Oregon is one of a handful of states with no limits on political contributions, largely due to expansive free-speech protections. But Oregon’s wild west style of political spending will face an unusual test in a Multnomah County courtroom on Tuesday.
Multnomah County voters last November passed strict limits on political contributions with the overwhelming support of 89 percent of voters. Now Multnomah County Circuit Judge Eric Bloch will begin the process of determining whether the measure is constitutional.
The stakes go well beyond Multnomah County. Both sides say it could activate statewide contribution limits that were passed by Oregon voters 11 years ago.
“This case could bring to life the 2006 measure that the Supreme Court so far has said is just dormant,” said Greg Chaimov, a former chief lawyer for the state Legislature who is representing several business groups challenging the Multnomah County limits.
In addition, the Virginia-based Center for Competitive Politics is seeking to intervene in the Multnomah County case. The group participates in legal cases around the country fighting restrictions on political spending. The group is financed in part by several major conservative donors, including billionaire industrialists Charles and David Koch.
At the center of the issue is Dan Meek, a 63-year-old political lawyer who has long been active in left-wing causes in Oregon. An ardent supporter of third-party presidential candidate Ralph Nader, Meek played a major role in pressing for the closure of Oregon's only nuclear plant. And he has waged frequent battles against the state's utilities.
Meek said that led him into his fight against big money. Utilities would just “run over to the Legislature to get the law changed retroactively” every time they lost a rate case, Meek complained.
He authored the 2006 ballot measure that limited contributions to $500 to statewide candidates and $100 to other state and local officials. While voters passed that measure, they rejected his companion initiative.
That latter initiative asked voters to amend the Oregon Constitution to make clear that campaign finance limits don’t violate free-speech protections. Meek said he thought a number of factors were at play in the loss of the constitutional amendment, including cumbersome ballot title language.
But this wasn’t the first time Oregon voters showed an unwillingness to carve out exceptions to freedom of expression — no matter what the topic.
In 1996 and 2000 they rejected constitutional amendments to allow more restrictions on sex-related businesses.
Chaimov, the former legislative counsel, said he thinks the votes reflects Oregonians’ libertarian streak.
“Government isn’t to be telling us how to behave, one way or another, whether it’s we can go into an adult bookstore or not, whether we can give a campaign contribution,” he said.
Meek and his supporters have filed another proposed constitutional amendment on campaign limits to put before Oregon voters in 2018. But he said he’s not sure they’ll go ahead with the arduous task of mounting a signature campaign to qualify for the ballot.
For now, Meek is honing his legal arguments in defense of the Multnomah County limits. The Oregon Supreme Court in 1997 struck down statewide campaign finance caps that had been approved by voters in 1994.
In his legal briefs, Meek argues that 37 other states that limit donations to candidates have free-speech clauses essentially identical to the Oregon constitution. He also says that caps on campaign spending existed in other jurisdictions when the state constitution was being written — an indication that the framers of Oregon’s constitution saw them as an accepted practice and didn’t see the need to explicitly prohibit limits.
Perhaps the most interesting question, though, is whether Oregon’s top court has shown any sign it is reconsidering its views on campaign finance.
Portland lawyer Chad Jacobs, who works with local governments and also teaches at Lewis & Clark Law School, noted that all of the current seven members of the court joined after that 1997 decision. And he said a 2009 ruling in a government ethics case indicated some willingness to reconsider the issue.
“They’ve definitely been retreating a little bit on some of these campaign finance issues,” he said, “and opening the door for the possibility of more regulation.”
Chaimov said he believes the court was only drawing a distinction between how it treats laws limiting lobbyist gifts — typically meals and travel — to legislators and how it treats campaign donations.
The Multnomah case will also deal with the constitutionality of laws requiring certain disclosures on campaign materials. The measure approved by county voters required that political advertising list the top five donors.
Oregon once required that campaign advertising include the name of the committee paying for it. But that law was eliminated in 2001 after the state’s attorney general said that it was unconstitutional on federal grounds. Since then, the U.S. Supreme Court has allowed those laws to stand.
Sponsors of the Multnomah County measure also once hoped it would serve as a vehicle to challenge the U.S. Supreme Court’s Citizens United decision. That controversial ruling opened the door to unlimited independent spending by unions and corporations.
In fact, sponsors mentioned in their voters’ pamphlet arguments that the death of Justice Antonin Scalia early last year marked a change in the court’s view of Citizens United.
“The next Justice will be appointed by President Obama or by President Hillary Clinton, who have stated many times that overturning Citizens United is a litmus test for any new Justice,” they wrote. Of course, at the same election, Trump surprised pundits by winning the presidency. And his appointee to the court, Neil Gorsuch, seems to be following in Scalia’s footsteps.
Owen Yeates, an attorney for the Center for Competitive Politics, said the Multnomah case is “one of the first few challenges” in the courts trying to “push Citizens United the other way.”
He said a major reason his group is seeking to intervene in the Multnomah County case is to make sure that “U.S. Supreme Court protections for independent speech remains strong."