Oregon Supreme Court considers arguments in campaign finance reform case

Kari Chisholm FacebookTwitterWebsite

The drafters of Measure 47 argue that it's still the law, duly passed by the voters, and so it should be enforced unless and until a court strikes it down as unconstitutional.

On Monday, the Oregon Supreme Court heard a fascinating case, Hazell v. Brown, on campaign finance reform.

Here's the story: Back in 2006, Oregon voters considered two ballot measures. Measure 46 was a constitutional amendment that would allow the legislature or the people to create limits on campaign contributions and spending by enacting a statute. Measure 47 was a statute to limit campaign contributions. Progressives were on both sides - with Sierra Club, OSPIRG, and and many others in favor; and ACLU, Basic Rights Oregon, NARAL, and many labor unions and others against.

But in their eternal wisdom, the voters passed the statute (53% yes) and declined to pass the constititutional amendment (60% no). That put the statute in a kind of legal limbo.

After all, the Court had ruled back in 1997 that the state constitution doesn't allow the state to enact contribution limits, striking down a 1994 ballot measure that tried to create a $100 limit, among other things.

But the drafters of Measure 47 tried to avoid that fate by including a "severability" provision - arguing that if one part was found unconstitutional, the rest should survive. They also included another provision (known as section 9f) that would put any unconstitutional sections into a suspended state until the Constitution was amended to allow them (or a Court found that they were valid.)

OK, so where does all that leave us? Well, the Secretary of State and the Attorney General determined back in 2006 that since Measure 46 didn't pass, they wouldn't enforce any provisions of Measure 47.

But the drafters of 47 argue that it's still the law, duly passed by the voters, and so it should be enforced unless and until a court strikes it down as unconstitutional.

In some ways, this case isn't even about campaign finance at all. It's about whether state officials can refuse to enforce a statute that they've determined to be unconstitutional, even before a court has ruled that way.

On the one hand, the law is the law unless a court says it's not. On the other hand, we certainly don't want state officials enforcing a law that they believe to be unconstitutional on its face.

The Statesman-Journal's Peter Wong has more on this story, including PDFs of the briefs filed by lawyers on both sides. Wong notes that "there is no deadline for the justices to issue a decision, but typically, they try to do so within six to nine months after oral arguments." So, expect a conclusion this summer or early fall.

Comments

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    So-called "progressive" national orgs wanted to spend unlimited money in Oregon. So why do you call them progressive? It was clearly dicided upon natonal versus local lines who would support the enforcement of the rule of law. Why does nobody mention that? These national orgs also work primarily on wedge issues that create the illusion of division between the two parties in our two party system. As such they do not care a wit about structural change. Effective, long-lasting change comes from local education and the establishment of progressive cultural values ingrained neighbor to neighbor, not by national orgs run by money.

    As far as whether or not it is constitutional, when a court errs, especially in such profound ways, we are obligated to ignore the parts of their decision that are in themselves a violation of our constitutional right to legislate on a single subject that is so clearly not in violation of the Constitution. Nobody is restricted in their right to speak, only to pay others to speak on their behalf excessively or buy off a legislator or candidate. The Secretaries of State are obligated to disobey the courts and accept the consequences as a matter of civil disobedience due to the unconscionable consequences of not enforcing the laws against overt bribery and graft. One could argue this is also consistent with the purview of their holding elected office as Supreme Court cases have decided regarding other constitutionality issues such as when Bradbury unconstitutionally kicked Nader off the ballot in 2004.

    We need real leaders in our state offices, not chumps under the control of national organizations that want unfettered influence in the state. Every "progressive" group that had local decision making processes decide their endorsement position was on the side against corrupt politicians. It is time we listened to Oregonians and said enough is enough, the influence peddling must end.

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      It was clearly dicided upon natonal versus local lines who would support the enforcement of the rule of law. Why does nobody mention that?

      I should have been more clear. In all cases, we're talking about the local affiliates - Oregon ACLU, Oregon NARAL, Oregon AFL-CIO, etc.

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      ...the illusion of division between the two parties in our two party system.

      Sorry, but if you think there's no ideological difference between the two major political parties, then we have nothing to discuss. You couldn't be more wrong.

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    Campaign finance reform is not a partisan issue. The public overwhelmingly supports it. The people that fund the campaigns in Oregon (and nationally) overwhelmingly do not.

    Although we have had some strong legislative champions in both parties, when push comes to shove, the leadership and statewide officeholders have consistently sided with the folks who fund Oregon campaigns rather than with the reform community when it comes to money in Oregon politics.

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    Electoral politics has generated a considerable political industry. Like all industries, it works to protect its economic vitality. Right or left, big or small, political organizations tend to prioritize their cash flow over the issues they supposedly champion.

    We have seen in Citizens United at the Federal level what happens when unlimited political spending is considered protected free speech. That view, championed by ACLU and applauded by the 1% who control the process, has brought us to the edge of democratic collapse.

    Disclosure: I am a plaintiff in the present suit.

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    Whatever one's views on M 46/47, I don't see how the drafters can bring this to court with a straight face.

    Part of the process of bringing the measures to the voters included the State forming a committee to draft an "Explanatory Statement" for each measure. The chief petitioners appointed two members to represent them on each committee, Bryn Hazell and Dan Meek.

    The resulting statement, which we can still read in the voter's pamphlet (http://www.sos.state.or.us/elections/doc/history/nov72006/guide/vol1.pdf) said, for Measure 46:

    "At present Article 1, section 8, of the Oregon Constitution, the free speech guarantee, does not allow laws that prohibit or impose limits on political campaign contributions or expenditures in elections for state or local public office."

    Now, it is my understanding that according to ORS 251.215(4), if a member of that committee dissents to the content of the explanation, a notice of that dissent will appear in the pamphlet. (In this case it does not.)

    So it would seem that we have the backers of Measure 46 agreeing quite clearly in 2006 that the Constitution does not allow these laws... but are now asking the Secretary of State and Attorney General to enforce a measure that even one of the current plaintiffs agreed was unconstitutional.

    Regardless of where one stands on the wisdom of the underlying policy, all parties seem to agree on its unconstitutionality.

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