Deras v. Myers

• Decision Date: 14 May 1975
• Citation: 535 P.2d 541,272 Or. 47
• Parties: Warren DERAS, Respondent and Cross-Appellant, v. Clay MYERS, Secretary of State of the State of Oregon, Appellant and Cross-Respondent.
• Court: Oregon Supreme Court

Page 541

535 P.2d 541

272 Or. 47

Warren DERAS, Respondent and Cross-Appellant, v. Clay MYERS, Secretary of State of the State of Oregon,

Appellant and Cross-Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 7, 1975.

Decided May 14, 1975.

Lee Johnson, Atty. Gen., Salem, argued the cause and filed briefs for appellant and cross-respondent.

Warren C. Deras, Portland, argued the cause and filed briefs pro se.

Kenneth J. Guido, Washington, D.C., and Charles H. Habernigg, Marcus A. Wood, and Rives, Bonyhadi & Drummond, Portland, filed a brief amicus curiae representing Common Cause.

Morton A. Winkel, Portland, filed a brief amicus curiae representing the American Civil Liberties Union of Oregon, Inc.

Hans A. Linde, Eugene, filed a brief amicus curiae representing the Oregon Newspaper Publishers Association.

O'CONNELL, Chief Justice.

Plaintiff seeks a declaratory judgment holding unconstitutional ORS 260.027 and ORS 260.154 which limit the amounts which may be expended in support of or in opposition to candidates for public office in Oregon. Plaintiff, a candidate for State Representative, who wished to expend funds on his behalf and to support and oppose the candidacies of others without regard to the limits imposed by the statutes and regulations, sought to have them declared invalid infringements upon his rights to free expression and equal protection of law guaranted by the Oregon and federal constitutions. Defendant, as Secretary of State, is charged with the administration of the statutory scheme under attack.

The circuit court entered a decree holding unconstitutional ORS 260.154, which limits the freedom of anyone to expend funds in support or opposition of a candidate without the candidate's consent, but upholding as constitutional ORS 260.027, which limits the amount of expenditures in support of or in opposition to a candidate. Defendant appeals from that part of the decree declaring ORS 260.154 unconstitutional. Plaintiff cross-appeals from that part of the decree declaring ORS 260.027 constitutional.

ORS 260.027(1) provides as follows:

'(1) No political treasurer or combination of political treasurers shall make or authorize any expenditure that will cause the total amount expended in support or or opposition to a candidate to exceed, with respect to any primary, general or other single election:

'(a) For congressional and state-wide offices, 15 cents times the number of registered voters eligible to vote for the office on the date of the previous general election;

'(b) For all other offices except legislative offices, 25 cents times the number of registered voters eligible to vote for the office on the date of the previous general election or $1,000, whichever is greater; and

'(c) For the offices of State Senator and State Representative, 25 cents times the average number of registered voters on the date of the previous general election in all of the senatorial and representative districts, respectively, in the state.'

ORS 260.154 provides:

'(1) No person or political committee shall make expenditures in support of or in opposition to a candidate except the candidate or an opposing candidate. However, a person or political committee may make expenditures in support of a candidate if the consent of the candidate is previously obtained, or in opposition to a candidate if the consent of one or more other candidates for the same office is previously obtained.

'(2) A person or political committee which receives contributions or makes expenditures in support of a single candidate, or in opposition to one or more candidates with the consent of a single candidate, is not subject to ORS 260.035 to 260.162 but such contributions and expenditures are conclusively deemed to be those of the candidate on whose behalf they are made.

'(3) Any person or political committee other than a person or political committee described in subsection (2) of this section which receives contributions or makes expenditures in support of or in opposition to a candidate with his consent or the consent of any opposing candidate is subject to ORS 260.035 to 260.162. All expenditures by any such person or candidate shall also be considered to be contributions to and expenditures by the candidate who has consented to them and shall be reported by the candidate as well as by the person or committee making the expenditures.

'(4) Expenses incurred by a person or political committee on behalf of more than one candidate shall be allocated between such candidates on a reasonable basis.

'(5) Expenses incurred by a political committee, not allocable to any particular candidate or candidates, including expenses incurred in solicitation of funds intended to be contributed to candidates to be designated later, shall not be considered expenditures in support of a candidate for purposes of subsection (1) of this section or ORS 260.027.'

Stated in condensed form, ORS 260.027 imposes a monetary limit upon the total expenditures that can be made in support of or in opposition to a candidate for public office. ORS 260.154 prohibits Any expenditure in support of or in opposition to a candidate unless the person making the expenditure is a candidate or is acting with the prior consent of the candidate. To enforce these monetary limits, authority to make the expenditures is vested in a 'certified political treasurer' who may be the candidate himself or a person designated by the candidate, or the treasurer of a 'political committee.' ¹

The parties are in agreement that ORS 260.027 and ORS 260.154 are so intertwined in a single legislative scheme for the regulation of campaign expenditures that they must stand or fall together.

It is generally recognized that limits upon candidate expenditures are for the most part unenforceable unless coupled with candidate control over the activities of those who would support him or oppose his rivals. For this reason, we agree with the parties that the legislature intended to enact a single scheme embodied in the two statutes. ²

We are faced, then, with the initial question of whether the legislature may exercise its authority to regulate the conduct of elections ³ by limiting the rights of individual citizens to spend money in an effort to persuade their fellow citizens of the merits or demerits of electoral candidates without violating the prohibitions contained in Article I, §§ 8 and 26 of the Oregon Constitution. ⁴

Article I, § 8, provides:

'No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for abuse of this right.'

Article I, § 26, provides:

'No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances (sic.)' ⁵

If we hold that either of these provisions of the Oregon Constitution are violated by the statutes in question, it would not, then, be necessary to discuss the effect of the federal constitution (First Amendment) because in such case it would not come into play.

Defendant concedes that the statutes restrict freedom of expression but, it is argued, that the restrictions are only 'incidental' or 'nominal.' This is a part of an argument which is predicated upon the theory that freedom of expression and other constitutional freedoms must be balanced against valid legislative objectives and if the latter outweighs the former, the constitution must yield. It is asserted that since the regulation of free speech under the statutes is 'merely nominal' as compared to the pressing need to modify our campaign methods by controlling campaign expenditures, the constitutional prohibitions are inapplicable. It is contended that this result can be reached not only under the 'balancing test' but also by the application of the 'compelling interest' test under which legislation is regarded as valid only to the extent that it is Necessary to support a compelling governmental interest. Whether logic will permit the proposition that an unqualified constitutional prohibition against laws restraining freedom of expression can be overridden by a law directly restraining freedom of expression is a question we need not examine. ⁶ Assuming that a process of weighing constitutional interests against legislatively defined interests can be indulged in, we are of the opinion that the public interests served by the adoption of ORS 260.027 and 260.154 are clearly outweighed by the citizen interest protected under Article I, §§ 8 and 26.

We have not overlooked defendant's emphasis upon the evils which have flowed from the unregulated expenditure of campaign funds. Defendant's assertion that 'the integrity of government' is imperiled by our present campaign practices is nothing more than a statement of defendant's impression of the magnitude of the evil which attends the uncontrolled expenditure of campaign funds. There is no evidence in this case, nor any data in the studies on campaign expenditures discovered in our research, which would lead to the conclusion that our system of government is imperiled by the free expenditure of funds in political campaigns. Conceding for the purposes of this case that limitation and control of campaign expenditures is of great importance in the catalogue of our social and political needs, the good it proposes to accomplish must be weighed against the danger which it generates in restraining our citizens from freely expressing their views on candidates for public office. In weighing these competing interests, one must recognize the importance of the electorate's liberties of expression of opinion and assembly in the overall system of government established by our state and federal constitutions. These rights have been termed...