This case involves challenges, under various provisions of the Oregon Constitution, to portions of Oregon Laws 1995, chapter 1, ("Measure 9") (a set of statutes adopted by the voters through the initiative process).
As a preliminary matter, the League and OSPIRG ask this court to remand this case to a circuit court for the purpose of developing a factual record through discovery or, in the alternative, to appoint a special master for that purpose. Both petitioners and respondent object, asserting that the issues before this court involve facial challenges to the constitutionality of Measure 9 and, thus, can be decided by this court without taking evidence. We agree with the latter view. Recourse to factfinding is unnecessary. We limit our exercise of the special and original jurisdiction conferred on this court by section 23(1) of Measure 9 to facial challenges asserted by the parties. We deny intervenors' motion to remand or to appoint a special master.
As we turn to the merits, we believe that it is appropriate to insert a general admonition concerning the scope of this opinion. This is a case involving challenges to the constitutionality of a statutory enactment. Those challenges are aimed at the specific wording of various provisions of the enactment. The challenges assert that the wording in question violates one or another principle found in the Oregon Constitution. So understood, the challenges are quite limited.
A. Article I, section 8
Petitioners (and amicus ACLU) assert that various sections of Measure 9 violate Article I, section 8, of the Oregon Constitution,
1. Deras v. Myers
In Deras, this court considered the constitutionality of two statutes that regulated and restricted campaign expenditures.
Deras provides little assistance in conducting an Article I, section 8, inquiry under this court's present jurisprudence. In Deras, this court assumed that campaign expenditures were protected expression and that the challenged statutes restricted that expression. Furthermore, Deras did not involve statutes that directly restricted campaign contributions. In this case, the parties again concede that campaign expenditures are protected expression, but the Secretary of State disputes both whether campaign contributions are protected expression and whether Measure 9 restricts campaign expenditures in any way that implicates constitutional protections. Therefore, we first need to analyze whether campaign contributions are, in fact, protected expression under Article I, section 8. If they are protected expression, we then must determine whether Measure 9 restricts them or campaign expenditures. To the extent (if any) that Measure 9 restricts protected expression, we then must determine whether such restrictions are permissible under Article I, section 8. We turn to that analysis.
2. Are political contributions and expenditures protected forms of expression under Article I, section 8?
Both the Secretary of State and Common Cause concede that campaign expenditures constitute expression for Article I, section 8, purposes. We accept and agree with that proposition as a general matter. Expenditures by a candidate, an organization, a committee, or an individual, when designed to communicate to others the spender's preferred political choice, is expression in essentially the same way that a candidate's personal appeal for votes is expression. However, both the Secretary of State and Common Cause contend that campaign contributions are distinguishable from expenditures and do not constitute expression under Article I, section 8.
The Secretary of State acknowledges that, under the First Amendment, campaign contributions also are recognized as expression. See Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (so holding under federal constitution). Nonetheless, he argues that the rationale supporting that conclusion is unpersuasive and should not be used by this court in its Article I, section
Although Buckley determined that both expenditures and contributions were forms of expression under the First Amendment, it also concluded that contributions were less central to the core of First Amendment expression and, therefore, could be subject to governmental restriction through a balancing of interests. 424 U.S. at 28-29, 96 S.Ct. at 639-40.
Even if such distinctions based on the "centrality" of particular forms of expression could be made under Article I, section 8, we would not be persuaded that the reasoning in Buckley applied equally well to the protections provided by Article I, section 8. Two of the bases asserted in Buckley for finding that contributions are a less protected form of expression than are expenditures were the following assumptions about contributions: (i) although contributions may result in speech, that speech is by the candidate and not by the contributor; and (ii) contributions express only general support for a candidate and do not communicate the reasons for that support. 424 U.S. at 21, 96 S.Ct. at 635.
Neither of those assumptions appears correct to us. In our view, a contribution is protected as an expression by the contributor, not because the contribution eventually may be used by a candidate to express a particular message. The money may never be used to promote a form of expression by the candidate; instead, it may (for example) be used to pay campaign staff or to meet other needs not tied to a particular message. However, the contribution, in and of itself, is the contributor's expression of support for the candidate or cause—an act of expression that is completed by the act of giving and that depends in no way on the ultimate use to which the contribution is put. Neither do we perceive any useful constitutional purpose to be served by purporting to gauge whether contributions constitute "general," rather than "specific" or "particularized," support for a candidate or measure.
Under Oregon law, the sole remaining question is whether contributions to political campaigns and candidates also are a form of expression under Article I, section 8. For the reasons that follow, we conclude that many—probably most—are.
In formulating our answer to the foregoing question, we have constantly kept before us the principle that elections ultimately are for the people, not the candidates. That is, elections are designed to permit the people freely
We further note that, where Article I, section 8, is concerned, it is a prohibition against "law[s] be[ing] passed" that have the effect of "restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever." If it can be shown that financial contributions and expenditures are "the free expression of opinion," laws limiting such activities run afoul of the constitutional protection. But lawmakers might choose to impose requirements distinct from contribution or expenditure limitations (e.g., requirements of disclosure of financing sources and the extent of any gift) as well as various sanctions (e.g., civil or criminal penalties, disqualification from the ballot or Voters' Pamphlet, and the like) and their choice may not necessarily offend the constitutional requirement. This case involves a mixture of laws, some aimed at contributions and expenditures themselves and some aimed at ancillary questions such as disclosing whether a candidate voluntarily has agreed to limit his or her expenditures. As we shall see, those differences make a difference.
We think that it takes little imagination to see how many political contributions constitute expression. We assume, for example, that no one would deny the right of a citizen to purchase individually a newspaper ad that urges others to support a particular candidate or cause. And, if the individual can persuade enough neighbors and friends to join in the effort, the resulting spending power may produce much larger ads or television or radio commercials. No one, we take it, would gainsay the right of the individual to amplify his or her voice through collective buying power—gaining adherents for one's views is the essential purpose of political advocacy. It then follows ineluctably that the contribution of the collective "pot" thus collected is expression, just as the individual's ad was. Indeed, it does not even matter if the money goes directly into an ad created by the contributors themselves or, instead, the money goes to professionals who create the ad for a fee. The outcome is the same—"expression," for the purposes of Article I, section 8.
Viewed in the foregoing way, expenditures and contributions can be better seen for what they are—not opposite poles, but closely related activities. But the right to spend money to encourage some candidate or cause does not necessarily extend to spending other people's money on a political message without their consent, whether that money comes from compulsory union fair share fees, a shareholder's equity, student activity fees, or dues paid to an integrated Bar. Similarly, the law may prohibit certain forms of contributions such as giving bribes.
The foregoing notwithstanding, Common Cause argues that expressions of generalized support for a candidate are not tied to any particular message and, thus, should not be recognized as expression under Article I, section 8. We disagree. Article I, section 8, does not make such fine distinctions. Expressions do not fall within or without the scope of Article I, section 8, based on the particularity or the intensity of their message.
In any event, the distinction that Common Cause attempts to make is illusory. An expression of generalized support is a particular message. If, instead of giving a contribution, a citizen stood on a street corner and announced, "I support candidate X," there would be no doubt that that message constituted an expression of general support for that candidate, as well as a more particular message: "X deserves your vote." From the perspective of the contributor, the contribution is the same kind of message as is the street corner announcement.
The Secretary of State nevertheless argues that expression otherwise protected under Article I, section 8, is not protected in the context of political campaigns, due to what he views to be the countervailing effect of Article II, sections 8 and 22, of the Oregon Constitution. Previously, this court has not addressed the relationship between those sections and Article I, section 8. We turn to that issue.
I. Article II, section 22
Article II, section 22, was passed by initiative as Measure 6 at the same election at which Measure 9 was adopted. It provides in part:
The Secretary of State argues that that constitutional amendment more specifically addresses the right of expression bestowed on individuals who seek to contribute to Oregon political campaigns than does Article I, section 8. Consequently, the Secretary of State asserts that Article II, section 22, "is preemptive" and that "`it occupies the field' and defines campaign contribution rights under the Oregon Constitution."
Petitioners respond by pointing out that Article II, section 22, has been declared void by a federal district court. See Vannatta v. Keisling, 899 F.Supp. 488 (D.Or.1995) (so holding, declaring that Article II, section 22, violates the First Amendment; accompanying injunction bars Oregon's Secretary of State and Attorney General from "enforcing or attempting to enforce" Article II, section 22).
Of course, federal district courts are empowered to decide whether a state law violates the United States Constitution. The decision of the federal district court in Vannatta is illustrative of that process. However, that decision currently is on appeal to the United States Court of Appeals for the Ninth Circuit. Therefore, no final judgment has been rendered in that case. The question of the constitutionality of Article II, section 22, under the First Amendment, remains unresolved. Therefore, we consider the merits of the Secretary of State's argument.
By its terms, Article II, section 22, prohibits candidates from using campaign contributions from individuals who reside outside the candidate's voting district. The Secretary of State argues that, by using the term "individuals," the provision prohibits not only the use of contributions from citizens outside a voting district, but also the use of contributions from all corporations, businesses, labor unions, and political action committees (PACs), whether or not those entities reside inside a voting district.
The Secretary of State argues that "[t]he general guarantees of the free speech clause cannot be said to confer rights that the specific provisions of Article II, section 22 restrict." Even assuming that premise is correct, the reach of the Secretary of State's theory exceeds its grasp. Article II, section 22, does not restrict candidates from using campaign contributions of individuals who reside inside the candidate's voting district in any way. Therefore, Article II, section 22, cannot be said to negate whatever protections are afforded to individual citizens who reside inside the relevant district under Article I, section 8.
The Secretary of State appears to argue nonetheless that, although Article II, section 22, does not address expressly all forms of political contributions restricted by Measure 9, it still preempts the entire field of campaign contributions. We disagree. Article I, section 8, has protected expression in the most sweeping terms since its enactment in 1859. See, e.g., State v. Stoneman, 323 Or. 536, 541, 920 P.2d 535 (1996) (stating that the sweep of Article I, section 8, is broad and that it "extends not only to written and spoken communications, but also to verbal and nonverbal expressions"). Any particular forms of expression that have been removed from that protection by a subsequent constitutional amendment must be construed carefully to give effect to the scope of the later exception, but no more, lest the salutary value of Article I, section 8, unintentionally be lost. Even construing Article II, section 22, to the broadest extent that its wording will bear, we conclude that it does not eliminate whatever protection Article I, section 8, otherwise may afford to campaign contributions that are made by individuals residing inside the voting district in question.
II. Article II, section 8
The Secretary of State also argues that Article II, section 8, removes the contribution and expenditure restrictions imposed by Measure 9 from any protection under Article I, section 8. Article II, section 8, provides:
The Secretary of State construes the foregoing wording to allow the legislature, or the people acting through the initiative process, to enact laws that restrict campaign contributions and expenditures. Petitioners respond that the provision empowers only the legislature, not the people, to enact laws and that, in any case, it applies only to elections, not to campaigns. We address each of those theories in turn.
Petitioners' argument that the constitution empowers only the Legislative Assembly, and not the people, to enact laws relating to elections is not well taken. The reference in Article II, section 8, to the "Legislative Assembly" must be read in pari materia
We turn to petitioners' second argument, viz., that Article II, section 8, is addressed to "elections," not to "political campaigns," and that the two concepts are different. For the reasons that follow, we agree with the thrust of this argument.
To interpret a provision of the Oregon Constitution, this court considers "[i]ts specific wording, the case law surrounding it, and the historical circumstances that led to its creation." Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992). We begin our inquiry with a review of the wording of Article II, section 8.
Unlike the recently created Article II, section 22, Article II, section 8, has been in the Oregon Constitution since statehood. It is directed to the legislature and requires that body to "enact laws" that will "support the privilege of free suffrage" in two ways: (i) by "prescribing the manner of regulating, and conducting elections"; and (ii) by "prohibiting * * * all undue influence therein." The first clause may be broken down further into two parts: The legislature is to (1) prescribe the manner of regulating elections; and (2) prescribe the manner of conducting elections. That is, both parts refer to "elections." As a matter of grammar, the word "therein" in the second clause also refers to the topic mentioned earlier, viz., "elections." Thus, the second clause properly may be restated as referring to "all undue influence [in elections]." There is no specific mention in Article II, section 8, of the word "campaigns." Yet, at the time that Article II, section 8, was adopted in Oregon in 1859, the behavior that we now think of as political campaigns was commonplace.
The Secretary of State would have us construe "elections" to include all activities that occur during political campaigns. But the two concepts do not necessarily overlap so completely. A present day dictionary defines "election" as "the act or process of choosing a person for office, position, or membership by voting." Webster's Third New Int'l Dictionary at 731 (unabridged 1993). "Campaign" is defined as "a series of operations or efforts designed to influence the public to support a particular political candidate, ticket, or measure." Id. at 322. The parties have gone to considerable effort to persuade us either that the two concepts are the same or that they are completely distinct.
If one were to utilize the modern definition of "election" as a "process," there would be room for the Secretary of State's argument for a sweeping interpretation of the word "elections" in Article II, section 8, because the "process" contemplated by the section could be deemed to be the entire electoral adventure, from the announcement of candidacy through the canvassing of election returns. However, the constitutional provision that we construe here was proposed in 1857, not in 1996. A dictionary relevant to that time gives a more limited definition of the word "election": "The act of choosing a person to fill an office or employment, by any manifestation of preference, as by ballot, uplifted hands or viva voce[.]" Webster's American Dictionary of the English Language (1828).
The dictionary on which we rely has no definition of "campaign" that corresponds to the present-day use of that word as a description
Our precedents make it clear that, when construing provisions of our constitution, we attempt to understand the wording in the light of the way that wording would have been understood and used by those who created the provision. See, e.g., State v. Kessler, 289 Or. 359, 368-69, 614 P.2d 94 (1980) (explicating that the term "arms" in the phrase, "[t]he people shall have the right to bear arms for the defence [sic] of themselves" in Article I, section 27, of the Oregon Constitution, must be construed in the light of the kind of weapons carried for personal protection at the time of the creation of the Oregon Constitution). So it is in the present case. To those who created the Oregon Constitution, "elections" were a relatively narrowly defined concept.
It thus appears to us that, in order to keep faith with the ideas imbedded in Article II, section 8, we should construe "elections" to refer to those events immediately associated with the act of selecting a particular candidate or deciding whether to adopt or reject an initiated or referred measure. We do not suggest, by our use of the phrase "immediately associated with," that the legislature's power is limited in time—a bribe to vote a particular way that was given months before an election still would appear to fall within the ambit of Article II, section 8. But we do suggest that, given the relevant historical meaning of the word used, the legislature's mandate is a confined one.
This brings us back to our discussion of the wording that actually appears in the constitutional provision. The focus of section 8 is on "free suffrage"—a holdover from the fascination with the idea of an expanding electorate that dominated political discussion in the first half of the nineteenth century. As we have explained, section 8 specifically authorizes laws that support free suffrage in three ways: (1) by prescribing the manner in which elections will be regulated; (2) by prescribing the manner in which elections will be conducted; and (3) by prohibiting "all undue influence therein." As we read them, each of those three different ways of supporting free suffrage has a different scope, and the differences matter.
The direction to enact laws prescribing the manner in which elections will be regulated appears to speak to laws that establish what offices will be elective, who will be eligible to run for and serve in them, when and how such persons must make their candidacy official, who will be eligible to vote in elections for those offices, and the like. In addition, the term "regulating" appears to encompass the question of who generally will be eligible to vote, what the qualifications for that privilege will be, how one establishes eligibility, and the like. Finally, the term appears to authorize the legislature to designate public officials to oversee the elections process.
The direction to enact laws prescribing the manner of conducting elections, by contrast, appears to be concerned with the mechanics of the elections themselves, i.e., with questions of where and how many polling places there will be, how they shall be operated, who may be present in them to ensure their proper operation, and the like.
The foregoing explication fits readily with the examination of the final provision of Article II, section 8, which calls for laws that "prohibit * * * all undue influence therein, from power, bribery, tumult, and other improper conduct." As we already have explained, "therein" refers to "elections." Thus, the legislature is directed to enact laws prohibiting all "undue influence" in elections from the sources identified in the constitutional text.
Given our reading of the term "elections," together with the scope of the concepts of "regulating" and "conducting" in Article II, section 8, the only way in which the Secretary
The clause directing the legislature to prohibit all undue influence in elections specifically enumerates the sources of influence that it considers to be "undue": "power, bribery, tumult, and other improper conduct." As we understand them, each of the first three enumerated examples is concerned specifically with the act of voting itself. "Power" appears to be a reference to the possibility that persons might, by a show of force, either attempt to prevent an election from occurring or coerce a particular outcome. See Webster's American Dictionary of the English Language (1828) (defining "power" as, inter alia, "[v]iolence; force; compulsion"). "Bribery" appears to be a reference to someone actually paying a voter to vote in a particular way. And "tumult" again is a reference to the kind of unruly or riotous conduct at or near the polling place that would have the actual effect of hindering or preventing the voting process. Thus, all three specific examples in the clause speak to actual interference in the act of voting itself. None is as broad in scope as either the concepts of "regulating" or "conducting," and both of those concepts in turn speak to a narrow historical concept of "elections."
Given the scope of the three specific examples in the clause, it becomes clear why the Secretary of State's expansive reading of the last, unspecific phrase, "other improper conduct," probably is not the appropriate one. Under the doctrine of ejusdem generis, a nonspecific or general phrase that appears at the end of a list of items in a statute is to be read as referring only to other items of the same kind. See, e.g., State v. K.P., 324 Or. 1, 11 n. 6, 921 P.2d 380 (1996) (illustrating doctrine). Therefore, because the first three listed items in the clause all appear to refer to conduct that interferes with the the act of voting itself, rather than with the far broader concept of political campaigning, the last phrase also should be read as being confined to that more narrow scope. Ordinary campaign contributions and expenditures do not constitute "undue influence" under any one of the specified sources of undue influence. The Secretary of State's contrary argument is not well taken.
In summary, we are of the view that, based solely on the wording of the constitutional provision itself, the reading that the Secretary of State wishes to give to it appears to be incorrect. However, we have, pursuant to the process described in Priest, examined the historical circumstances that led to the creation of the constitutional provision, in order to determine whether there is something in the background of the provision that calls for a revision of our preliminary reading of it.
The historical context in which Article II, section 8, was adopted is interesting, but does not alter our tentative view arrived at on the basis of text alone. That provision derives from a similar provision in the Connecticut Constitution of 1818.
The fact that Oregon's provision does not limit its scope expressly to the meeting of electors but, instead, uses the term, "elections," arguably supports either of two different conclusions. On the one hand, it could indicate that the Oregon provision was intended to extend further than the Connecticut provision. On the other hand, the framers of the Oregon Constitution may have regarded the terms, "meetings of the electors" and "elections," as synonymous. But, because we already have assumed a broader reading in our initial discussion of the text, the answer to this issue is irrelevant. None of the clauses of the provision may be read so broadly as to sweep within their scope the acts of contributing to or making expenditures in political campaigns. We have found nothing in the available history of the 1818 Connecticut Constitution that explains what its framers may have had in mind by the use of the term "undue influence," followed by the list of examples that Oregon later adopted. It follows that nothing in our review of the history of Article II, section 8, alters our preliminary reading of that provision.
The context of the other sections in Article II of the Oregon Constitution also supports our conclusion. At statehood, the other sections in Article II dealt almost exclusively with the rights and qualifications for electors,
Finally, previous case law does not alter our preliminary conclusion. This court never has attempted to construe the scope and meaning of Article II, section 8, with any precision.
3. Article I, section 8, analysis
In considering a challenge under Article I, section 8, we first determine whether the challenged provision is "on its face `written in terms directed to the substance of any "opinion" or any "subject" of communication.'" State v. Stoneman, 323 Or. 536, 543, 920 P.2d 535 (1996) (quoting State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982)). This is the so-called "first level" of inquiry. If so written, the statute is invalid, unless it fits within an historical exception or can be justified under the "incompatibility" exception to Article I, section 8. Stoneman, 323 Or. at 543-44, 920 P.2d 535.
If the statute is not written in terms that are directed to the substance of an opinion or subject of communication, but instead is written in terms that are directed at a harm that may be proscribed, then a second level of inquiry follows. Id. at 543, 920 P.2d 535. Even when the statute does not, by its terms, target a harm, a court may infer the harm from context. Id. at 546, 920 P.2d 535; Moser v. Frohnmayer, 315 Or. 372, 379, 845 P.2d 1284 (1993). If the statute targets that harm, then the statute may survive Article I, section 8, scrutiny, even though the statute expressly prohibits expression used to achieve that harm, provided that the statute survives an overbreadth analysis. Stoneman, 323 Or. at 543, 920 P.2d 535; State v. Plowman, 314 Or. 157, 164, 838 P.2d 558 (1992).
Finally, if the statute does not prohibit expression, then the statute is subject only to a vagueness challenge. Stoneman, 323 Or. at 543, 920 P.2d 535. With the foregoing construct in mind, we turn to the specific provisions of Measure 9 that are at issue in this case.
I. Contribution Provisions
Sections 3(1)(a) and (b) of Measure 9 provide that "a person or political committee shall not contribute an aggregate amount exceeding [$500 to a candidate or the principal campaign committee of a candidate running for statewide office, and $100 to a candidate or the principal campaign committee of a candidate running for State Senator or Representative]." (Emphasis added.)
Section 4 provides—with certain exceptions—that "[a] candidate or the principal campaign committee of a candidate * * * shall not make a contribution to [other candidates, principal campaign committees or other political committees]." (Emphasis added.)
Section 16 provides—with certain exceptions—that "[a] corporation, professional corporation, nonprofit corporation or labor organization shall not make a contribution * * * to any candidate or political committee." (Emphasis added.) Section 16 provides that "[a] candidate or the principal campaign committee of a candidate shall not accept a contribution prohibited by this section." (Emphasis added.)
Petitioners argue that the contribution provisions in Measure 9 are targeted at the content of speech, i.e., political support for a candidate, and thereby fall under the first level of Article I, section 8, scrutiny. They argue, further, that there is no historical or compatibility exception to save those provisions. We agree.
The Secretary of State does not argue for, nor are we aware of, any historical exception from the protection of Article I, section 8. At the time of statehood and the adoption of Article I, section 8, there was no established tradition of enacting laws to limit campaign contributions.
It also is clear that the provisions of Measure 9 do not specify in their operative texts any forbidden harms that the restrictions are designed to address. Nonetheless, Common Cause argues that the contribution provisions are targeted at proscribing a particular harm and that the harm can be inferred.
Recently, in Stoneman, this court had occasion to infer the harm that a criminal statute was designed to address. The criminal statute at issue in Stoneman made it a crime to pay to see actual or simulated reproductions of sexually explicit conduct by a person under the age of 18. We concluded that the statute was directed at the prevention of child abuse and that the restriction of otherwise protected expressive conduct did not violate Article I, section 8, because the statute was targeted not at the content of speech, but rather at the harmful effects necessarily generated by the acts that created that speech. 323 Or. at 546-47, 920 P.2d 535. Of paramount importance to that holding was the fact that child abuse is a harm that properly is subject to government proscription and that such abuse necessarily had to occur in order to produce the expressive conduct in question. Neither of those criteria is present in this case.
Common Cause argues that the harm targeted by the contribution limitations is the existence of undue influence in the political process, or at least the appearance thereof. But it is not sufficient to select a phenomenon and label it as a "harm." Under Article I, section 8, the harm must be one that the legislature has a right to restrict or prohibit. See, e.g., Stoneman, 323 Or. at 546-47, 920 P.2d 535 (illustrating what is required). We do not say that all influence obtained by contributions and expenditures is immune from permissibly being regulated or prohibited as harmful. But, where expressive conduct is involved, the legislative target must be clear and a legally permissible subject of regulation or prohibition, and the means chosen to deal with it must not spill over into interference with other expression. See, e.g., City of Hillsboro v. Purcell, 306 Or. 547, 761 P.2d 510 (1988) (invaliding city ordinance that forbade all door-to-door solicitations as overbroad).
Common Cause cites numerous studies as support for its position that large campaign contributions can create undue influence over the political process. But those studies, like the arguments in favor of Measure 9 in the Voters' Pamphlet, only establish that there is a debate in society over whether and to what extent such contributions indeed cause such a harm. As Purcell and Stoneman make clear, apart from the legal question whether Article I, section 8, prohibits enactment of the law as drafted for any purpose, the "harm" that legislation aims to avoid must be identifiable from legislation itself, not from social debate and competing studies and opinions. Measure 9 does not in itself or in its statutory context identify a harm in the face of which Article I, section 8, rights must give way.
We note, finally, that, if the purpose of the limitation simply is to improve the "tone" of campaigns, as Common Cause seems at bottom
This is not a case like Stoneman, where a form of expression could be limited in order to protect those children who necessarily were harmed by the act of creating that expression. Instead, we are asked to hold that legislation may forbid certain expression on the grounds that the intensity with which it is delivered will give it an unfair ability to succeed. Put baldly, Measure 9 proposes to foreclose certain expression because it works. We conclude that the contribution limitations imposed by Measure 9 are targeted at protected speech. We further conclude that success, without more, cannot be a proscribable harm. Therefore, those provisions can be saved only if there is an historical precedent for them or if those provisions proscribe a form of expression incompatible with political campaigns.
Both the Secretary of State and Common Cause argue that an "incompatibility" exception applies to laws regulating campaign finance and should remove the provisions of Measure 9 from the protection of Article I, section 8.
The Secretary of State asserts that Fadeley was based on this court's "profound" concern with "the stake of the public in a judiciary that is both honest in fact and honest in appearance." 310 Or. at 563, 802 P.2d 31. The Secretary of State argues that the same justification should apply to the attempt of Measure 9 to ensure that non-judicial elected officers are both honest in fact and in appearance. We disagree with the Secretary of State's attempt to treat Fadeley as a parallel to the present one.
In both Fadeley and the leading incompatibility case, In re Lasswell, 296 Or. 121, 673 P.2d 855 (1983), the court stressed that a professional's speech must actually vitiate the proper performance of the particular professional's official function, under the facts of the specific case. See Fadeley, 310 Or. at 563-64, 802 P.2d 31; Lasswell, 296 Or. at 126, 673 P.2d 855 (both illustrating proposition). Measure 9 does not satisfy the foregoing requirement. It does not address specific cases of official misconduct, and it cannot be contended that the expression in question (contributions) actually impairs performance of, e.g., legislative functions in all cases. The Fadeley case thus provides no useful parallel to the case before us.
Shorn of its reliance on Fadeley, the Secretary of State's argument is a reiteration of the idea that money necessarily and inherently corrupts candidates. It is natural that support—financial and otherwise—will respond to a candidate's positions on the issues. Yet an underlying assumption of the American electoral system always has been that, in spite of the temptations that contributions may create from time to time, those who are elected will put aside personal advantage and vote honestly and in the public interest. The political history of the nation has vindicated that assumption time and again. The periodic appearance on the political scene of knaves and blackguards cannot, so far as we know, be tied to contributions more than to other forms of expression. There is no necessary incompatability between seeking political office and the giving and accepting of campaign contributions. This argument is not well taken.
II. Expenditure Provisions
Again, petitioners argue that the expenditure provisions in Measure 9 are targeted at the content of speech, fall under a first level Article I, section 8, analysis, and are not saved by any historical or incompatibility exceptions. The Secretary of State concedes that campaign expenditures are protected expression under Article I, section 8, but he contends that no provisions in Measure 9 restrict expenditures in any way that offends Article I, section 8. In the alternative, he argues that, if campaign expenditures are restricted in any way, they are restricted only minimally, and that the minimal restriction is warranted by the incompatibility exception.
We first address whether Measure 9 restricts expenditures. Section 6 of Measure 9 provides in part:
(Emphasis added.) Petitioners concede that section 6, in and of itself, is a voluntary provision that does not restrict expenditures. The section gives a candidate the option of agreeing to self-imposed expenditure limits or, in the alternative, of rejecting those expenditure limits. However, petitioners argue that other provisions, which become operative if a candidate chooses not to limit his or her expenditures, have the effect of coercing the candidate into agreeing to restrict expenditures and that such coercion is, for constitutional purposes, the functional equivalent of forbidding the expenditures outright.
Petitioners single out parts of sections 13 and 19, asserting that they provide "penalties" for failure to agree to limit expenditures under section 6. Petitioners argue that those provisions, when considered together with section 6, impermissibly coerce candidates to agree to self-imposed campaign expenditure limits. Assuming without deciding that a statute that impermissibly coerces a candidate to agree to self-imposed expenditure limits would amount to an unconstitutional violation of Article I, section 8, we conclude that those sections do not impermissibly coerce candidates. We analyze each challenged section in turn.
Section 13(1) requires the Secretary of State to publish in the Voters' Pamphlet a statement as to whether a candidate has agreed to limit his or her expenditures pursuant to section 6. We hold that the provision is non-coercive for two reasons. First, the publication requirement does not by its terms inflict a punishment: No fines are imposed, nor is any other objective punishment directly or indirectly associated with the publication. Second, we have difficulty accepting the proposition, in the context of political campaigns, that the neutral reporting of this kind of objective truth—and that is all that the Secretary of State is authorized to do—somehow impermissibly burdens expression.
Admittedly, a candidate's knowledge that his or her refusal to agree to expenditure limitations will be brought to the attention of the voters might persuade some candidates to agree to expenditure limits when, in the absence of that voter notification, they would
Section 13(3) provides that, if a candidate has agreed to expenditure limits and then exceeds those limits during an election, then, if that candidate runs in a later election, the Secretary is required to publish in the Voters' Pamphlet for the later election a bold-faced notice that the candidate failed to abide by his or her promise to limit expenditures in the earlier election. Unlike section 13(1), this provision singles out a certain group of candidates. However, as is true of section 13(1), the provision only provides for publication of a truthful statement in the Voters' Pamphlet.
Even if there were a basis for holding that the publication by the Secretary of State under section 13(3) were some sort of "punishment"—a proposition that we reject—that publication still would be permissible and not run afoul of Article I, section 8. Oregon laws provide penalties for political candidates who mislead the public or engage in fraud. See ORS 260.355 (providing that a candidate may lose a nomination or political office for deliberate and material violation of election laws); ORS 260.532 (making it an offense for a candidate to make, or allow to be made, publication of a false statement of material fact during a campaign). See also Cook v. Corbett, 251 Or. 263, 446 P.2d 179 (1968) (overturning a primary nominating election because the winning candidate made false statements in the course of the campaign). Laws that are targeted at fraud do not violate Article I, section 8, because they constitute an historical exception to Article I, section 8. Robertson, 293 Or. at 412, 649 P.2d 569.
Section 6 permits a candidate to promise not to exceed a specified amount of campaign expenditures. That promise then is published in the Voters' Pamphlet and may be relied on by voters in deciding for whom to vote. If a candidate reneges on that promise, he or she has misled the electorate.
We turn to section 19(4). That section provides that campaign contributors who contribute to candidates who have not agreed to abide by the campaign expenditure limitations under section 6 may not receive a tax credit for campaign contributions to that candidate. Contributors to candidates who have agreed to the limitation continue to receive a tax credit. Petitioners contend that that disparity has the indirect effect of punishing a candidate for not agreeing to the limitations. They argue that the legislation is premised on the idea that at least some campaign contributors either would not contribute, or would not contribute as much, but for the tax credit that accompanies their contribution, and that, faced with the threat of losing financial support from prospective contributors,
Like many provisions of any tax code, section 19(4) is an attempt to encourage certain practices by rewarding those who follow them. Here, the effort is to encourage limited campaign expenditures. The reward is a tax credit. No less than the tax scheme it replaced, section 19(4) is, in effect, an indirect form of public campaign financing. No taxpayer is entitled to a tax credit for political contributions. The legislative choice to allow such a credit, but only under limited circumstances, does not appear to us to implicate Article I, section 8.
What is true with respect to contributors appears to us to apply a fortiori to those who receive contributions. The legislative choice to encourage certain behavior by tax policy violates no right of any potential recipient of contributions, because the recipient had no constitutional right to the contributions-with-tax-credits in the first place.
B. Viability of Remaining Provisions of Measure 9
Having concluded that sections 3, 4, and 16 violate Article I, section 8, and are unconstitutional, we turn to section 23(2) of Measure 9. That section provides:
The section is a directive by the people to this court to conduct a "clean-up" function, i.e., to examine the impact of our constitutional rulings on the balance of the provisions of Measure 9 and then to eliminate those additional sections of the measure that become ineffective as a consequence. We turn to that task.
The following provisions in Measure 9 only gain relevance from the contribution limitations imposed by sections 3, 4, or 16. Section 11 imposes fines for violations of sections 3, 4, or 16.
C. Article I, section 26
Petitioners claim that sections 6, 10, and 13 of Measure 9 also violate Article I, section 26,
As we already have discussed, section 6 establishes the voluntary expenditure limit for each of the offices governed by the provisions of Measure 9, and section 13 provides for the publication in the Voters' Pamphlet of the candidate's agreement or
Petitioners assert that expression (under Article I, section 8) and association (under Article I, section 26) are "inseparable components of the same act." Therefore, they incorporate the same arguments that they raised under Article I, section 8, here as well. To the extent that petitioners' arguments do not assert any principled basis on which we could announce a different and more protective (to petitioners) scope to Article I, section 26, than that found in Article I, section 8, we conclude that our previous discussion under Article I, section 8, sufficiently indicates why sections 6, 10, and 13, on their face, do not violate Article I, section 26.
Petitioners also argue that sections 6, 10, and 13 of Measure 9, are unconstitutional for reasons unique to Article I, section 26. Article I, section 26, prohibits laws that restrain Oregonians from assembling together, peaceably, for the common good. Petitioners argue that several of the contribution sections limit free assembly. But they do not—and cannot—argue derivatively that the expenditure-related provisions—sections 6, 10, and 13—limit free assembly. We do not find petitioners' argument persuasive.
Article I, section 26, also prohibits laws that restrain Oregonians from instructing their representatives. Petitioners argue that contribution limits restrain the ability of Oregonians to instruct their representatives. Petitioners argue further, however, that expenditure limitations indirectly limit the ability of Oregonians to instruct their representatives, because meaningful instruction can be made only once Oregonians "learn a candidate's positions." We do not find that argument persuasive, because it is tied so clearly to the interests of both candidate and contributor in the concept of communication that it seems to us not to differ in principle from arguments already discussed under Article I, section 8. Petitioners' arguments under Article I, section 26, are not well taken.
D. Article I, section 20
Petitioners claim that sections 3(2), 3(3), 4(1)(a), 15, and 16 of Measure 9 violate Article I, section 20, of the Oregon Constitution.
E. Vagueness Challenge
Petitioners claim that section 17(2) of Measure 9 is unconstitutionally vague and, thereby, in violation of Article I, sections 20 and 21. We decline to address that claim because section 17(2) has been voided on statutory grounds.
F. Attorney Fees
Finally, petitioners request that, if they are successful on any of their claims, they be awarded attorney fees pursuant to this court's equitable powers described in Deras. It is true that, to some degree, the same "interest of the public in preservation of the individual liberties guaranteed against governmental infringement of the constitution" on which this court relied in awarding attorney fees in Deras is present in this case. 272 Or. at 66, 535 P.2d 541. That, however, is not enough. Deras was a case in which the petitioner was attempting only to vindicate interests of the public at large. By contrast, some of the petitioners, both individual and institutional, who have brought the present proceeding are not so disinterested.
Sections 3, 4, 11, 14, 15, 16, and 17 of Measure 9 are declared void. The remainder of Measure 9 is not invalid on any ground urged by the petitioners in this proceeding.
The identical provision appears as Article 6, section 4, of the present Connecticut Constitution.