By Colin Reynolds, Law and Policy Clerk
Nationally, Oregon is perceived as a leader in environmental protection and regulation. However, The Oregonian's Rob Davis exposed the dark truth in his 2019 series “Polluted by Money” that Oregon is, in fact, a state with relatively lax environmental laws; a state where industry lobbyists frequently leverage lawmakers to kill environmental initiatives and; a state that, overall, has “betrayed its [bipartisan] environmental legacy.” According to Davis, “Oregon’s failure to regulate campaign cash has made it one of the biggest money states in American politics [that] created an easy regulatory climate where industry gets what it wants, again and again.” And what industry got was “weakened or stalled efforts to deal with climate change, wolf recovery, disappearing bird habitat, cancer-causing diesel exhaust, dwindling groundwater, industrial air pollution, oil spill planning and weed killers sprayed from helicopters.”
Overall, Oregon is one of the few states that allow people and corporations to give as much money as they want to political candidates. Consequently, logic dictates, if Oregon enacted and enforced campaign finance restrictions, corporations will have less influence over the legislative process and the legislature will therefore pass more environmental protections into law. However, in order to do so, we must reckon with the state’s long history of failed campaign finance reform.
1970’s Oregon Post-Watergate Campaign Finance Laws and Deras v. Myers
After Watergate, the Oregon legislature passed two statutes imposing a monetary limit on the total expenditures that a person or political committee can make in support or in opposition to a candidate for public office. In response to these statutes, Warren Deras, a candidate for State Representative, sued the state, arguing the statutes infringed upon his right to free expression and that any limitation on his ability to spend unlimited money on his behalf violated the freedom of speech protections found in Article I, Section 8 of the Oregon Constitution. In 1975, the case Deras v. Myers made its way to the Oregon Supreme Court, where Oregon Attorney General Lee Johnson argued that the free expenditure of funds in political campaigns threatens the integrity of government. The court, however, disagreed and struck down the statutes, holding that the Oregon Constitution’s Article I, Section 8 freedom of expression protections outweighed the public interest in stemming the free expenditure of funds served by statutes.
1994’s Measure 9 and Vannatta v. Keisling
Nearly 20 years later, Oregonians voted overwhelmingly in favor of Measure 9 (72% to 27%), a ballot initiative that limited campaign contribution and spending limits. Fred van Natta, the President of the Center to Protect Free Speech, subsequently sued the state, arguing that the sections in Measure 9 that “limit or ban certain political campaign contributions and coerce political candidates to agree to limit their campaign expenditures” violated Article I, Section 8 of the Oregon Constitution. In 1996, the case made its way to the Oregon Supreme Court as Vannatta v. Keisling, in which the state and other advocates defended the measure, arguing that Measure 9’s restrictions on campaign contributions was designed to prevent a particular harm – “the existence of undue influence in the political process.” However, the Oregon Supreme Court rejected the state’s argument and voided Measure 9, holding that “there is no necessary incompatibility between seeking political office and the giving and accepting of campaign contributions.” According to the court, “those who are elected will put aside personal advantage and vote honestly and in the public interest.”
2006’s Measure 46 & 47 and Hazell v. Brown
Ten years later, advocates tried to enact campaign finance reforms through two ballot initiatives. The first, Measure 46, would have amended the Oregon Constitution to authorize the adoption of laws regulating election contributions and expenditures, thus nullifying the Vannatta decision. The second, Measure 47, would have revised campaign finance laws to limit or prohibit campaign contributions and expenditures. In contrast to the resounding public support for campaign finance reform in 1994, voters paradoxically rejected Measure 46 while approving Measure 47. This split vote effectively resulted in an enactment of an unconstitutional law, because Measure 47 needed Measure 46’s constitutional amendments to be valid. Consequently, the Oregon Department of State, acting on advice from the Department of Justice, decided the state could not implement Measure 47.
Despite the constitutional implications, Measure 47 supporters sued the state to compel enforcement of the initiative. In 2012’s Hazell v. Brown, the Oregon Supreme Court ruled that Measure 47 would not become operative until either (1) voters approved a constitutional amendment allowing laws that would otherwise violate “free expression rights” guaranteed by Article I, Section 8 (in other words, essentially approving the constitutional amendments previously proposed by the unsuccessful Measure 46); or (2) the Oregon Supreme Court overturned its holding in Vannatta that campaign finance limitations are unconstitutional.
2016’s Multnomah County Measure 26-184 and Multnomah v. Mehrwein
The present state of Oregon’s campaign finance dynamics began in 2016 when Multnomah County voters approved Measure 26-184, which directed the county to restrict campaign contributions, limit campaign expenditures, and require campaign disclosure rules. After the election, Multnomah County adopted new campaign finance ordinances mirroring those in the voter initiative. In May 2017, the county subsequently sought judicial review of the ordinances’ legality under both the Oregon and U.S. Constitutions. A group of citizens, including Alan Mehrwein of the Portland Business Alliance, intervened in the matter in opposition to the county. By 2019, Multnomah County’s “validation action” made its way to the Oregon Supreme Court. In its Multnomah v. Mehrwein decision issued on April 23, 2020, the court held that the county’s campaign contribution limits did not facially violate the Oregon Constitution, thereby overruling its previous holding in Vannatta. However, the court also held that the county’s campaign expenditure limits were invalid under the state constitution. Before exploring whether the court’s overruling of Vannatta was sufficient to activate Measure 47, it's helpful to examine how the Mehrwein court arrived at its decision.
Revisiting Vannatta
Revisiting Vannatta
The court began its Mehrwein analysis with a discussion of the so-called Robertson framework, which the court had developed in a 1982 case involving the constitutionality of a state law that created and defined the crime of “coercion.” The Robertson framework groups laws that restrict speech into three categories. Broadly speaking, the first two categories include laws that expressly restrict speech, and the third category includes laws that as applied may have the effect of prohibiting or limiting speech. An example of a valid third category rule is a prohibition of the overnight use of steps in front of the state capital, even though it might affect protestors conducting a vigil on the steps at night. From a legal standpoint, the difference between category one and three laws is important because a category one law is nearly always unconstitutional, except in specific situations,whereas a category three law is constitutional but subject to as-applied challenges.
Applying the Robertson Framework to Campaign Contributions
When the court applied the Robertson framework in its 1997 Vannatta decision, it held that the ballot initiative’s limits on campaign contributions and spending fell into the first Robertson category of laws that expressly violate free speech, and were therefore unconstitutional – except under narrow circumstances. In Mehrwein, however, the court revisited its analysis and concluded that the ballot initiative at issue in Vannatta did not actually fall within the first Robertson category. According to the court in Mehrwein, the Vannatta court’s holding that limits on campaign contributions and spending expressly restrict free speech conflicted with other prior and later court decisions. Consequently, the Mehrwein court rejected Vannatta’s reasoning and concluded that Multnomah County’s campaign contribution limits did not violate the Oregon Constitution.
Campaign Expenditures vs. Contributions
While the Mehrwein court held that Multnomah County’s campaign contribution limits were permissible under the Oregon Constitution, the court remanded that issue to the trial court to determine whether the contribution limits were also permissible under the First Amendment of the U.S. Constitution. Additionally, the Mehrwein court also held that while the county’s limits on campaign contributions were valid under the Oregon Constitution, the county’s limits on campaign expenditures “unambiguously” violated the First Amendment and were therefore invalid. Consequently, the court declined to reconsider the Vannatta holding that campaign expenditure limits were unconstitutional.
Mehrwein’s partial overruling of Vannatta therefore created significant uncertainty around the constitutionality of Measure 47. Specifically, is the court’s overruling of Vannatta’s campaign contributions holding enough to trigger the enactment of Measure 47, even though the contributions issue in Mehrwein was remanded to the lower court and expenditure limits – which are similar to those contained in Measure 47 – were held to be unconstitutional?
“Constitutionality of Campaign Finance Limits Still in Limbo”
On April 23, 2020, Misha Isaak, Governor Kate Brown’s former general counsel, predicted Measure 47 would remain dormant because Vannatta’s expenditure limits holding still stands. This view implied that adopting Measure 47 is an all or nothing proposition. Isaak’s prediction proved accurate. On May 1, the Oregon Secretary of State issued a statement that Measure 47 was “not made operative by the decision in Multnomah County v. Mehrwein, and as such there is no change in current state election laws.” However, Hillary Borrud reported in TheOregonian that at least one of the Mehrwein appellants is considering whether to seek further clarification on the court’s ruling.
In the 2020 general election, Oregonians will have another opportunity to achieve campaign finance reform through a ballot measure called the “Oregon Campaign Finance Limits Amendment.” If approved, this ballot measure would amend the state constitution to give the Oregon Legislature and local governments the ability to limit political contributions. Put simply, this new ballot measure is a repackaging of Measure 46, but without the expenditure limitations. If the initiative succeeds, it’s unclear if the new constitutional amendment would animate Measure 47. Consequently, any further Mehrwein proceedings may be rendered moot if voters approve this measure.
However, for the time being, Multnomah County’s campaign contribution laws remain under court review and Oregon’s Measure 47 remains dormant. Meanwhile, Oregon politicians can continue to rake in unlimited campaign contributions from corporate interests, while the inadequacies of Oregon’s environmental laws remain. Consequently, if you accept the logic that more corporate campaign cash leads to weak environmental protections, don’t expect Oregon environmental legacy will change anytime soon.
The posts published on Charged Debate reflect the writers’ opinions in their individual capacities, and do not necessarily reflect the perspective of the Green Energy Institute at Lewis & Clark Law School, Lewis & Clark Law School, Lewis & Clark College, or the writers’ past, present or future employers or other associations. Any legal information presented on Charged Debate is meant purely for general educational purposes and is not intended to provide legal advice and should not be relied upon in any legal matter.
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