More Secret Spending in the Fight Against Equality

Once again, the fight against marriage equality begins with the fight against disclosure.

In November 2012, Minnesota voters will be asked to vote on a constitutional amendment that defines marriage as the “union of one man and one woman.” Supporters and opponents both predict an expensive election campaign fight about LGBT rights and marriage equality. And not surprisingly, the opponents of marriage equality are already taking aim at Minnesota’s disclosure laws, and fighting to ensure that their political fundraising and spending can be done in secret.

Minnesota law already bans gay marriage. But marriage equality opponents claim that an amendment to the state constitution is needed to prevent the issue from being decided in the courts. The state’s Republican-controlled legislature passed the marriage amendment last month — amid reports that Minnesota’s GOP caucus was promised millions of dollars in campaign contributions if they successfully placed the amendment on the 2012 ballot.

Now, the lawyers for the National Organization for Marriage (who have been leading the fight against disclosure throughout the country) have started lobbying state authorities to weaken disclosure rules — and threatened litigation if they aren’t able to raise and spend millions of dollars in secret.

What do they have to hide? If past campaigns are any indication, NOM and its allies may not want Minnesota voters to know about their reliance on out-of-state money as they launch a political campaign that is estimated to cost between $4 million and $6 million. After all, voters are already telling reporters that they “can’t imagine anything worse than having millions of dollars pouring into the state to pay for ads that hammer us with manipulation and lies” — and the campaign hasn’t even begun. 

Fortunately for voters, the State of Minnesota can require robust disclosure from both sides of the upcoming campaign. As the Brennan Center explained in a letter to the Minnesota Campaign Finance and Public Disclosure Board, there is simply no merit to NOM’s claim that Minnesota lacks full authority to require disclosure just because this is a ballot campaign. The legislative floor fight has already illustrated the stakes here. Ballot campaigns can be just as expensive as candidate elections. Indeed, referenda like the one in Minnesota often are pushed in order to lift the fortunes of political candidates and elected officials who come out to vigorously support or oppose the ballot issues. There will be plenty of opportunities in Minnesota for heavy spending to raise the specter of corruption and undue influence — and voters have a right to know where all the money is coming from.

Marriage equality opponents don’t have a credible First Amendment claim saying otherwise. The Supreme Court has repeatedly endorsed the value of disclosure in both candidate and ballot elections, recognizing that information about political spending can be critical to a voter’s decision on Election Day. Voters who are undecided about the ballot measure will benefit from knowing about the forces arrayed on either side of the issue, including who is raising money from Minnesota voters and who is raising money from out-of-state groups. As the Supreme Court explained in Citizens United, transparency in political spending is necessary because it “enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Despite the clear constitutional authority in favor of disclosure, its opponents continue to pull out all the stops. At a recent Minnesota Campaign Finance Board hearing (and in media interviews afterward), one of NOM’s lawyers even had the temerity to argue that corporations should be excluded from disclosure rules that apply to “associations” under Minnesota law because a corporation is a single “legal person” — whereas “associations” involve more than one person. This argument not only defies common sense — it is also wholly foreclosed by Citizens United. Despite common misconceptions, Citizens United never held that a corporation has First Amendment rights because it is like a “person,” or even a “legal person.” To the contrary, Citizens United expressly and repeatedly based its First Amendment analysis on the definition of corporations as associations of people. That opponents of marriage equality are desperate enough to take positions this specious proves they’re out of real, valid arguments to support their cause.

NOM and its allies are trying to eat their cake and have it too — now that they’ve won more robust First Amendment rights for corporations, they are actually trying to pretend that corporations are people like you and me. It’s too bad they won’t offer the same human rights to gay and lesbian Minnesotans.