National Organization for Marriage v. Walsh

On May 9, 2011, the Brennan Center joined Common Cause/NY and Citizens Union in submitting an amicus brief to the Second Circuit Court of Appeals. The groups urged the appellate court to uphold the constitutionality of New York’s long-standing disclosure requirements for political committees, and to affirm a district court opinion dismissing the complaint and denying the motion of the National Organization for Marriage for a preliminary injunction. The Second Circuit amicus brief was drafted by pro bono counsel at Arnold & Porter.

The amicus parties explained to the Court of Appeals that organizations seeking to influence elections in New York have successfully complied with the state’s “political committee” requirements for over 35 years. These disclosure and reporting requirements provide valuable information for New York State voters. As the amicus brief argued, NOM “would have this Court destroy the transparency created by Article 14 [of New York’s Election Law] and permit special interests to finance elected officials in secret. Doing so would be bad law and bad policy.”

The full amicus brief can be found here.

Case Summary: This case concerns the National Organization for Marriage’s desire to engage in advertisements and direct mailings in New York concerning the issue of same-sex marriage. NOM was incorporated “[t]o promote the importance of preserving marriage as the union of one husband and one wife [and to] advocate for policies that will preserve the historic definition of marriage and the natural family that springs therefrom, as well as the rights of the faith traditions that support and sustain the foregoing.” On September 16, 2010 Plaintiff’s filed suit to prevent the New York State Board of Elections from classifying it as a “political committee”, in order to avoid various disclosure and reporting requirements. The Brennan Center has argued that, contrary to plaintiffs’ claims, New York state’s very basic accounting and reporting requirements for political committee status are in no way vague or overbroad, and impose no chilling effect on speech.

District Court Proceedings: The Brennan Center previously filed an amicus brief (with pro bono partners Ropes & Gray) during the district court proceedings to defend New York State’s accounting and reporting requirements for political actions committees.

The amicus curiae brief filed by the Brennan Center explained to the district court that NOM cannot succeed on the merits of its claim that portions of New York’s Election Law are unconstitutional:

As the briefs of the State Defendants and of amici curiae Common Cause for New York and Citizens Union (“Amici”) lay out in detail, the very basic accounting and reporting requirements for political committee status are in no way vague or overbroad, and impose no chilling effect on speech. Rather than repeating the arguments of the State Defendants and Amici, however, this opposition addresses (1) the lack of irreparable  harm to NOM; (2) the severe harm to the public’s and to New York’s interests if political spenders are permitted to cloak their influence in secrecy, and (3) the remedies to cure any constitutionally suspect portion of a statute – namely, a narrowing construction or severance – that would address any potential invalidity and, at the same time, preserve the intent of the state legislature and the prior statutory interpretation of the New York state courts.

Related Court Documents

Brennan Center Amicus Brief to District Court (10/18/10)

District Court Decisions (12/25/10)

Second Circuit Amicus Brief of Common Cause/NY, Citizens Union and Brennan Center (5/9/11)