Last november the National Organization for Marriage, the chief opponent of equality in the battle for marriage, finally suffered defeat. Five defeats, to be exact: Maine, Maryland, and Washington approved statutes that would enable same-sex couples to enter a civil marriage; in Minnesota, voters rejected a proposed constitutional amendment that would have defined marriage as between one man and one woman; and in Iowa, the Supreme Court justice whom NOM targeted in a recall election retained his seat. The cause has now been taken up by so many straight allies that the pro-equality side has, at times, out-fund-raised NOM by nearly $5 to $1. The tide appears to have turned: NOM loses, in the wallet and at the ballot box.
And yet NOM still matters. This tiny organization, “with a mission to protect marriage and the faith communities that sustain it,” has been the primary funder and central strategist for all the recent defeats in marriage battles. It has dumped millions of dollars into all state campaigns related to marriage equality and will continue to do so. Its consultant, Frank Schubert, has orchestrated every antimarriage state campaign, crafting nearly identical television ads and websites based on identical talking points for every race. Its president, Brian Brown, has defined the terms of those campaigns, appearing to serve as each campaign’s finance or fund-raising director, in fact if not in name. And NOM works to disseminate and coordinate the ideology and language behind much of the opposition to marriage equality. More than 30 states still have laws and constitutional amendments that prohibit same-sex couples from marrying, which will need to be repealed, and NOM is the opponent that will influence how those fights will go.
NOM is a small and relatively new organization, born in 2007, with a very small circle of major funders. It centrally runs almost all the campaigns against marriage equality, with partner organizations in various states that appear to do little on their own. NOM puts its hundreds of thousands of dollars into state campaigns in ways that protect its donors from being identified. Its campaign finance philosophy is that the best defense is a good offense: With the help of James Bopp, the lawyer who brought the notorious Citizens United lawsuit to the Supreme Court, NOM has repeatedly launched lawsuits arguing that states’ campaign reporting laws are unconstitutional efforts to chill free speech, even though it has just as repeatedly lost.
Watching NOM closely is Fred Karger, a gay California Republican who believes that NOM is a secret cabal actively conspiring to undermine campaign finance laws. Karger writes to state election commissions to convince them of the same. At Karger’s prompting, California, Maine, and Minnesota are investigating NOM’s campaign finance tactics. Whether or not NOM actively evades campaign finance disclosure, its state campaign efforts are centrally directed and implemented, the very opposite of grassroots. And while it purports to carry its traditional-marriage-preserving message with bias towards none — officially, it says that while it is for its definition of marriage, it is not against lesbians and gay men — its educational arm privately disseminates nasty antigay ideologies based on discredited researchers’ hateful fantasies about gays and lesbians.
NOM’s Secret Funders
Each year, according to NOM’s tax filings, two or three donors give NOM between $1 million and $3.5 million apiece; another two or three give between $100,000 and $750,000; and 10 or so others give between $5,000 and $95,000. In 2009 the top five donors made up three fourths of NOM’s budget; in 2010 the top two donors gave two thirds of the year’s total donations; and in 2011 the top two donors gave three fourths of NOM’s total income. But those funders’ identities are a mystery. Their names are redacted on NOM’s federal tax returns. Under federal campaign laws, none of those names have to be disclosed.
But if, as Karger alleges, those donors are actually using NOM as a way to contribute to state issue campaigns, that would be illegal. The states in which NOM runs campaigns (via locally registered groups) require donors to publicly disclose their names and addresses and sometimes their employers. The allegation is that NOM establishes state campaign organizations against marriage equality as pass-through groups, with local partners that do little. NOM solicits major donations from its large contributors for these campaigns and donates to the local fights so that NOM, not the individual, will be listed as the donor. If true, that’s fraud and “financial structuring,” the technical term for money laundering. (Calls to the four state organizations asking for comment were not returned.)
For the marriage equality forces, things look different. Major donors such as Jeff Bezos, New York City mayor Michael Bloomberg, and Bill and Melinda Gates are listed as donors alongside groups like Freedom to Marry and the Human Rights Campaign. But NOM is overwhelmingly the primary donor to and central director of these local groups’ activities, with few or no other five- or six-figure donors. The television ads, websites, materials, and approach are all but identical from one local group to another; their websites are registered to Brian Brown and NOM.
Two calls in January to phone numbers listed for the anti–marriage equality campaign groups were answered by the local partner organization: The call to the Minnesota for Marriage phone number yielded a voice mail that said, “Hello, this is Pastor Evans at Christ Church Twin Cities.” A call to Protect Marriage Maine was answered by a woman who said, “Christian Civic League of Maine, may I help you?” Brian Brown noted that Maine’s Christian Civic League started as a temperance organization more than 100 years ago.
The idea behind campaign finance disclosure laws is, as Supreme Court justice Louis Brandeis said, that “sunlight is…the best of disinfectants.” Knowing who is trying to influence whom about what helps protect us from secret shenanigans. But NOM touts its ability to protect its funders. In internal documents (which came to light because of a lawsuit that NOM brought against campaign finance disclosure, NOM v. McKee), NOM wrote, “One key advantage we now have is the capacity to protect the identity of our donors.” As it explained, “nationwide, we face a serious hurdle in getting state ballot initiatives and candidate campaigns funded because donors must be disclosed. However, if NOM makes a contribution from its own resources that are not specifically designated for one of these efforts donor identities are NOT disclosed.”
The Case of Maine
This funding arrangement is evident in NOM’s Maine groups, in the ballot battles in both 2009 and 2012. In 2009 the state-registered political action committee Stand for Marriage Maine, with NOM’s Brian Brown listed as one of three primary fund-raisers and decision makers, received 62% of its funds, or nearly $2 million, directly from NOM. (The other big donor was the Roman Catholic diocese.) NOM’s donations arrived in extremely large lump sums, sometimes just a few days apart. For instance, NOM donated $300,000 to Stand for Marriage Maine on October 1, 2009; $300,000 on October 9; $500,000 on October 14; $100,000 on October 23; $40,000 on October 26; $160,000 on October 27; and $40,000 on October 29. When the Maine Commission on Governmental Ethics and Election Practices began investigating these large donations that were not connected to individual names, the commission wrote, “It is illegal for a PAC to knowingly accept a contribution made by one person in the name of another person.” The allegation is that NOM wasn’t the real donor; it was listed as the donor to shield the person who first wrote the check.
Investigating that allegation, Maine’s assistant attorney general Thomas Knowlton interrogated NOM head Brian Brown under oath in 2010. According to a redacted transcript of that deposition, Knowlton asked Brown detailed and arcane questions about the structures and relevant regulations governing more than half a dozen of NOM’s state-filed and national subgroups and offshoots. Brown was able to answer precisely, easily recalling regulations and reporting rules governing each group over several years. Brown remembered how much NOM had donated to elect or unseat specific candidates in various states. He recalled whether NOM spent funds on mailings, phone calls, voter surveys, or some other purpose. Brown agreed that during the month of October 2009, NOM had raised more than $2 million — more than $1.2 million of which went to Stand for Marriage Maine. Brown was the person authorizing those transfers, both on the sending end, as NOM’s head, and on the receiving end, as Stand for Marriage Maine’s treasurer. Here’s what appeared most questionable: Knowlton noted that on October 1, NOM received a wire transfer of $300,000; later that day, NOM wired that same amount to Stand for Marriage Maine. This certainly appears as if Brown or NOM cofounder Maggie Gallagher would call up one of its small group of donors, say that money was needed (at a time when the only major effort was in Maine), receive $300,000 or $500,000, and on the same day pass that exact sum directly through to Stand for Marriage Maine.
Knowlton asked Brown if he remembered which one of NOM’s four people in charge of “the ask” had spoken with the donors, and whether he recalled who had given the money. Knowlton didn’t ask who had given the money; Brown told The Advocate he’d made clear that he wouldn’t answer such an unconstitutional question. Rather, Knowlton asked whether Brown recalled who had given it. Brown said no. The man who recalled every detail about all the organizations under NOM’s rubric and which amounts had been expended in what races could not recall who solicited these large donations or who gave the $300,000 or $500,000 amounts in question.
When asked, Brown said he could recall campaign finance laws, rules, and regulations in detail because he has to — NOM is under such tremendous scrutiny.
“Even a minor mistake by us isn’t treated in the same way” as those of other groups, Brown said; rather, in his view, NOM is singled out and attacked for ordinary campaign behavior in a way that’s aggressively unfair. “Is NOM going to be held to a different standard, are we going to be targeted, is there going to a witch hunt, where people go after our donors and have access to [the names of those who give] private donations for unrestricted gifts, but the Human Rights Campaign and Freedom to Marry don’t have to do that? Is that the world you want to live in?”
In an interview for this article, Brown said that no donations were ever solicited specifically for the Maine 2009 campaign. “We have regular large donations coming into NOM. We make very clear to donors that if you donate to NOM you are donating to NOM’s general treasury. We can use that money how we use it, but it is not designated for any political purpose. And so at the end of a campaign, when, you know, obviously if the Human Rights Campaign has money in its general treasury, it will use it…. At that point obviously Maine was a key fight. But we would never tell donors that they donate to us and we would then give it to a campaign. We’ve told donors the exact opposite! That if you want to give to a campaign, give it to a campaign. By supporting NOM, you give to NOM’s general work…. And that’s what Human Rights Campaign does, that’s what Freedom to Marry does.”
After the 2009 election, Maine’s Roman Catholic diocese largely stopped pouring money into the cause, citing financial difficulties — which it attributed, in part, to public dislike of its position on marriage equality. Stand for Marriage Maine went from being funded primarily by NOM to being funded only by NOM. In 2010 and 2011, Stand for Marriage Maine received, respectively, 98% and 100% of its funds from NOM, making the state group, in essence, a wholly owned subsidiary.
After Maine’s election commission began, in October 2009, investigating Stand for Marriage Maine for possible campaign finance violations, NOM brought a lawsuit challenging the state’s campaign finance laws and stopped funding Stand for Marriage Maine. Instead, in June 2012, NOM started a new political action committee, NOM Maine PAC. Brian Brown was registered as the treasurer, principal officer, primary fund-raiser and decision-maker; no other person was listed. NOM Maine PAC received all of its income—nearly $1.1 million—from NOM. Its only function was to donate to the anti-equality campaign Protect Marriage Maine, which received nearly all of its funds — $1.1 million out of about $1.5 million—from NOM Maine PAC. (As of January 2013, a Google search for “Stand for Marriage Maine” took you directly to the website of Protect Marriage Maine. The website was taken down shortly after Brian Brown was interviewed for this article.)
The Maine campaign was the most closely controlled by NOM. For the other three 2012 marriage campaigns, NOM donated close to half of the state group’s budget, and then Frank Schubert, NOM’s handpicked strategist, took in upwards of three quarters of the group’s budget to run the campaign and to spend on media buys. For instance, NOM contributed $1.2 million, or roughly 50%, of the Maryland Marriage Alliance’s total income. Then most of Maryland Marriage Alliance’s expenditures went to Frank Schubert’s Mission Public Affairs — 87%, or more than $2 million of its total expenditures of $2.37 million. In Washington State, NOM contributed $1.26 million, 45% of Preserve Marriage Washington’s total income. Schubert’s Mission Public Affairs ran the campaign, receiving 78% of Preserve Marriage Washington’s total expenditures, or just over $2.1 million. Finally, in Minnesota, NOM contributed just under $1.5 million, or 44% of Minnesota for Marriage’s total intake. Mission Public Affairs handled the Minnesota campaign as well, receiving 74% of Minnesota for Marriage’s total expenditures, or about $3.4 million. For all three campaigns, Brown’s other group, the online fund-raising operation ActRight.com, handled such efforts as legal, website, and other consulting, and managed online donations.
For their $8.7 million those four states received virtually identical campaigns. The four campaigns’ television ads can be run side by side, overlapping, and be entirely comprehensible, hitting the same points in the same order. A couple of the websites are nearly identical; two others are slightly more customized, but still recognizably in the same group. (See sidebar on page 45.) And NOM’s two major donors knew that NOM would be paying Frank Schubert to run the same campaign in four states.
In contrast with NOM’s relationship to its local groups, both Freedom to Marry and the Human Rights Campaign are important members of the local coalitions fighting for marriage equality — but neither is ever the primary coalition member or funder. FTM and HRC both do channel some money, staff, donors, and research to each of their local partners. But big donors — including New York City mayor Michael Bloomberg, who gave upwards of $125,000 to three of the four campaigns — are listed as individuals. Each local group ran its campaign differently. Television spots and websites were produced locally, telling local folks’ stories. The door-knocking volunteers were local. In Maryland, HRC’s biggest in-kind donation was to loan a staff member, Kevin Nix, to direct the Marylanders for Marriage Equality campaign, but all the campaign directors in other states were local hires.
FTM and HRC had undeniable influence on local efforts. Freedom to Marry’s executive director, Evan Wolfson, is a master strategist, influential and persuasive, and has worked very hard over the years to find ways to help the many factions of the same-sex marriage and LGBT advocacy movements work together effectively. Over the past few years, national FTM coordinated donations and research from such groups as the Williams Institute, Third Way, HRC, and a host of pollsters and public opinion experts, carefully investigating what it would take to help the next tier of undecided voters make the leap into supporting marriage equality. FTM consulted closely with the four state campaigns during 2012 and held a weekly coordinating call so that groups in Maine, Maryland, Minnesota, and Washington could discuss tactics and strategies, compare what worked and what did not, learn from FTM’s research, and discuss fund-raising efforts. Many believe this coordinated research and messaging were what made the difference in 2012, pushing us over into the win column.
But while all the campaigns benefited from FTM’s efforts, each organization ran its own campaign, financially and practically. The Freedom to Marry Action Fund — which, according to its 2011 tax filings, gave just over $1.1 million to efforts in 11 states — also redacts its 26 donors who gave more than $5,000, as federal law permits; five of those donations ranged between $100,000 and $675,000. But none of those were definitive donations to state efforts; they were just some of many donations.
Consider, in 2012, the campaign organization Mainers United for Marriage, a coalition of 73 groups. In 2012 its total budget was $5.8 million. Roughly one fifth of that came from the national Freedom to Marry, which also had a seat on the campaign’s executive committee. Gay and Lesbian Advocates and Defenders gave just under 5% of the budget; HRC gave roughly 14%. Those national LGBT groups were overshadowed by the local staff and the other donors, openly disclosed, primarily individuals. The bigger donors are listed, from Bloomberg’s top individual donation of $125,000 to the other 60 people who each gave between $5,000 and $100,000, donations that totaled just over $1 million. The largest portion of Mainers United for Marriage’s budget — roughly 40% — came from hundreds of small contributions of $50, $100, $500, or sometimes as much as $1,000. Another cooperating local organization, Freedom to Marry-Maine, received 19% of its $1 million budget from the national Freedom to Marry; it also received eight contributions of between $50,000 and $235,000 and a host of smaller donations, all from individuals whose name, address, occupation, and employer were listed. Maine’s sprawling marriage equality campaign was, in every way, the opposite of NOM’s centrally funded, centrally run campaign.
The story is similar in Maryland, Minnesota, and Washington. In 2012, Marylanders for Marriage Equality’s total budget was $5.9 million. FTM wasn’t a major contributor there (although it did, unusually, contribute almost all of affiliated group FTM-Maryland’s budget of $128,000). HRC gave Marylanders for Marriage Equality $1.1 million, or roughly 19% of the Maryland group’s total income. More than 10,000 donors contributed (compared to about 2,000 on the anti-equality side), mostly small donations, although 43 individuals gave somewhere between $5,000 and Bloomberg’s $250,000.
Out of Minnesotans United for All Families’ total income of roughly $7.6 million in 2012, Freedom to Marry contributed 7%; HRC contributed 6%. (In addition, Freedom to Marry-Minnesota received 23% of its total income, or $940,000, from the national Freedom to Marry.) Just as in the other states, small donors gave the most. And again, even large donors are listed as individuals, including such prominent ones as members of the Pohlad family, which owns a business conglomerate that includes the Minnesota Twins — and, presumably, would have as much to lose by being listed openly in favor as any NOM donor would by being listed as opposed. Yet six Pohlads collectively donated $402,000 openly, standing up for their beliefs.
The picture is analogous in the state of Washington, where Washington United for Marriage raised a stunning $12 million. Only 8% came from the national group Freedom to Marry, and another 11% from HRC. Roughly 66% of the donors — more than 11,000 — gave $100 or less. Large donations included Jeff and MacKenzie Bezos’s $2.5 million, Bill and Melinda Gates’s $602,000, Michael Bloomberg’s $250,000. Brad Pitt gave $100,000 to HRC’s marriage equality efforts at the national level, to be used in each state as needed.
What’s more, each state’s campaigns, television ads, radio spots, and websites were locally produced, using local people and local stories. The messaging themes may have grown out of the same research, but individuals told personal stories of how they’d come to embrace marriage for their lesbian and gay friends and family. These commercials were hardly generic; you couldn’t lay them atop each other, because while the messages were consistent, every story was individual. Families, friends, coworkers, and pastors talked about how they wanted the lesbians and gay men in their lives to be happy and to celebrate our love, just like our siblings.