347) Over the course of the NOM prepared other documents during 2009 and 2010 describing its national strategy and its accomplishments, such as a document entitled ?Marriage: $20 Million Strategy for Victory.? (Doc. 97-109) This document also strongly suggests that NOM intended specific amounts of money to be devoted to the Maine referendum. See also Doc ##100-101 (?Amount of this pledge to be devoted to Maine $200,000 Amount raised for Maine to date $500,000?) 13 This October 13, 2009 donation of $500,000 was one of ?ve which NOM received from major donors on one day, and then wired to Stand for Marriage Maine on the same or next business day. 23 next two weeks, NOM transferred an additional $340,000 to Stand for Marriage Maine. (See chart of contributions reported by Stand for Marriage Maine.) Based on this evidence, the Commission ?nds that one of purposes in soliciting and receiving Donor #1 1 ?3 contributions in the summer and fall of 2009 was to in?uence the Maine referendum. NOM had made a speci?c ?nancial commitment to make a sizeable donation to Stand for Marriage Maine. As executive committee members were soliciting and receiving contributions from major donors during the summer and fall of 2009, they knew that signi?cant portions of those contributions would be spent to support the Maine referendum. The communications concerning role in leading and funding the Maine referendum campaign were suf?cient to lead Donor #11 to believe that his donations (or at least a substantial portion of them) would be used to promote the Maine referendum. The af?davit from Donor #11, dated May 7, 2014 (after NOM had submitted its legal arguments to the Commission), expresses the donor?s understanding of policies not to allow earmarking of donations and not to make any binding promises to donors regarding how their funds would be used. The donor also asserts that ?no representative of NOM used any language that would lead me to believe that the funds would be used speci?cally for the purpose of initiating or in?uencing a ballot question in Maine.? The Commission gives little weight to these general conclusory statements, made ?ve years after the fact. They do not refute that NOM was raising funds from this donor speci?cally for the purpose of promoting the Maine referendum campaign. 19 The funds provided to NOM by Donor #11 under the cirCumstances described above meet the de?nition of ?contribution? in While the Commission cannot determine exactly what was said in telephone conversations with Donor #1 1, ?ve years after those conversations occurred, the language of written communications discussed above supports a finding that funds contributed by Donor #1 i in the latter part of 2009 also meet the de?nition of ?contribution? in ?9 NOM places considerable weight on the use of the word ?speci?cally? in in arguing that the funds it solicited, received and spent in Maine in 2009 do not constitute ?contributions? under the ballot question committee statute. The Commission agrees with the staff?s analysis of this issue, as presented in the staff?s reply memorandum of May 16, 2014. 24 The July and October 2009 donations from Donor #11, in themselves, quali?ed NOM as a ballot question committee, requiring it to register and to ?le campaign ?nance reports with the Commission. D. Cash Received from Donors #10, and #12 Transferred Directly by NOM to Stand for Marriage Maine Between September 4 and October 13, 2009, NOM received funds from three additional major donors which NOM transferred to Stand for Marriage Maine on the same day or the next business day after receipt. 0 On September 4, 2009, NOM received a wire transfer of $150,000 from Donor #10, which was second largest donor for 2009. That same day, NOM transferred $140,000 to Stand for Marriage Maine. (Doe. #337) On October 1, 2009, NOM received a wire transfer of $300,000 from Donor who was third largest donor. That same day, NOM transferred $300,000 to Stand for Marriage Maine. (Doc. ##343-44) 0 On October 9, 2009, NOM received a wire transfer of $400,000 from Donor #12. The very same day, NOM wired $300,000 to Stand for Marriage Maine. (Doc. ##346-47) The circumstances suggest that NOM solicited and received these contributions exceeding more than $5,000 for the purpose of promoting the Maine referendum. NOM argued for the ?rst time on May 28, through Mr. Brown and Mr. Eastman, that- some of these donors were ful?lling multi-year pledges to NOM and thus could not have given speci?cally for the purpose of the Maine referendum campaign. NOM did not produce any documentation to this effect, however, and Mr. Brown acknowledged that NOM had not received pledges from all of these donors and that the pledges were not made in writing. He also was not certain which of the above donors were ?recurring? donors. The possibility that some of these major donors had given to NOM in the past and/or anticipated giving again in the future,- does not prove that they did not make ?contributions? as de?ned in in 2009 for purposes of the Maine referendum campaign. 25' 7. NOM Received ?Contributions? as De?ned in 21-A M.R.S.A. (C) through Email Solicitations In 2009, NOM raised funds by email in weekly updates, newsletters, or ?aleits? sent to . members or subscribers On email list.20 The emails discussed current projects or activities of NOM (such as the Maine referendum) and invited members or subscribers to help support these activities. The text of these email solicitations contained one or more hyperlinks to the fundraising page on website. Members of the public could enter their credit card numbers on this ?Donate? page to make a donation to general fund. For example, in a May 8, 2009 email about efforts in Maine, New Hampshire, and other areas, the email contained a paragraph about the Maine referendum concluding ?(You can ?ght back! Can you help defend marriage in Maine and across the country, by donating $10, or even, if God has given you the means, $100 or (Doc. ##879?881) The underlined text was a link to the Donate page on website. I In addition to these hyperlinks contained in the text of emails, emails also contained a bright red oval-shaped Donate button at the top of the electronic message. This button, which was prominent due to its color and position, also took the member or subscriber to the Donate page on website. In the October 21, 2009 Verified Complaint ?led by NOM in the US. District Court to initiate Nat"! Org. for Inc. v. McKee, NOM identi?ed 12 emails sent out during the period of May 6 - September 4, 2009 that discussed the Maine referendum. See Veri?ed Complaint, 26-35 and 36-38. These emails discussed the referendum and invited members and subscribers to make ?nancial donations. NOM claimed that it intended to distribute additional emails ?mentioning Maine and soliciting donations which will exceed $5,000,? but that it ?fear[ed] enforcement under section 1056-8 based on any such future activities (Verified Complaint, $144) The 12 emails are listed in a table beginning on page 28 of this determination, which includes the date of the email, the text within the email which solicits a donation, and the amount that NOM has indicated it received in response to the email. 2? NOM considers all donors of $5 or more to be members of NOM. (Brown Dep. 93: 18?21) NOM also sends some email communications newsletters) to other members of the public who have provided their email address as part of taking an action on website (9g, sending an email to a legislator). (Brown Dep. 26 In Nar?l Org. for rl/Iarriage, Inc. v. McKee, the US. District Court upheld the constitutionality of the ballot question committee statute, 21-A M.R.S.A. 1056-B. 765 F.Supp.2d 38, 49-52 (D. Me. 2011). The court found that the law was not vague or overbroad in requiring ballot question committees to disclose two different categories of donations, which the statute de?ned as ?contributions.? Id. at 49?52, upholding On appeal, NOM argued that these two categories of contributions were unconstitutionally vague, leaving NOM and other political groups unsure which donations they would need to disclose in campaign ?nance reports ?led with the Commission. The US Court of Appeals for the First Circuit rejected this argument and found that Paragraphs (C) of Section 1056B provided NOM with ?fair warning? of those donations which NOM would be required to report as ?contributions.? 669 F.3d at 50 (attached). In reaching this holding, the court analyzed the solicitation language in six of emails which discussed the Maine referendum.21 The court found that the solicitations in all six emails were clearly covered by Section (C) and that those categories were not unconstitutionally vague. Id. at 45-49. I Applying the same analysis used by the U.S. Court of Appeals for the First Circuit, the Commission ?nds that NOM received ?contributions? as de?ned by Section (C) from fundraising emails it sent discussing the Maine referendum. The total amount collected as a result of these 12 emails apparently cannot be determined. NOM states that due to technical limitations in its ability to track responses to speci?c emails, it is unable to determine how much money it received in response to the emails it sent on June 12 and September 4, 2009.22 21 The emails analyzed by the Coult of Appeals were dated May 6, May 8, July 10, July 31, August 28, and September 4, 2009. 22 When Brian Brown was deposed for the federal litigation, he explained that NOM used software provided by its vendor, Kintera, to distribute emails, updates, newsletters, and alerts. He said that NOM had the capability through the Kintera software to track the amount of donations received in response to each email through codes included in the emails (Brown Dep. Nevertheless, when responding to investigative requests in 2013, NOM stated in April 2013 letters from its legal counsel that amounts of money received in response to certain of its emails ?were not tracked? due to technical limitations in the Kintera software (April 3, 2013 letter, at 3; April 12, 2013 letter, at 2). NOM explained that it ultimately developed its own tracking system, but that system was not fully implemented in 2009. 27 Contribution . . . Amount under Date Solicitation Language Raised A) Your support today will allow us to start the referendum process immediately when the law is signed, ensuring that the 5/6/09 measure does not take effect before the people of Maine have (Doc. had their say. Can you afford a gift of $35, $50 or $100 $2,469 (B) 377-73) today to help stop same-sex marriage not just in Maine, but in New Hampshire, Iowa, and other states as well? Please use this hyperlink to make a secure online donation today! 5/8/09 You can fight back! Can you help defend marriage in Maine (DOC. and across the country, by donating $10, or even, if God $1305 5 (B) 879_81) has given you the means, $100 or $500? The National Organization for Marriage worked hard with StandforMarriageMaine to make this happen. But it could 7/10/09 not have happened without your help! You are the ones who (Doc. made this and we need you to help secure this $350 (B) 967-63) victory. Can you help us with $10, $25, or $100 so that Maine - and our country can recover the true meaning of marriage? I. Thanks to you, NOM was able at very short notice to go to Maine and help Maine leaders put together this extraordinary 7/31/09 effort. NOM helped with our expertise, experience and relationships, but it is your ?nancial sacrifices which have 0300' made our initial victory possible. When you donate to NOM, $255 (B) (C) 9924004) you?re creating the next round of good news! Can you give $25, or even $100 today to win the next victory for marriage? 8/28/09 Help us fight to protect marriage in Iowa, Maine and (DOC. everywhere across this great land donate today! $3 9 5 (3) 1041-47) Money is going to be critical to getting the message out; the . campaign needs to make ad buys this week, so if you can 9/4/09 possibly spare just $10 or $100 this week, do not give it to Not, (Doc. me go to StandforMarriageMaine.com and ?ght back! r6001. de (B) (C) 1166-68) We are going to ?ght hard to protect marriage and religious liberty in Maine and throughout this great country. Thank you for all you do to make the Truth heard loud and clear! 28 (And don?t forget to donate what you can to StandforMarriageMaine at this crucial time!) Contribution Date Solicitation Lan a Amount under g? Raised A) If it?s Tuesday this must be Maine. I know it?s Maine 5/15/09 because I saw a moose! (DOC- We will fight to be your voice in New Hampshire, Maine $570 (C) 886-38) . (more on that next week) Iowa, New York, New Jersey, DC. and all across this great and God-blessed country of ours. 5/22/09 I?m back in Maine today we?ll keep you updated on progress in building the coalition to push back gay marriage in Maine. We will need your help all the help you can $285 (B) 893-97) Spare! 6/12/09 To help us in Maine and all 50 states, can you make a (DOC donation? Whether it?s as little as $5 a month or, if Not (B) God has given you the means, $100 a month, your money recorded 926'30) makes a difference in the battles ahead. This spring, out of touch politicians in Maine pushed a same- sex marriage bill through the legislature ignoring the will of constituents. With your help, the people of Maine will 7/8/09 have the chance to vote up or down on the same-sex marriage (DOC bill this November $0 (C) 96 8 Make an online donation at StandforMarriageMaine.com to 7' make sure we have the resources needed for collecting tens of thousands of signatures in a short window of time. Your donation of $20, $35, or $50 or more will help ensure success! If we want really good news to come out of Maine, we?ll need your help all the help you can give us. We?ll need 7/17/09 your prayers, your vocal support, and your ?nancial (Doc. sacri?ces. I know these are tough times. . .but we have tough $40 (B) 967-73) battles ahead. Whether you can spare $5 or $500, we will work to turn your money into positive, pro-marriage headlines. 8/7/09 Will you stand with us today? Use this hyperlink to help (DOC. support work not only in Maine but around the $60 (3) 101 0_14) country, wherever the need arises. 29 NOM continued to send emails to its subscribers during September and October 2009, updating them on the organization?s efforts to support the Maine referendum. During the period of September 11 October 30, 2009, NOM sent another six emails discussing the Maine referendum. After the Commission voted on October 1, 2009 to investigate fundraising, the organization?s emails discussing the Maine referendum directed potential donors to the fundraising website of Stand for Marriage Maine, rather than NOM. Contribution Date Solicitation Language ligg?gt 1322f?(2_ A) If God has given you the means, can you step forward to help 9/11/09 us replenish our coffers? We are the largest single donor to the (Doc. effort to protect marriage in Maine. We are the only national recogded (B) 1053,62) organization fighting to protect marriage in New York and New Jersey. And we need your help to ?ght for your values. if you would like to honor Maggie [Gallagher], and fight back 10/2/09 against Fred Kargers of the world??do not give money to me an Maggie or NOM. Give it to Not (DOOM StandforMarriageMaine.com. Maine is the frontline of the recorded (B) 1169'73) battle for marriage and we all need to come together to win. Can you give $10 today for StandforMarriageMaine.com? (To help in Maine, you need to give directly to StandforMan'iageMaine.com. Whether you can five $15, $150 or, if God has given you the means, even more, know that Stand for Marriage Maine can use all the help you can give M. This is a fight we can win!) 10/9/09 .. (Doc. And I ask you for the sacrifice of your time and your treasure ragged (B) (C) 1174-79) in this great cause--usually forNOM. But not this week. No, as crucial as the fights are in DC, New York, New Jersey, and nationally, Maine is our number one priority. So we are asking: If you have $5 to spare this week for marriage, do not give it to us. Give it to StandforMan?iageMaine.com right here. Let me be direct: Unless we act now, marriage will be redefined 10/15/(DOC. 1n Mame. . I you to read the powerful e-mail below $0 (B) (C) 1180_81) from my friend. Marc Matty, chairman of Stand for Marriage Maine, and to think long and hard about what marriage is worth 30 to you. . .and then to give whatever you can today to Stand for Marriage Maine to protect this precious institution. . . .If we don?t act now we risk losing the most important state battle since California. The other thing that Maine needs is your ?nancial support, if 10/22/09 you can afford it in these tough times. Don?t give money to NOM today Give it to Maine. Give $100 to Maine. Give $1 $0 (B) (C) 1 18283) to Maine. In Maine, we have a historic chance to demonstrate once again that even in a heavily Democratic and secular state like Maine, the people are not for gay marriage. In Maine the polls are very 10/30/09 close. The gay-marriage movement's tactics of intimidation and (DOC. harassment are stepping up. These tactics are deliberately . (B) 1184_88) desrgned to discourage and punish anyone who speaks up for ?3001' God's truth about marriage-40 misuse the law to treat the millions of good Americans who care about marriage like evil racists and discriminators. Although some of emails after September 4, 2009 did direct readers to the website of Stand for Marriage Maine, it is possible that NOM received funds from these emails if NOM subscribers clicked on the prominent red Donate button at the top of the email, which was linked to own fundraising page. When asked to disclose how much money NOM received in reSponse to these six emails, NOM replied $0 for the October 15 and 22, 2009 emails and that amounts could not be ascertained for emails dated September ll, October 2, October 9, and October 30, 2009. (April 3, 2013 letter from counsel, at 4, 6.) So, the emails sent by NOM after September 4, 2009 may have resulted in receipt of contributions as de?ned by 2l~A M.R.S.A. (C), but the available evidence is inconclusive. which exceeds the $5,000 threshold requiring ballot question committee registration and reporting. NOM contends that the email dated May 15, 2009 which generated $570 in The revenues known to have been generated by the above listed emails total $5,479, donations should be excluded because it makes no explicit reference to the Maine referendum campaign. NOM contends, therefore, that the email solicitations did not exceed the $5,000 threshold. A majority of the Commission ?nds that the May 15 email, like the August 28, 2009 email discussed by the First Circuit Court of Appeals, contains a message that could lead a reasonable contributor to believe that donations made in response would be used speci?cally for the purpose of in?uencing the Maine referendum campaign. See Nat Org. for ilearriage, Inc. v. 31 the purpose of in?uencing the Maine referendum campaign. See New?! Org. for rJ/Iarriage, Inc. v. McKee, 669 F.3d at 46.23 Under the objective test as explained by the court, therefore, those donations are contributions under Id. at 46-48. NOM also argues that the donations received'in response to the above?listed emails must be pro?rated to re?ect the percentage of the solicitations that discussed the Maine campaign. The Commission rejects the pro-rating argument for the reasons set forth in the staff?s reply memorandum of May 16, 2014, at pp. 6?8. 8. Findings relating to Penalties The Commission is unable to determine the precise date on which NOM ?rst raised in excess of $5,000 for the purposes of initiating or promoting the Maine referendum, but the Commission finds that NOM had an obligation to register as a ballot question committee by the end of July 2009 at the latest. (See staff?s investigative report at p. 33.) NOM was obligated, therefore, to ?le an 11-day pro-election and a 42?day post-election campaign ?nance report, pursuant to M.R.S.A. and It also should have ?led four 24?hour reports of single expenditures due in the last 13 days before the election, pursuant to 21-A M.R.S.A. Ballot question committees are generally required to file quarterly campaign ?nance reports, in July, October, January and April of each year. For the reasons set forth in the staff?s investigative report (at p. 34), the Commission ?nds that NOM was not required to file a quarterly report on July 15, 2009 or on October 13, 2009. No evidence has been produced in this investigation to show that NOM received more than $5,000 for purposes of promoting the Maine referendum after the November 2009 election. Contributions to the Stand for Marriage Maine PAC in May 2010 and May 2011, which were used by Stand for Marriage Maine to retire its debts from the 2009 referendum campaign, appear to have been made by NOM from general treasury funds that were not raised for this purpose. Accordingly, the Commission ?nds that NOM was not obligated to file quarterly reports in 2010 or 201 l. 23 Commissioner Healy does not join in this ?nding. 32 IV. Conclusions of Law24 Based on the above ?ndings of fact, and consideration of all legal arguments presented, the Commission concludes that: A. NOM violated M.R.S.A. 1056-B by receiving contributions aggregating in excess of $5,000 for purposes of initiating or promoting the 2009 people?s veto referendum and failing to register and ?le campaign ?nance reports as a ballot question committee. B. Donations received by NOM in response to solicitations distributed by electronic mail from NOM to its subscribers and members during the period from May through at least September, 2009 constituted ?contributions? under M.R.S.A. and/or (C). C. Donations received by NOM from major donors, such as Donors 9, 10, 11 and 12, during the period from May through November, 2009, constituted ?contributions? under 21-A M.R.S.A. and/or D. NOM violated 21-A M.R.S.A. by failing to ?le the following campaign ?nance reports when they were due: Type of Report Deadline Report period Content 11-day pre-election 10/23/2009 Beginning of campaign - Ali contributions and expenditures to report 10/20/2009 in?uence the election 24?hour report 10/24/2009 10/23/2009 Expenditure of $100,000 made on 10/23/2009 24-hour report 10/27/2009 10/26/2009 Expenditure of $40,000 made on 10/26/2009 24?hour report 10/28/2009 10/27/2009 Expenditure of $160,000 made on - - 10/27/2009 24?hour report 10/30/2009 10/29/2009 Expenditure of $40,000 made on 10/29/2009 42-day post- 12/15/2009 10/21/2009 12/8/2009 All contributions and expenditures to eiection report in?uence the election E. NOM was not required to ?le campaign ?nance reports during 2010 and 2011. 2? The Commission?s conclusions were based on a unanimous vote of Commissioners Walter F. McKee (Chair), Andre G. Duchette, Margaret E. Matheson, and Michael T. Heaiy, except as noted. Commissioner iane A. Amero was unable to participate in the May 28, 2014 meeting. 25 Commissioner Healy concurs in this conclusion only as to 33 V. Order Based on the above ?ndings of fact and conclusions of law, the Commission hereby orders and directs NOM to do the following: 1. Within thirty (30) days of receipt of this determination, register as a ballot question committee for its activities in support of the 2009 people?s veto referendum and ?le a consolidated campaign ?nance report for calendar year 2009. This report must include the name, address, occupation and principal place of business of all contributors who made contributions to NOM exceeding $100 for purposes of initiating or promoting the people?s veto referendum on same-sex marriage in 2009, including the contributions which the Commission has determined meet the definition of ?contribution? in 21-A M.R.S.A. The report must also include all expenditures made for the purpose of initiating or promoting the people?s veto referendum; 2. For failure to register as a ballot question committee in 2009 as required by M.R.S.A. pay a penalty of two hundred and fifty dollars ($250.00) pursuant to 2l-A M.R.S.A. and 3. For failure to ?le the following campaign reports as a ballot question committee in 2009, in accordance with 21-A M.R.S.A. 1056-B, 1059 and 1060, pay the following penalties totaling ?fty thousand dollars pursuant to 2l-A M.R.S.A. Filing Deadline Penalty 10/23/2009 (1 1?day pre-election report) $10,000 10/24/2009 (24?hour report) $10,000 10/27/2009 (24-hour report) $5,000 10/28/2009 (24?hour report) . $10,000 10/30/2009 (24?hour report) $5,000 12/15/2009 (42-day post-election report) $10,000 oat. day of June, 2014. Dated at Augusta, Main? Walter F. McKee, Chair Commission on Governmental Ethics and Election Practices 34 NOTICE OF APPEAL RIGHTS: Any person aggrieved by this ?nal determination has a right to seek judicial review by ?ling a Petition for Review in Superior Court, within 30 days of receipt of the determination, in accordance with 5 M.R.S.A. 11001 11002 and Rule 80C of the Maine Rules of Civil Procedure. 35