Deras v. Keisling

• Citation: 879 P.2d 850,320 Or. 1
• Parties: Warren C. DERAS, Petitioner, v. Phil KEISLING, Secretary of State of the State of Oregon, Joel Ario, Harry Lonsdale, Dave Moss, Steve Lanning, and Annette Talbot, Respondents. SC S41545.
• Decision Date: 02 September 1994
• Court: Oregon Supreme Court

Page 850

879 P.2d 850

320 Or. 1

Warren C. DERAS, Petitioner, v. Phil KEISLING, Secretary of State of the State of Oregon, Joel Ario, Harry Lonsdale, Dave Moss, Steve

Lanning, and Annette Talbot, Respondents.

SC S41545.

Supreme Court of Oregon.

Submitted on the Record and Petition for Review of Ballot

Measure Explanatory Statement on Aug. 12, 1994.

Decided Sept. 2, 1994.

Warren C. Deras, filed the petition in pro. per.

Michael D. Reynolds, Asst. Sol. Gen., Salem, waived appearance for respondent Phil Keisling.

No appearance for respondents Joel Ario, Harry Lonsdale, Dave Moss, Steve Lanning, and Annette Talbot.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS, and DURHAM, JJ.

GILLETTE, Justice.

This is an original proceeding for judicial review of a Ballot Measure Explanatory Statement ¹ for Ballot Measure 9, a proposed statutory enactment that is to be submitted to the voters at the general election in November. Petitioner is a person dissatisfied with the Explanatory Statement and who therefore has standing under ORS 251.235 to bring this proceeding. Respondent Keisling, as Secretary of State, is responsible for placing an Explanatory Statement for the ballot measure in the Voters' Pamphlet. The other respondents make up the committee that, pursuant to ORS 251.215, prepared the Explanatory Statement. The measure, entitled "The Oregon Campaign Finance Reform Act," creates a number of new statutory provisions and amends a number of present statutory provisions governing the financing of state and local election campaigns in Oregon. We conclude that the Explanatory Statement is deficient in two of the respects argued by petitioner. We therefore certify a modified Explanatory Statement.

The proposed measure, which consists of 26 sections, is too voluminous to be reprinted here. To the extent necessary, we shall discuss pertinent portions of the proposed measure in connection with specific arguments advanced by petitioner.

The committee created to write an Explanatory Statement for the measure filed the following statement:

"Measure 9 revises laws relating to the financing of election campaigns. Major provisions of the measure include limits on amounts that could be contributed to certain candidates, optional limits on the amount those candidates could spend at the primary and general elections and a ban on certain political contributions. The measure would not apply to federal, local and ballot measure elections.

"Contribution Limits

"At each election, a person or political action committee (PAC) could contribute no more than $500 to a candidate for statewide office and no more than $100 to a candidate for the legislature. An individual could contribute no more than $100 to a PAC each year.

"At each election, political parties could contribute no more than $25,000 to a candidate for Governor, $10,000 to a candidate for certain other statewide offices and $5,000 to a candidate for the legislature. An individual could contribute no more than $1,000 to a political party each year.

"Contribution limits would be waived if an opponent spends personal funds in excess of $25,000 for a statewide office or $10,000 for a legislative office. Any violation of the contribution limits could be penalized by fines up to $1,000 or three times the amount of the excess contribution. "Expenditure Limits

"The measure sets optional expenditure limits for candidates for statewide office and legislative office as follows:

                                      Primary               General
                Position              Election:             Election
                Governor              $500,000              $1,000,000
                Other Statewide       $200,000                $400,000
                State Senate           $30,000                 $60,000
                State House            $20,000                 $40,000
                

"The Voters' Pamphlet would indicate whether each candidate has chosen to limit expenditures. The limits would be waived if any opposing candidate did not agree to limit expenditures or exceeded the expenditure limit. A candidate who agreed to limit expenditures and exceeded the limit could be fined up to twice the amount of the excess expenditure and be subject to other penalties.

"Other Provisions

"Most 'pass-through' contributions between candidates, between candidates and PACs and between PACs would be prohibited.

"Corporations and labor organizations would be prohibited from making direct contributions to candidates.

"The measure defines terms such as 'contribution' and 'expenditure.' The measure sets rules for determining when expenditures are independent of a candidate and when they are made in cooperation with a candidate. If expenditures are not independent, they would count as contributions to the candidate and expenditures by the candidate. Independent expenditures in excess of $25,000 for statewide office or $10,000 for legislative office would have to be reported to the Secretary of State and the candidates.

"Candidates could not use campaign funds for personal purposes.

"Tax credits would be eliminated for contributions to candidates who choose not to comply with the expenditure limits. Tax credits would be eliminated for contributions to certain PACs."

An Explanatory Statement placed in the Voters' Pamphlet is supposed to be "an impartial, simple and understandable statement explaining the measure." ORS 251.215. Under ORS 251.235, this court reviews challenged Explanatory Statements to determine whether they are "insufficient or unclear." A statement is "insufficient" if it is not impartial or if it is "potentially misleading." Homuth v. Keisling, 314 Or. 214, 220, 837 P.2d 532 (1992). Petitioner advances a number of arguments aimed at demonstrating that various portions of the Explanatory Statement fail the foregoing test.

Before addressing the substantive arguments advanced by petitioner, we first discuss two other issues raised in the petition. In the first of those issues, petitioner argues that this is not a case in which this court should extend the "deference" that it historically has accorded to what this court has described as the "legislative and political" process by which Ballot Measure Explanatory Statements are prepared by committees that are designed, through the process by which they are created, to be balanced. See Teledyne Wah Chang Albany v. Powell, 301 Or. 590, 592-93, 724 P.2d 319 (1986) (so describing the process). Instead of a "balanced" committee, petitioner argues, the one created in this instance was "loaded" in favor of the ballot measure and, as a result, produced an Explanatory Statement that is heavily biased in favor of the ballot measure.

We reject petitioner's argument that this court should, in response to his extra-record assertions concerning the makeup of the committee, exceed our statutory scope of review in these cases.

As a second preliminary matter, petitioner points out that, among other things, the ballot measure purports to amend several existing statutes. The difficulty with some of those amendments, however, is that the versions of those statutes used in the ballot measure are the 1991 versions, but several of those same statutes were amended (some substantially so) or even repealed by the 1993 legislature. Petitioner asks that this court therefore "determine what the words of the amended statutes will be if the measure is enacted and reveal to the voters the changes not apparent on the face of the measure."

We agree with petitioner that a significant amount of "sorting out" may be required should the ballot measure pass. But any such sorting out process lies well beyond the capacity of this court to perform, given the very short time frame in which this court must dispose of Explanatory Statement challenges like the present one. Unsatisfactory as that is, we perceive no practical way to deal with the problem before the election. We turn to petitioner's substantive challenges to the Explanatory Statement.

Petitioner asserts that, because of what he describes as a "drafting error," it is "impossible to determine what is an 'expenditure' [under the measure]." We are unclear as to what petitioner is asking us to do in this regard. As he acknowledges, the measure does contain definitions of "expenditure" in various contexts. He does not argue that the Explanatory Statement does violence to those definitions. Instead, he identifies what he regards as a potential conflict in the application of those various definitions, given one possible way of looking at them, and then figuratively throws up his hands. We decline to join him, absent a concrete challenge to what the committee wrote. If interpretative problems of the kind that petitioner describes are lurking in the measure, there will be better opportunities to sort them out in a concrete case and in the event that the measure becomes law.

Petitioner next asserts that two subsections of section 2 of the measure create exemptions from expenditure and contribution limits and from reporting requirements that are "destructive of effecting reporting laws" and that should, therefore, be "disclosed to the voters." Assuming (in the abstract) the validity of petitioner's premise, we note that his proposed solution is simply to add a sentence to the Explanatory Statement that says, "The measure exempts certain costs from reporting laws." That sentence would add little, if anything, to the existing Explanatory Statement. We decline to insert it.

Petitioner next turns to the way in which the Explanatory Statement deals with the subject of political parties and independent candidates. He says,

"The measure contains a number of provisions favoring political parties in general and major political party candidates in particular to the disadvantage of minor party and independent candidates. One of those provisions is misstated in the proposed explanation, and others are entirely omitted. They are too significant to omit."

Petitioner identifies the "mi...