Proposed Oregon campaign finance limits could be upended by a drafting technicality

By Dirk VanderHart (OPB)
Feb. 9, 2022 1 p.m.

Secretary of State Shemia Fagan says three proposed ballot measures dealing with campaign cash don’t pass constitutional muster. Two more contain the same problem, supporters admit.

Secretary of State Shemia Fagan says she is compelled by legal precedent to reject three proposals for new campaign finance limits. Advocates of the proposal say she is taking an overly strict stance.

Secretary of State Shemia Fagan says she is compelled by legal precedent to reject three proposals for new campaign finance limits. Advocates of the proposal say she is taking an overly strict stance.

Kristyna Wentz-Graff / OPB

Late last year, it looked like Oregonians might have plenty of options for how to limit campaign contributions.


Would-be reformers had filed six separate proposals for how to curb the state’s explosive political giving, raising the possibility that dueling measures could duke it out for voters’ affections during the November 2022 election.

Now all but one of those proposals might be dead — at least in their current forms.

Relying on an 2004 ruling from the Oregon Court of Appeals, Secretary of State Shemia Fagan says three proposed measures filed by good government groups do not meet a technical requirement of the state constitution. Fagan announced Tuesday evening she would be rejecting those measures despite protestations from supporters that she is misreading the law.

“As Secretary of State, I have a responsibility to ensure that every measure on the ballot meets the constitutional requirements to become law,” Fagan said in a statement. “If there is a procedural error in the measure, I owe it to Oregonians to require petitioners to fix the problem now, before those problems derail the law in the future.”

Meanwhile, two alternative campaign finance proposals backed by public-employee unions contain the same problem, supporters concede, meaning they would likely be rejected if they choose to move forward.

While advocates have said they would fight Fagan’s decision in court, the procedural hurdle could ensure that Oregon will once again delay instituting meaningful limits to campaign giving. Backers of the lone campaign finance proposal not to run afoul of requirements Fagan has cited, the union United Food and Commercial Workers Local 555, have not said whether they will seriously pursue the proposal.

Oregon is one of a handful of states that places no limits on how much an individual or entity can give to candidates, a fact that has helped campaign spending explode in recent elections. Voters have signaled they’re eager to tamp down on money’s role in politics. A ballot measure that altered the state Constitution to formally allow limits on campaign giving passed in a landslide in 2020.

Now the state must decide on a set of rules, but regulations proposed in the state Legislature have failed to find support in session after session, and it now appears ballot measures to create limits will face a setback.

Fagan’s decision to reject the measures, first reported by Willamette Week, emerged last week, when an attorney in the Secretary of State’s office alerted members of the group Honest Elections Oregon that their three ballot proposals — initiative petitions 43, 44 and 45 — all contained a problem.

The ballot proposals differ in their specifics, but each would create new limits on how much money individuals, advocacy groups, labor organizations, corporations and political parties can contribute to candidates and causes. They also include requirements that political advertisements display top donors, and that so-called “dark money” groups reveal their funding sources if they engage in campaigning.

All three also would tweak a state law against bribery, adding fewer than 20 words to existing statute. But rather than including that statute in its entirety in their proposed measure, as Fagan says was necessary under the 2004 court opinion, the proposed ballot measure only included the piece that would be changed.

“In Secretary Fagan’s view, initiative petitions 43, 44, and 45 fail to include the full text of the proposed measure as required,” P.K. Runkles-Pearson, chief legal counsel in the secretary’s office, wrote in an email to backers of the measures last week. She added: “The Secretary intends to reject the petitions with a plain statement of their procedural defects.”

Supporters of the proposals say that Fagan is taking an unusually strict stance. They point to several ballot measures — including a 2020 measure that paved the way for therapeutic uses of psilocybin mushrooms — that did not meet the verbiage standard and were still accepted by past secretaries.


“Over the last 18 years no other secretary of state has ever, as far as I’m aware, relied on this 2004 case to reject a petition,” said Jason Kafoury, a Portland attorney and chief petitioner behind all three proposals. “It’s never been enforced before Fagan.”

But Fagan’s office says the secretary is following legal precedent at the advice of the Oregon Department of Justice. Fagan herself said in a statement that her decision was procedural, not a reflection of how she feels about the proposals. She stressed that she supports the creation of campaign finance limits in the state.

“Whether I personally support the substance of a petition has no impact on the ruling of constitutional requirements,” she said. “The petitioners, who are attorneys, know this and I am disappointed that they chose to engage in baseless attacks instead of fixing their measure to meet constitutional requirements.”

This is also not the first time Fagan has rejected a ballot measure on these grounds. In August of last year, she ruled that a ballot measure filed by police unions had failed to meet the same requirements.

“We rejected it on advice from the DOJ and published our interpretation,” Ben Morris, a spokesman for Fagan, said Monday. He noted that that decision came nearly four months before the campaign finance proposals were filed.

“We have been consistent on this,” Morris said. “The issue is that previous secretaries (of state) interpreted the rule differently.”

Kafoury and his fellow petitioners say they’re prepared to fight.

In a legal brief filed with Fagan, they argue that she is misconstruing the 2004 court decision. If the secretary follows through in rejecting the measures, Kafoury says his group will challenge the move before the Oregon Supreme Court, and hope to get a ruling in time to collect more than 112,000 signatures by the July deadline.

Others are making different plans. Public-sector unions and advocacy organizations filed two ballot proposals of their own in December, after failing to find agreement with Kafoury and others on a single approach to campaign finance. But those proposals contain the same wording Fagan says she can’t permit.

Joe Baessler, political director for AFSCME Council 75 and a supporter of the measures, said Tuesday his coalition was surprised by Fagan’s conclusion, and would likely refile them without the offending language. “Our team has not met to confirm yet,” Baessler said. “I think it is 80% likely we will.”

He conceded that starting afresh could leave little time for backers to wade through protracted wrangling over ballot language and collect enough signatures by July, especially during a pandemic, when signature gathering has proven difficult.

The lone campaign finance proposal not to run afoul of the provisions cited by Fagan was filed by UFCW Local 555, the largest private sector union in the state.

While the other proposed measures run dozens of pages each, the UFCW measure is a single page. It outlaws political contributions from corporations, creates strict caps on what individual people can give to campaigns, and creates a structure that, in theory, could allow member organizations like unions to give unlimited amounts of money if they only accept small donations.

Michael Selvaggio, a UFCW lobbyist and chief petitioner behind the proposal, said Tuesday that the organization had not decided whether to move forward with the measure. “I don’t think we’re going to do it independently,” Selvaggio said, adding that the union would talk to other groups about moving forward.

If no ballot measure moves forward, Oregon is unlikely to create campaign finance limits this year. While a proposal for some limits passed the state’s House of Representatives in 2019, it died in the Senate. Lawmakers have tried repeatedly to move a revamped proposal in the years since without success.

House Speaker Dan Rayfield, D-Corvallis, who proposed the 2019 measure, suggested this week he did not expect lawmakers to agree on limits during the month-long legislative session currently underway. Rayfield said he doesn’t want to get ahead of the ballot measures that had been proposed.

“Now if they are unable to move forward or we’re unable to get the votes,” Rayfield said, “you better believe I’ll be back in ‘23 working on campaign finance reform.”