Vannatta v. Keisling

• Decision Date: 06 February 1997
• Citation: 931 P.2d 770,324 Or. 514
• Parties: Fred VANNATTA, Jon A. Chandler, Guardian Ad Litem for David Michael Chandler, a minor, George Boehnke, Center to Protect Free Speech, Inc., an Oregon nonprofit corporation, Public Affairs, Inc., an Oregon corporation, and Greater Salem Area PAC, a political committee, Petitioners, v. Phil KEISLING, in his capacity as Secretary of State, Respondent, and League of Women Voters and Oregon State Public Interest Research Group, Intervenors. SC S42506.
• Court: Oregon Supreme Court

Page 770

931 P.2d 770

324 Or. 514

Fred VANNATTA, Jon A. Chandler, Guardian Ad Litem for David Michael Chandler, a minor, George Boehnke, Center to Protect Free Speech, Inc., an Oregon nonprofit corporation, Public Affairs, Inc., an Oregon corporation, and Greater Salem Area PAC, a political committee, Petitioners, v. Phil KEISLING, in his capacity as Secretary of State, Respondent and League of Women Voters and Oregon State Public Interest Research Group, Intervenors.

SC S42506.

Supreme Court of Oregon.

Argued and Submitted May 8, 1996.

Decided Feb. 6, 1997.

John DiLorenzo, Jr., of Hagen, Dye, Hirschy & DiLorenzo, P.C., Portland, argued the cause for petitioners. With him on the briefs were Michael E. Farnell and Aaron K. Stuckey and John R. Faust, Jr., of Schwabe, Williamson & Wyatt, Portland.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondent. With him on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Lawrence Wobbrock, Portland, argued the cause for intervenors. Daniel E. O'Leary and Timothy R. Volpert, of Davis Wright Tremaine, Portland, filed the brief.

Annette E. Talbott, Portland, filed a brief for amicus curiae Common Cause of Oregon.

Leslie M. Roberts and Andrea R. Meyer, Portland, filed a brief for amici curiae The American Civil Liberties Union Foundation of Oregon, Inc. and the American Civil Liberties Union of Oregon, Inc., The Right to Privacy Political Action Committee, The Social Workers Political Action Committee, and the Oregon Faculties Political Action Committee.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ. ^*

GILLETTE, Justice.

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). ¹ The measure provides for mandatory limits on contributions to state political campaigns, as well as for voluntary expenditure limits by political candidates during their campaigns, and includes various other provisions relating to political contributions and expenditures. For the reasons set forth below, we hold that several of the constitutional challenges that are made against certain portions of Measure 9 are well taken. Accordingly, we hold that sections 3, 4, and 16 of Measure 9 violate Article I, section 8, of the Oregon Constitution, and are void. We further hold that sections 11, 14, 15, and 17 of Measure 9 are

"incomplete and incapable of being executed" ² and therefore void.

BACKGROUND

Petitioners ³ filed this petition pursuant to the original jurisdiction conferred on this court by section 23(1) of Measure 9. ⁴ They seek a declaration that Measure 9 is unconstitutional in its entirety. In the alternative, petitioners seek a declaration that sections 3, 4, 6, 8, 10, 11, 13, 14, 15, 16, 17, 19, and 20 violate various state constitutional protections and that, if the foregoing sections are held to be unconstitutional, sections 5, 7, 9, and 12 are void for lack of a purpose. Respondent is the Secretary of State of the State of Oregon. The League of Woman Voters (the League) and the Oregon State Public Interest Research Group (OSPIRG) have been permitted to intervene in the proceeding. The American Civil Liberties Union (ACLU) and Common Cause of Oregon have filed amicus curiae briefs in the case.

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. ⁵

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.

THE MERITS

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, ⁶ in that those sections limit or ban certain political campaign contributions and coerce political candidates to agree to limit their campaign expenditures. Petitioners rely on Deras v. Myers, 272 Or. 47, 535 P.2d 541 (1975), as support for their position. In addition, they argue that this court's more recent Article I, section 8, jurisprudence requires the same outcome. The Secretary of State argues that Deras is distinguishable and not controlling. He also argues that sections 8 and 26 of Article II, of the Oregon Constitution, have removed campaign contributions and expenditures from the scope of

the protection provided by Article I, section 8. Because it is asserted by petitioners to be the cure for all of Measure 9's alleged ills, we address Deras first.

1. Deras v. Myers

In Deras, this court considered the constitutionality of two statutes that regulated and restricted campaign expenditures. ⁷ The then-Secretary of State, Myers, conceded that campaign expenditures are a form of expression and that the statutes restricted this expression. This court implicitly agreed. Starting from that premise, viz., that the statutes restricted protected expression, this court then conducted a balancing analysis to determine whether the Secretary of State's asserted justifications for regulating that expression were sufficient to offset constitutional protections of free expression. ⁸ 272 Or. at 54-65, 535 P.2d 541. The court concluded that those asserted justifications--the allegedly destructive effects that uncontrolled expenditures of funds in political campaigns had on the legitimacy of the political process--were not sufficiently clear to justify the substantial restrictions that the challenged statutes placed on free expression. 272 Or. at 65, 535 P.2d 541.

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. ⁹ Under Oregon's Article I, section 8, jurisprudence, however, there is no basis for distinguishing between closely related forms of expression in the way that the United States Supreme Court does, solely on the basis of the extent to which a particular form of speech is thought by a court to be more or less "central" to the purposes of Article I, section 8.

8, jurisprudence. In the Secretary of State's view, campaign contributions merely are gifts which in themselves are devoid of political expression and, as such, constitute conduct that permissibly may be regulated. As shall be explained, we agree that the approach taken by the United States Supreme Court in Buckley does not translate well into our Article I, section 8, jurisprudence....