Ethics board to investigate National Organization for Marriage spending on retention votes

The Iowa Ethics and Campaign Disclosure Board voted unanimously on August 8 to investigate the National Organization for Marriage's spending in Iowa during the 2010 and 2012 judicial retention elections. Details are after the jump.

UPDATE: Added details below on the National Organization for Marriage demanding that the ethics board's executive director recuse herself from any investigation.

The National Organization for Marriage has spent millions of dollars in various state elections to block same-sex marriage rights, but does not disclose its doors. In Iowa, the National Organization for Marriage spent hundreds of thousands of dollars on television advertising and bus tours urging voters not to retain Iowa Supreme Court justices who concurred with the 2009 Varnum v Brien decision on marriage.

In June, Fred Karger of the LGBT advocacy group Rights Equal Rights filed a two-pronged complaint with the Iowa Ethics and Campaign Disclosure Board. Scroll to the end of this post to read the full text of his complaint. IECDB Executive Director Megan Tooker summarized the key allegations via e-mail:

Iowa Code section 68A.404 governs independent expenditures.  It states that groups such as NOM are not required to disclose their donors unless the donation(s) was given for "the purpose of furthering the expenditure" or what we call earmarked funds.  Regardless of whether independent expenditure groups have to disclose their donors, they are required to file a report with the Board whenever they make an independent expenditure, which is defined as an expenditure for a communication that costs more than $750 that expressly advocates for or against an Iowa candidate or ballot issue.  Those reports are required to be filed within 48 hours of the expenditure.  The Board ordered an investigation into the complaint which brought up two issues: 1) whether NOM accepted earmarked funds for its Iowa campaigns in '10 and '12 and then failed to disclose those funds in its reports to the Board and 2) whether NOM made any independent expenditures in Iowa that it failed to report.

The National Organization for Marriage takes the (inaccurate) position that Iowa law allows them not to disclose their donors. Iowa Ethics and Campaign Disclosure Board members were not convinced and will look further into the facts Karger raised.

The outcome of this investigation may affect outside spending during the next round of retention votes. No Iowa Supreme Court justices are up for retention in 2014, but three of the justices who were on the court in 2009 will be on the ballot in 2016: Chief Justice Mark Cady (author of the Varnum v Brien decision), Daryl Hecht, and Brent Appel. Iowans ousted three state Supreme Court justices in 2010. Given that Justice David Wiggins was retained in 2012, I doubt Cady, Hecht and Appel will have much trouble in 2016.

On a related note, the Federal Elections Commission is investigating Karger's complaint alleging that the National Organization for Marriage provided $1 million to the FAMiLY Leader in exchange for Bob Vander Plaats endorsing Rick Santorum for president before the 2012 Iowa caucuses.

Full text of complaint Fred Karger filed with the Iowa Ethics and Campaign Disclosure Board:

The National Organization for Marriage (NOM) violated Iowa Code Section 68A.404(3)(a)(2) by making independent expenditures in excess of $750 in Iowa for the purposes of the 2010 judicial retention election with donations made for the purpose of furthering this specific independent expenditure without disclosing the source of their funding.

June 12, 2013

Megan Tooker

Iowa Ethics and Campaign Disclosure Board

510 East 12th Street, Suite 1A

Des Moines, IA 50319

Re: National Organization for Marriage

Dear Mrs. Tooker,

I would like to file a formal complaint against the National Organization for Marriage (NOM) for violations of Iowa's campaign laws in the 2010 and 2012 judicial retention elections. In both campaigns, NOM engaged in express advocacy without disclosing donors and specific in-kind contributions made in furtherance of their campaign against Iowa's judges.

Complaint One: The National Organization for Marriage (NOM) violated Iowa Code Section 68A.404(3)(a)(2) by making independent expenditures in excess of $750 in Iowa for the purposes of the 2010 judicial retention election with donations made for the purpose of furthering this specific independent expenditure without disclosing the source of their funding.

The National Organization for Marriage has a long history of refusing to disclose its donor's names as required by state and federal law and NOM is under a nearly four year investigation in Maine for not reporting the names of its donors after it gave $1.9 million or 2/3 of all the money raised to pass Question 1 in that state's November 3, 2009 anti-gay marriage election.

In Maine an organization is required to disclose its contributor's names after it raises or spends $5,000 for an election.  NOM claimed that it had the $1.9 million in its general fund, which was not true after donation records were subpoenaed by the Maine Attorney General, it was revealed that at least $1.7 million of the money came in to NOM during the month of October only weeks before the election in three separate checks; one for $1 million, one for $400,000 and one for $300,000.

In California where NOM was the largest donor to the Yes on Proposition 8 campaign in 2008, the California Fair Political Practices Commission (FPPC) has been investigating NOM's failure to report $345,000 for over a year in money it raised to pass Prop 8, that state's anti-gay marriage law.

It certainly appears that NOM did exactly the same thing in Iowa in advance of the November 2, 2010 Supreme Court Judicial Confirmation Election.

NOM did not even file its first report of the nine it eventually did file until September 13, 2010, even though it had been working on the campaign well prior to that date.

NOM's Iowa filings never listed where it got its money from, which totaled $635,627.95 in 2010.  Just as it did California and Maine during the two preceding years, it is highly unlikely that NOM had this much money just sitting in its bank account, but instead raised it specifically for the campaign it ran and funded to remove three Iowa Supreme Court Justices from office.

If these funds were raised through calls and emails for the specific purpose of furthering the removal of Iowa Supreme Court Justices from office, those donations should have been disclosed to the Iowa Campaign and Ethics Disclosure Board, and the lack of disclosure is a clear violation of  Iowa Code section 68A.404(3)(a)(2).

Independent Expenditure Filings by NOM (copies attached):

https://webapp.iecdb.iowa.gov/...

September 13, 2010          $ 235,037.00

October 19, 2010            $ 200,000.00

October 24, 2010            $  60,000.00

October 24, 2010            $  20,000.00

October 24, 2010            $   3,071.00

October 28, 2010            $  90,000.00

October 28, 2010            $   6,613.02

October 29, 2010            $  15,691.39

October 29, 2010            $   5,215.54

Total                       $ 635,627.95

Complaint Two: The National Organization for Marriage made in-kind contributions of time and travel to assist Bob Vander Plaats and the Family Leader's "No Wiggins" campaign in their efforts in the 2012 judicial retention election, and did not disclose those in-kind donations in violation of Iowa Code Chapter 68A.201A.

NOM's Unreported Involvement in the 2010 Iowa Judicial Retention Election

August 11 2012 Brian Brown, the President of the National Organization for Marriage flew to Iowa to be at the Iowa Retention Campaign Kickoff and announced NOM would match up to $100,000 in donations for the retention campaign:  http://caffeinatedthoughts.com...

NOM did not report Brian Brown's travel to and participation the Iowa Retention Campaign Kickoff.

August 13, 2012, The National Organization for Marriage's official blog, NOMBlog, begins to campaign against Justice Wiggins:  NOM Pledges $100,000 to Defeat Pro-SSM Iowa Judge.

http://www.nomblog.com/26874/

How much does NOM pay a staff member to blog?

How many readers does NOM's blog usually receive?

Why did NOM not report the in-kind contributions for this Anti-Wiggins communication on their official blog?

September 7, 2012: The National Organization for Marriage posted Brian Brown's speech at the No Wiggins Kickoff on its official YouTube page video about judicial retention http://www.youtube.com/watch?v...

How much did NOM pay for the equipment and the videotaping of this video?

There are multiple camera angles and the ending has been edited.  How much did NOM pay for the editing of this video?

This is a campaign communication that has been viewed by thousands of people, how much would that cost in in-kind contributions?

September 21, 2012: The National Organization for Marriage sent an email to all its members, communicating the need "to oust Judge Wiggins" and asks for members help to oust Judge Wiggins. (email attached to this complaint)

"In Iowa, we've helped launch the "No Wiggins Bus", as the Sioux City Journal recently noted. Our special thanks go out to Sen. Rick Santorum and Gov. Bobby Jindal for joining the effort to oust Judge Wiggins, one of the Iowa judges who voted to impose gay marriage on the people of Iowa without their consent!

... "The judiciary's usurpation of authority in recent years is completely unacceptable," Santorum said in a statement. "It is obviously clear the people's Constitution gives the judicial branch the least power, and yet these appointed judges continuously legislate from the bench whether it is gay marriage in Iowa, collective bargaining in Wisconsin, or resulting in the death of millions of lives caused by the opinion of Roe v. Wade."

The "No Wiggins" bus tour-sponsored by CitizenLink, Patriot Voices, the Family Leader, the National Organization for Marriage and CatholicVote.org-seeks to mobilize opposition among Iowa voters to oust Wiggins.

You will remember that in 2010 the first three judges who invented a right to gay marriage in the Iowa Constitution came up for election-and for the first time in history, Iowa voters turned out all three!  It will be a tougher battle this time, as pro-gay marriage money will swarm the state. But with God's help, and yours, we will stay in this fight, too-and win!"

The National Organization for Marriage claims to have more than 2 million members.  How much does a campaign email to more than 2 million individuals cost?

How many of NOM's email list members are Iowa voters?

Why did the National Organization for Marriage not report the in-kind contribution for this email to its millions of members?

September 23, 2012: The National Organization for Marriage was a part of the No Wiggins bus tour which began on September 24.  NOM did not report its involvement in the Iowa bus tour until September 26.  http://caffeinatedthoughts.com...

When did Brian Brown and other NOM staff members actually arrive in Iowa?

When did Brian Brown and other NOM staff members actually purchase tickets to Iowa?

When did NOM pay for its involvement in the No Wiggins bus tour?

September 27 2012: The Official National Organization for Marriage official YouTube page uploaded a video of Louisiana Governor Bobby Jindal urging voters to vote against Justice Wiggins.  http://www.youtube.com/watch?v...

How much did NOM pay for the equipment and the videotaping of this video?

How much did NOM pay for the editing of this video?

This is a campaign communication that has been viewed by thousands of people, how much would that cost in in-kind contributions?

September 29, 2012: The official National Organization for Marriage Blog, NOMBlog, posts updates about the No Wiggins campaign and includes the video they made of Louisiana Governor Bobby Jindal urging voters to vote out Justice Wiggins.  The Blog post includes this official legal language:  "Paid for by National Organization for Marriage, 2029 K Street NW, Suite 300, Washington, DC, Brian Brown, President. Not authorized by any candidate, candidate's committee, or ballot issue committee."     http://www.nomblog.com/28641/

How much does NOM pay a staff member to write this blog?

How many readers does NOM's blog usually receive?

Why did NOM not report the in-kind contributions for this Anti-Wiggins communication on their official blog?

October 1, 2012: The Official National Organization for Marriage official YouTube page uploaded a video of NOM President Brian Brown urging voters to vote against Justice Wiggins.  http://www.youtube.com/watch?v...

How much did NOM pay for the equipment and the videotaping of this video?

How much did NOM pay for the editing of this video?

This is a campaign communication that has been viewed by thousands of people, how much would that cost in in-kind contributions?

October 10, 2012: The National Organization for Marriage created this "Best of No Wiggins Reel" and uploaded it to its official blog.  After the video, it clearly states that this video is "Paid for by National Organization for Marriage, 2029 K Street NW, Suite 300, Washington, DC, Brian Brown, President. Not authorized by any candidate, candidate's committee, or ballot issue committee."    http://www.nomblog.com/29136/

How much did NOM pay for the equipment and the videotaping of this video?

How much did NOM pay for the editing of this video?

This video contains a pop/country song.  How much did the National Organization for Marriage pay for the rights to use this song in its video?

This is a campaign communication that has been viewed by thousands of people, how much would that cost in in-kind contributions?

November 6, 2012: The National Organization for Marriage sends an email to all its members explicitly telling them to Vote No on Wiggins:  "In Iowa, vote NO on retaining pro-gay marriage Judge David Wiggins" (email attached to this complaint)

The National Organization for Marriage claims to have more than 2 million members.  How much does a campaign email to more than 2 million individuals cost?

How many of NOM's email list members are Iowa voters?

Why did the National Organization for Marriage not report the in-kind contribution for this email to its millions of members?

Each of these activities appears to constitute an in-kind contribution to Bob Vander Plaats' and the Family Leader's "No Wiggins" campaign that were not reported to the Iowa Campaign and Ethics Disclosure Board in violation of Iowa Code Chapter 68A.201A.

I respectfully request a thorough investigation into NOM's activities in the 2010 and 2012 Iowa judicial retention election, including a detailed accounting of any and all in-kind contributions made, and the specific funding sources thereof.

Thank you for your time and attention to this matter.

Sincerely,

_________________________________

Fred Karger

UPDATE: Sounds like the National Organization for Marriage are trying to work the refs by discrediting Tooker.

NOM's request demands that board Executive Director and General Counsel Megan Tooker be removed "from any involvement in handling the complaint" because she once served as a law clerk to former Supreme Court Justice Michael Streit, who was one of the three removed from office in 2010.

NOM also cited comments Tooker made to the Des Moines Register following last week's board meeting, in which she said NOM was "absolutely wrong" in its interpretation of state campaign finance law and that its assertion that donors could remain confidential when funds were raised via phone calls and emails was "absolutely false."

"The people of Iowa are entitled to the highest standards of ethical conduct and independence from the state's top ethics officer, but Megan Tooker has shown herself to be biased and incredibly unprofessional in her handling of the complaint against NOM," NOM President Brian Brown said in a statement.

If there were any substance to this demand, Brown would point to the language in the Iowa code that allegedly allows donors to remain secret if organizations raised money through e-mails and phone banks. Trouble is, such an exception doesn't exist.

SECOND UPDATE: The Iowa Senate released this statement on August 15.

Attempt to block investigation of possible campaign violations is unfounded

Two important legislative advocates for clean elections in Iowa have denounced an attempt to disqualify the director of the Iowa Ethics & Campaign Disclosure Board from investigating possible Iowa election law violations by a national anti-marriage equality group.

State Senator Jeff Danielson of Black Hawk, chair of the Senate State Government Committee, and Liz Mathis of Robins, chair of the Senate Appropriations Subcommittee on Administration and Regulation, issued the following joint statement on Thursday, August 15:

"The overreaching attack by National Organization for Marriage on Megan Tooker, the executive director of the Iowa Ethics Board, is entirely without merit.  Director Tooker's work as a legal clerk for former Supreme Court Justice Streit has nothing to do with the NOM's refusal to play by the same rules followed by everyone else involved in Iowa elections.  Iowans have the right to know if our state's clean election laws were violated by an out-of-state group funded by secret donors."

The law at issue in the case was Iowa's response to the controversial "Citizens United" ruling by U.S. Supreme Court.  When the top federal court eliminated many state and federal limits on campaign contributions, Iowa lawmakers responded by passing new laws requiring Iowa campaigns, including independent expenditures, to disclose the names of their donors.

The Iowa Ethics & Campaign Disclosure Board voted unanimously on August 8th to investigate whether NOM violated those Iowa laws by refusing to disclose the funders behind the organization's 2010 and 2012 campaigns against the Iowa Supreme Court justices who ruled in favor of marriage equality in 2004.  The ethics board acted in response to a complaint filed by former Republican presidential candidate Fred Karger.

NOM is now alleging that the Tooker, the ethics board's director, should be prevented from investigating the case because she once clerked for ousted Iowa Supreme Court Justice Michael Streit.

The board is expected to discuss and respond to the complaint against Director Tooker at a meeting sometime next week.

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