We filed a friend-of-the-court brief in the Oregon Supreme Court arguing that the free expression and voting protections in our state constitution must be given equal weight to ensure that the foundation of our democracy remains strong and intact. This means that, under Article II, section 8 of the Oregon Constitution, some limits on campaign contributions and expenditures must be permitted, and that campaign financing sources must be transparent. At the same time, the strong protection for political expression under Article I, section 8 of the Oregon Constitution should be reaffirmed.
The system of electing candidates to office is badly in need of repair. There is a legitimate and growing public concern about the impact of big money in politics. To build an effective and truly representative government, valid concerns about free speech and free association must be harmonized with equally valuable concerns about free and fair elections. Under the current system, the voices and interests of the wealthy few are unduly favored, and the exclusion of historically marginalized communities is perpetuated.
We will continue to advocate for reform of the current state system, including our longstanding commitment to public financing of campaigns and appropriate disclosures. We should not simply push to conform Oregon’s system to the federal system, but should chart a new path forward for our state. In doing so, we should stress fidelity to the principles protected by the Oregon Constitution with the goal of expanding, not limiting, political speech.
UPDATE:
On April 23, 2020, the Oregon Court Supreme Court issued its decision in Multnomah County et al. v. Alan Mehrwin et al., 366 Or 295 (2020), upholding parts of Multnomah County’s campaign finance law. The Supreme Court partially overruled Vannatta v. Keisling, 324 Or 514, 931 P2d 770 (1997), and did so without fundamentally changing its approach to analyzing laws that impact speech under Article I, Section 8 of the Oregon Constitution. While the Court did not consider the ACLU of Oregon’s position that it overrule Vannatta to allow campaign contribution limitations under Article II, Section 8, the end result is generally consistent with the position the ACLU of Oregon advocated.
First, the Court found that the provisions of the Multnomah County ordinance governing campaign contributions did not expressly restrict speech, instead finding that the law might have the effect of limiting speech only in certain cases. Overruling Vannatta, the Court said that the campaign contribution provisions were not subject to a Robertson category 1 analysis, which would have allowed a facial challenge to invalidate the law unless justified by an historical exception. Instead, the Court found the law subject to a Robertson category 3 analysis, which requires an “as applied” challenge to determine whether the law impermissibly impacts the speech of a particular party. Because opponents did not bring an as applied challenge, the Court upheld the campaign contribution provisions under the Oregon Constitution.
Second, the Court remanded to the trial court to determine whether the $500 campaign contribution limit was too low to be constitutional under the First Amendment of the U.S. Constitution.
Third, the Court determined that the expenditure limits violate the First Amendment and elected not to revisit its determination inVannatta that they also violated the Oregon Constitution.
Fourth, the Court decided that the challenge to the disclosure provisions of the Multnomah County ordinance was moot because the county amended the ordinance to change these provisions during pendency of the appeal.
This case will now return to the circuit court for a determination on the constitutionality of the $500 contribution limit. Other litigation may follow on the amended disclosure provisions and the impact of this decision on Ballot Measure 47, which was passed by voters but never enacted because of Vannatta.