Oregon Supreme Court Avoids Ruling on Campaign Contribution Limits

Linda WilliamsBy Dan Meek and Linda Williams

The Plaintiffs and Chief Petitioners on Measure 47 are disappointed that the Oregon Supreme Court declined to rule on the Constitutionality of the campaign finance reform ballot measure enacted by Oregon voters in 2006. The Court’s opinion is here: http://courts.oregon.gov/Publications/docs/S059245.pdf.

As Justice Robert Durham’s dissent points out: 1. The majority never reaches the substance of the Constitutional arguments; 2. The majority’s rejection of the Hazell Plaintiffs’ primary argument is based upon a perceived deficiency in the pleadings (although the State did not argue the existence of such a deficiency); and 3. The pleadings can be corrected, or the case refiled by other parties, thus presenting the Constitutional issues to the Court again.

Disappointing Judgment

Concerning the claims of the Hazell plaintiffs, the majority gives a case-specific reason for dismissing those claims: the complaint alleges only a nonspecific desire for a declaratory judgment or order requiring the Secretary of State and the Attorney General to administer and enforce Measure 47. Id. at ___ (slip op at 12). If this case concerned nothing more than a generalized request for a judicial directive compelling those state officials to comply with Oregon law, I might agree that the dispute may be too indefinite to justify declaratory relief. But, in my view, the plaintiffs have not drafted their complaint so narrowly. It serves the interest of no one for the majority to narrowly construe the material allegations of the complaint to avoid a decision here, and as a consequence, force other citizens to initiate additional expensive and time-consuming litigation to get an answer to the same issues raised here.

In that future litigation, as here, the most important question will be the one correctly stated by the Court of Appeals below: absent a constitutional amendment, will this court revisit Vannatta v. Keisling, 324 Or 514, 524, 931 P2d 770 (1997) (Vannatta I) and decide that at least some statutory limitations on campaign contributions and expenditures are constitutionally permissible? See Hazell v. Brown, 238 Or App 487, 512, 242 P3d 743 (2010).

Justice Durham then notes how the Court’s 1997 decision, Vannatta I, has been very substantially eroded.  Justice Durham is the only member of the current Court who was serving there in 1997.

In any event, the Court’s decision today is disappointing.  Harry Lonsdale, retired CEO of Bend Research Corp. and a prime supporter of Measure 47, said “It’s a sad day for Oregon.  Oregon voters are savvy; they know that our elections are for sale.  Four times Oregon voters have voted to get the Big Money out of Oregon politics. The Oregon Supreme Court should address the merits of the Constitutional arguments.”

Plaintiffs’ positions in Hazell v. Brown are noted in the memorandum of one of their attorneys, Daniel Meek, available at http://fairelections.net/court/M47/Appeals/m47case.pdf.

In November 2006, the voters of Oregon enacted Measure 47, which established the nation’s most strict system of limits on political campaign contributions and expenditures.  It also requires every political advertisement funded by “independent expenditures” to fully disclose the names, businesses, and amount contributed by each of its 5 largest donors, right in the ad itself.

The people were forced to act, because the Oregon Legislature has never enacted limits on political contributions.

No Limit on Campaign Contributions

This Oregon Supreme Court decision leaves Oregon without operative limits on political campaign contributions in all state and local candidate races.  Only 3 other states have no contribution limits:  Missouri, Virginia, and Utah.  Oregon voters have enacted contribution limits 4 times (1908, twice in 1994, and in 2006), yet none of those limits has been enforced since 1973.

The result is that campaign spending in Oregon will continue to skyrocket.  Total spending on campaigns for state and local offices in Oregon increased from $4.2 million in 1996 to $57 million in 2010.  Candidates for Governor in 2010 alone raised and spent over $20 million.  Winning a contested race for the Oregon Legislature now typically costs over $600,000, sometimes as much as $1 million.

The Oregonian (April 6, 2010) reported that spending on state legislative races in Oregon is higher per capita than in any other state, except New Jersey.

It also leaves Oregon with no requirements that political ads identify their funders.  Section (6)(g) of Measure 47 provided that every campaign advertisement funded by “independent expenditures” in excess of $2,000 must prominently disclose the top 5 contributors to the “independent” campaign, the businesses they are engaged in, and the amounts contributed by each of them–all in the advertisement itself.  This is the most stringent law regarding disclosure of funders of independent expenditure ads, but now it will not be enforced.

Prior to its repeal by the Oregon Legislature in 2001, Oregon had a statute, ORS 260.522, that required every campaign ad to state “the person responsible for the publication.”  The Oregon Legislature repealed this statute by votes of 28-0 in the Senate and 52-3 in the House.

Where Do We Go From Here?

As Justice Durham indicated, the case for Measure 47 can be refiled to overcome the pleading deficiency identified in the majority opinion.

In addition, the Oregon Legislature should refer to voters an amendment to the Oregon Constitution to ensure that the people of Oregon can enact limits on political campaign contributions and expenditures in races for state and local public offices.  Senate Joint Resolution 20 (2003), attached, is an example of such an amendment, which was then sponsored by 9 Senators and 9 Representatives but was never voted on, even in committee.  This is typically what happens in every session of the Oregon Legislature.

The Legislature should also enact the disclosure portions of Measure 47.  Similar requirements were discussed in the 2011 session but were never subject even to a Committee vote.

Voters could organize an initiative to amend the Oregon Constitution, but changes to the initiative process by the Legislature and Secretary of State have made the process far more difficult and expensive than it was in 2006, when Measure 47 was adopted by the voters.

The nationwide effort to amend the U.S. Constitution to nullify the Citizens United decision of the United States Supreme Court does not address the problem of unlimited political contributions in Oregon.  None of the widely-proposed amendments to the U.S. Constitution would have any material effect on money in campaigns in Oregon state and local races.  Amending the U.S. Constitution cannot overcome the decision of the Oregon Supreme Court that contribution limits violate the Oregon Constitution.   Φ

Attorneys Linda Williams and Dan Meek are the principles of FairElections Oregon. You can contact them: Daniel Meek, (503) 293-9021, dan@meek.net; Linda Williams, (503) 293-0399, linda@lindawilliams.net.

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