STATE OF MAINE
COMMISSION ON GOVERNMENTAL ETHICS
AND ELECTION PRACTICES
135 STATE HOUSE STATION
AUGUSTA, MAINE
04333-0135

Approved on: 7/31/2014

Minutes of May 28, 2014, Meeting of the
Commission on Governmental Ethics and Election Practices
45 Memorial Circle, Augusta, Maine
Present: Walter F. McKee, Esq., Chair; Margaret E. Matheson, Esq.; Michael T. Healy, Esq.;
André G. Duchette, Esq.
Absent: Hon. Jane Amero
Staff: Jonathan Wayne, Executive Director; Phyllis Gardiner, Counsel
Chair Walter McKee convened the meeting at 9:05 a.m.
The Commission considered the following items:

1. Ratification of Minutes of the April 30, 2014 Meeting
Ms. Matheson moved to accept the minutes of the April 30, 2014 Meeting. Mr. Healy seconded.
Motion passed (4-0).

2. Findings of Violation and Penalties Recommended by Commission Staff/National
Organization for Marriage
Mr. Wayne explained that in 2009 the Maine Legislature enacted, and Governor Baldacci signed,
a new law allowing same sex couples to marry. The opponents of the law went through the
process of a people’s veto referendum to repeal the law. A political action committee was
formed in Maine to promote the people’s  veto referendum called Stand for Marriage Maine
(SMM) which spent over three million dollars on  its  efforts  to  pass  the  people’s  veto. The
National Organization for Marriage (NOM) provided approximately two million dollars to Stand
for Marriage Maine, about 2/3 of the total amount spent for the referendum. The Executive
Director for NOM, Brian Brown, was also one of three people who were overseeing the Maine
PAC, Stand for Marriage Maine. Mr. Wayne said NOM did not register as a ballot question
committee even though it provided the campaign in Maine nearly two million dollars. Fred
Karger of California submitted a complaint in August 2009 requesting the Commission
investigate the source of the funds donated to Stand for Marriage Maine and NOM. Mr. Wayne

OFFICE LOCATED AT: 45 Memorial Circle, Augusta, Maine
WEBSITE: WWW.MAINE.GOV/ETHICS
PHONE: (207) 287-4179

FAX: (207) 287-6775

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said the process took five years to complete and the staff has developed the findings and
recommendations for consideration today.
Mr. McKee raised the issue of the Commission agreeing not to identify the donors by name
while the staff is in the investigation stage and asked, for clarification, if the donors would be
identified ultimately when the report is filed.
Ms. Gardiner agreed that upon NOM filing the report, that information would become public.
Mr. Healy asked what the process would be if upon learning who the donors were, a Commission
member had a conflict of interest if they knew a donor.
Ms. Gardiner said if there is a concern about a conflict of interest, the Commission members
should review  the  donor  list.    The  donor  list  is  not  for  the  public’s  review  she  said.
The Commissioners recessed briefly to review the donor list.
Mr. Healy noted that after reviewing the list, he has known one couple over the years socially
only and said the relationship does not arise to the level of conflict of interest.
Mr. McKee asked if the only sworn testimony or affidavit around the time of the decision to
investigate was that of Brian Brown. Mr. Wayne confirmed this. Mr. McKee pointed out that
there were very specific statements made back at the beginning of the investigation regarding
receiving and soliciting funds specifically for Maine that were not completely accurate and if the
Commission had stood on those statements the investigation probably would not have gone any
further and none of this information would have been discovered. Mr. McKee said that after
reviewing  the  staff’s  report  and  the  attached  materials,  it  seemed  that  some  of  those earlier
statements were not accurate.
Mr. McKee noted an invoice from C. C. Advertising and asked for further information.

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Mr. Wayne explained that NOM had apparently planned to conduct a large telephone survey in
Maine using C.C. Advertising. The work was prepared but not executed and the invoice was
issued in error according to the spokesperson from the firm. There was no record of the payment
being returned to NOM. The vendor suggested that the error could have been reconciled later
on.
Mr. Healy asked  if  there  was  any  information  from  Mr.  Brown’s  deposition  that  indicates  he  
personally solicited Donors 2, 9, 10, 11 and 12.
Mr. Wayne said during the deposition, Mr. Brown was shown dates and amounts of
contributions but he  didn’t  know  specifically  who the donor was by looking at amounts so he
could not answer any questions regarding the nature of the solicitations. Mr. Brown did testify
that in August or September 2009  there  was  a  telephone  conversation  related  to  NOM’s  national  
strategy involving Brian  Brown,  Donor  #11  and  NOM’s  Chair Robert George and President
Maggie Gallagher. He testified that as a result of this conversation, NOM was expecting one
million dollars be donated in October 2009 to the national organization.
John Eastman, Esq., Chairman of the Board of NOM and NOM’s counsel, referred to the first
meeting in 2009 when Commissioner Michael Friedman said national organizations contribute to
efforts in Maine all the time and none of them register as a ballot question committee, and under
the current statute there is no requirement to identify contributors. Mr. Eastman said that NOM
protects the anonymity of its donors because of negative impact on donors throughout the
country in the past. He said the purpose of providing protection to  NOM’s  donors  is not to avoid
disclosure laws. He said all the activity during this campaign was reported through the Stand for
Marriage Maine PAC as was required by law. He said these donations went to the NOM general
treasury. He acknowledged that some emails did go out to specifically solicit contributions for
the Maine campaign; however, not all the donations meet the definition of contribution by law.
Once those contributions are removed, the total of earmarked contributions is less than the
$5,000 that would require registration as a ballot question committee. Once NOM received legal
advice from its counsel regarding communications, the emails were changed to point donors
either to the Maine campaign or the national organization, and the PAC was set up here in Maine

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to run the fundraising operation and those donations for Maine were reported. He explained that
Brian Brown was serving as the Executive Director of NOM as well as one of the committee
members of the Maine PAC. When Mr. Brown raised money for the purpose of the Maine
effort, he advised donors to donate to the Stand for Marriage Maine PAC and people who wanted
to support national efforts for matters in all states were advised to give to NOM, and those funds
went into the general treasury. Mr. Eastman said, as proof that NOM was trying to comply with
the Maine reporting requirements, there was one donation that came in to NOM that indicated it
was for the Maine effort and NOM returned it to the donor.
In response to a question from Mr.  Healy,  Mr.  Eastman  said  that  NOM’s  only  direct  expenditures  
in Maine related to the ballot question were in the form of in-kind contributions to SMM. These
in-kind contributions were properly reported by SMM and did not count towards the registration
threshold.
In regard to the advertising invoice, Mr. Eastman explained that this particular service was a
survey for Maine which was developed but not used because of advice from counsel due to
Maine’s  reporting  requirements. They were advised that it should not be run by NOM but by the
PAC which they did. The billing was in error. He said all expenditures and donations for the
purpose of the Maine campaign were handled through the PAC.
Mr. Healy asked why Mr. Brown, as the Executive Director, was put on the committee in Maine
creating a situation where he was wearing two hats.
Mr. Eastman said he wears two hats also. He is the Chairman of the Board and is also the
director of a litigation firm representing NOM today. He said it happens all the time in these
issues. He said what looks like a coordination is designed to have NOM carrying out its national
mission but in compliance with Maine law by setting up a political action committee for the
focus of the efforts in Maine.
Brian Brown addressed Mr.  Healy’s  question  by  saying  that  if  NOM  was  making  large  
contributions to a PAC or ballot question committee, obviously NOM would want to have a say

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in how the PAC is run. He said he has served on several committees in different states so that
NOM has a say in how the committee is run, not that NOM would run the committee but that it
would have a say. In the case of SMM, there were three people on the executive committee of
SMM.
Mr. Healy said Mr. Brown would obviously want some say, but asked if he actually controlled
the Committee since he gave two-thirds of the funds.
Mr. Brown said he did not control the Maine PAC.
Mr. Healy said if there happened to be a disagreement with the other members of the committee
Mr. Brown could walk out and cut off the funds. Mr. Healy added that with the amount of
money provided by NOM to the PAC, it was difficult to believe that NOM did not control the
PAC.
Mr. Brown said of the three person committee, if two people disagreed with something then it
did not get done.
Mr. Eastman said it is lawful for NOM to donate to the PAC and used the scenario that if there
were  $5  million  in  NOM’s  general  fund  and  they  donated  $2 million to the PAC, it would not be
an issue. He said what raises the difficulty is whether NOM raised the money for the purpose of
the Maine campaign and directed those funds to the Maine PAC. The fact that Brian Brown was
in a leadership role of NOM as well as the Maine PAC and raising funds for both, cuts against
the argument that Mr. Brown was raising money for NOM to be redirected to SMM.
Mr. Duchette asked Mr. Eastman if his opinion would change if Mr. Brown had control over
how the Maine campaign was going to be run.
Mr. Eastman said it would not change his opinion. Whether Mr. Brown is on the committee does
not alter that scenario.

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Mr. McKee said looking at the circumstantial evidence, on September 4, 2009 NOM received a
wire transfer of $150,000 from a donor and on the same day Stand for Marriage Maine received
$140,000; on October 1, 2009, NOM received $300,000 from a donor and on the same day NOM
transferred $300,000 to Stand for Marriage Maine; on October 9, 2009, a wire transfer of
$400,000 came from another donor and on the same day $300,000 went to Stand for Marriage
Maine. He said to suggest that these were only coincidences strains credibility. Mr. McKee said
that was a tough set of facts.
Mr. Eastman said the District Court found that these were recurring donors that had been giving
over a period of time on a regular basis. He said those commitments were made before the
Maine campaign began and were not earmarked for the purpose of the Maine effort. The
recurring donations went directly into the general treasury. The funds were then given to the
PAC and reported by the PAC. He said the question is whether, when the funds came in, they
were given for Maine specifically. He said since they are recurring donations, that means they
were not specifically given for the Maine campaign.
Mr. Healy asked if the District  Court’s  factual finding stated that Donors 2, 9, 10, 11 and 12 were
recurring donors.
Mr. Eastman said the Court was not that specific but  the  Court  was  referring  to  NOM’s  major  
donors of which there are about a dozen.
Mr. Healy asked if Donors 2, 9, 10, 11 and 12 were recurring donors in 2007 and 2008. Mr.
Eastman said that he did not know.
Mr. Healy asked Mr. Brown if he had conversations with Donors 2, 9, 10, 11 and 12 from the
time he became an executive committee member of the PAC in June 2009 through the election.
Mr. Brown reviewed the names of Donors 2, 9, 10, 11 and 12 and said he did speak directly to
Donor 11 from July on directly. He did not have direct conversations with three of the donors
but it is possible that he had a direct conversation with one other major donor on the list. In

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response to Mr. Healy, he said all but one were recurring major donors. He said he did not
believe Donor 2 was a recurring donor. He stated that any donor he spoke to he told them,
unequivocally, that NOM would not accept any gift designated for the ballot initiative in Maine.
Mr. Healy said he accepted that as being true. He explained his issue was that Mr. Brown was
the Executive Director of NOM and on the executive committee of the Maine PAC. NOM has a
budget of two million dollars which is the level of support it intends to give to the Maine PAC.
Mr. Brown is wearing two hats and soliciting for both  at  the  same  time.    He  said  NOM’s cash
needs were high at the time and there were large contributions coming in. Even though the
donors were told their donations were not designated for Maine, it does not mean that Mr. Brown
could not have designated those funds. He said the funds came in one day and went out the next
day to the Maine PAC, which is not the scenario Mr. Eastman raised where NOM had five
million dollars in its general treasury which had accumulated over a period of time from different
people and different sources.
Mr. Brown said there were large pledges from each of these donors ahead of time who had been
pledging a long time. Mr. Healy asked if these pledges were in writing and Mr. Brown said no.
Mr. Healy asked Mr. Brown if these donors had pledged prior to the formation of the Maine
PAC. Mr. Brown said he had pledges from two, possibly three donors before July but could not
recall for sure since there was no written documentation, only oral communications.
Mr. Eastman referred to the U. S. Supreme Court’s  decision in the Wisconsin Right to Life
matter with regard to chilling core political speech because of First Amendment rights. He said
it has taken the Commission five years to find out who these donors were. He said the reason
Brian Brown served on the Maine PAC was so he could raise funds in compliance with Maine
law  for  the  PAC.    Mr.  Brown’s  conversations  with  donors  specifically  said,  if  you  want  to  give  
for the purpose of the Maine campaign, give to the Maine PAC. If you want to support the
national efforts of NOM, then give to NOM. Moneys that are not designated by the donor go
into the general treasury and this is no different in his view than if that money had existed prior
to the Maine campaign. Any money given to the PAC is reported as required by Maine law.

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Mr. Healy said he agreed with Mr. Eastman except in one fact. Mr. Brown was Executive
Director of NOM, had full control over the cash and how and when it would be disbursed. And
almost simultaneously with the receipt of these donations, Mr. Brown made a donation to the
Maine PAC with which he was deeply involved. Mr. Healy said his concern was how could
donors differentiate which hat Mr. Brown was wearing when making a solicitation?
Mr. Brown said he did not have complete control over the cash. He said meetings took place
where all parties would decide where the funds would go.
Mr. Eastman stated that once  it  was  NOM’s  money,  it  does  not matter how long it was in the
bank account.
Mr. Healy said there was one donor from Maine who was probably not a recurring pledge and
had not made a pledge before Mr. Brown was on the PAC. This person made a substantial
donation which was most likely intended for the Maine campaign.
Mr. Eastman said it is possible that this person was a previous donor but even if they were not, it
could be that they could have become aware of NOM because of the Maine PAC and could have
just  appreciated  NOM’s  support  here  and  nation-wide and so decided to support the nation-wide
efforts.
Mr. Healy said it could be that they gave to the national organization so they could remain
anonymous.
Mr. McKee said the argument about  what  the  donor’s purpose for the funds was could go on all
day long. However, a great deal of information has been uncovered since 2009 and for him these
current facts have changed the accuracy of original statements made back in 2009.
Mr. Eastman said legal counsel advised NOM on how to proceed with the Maine campaign and
everything was done with those requirements in mind. He said there is no evidence to show that

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there was a specific designation or solicitation for the Maine campaign. He said the Commission
is interpreting these donations as being earmarked for Maine but they were not. He said the
Human Rights Campaign set up their campaign in the exact same way as NOM.
Mr. Healy asked if the executive director of the Human Rights Commission was also the director
of the Maine PAC for Human Rights. Mr. Eastman did not know. Mr. Healy followed up asking
if NOMs legal counsel advised Mr. Brown to be on both committees.
Mr. Brown could not recall specifically with regard to the Maine PAC but in the past he had
been told it was a good way for him to control the donations.
Mr. Eastman reviewed the similarities between the two organizations. The Human Rights
Commission set up a PAC called HRC Maine Marriage PAC and NOM set up a PAC called
Stand for Marriage Maine. He said he did not know if a Human Rights officer was on the
political committee or not but would be very surprised if one was not. He said there were
significant donations made to the PAC, just as NOM did. He said everyone sets up their
structure the same way and back in 2009 Commissioner Friedman stated this structure did not
violate Maine law.
Mr. McKee said the factual issue is having Mr. Brown on the national committee as a fundraiser
and the state committee as a fundraiser. Being in both capacities raises questions about whether
these donations were in fact for Maine.
Mr. Duchette asked what percentage of NOM’s general fund was spent in 2009 for the Maine
campaign. Mr. Brown said approximately 23%.
Mr. Eastman reviewed the solicitations e-mailed out and said the total number of donations was
less than $5,000 which would not trigger reporting requirements.
In response to Mr. Healy, Mr. Eastman spoke to the anonymity laws and said the two decisions
that NOM goes by are NAACP v. Alabama which in the 1950s held that members and donors can

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be anonymous if there are significant risks of harm with disclosure. The second is Socialist
Workers v. Brown. NOM filed a case in California claiming their donor list which had been
reported by the PAC publicly resulted in people being harassed and properties vandalized. The
9th Circuit just recently decided that because the names were already published, the case was
moot but did not rule on the merits of the challenge. He said the Supreme Court now in two
cases has recognized this issue is generating hostility and threats that warrant confidentiality.
Mr. Healy asked, for clarification, if the two Supreme Court cases recognize that the NOM
Donors 2, 9, 10, 11 and 12 have a constitutional right to anonymity.
Mr. Eastman said those specific donors were not mentioned. He said these cases were not about
NOM. However, NOM’s case in California was referenced in the Supreme Court opinions and
briefs.
Mr. Healy asked if Donors 2, 9, 10, 11 and 12 have actual notice of this proceeding.
Mr. Brown said he believed he had given notice of the hearing to all but one of those donors.
In  summary,  Mr.  Eastman  referenced  Commissioner  Friedman’s  comments  back  in  2009  that  
NOM’s conduct followed Maine law. Mr. Eastman stated that the donations NOM gave to Stand
for Marriage Maine were fully reported as required by Maine law and that NOM scrupulously
tried to comply with all rules while providing protection for the national donors. He said all
donors are specifically instructed that if they want to give to a particular effort, give to that effort
directly so it will be reported correctly. Also, if they give to the national organization, it is
entirely NOM’s judgment as to where it will be directed. There are many cases where NOM can
show donations returned because they have been earmarked for a specific effort in one of the
statewide fights.
Mr. Brown said the central question is whether anyone at NOM solicited funds from donors for
NOM and told the donor that the funds would be designated for the Maine campaign. He said he
did not do that and has sworn under oath that he did not. In his view there is nothing he said in

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the affidavit that contradicts that. He added the Commission staff has not produced any evidence
that he did. He said the key question is whether there is any evidence of him or any member of
his staff going to a donor to solicit a donation to NOM and telling them the donation would be
used for the effort in Maine. He said all NOM staff were clearly advised that they could not
accept donations that the donor designated for a specific campaign. He said he consulted counsel
on many campaign finance issues to be sure they were doing everything correctly and in
compliance. He said the law must be applied fairly and applied to everyone.
The  Commission  took  a  break  at  the  conclusion  of  Mr.  Brown’s  testimony.
After the break, Fred Karger briefly reviewed  his  role  in  the  complaint  and  NOM’s  activity  in  
Maine. He said the investigative report made it clear that NOM blatantly and intentionally
ignored  Maine’s  reporting  requirements.    He thanked the Commission and the Attorney
General’s  Office  for  all  their  hard  work  over  the  last  five  years  with  the  investigation  to  seek  the  
truth. He  urged  the  Commission  to  accept  the  staff’s  recommendations.
Pursuant to Title 1 of the Maine Statutes, section 405(4), Mr. Healy moved to go into executive
session pursuant to Title 1, section 405(6)(E) at 10:30 a.m. to  consult  with  the  Commission’s  
counsel concerning legal rights and duties of the Commission. Mr. Duchette seconded.
Motion approved (4-0).
At 11:15 a.m. Mr. Healy moved to come out of executive session. Mr. Duchette seconded.
Motion approved (4-0).
Mr. McKee explained that he and Commissioner Duchette were present at the meeting in 2009
when the complaint was filed by Mr. Karger. He said the vote whether to pursue an
investigation was very close, 3-2. He said it was a difficult decision but it was clear there was
some activity going on that warranted further investigation. He said that at the point the
Commission decided to initiate the investigation, the thought was that where there is smoke there
may be fire. He said once the staff got through all the appeals and was able to complete the

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investigation, there is no question that there is fire here. He said if the Commission took NOM’s
view and rejected the staff recommendation; the Commission would be accepting a mockery of
Maine’s disclosure  laws.    He  said  the  Commission’s  duty  is  to  follow  and  apply  the  law,  not  
beliefs. He said the final evidence shows by a preponderance that the alleged actions of NOM
did in fact take place and he is pleased that the Commission followed through so these issues
were not swept under the rug.
Mr.  Healy  said  that  he  recognizes  NOM’s  right  to  participate  in  the  election  process  and  their  
efforts  to  comply  with  Maine’s  campaign  finance  law. However, Mr. Healy stated that after May
29, 2009 when the Stand for Marriage Maine PAC was formed and Mr. Brown became one of
three  members  of  the  PAC’s  executive committee – and based upon the record, he was an
influential member of the PAC – as well as the Executive Director of NOM with the authority he
had as set forth in his deposition, some, if not all, of the contributions of Donors 2, 9, 10, 11 and
12 were contributions as defined in section 1056-B (2-A)(C) applying an objective standard. Mr.
Healy said that he did not think the statute has been complied with for that reason.
Mr. McKee moved to find NOM in violation of 21-A M.R.S.A. § 1056-B by receiving
contributions aggregating in excess of $5,000 for purposes of initiating or promoting the 2009
people’s  veto  referendum  and  failing  to  register  and  file  campaign  finance  reports  as  a  ballot  
question committee. Mr. Duchette seconded.
Motion passed (4-0).
Mr. McKee moved to determine that donations received by NOM in response to solicitations
distributed by electronic mail from NOM to its subscribers from May through at least September,
2009 constituted contributions under 21-A M.R.S.A. § 1056-B(2-A)(B) and/or (C). Ms.
Matheson seconded.
Mr. Healy stated for clarity that he did not believe the electronic solicitations (e-mails) reached
the $5,000 threshold but the donations made by Donors 2, 9, 10, 11 and 12 were well over the
threshold and were contributions. Ms. Matheson disagreed but supported the motion.

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Motion passed (4-0).
Mr. McKee moved to determine that donations received by NOM from several major donors,
such as Donors #2, 9, 10, 11, and 12, during the period from May through November, 2009
constituted contributions under 21-A M.R.S.A. § 1056-B(2-A)(B) and/or (C). Mr. Duchette
seconded. Mr. Healy said he agreed that the donations constituted a contribution under (C).
Motion passed (4-0).
Mr. McKee moved to direct NOM to register as a ballot question committee for its activities in
support  of  the  2009  people’s  veto  referendum and to file a consolidated report for 2009. Ms.
Matheson seconded.
Motion passed (4-0).
Mr. McKee moved to assess a civil penalty of $250 for failure to register as a ballot question
committee. Ms. Matheson seconded.
Motion passed (4-0).
Mr. McKee moved to find NOM in violation for failure to file timely campaign reports due 11
days before and 42 days after the November 3, 2009 election and failure to file four reports of
single expenditures due in the last 13 days before the election. Ms. Matheson seconded.
Motion passed (4-0).
Mr. McKee moved to accept the staff recommendation and find that NOM was not required to
file any reports during 2010 and 2011. Mr. Healy seconded.

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Mr. Wayne explained that NOM made two payments in 2010 and 2011 to Stand for Marriage
Maine to help the PAC retire its debts and those were reported. He said there is no evidence that
NOM raised or spent any funds during this time period.
Motion passed (4-0).
Mr. McKee moved to accept the staff recommendation of penalty amounts. Ms. Matheson
seconded.

Penalty

Filing Deadline:
10/23/2009 (11-day pre-election report)

$10,000

10/24/2009 (24-hour report)

$10,000

10/27/2009 (24-hour report)

$5,000

10/28/2009 (24-hour report)

$10,000

10/30/2009 (24-hour report)

$5,000

12/15/2009 (42-day post-election report)

$10,000

Motion passed (4-0).
Mr. McKee explained the next procedural step will be for staff to draft proposed findings of fact
on the complete record to be distributed and voted on at the next meeting.
3. Findings of Violation and Penalties Recommended by Commission Staff/Candidates
who have Failed to Register with the Commission
Mr. Wayne said the staff has been trying to get all candidates to register with the Commission as
required by law. There are currently only three candidates left who have not registered, two
House candidates, Benjamin Bryant and Ashley Ryan, and one Senate candidate, Danielle
Unterreiner. He explained that they have had three notices to-date and have not responded. He

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said Mr. Bryant no longer lives at the address provided by the Secretary of State website. He
explained that a $10 penalty will be assessed.
Mr. Duchette asked whether candidates are eventually removed from the ballot if they do not
respond.
Mr. Wayne explained they cannot be removed from the ballot unless they withdraw themselves.
Mr. McKee moved to accept the staff recommendation to find the three candidates in violation
and assess the $10 penalty as required by statute. Mr. Duchette seconded.
Motion passed (4-0).
4. Enforceability of $25,000 Aggregate Contribution Limit
Mr. Wayne explained that Maine Election Law forbids any individual from contributing more
than $25,000 to candidates for state office in a calendar year (21-A M.R.S.A. § 1015(3)) and
proposed a policy regarding the enforceability of the Maine aggregate limit, in light of the U.S.
Supreme Court decision in McCutcheon v. FEC.
Mr. Healy moved to adopt the policy regarding the enforceability of the aggregate limit for
campaign contributions in Maine law as recommended by the staff. Mr. McKee seconded.
Motion passed (4-0).
Meeting adjourned at 11:40 a.m.
Respectfully submitted,
/s/ Jonathan Wayne
Jonathan Wayne, Executive Director

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