For several years the National Organization for Marriage has been at the forefront of a nationwide legal crusade to undo campaign finance laws, part of an effort to hide the sources of the anti-LGBT group's funding. Since 2008 NOM and its allies have unsuccessfully challenged campaign laws in California, Washington, Maine, New York, and Rhode Island. NOM's lawyer, James Bopp, has taken the crusade even further, initiating the Citizens United case that freed corporations to engage in independent political spending and helped give rise to super PACs. Bopp himself is the founder of several super PACs and has defended their use publicly and fervently.
So it comes as no small surprise that NOM's New Hampshire affiliate, Cornerstone Action, and the head of NOM's Ruth Institute recently took the exact opposite legal position, asserting that a new, Republican, pro-marriage-equality super PAC in New Hampshire is illegal. Last week Cornerstone filed a complaint with the Attorney General against New Hampshire Republicans for Freedom and Equality PAC, saying that a $100,000 contribution it received from Republican hedge fund manager Paul Singer violated New Hampshire's $5,000 contribution limit.
Upon filing the complaint, Cornerstone's acting executive director Shannon McGinley stated, "It's astounding to me how brazenly our political opponents have violated the law, and I trust that the Attorney General will take immediate action to make sure the New Hampshire Republicans for Freedom and Equality return the money to Mr. Singer and stop violating New Hampshire law." Jennifer Morse, the head of NOM's Ruth Institute, who is no stranger to engaging in illegal activity herself, commented, "It is a real shame their opponents are playing so dirty. I wish Cornerstone well in getting to the bottom of this, and putting a stop to any and all illegal activity."
Let's take a look at the allegations. The so-called "dirty" and "illegal" activities Cornerstone and NOM condemn are acts that have been expressly permitted -- in fact, protected as First Amendment speech -- by recent federal court decisions. In Citizens United v. FEC and a subsequent decision, American Tradition Partnership v. Bullock, the Supreme Court ruled that independent spending does not have a corrupting influence and that corporate expenditures cannot be prohibited in federal or state elections. In SpeechNow v. FEC, the D.C. Circuit relied on Citizens United and determined that contributions to PACs that only engage in independent activities cannot be limited, thus paving the way for super PACs.
Whether one agrees or disagrees with these decisions, unlimited independent spending is currently the law of the land. As a result, there is no question that New Hampshire Republicans for Freedom and Equality PAC has the right to accept unlimited contributions to engage in its independent activities supporting pro-equality candidates. It's no different than any super PAC in wide use across the country this election season.
In light of these court decisions, New Hampshire's Attorney General recognized that the state's $5,000 contribution limit was unconstitutional with regard to super PACs. In an August letter the Attorney General, upon reviewing Citizens United, instructed the Secretary of State to no longer to enforce the limit against super PACs like New Hampshire Republicans for Freedom and Equality PAC.
And so we enter the bizarro world. Refusing to accept either the court decisions that invalidated the law or the Attorney General's determination, Cornerstone filed its frivolous complaint with none other than the Attorney General. Cornerstone's McGinley told the Union Leader that "just because the Attorney General doesn't enforce the law doesn't mean the contribution isn't, in fact, illegal. What they did broke the law. Period." Stranger still is that Cornerstone, NOM's long-time New Hampshire partner, is asking the state to ignore court decisions that were initiated and advanced by NOM's own lawyer. Unfettered political spending as free speech (i.e., the "illegal activity" that Cornerstone and NOM's Ruth Institute complain about) has in fact become the lynchpin of NOM's legal crusade to dismantle campaign finance regulations across the country.
Is New Hampshire reflective of NOM's new national legal strategy? Are they and their partners joining campaign finance reformers fighting to get big money out of politics? Not likely. Rather, marriage-equality opponents' constitutional legal principles are endlessly shifting to best serve their latest political opportunities. And as a result, NOM's First Amendment right on one day is their opponents' so-called illegal act on another.