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National Organization for Marriage’s challenge to New York election law reinstated by Second Circuit


By Scottie Thomaston

The National Organization for Marriage (NOM) will be allowed to challenge a New York campaign finance disclosure law after a ruling yesterday by the Second Circuit Court of Appeals. Under New York law, political advocacy groups that fall under the statutory definition of “political committee” are required to make certain disclosures including the names of their donors and certain financial information. NOM filed a challenge to the law in federal court in 2010, arguing that the law’s requirements for political committees would chill speech. The district court dismissed the lawsuit, pointing out that NOM never attempted to communicate with New York election officials to determine whether or not they are a “political committee” under state law. Without that determination, the district court said, the lawsuit is premature.

In a 2-1 decision yesterday, the Second Circuit overturned that decision and sent the case back to district court:

The ruling by the 2nd U.S. Circuit Court of Appeals in Manhattan will force a lower court to address whether a New York state election law that requires some political advocacy groups to disclose financial donors and other sensitive information curbs speech.

A three-judge panel of the appeals court, in a 2-1 decision, reinstated a lawsuit by the National Organization for Marriage (NOM) against officials from the New York State Board of Elections. The Washington-based nonprofit organization had sought a declaratory judgment in 2010 that a state election law defining “political committee” violated the First Amendment.

The appeals court said that NOM’s fear that they may be a political committee could indeed chill their political speech:

But Circuit Judge Peter Hall, writing for himself and U.S. District Judge Loretta Preska, said in Monday’s decision that the group “wanted expressly to connect its speech to particular candidates and elections.”

“We thus give credence to NOM’s assertion that it ‘fears it is a political committee under New York law,’ which ‘chills (NOM) from proceeding with its speech,'” Hall wrote.

A dissenting judge wrote that allowing the case to move forward could lead to a broad constitutional ruling on the issue of political speech, and that could easily be avoided if NOM were to ask the state Board of Elections if it is a political committee under the law.

NOM has filed several of these types of cases over the years, in order to prevent the disclosure of the names of their donors while allowing the organization to engage in extensive lobbying efforts in several states to defeat proposed same-sex marriage laws and support ballot initiatives banning marriage equality. They’ve been largely unsuccessful. And the Supreme Court has denied petitions for certiorari in some of their challenges, leaving some rulings upholding campaign transparency requirements intact.

Since the challenge is not premature, according to the Second Circuit, the district court will now have to decide if the New York law has a chilling effect on free speech, or if it is a permissible regulation of political campaigns. The Board of Elections in the state has still not been asked to determine whether NOM is a political committee or not, though the answer would resolve this challenge without involving the federal court system in the dispute.


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