Gov. Kate Brown says changes to Oregon's campaign finance system are a priority in this year's legislative session, but it's possible some of those changes will occur before she gets her chance.
In an exceedingly rare move, the Oregon Supreme Court this week agreed to fast-track a case that proponents hope will let the state limit campaign contributions. The move means the matter will skip over the Oregon Court of Appeals, where cases can languish for years and will be heard by Oregon Supreme Court justices later this year.
“I would think they’ll make a decision within months to a year,” said Jason Kafoury, a Portland attorney who is part of a coalition that’s been pushing for campaign finance limits for years.
At issue is a set of campaign finance changes enacted resoundingly by Multnomah County voters three years ago. The new rules placed a $500 ceiling on the checks individual donors or political action committees could give to candidates for county office, and they required disclosures of top donors for political advertisements, among other things.
Backers of those limits knew they were likely to be ruled unconstitutional because of a 1997 Oregon Supreme Court ruling that found the state’s free speech protections don’t allow limits on campaign contributions. They hoped to force the issue before the state high court in a bid to get justices to reconsider the earlier ruling.
Now they have a shot. After a Multnomah County judge ruled in March 2018 that the Multnomah County limits were unconstitutional, proponents signaled they'd try to get the Supreme Court to hear their case directly, without a ruling by the Court of Appeals.
That’s no easy feat. It requires the appeals court to choose to refer the case up to the higher court — which it has declined to do in at least 10 other cases in the last five years. Supreme Court justices must then agree to take the case on.
Both courts did over the objections of three groups fighting the campaign finance limits: the Portland Business Alliance, the Metropolitan Association of Realtors and Associated Oregon Industries, which has now been folded into another industry group.
Greg Chaimov, an attorney representing those groups, said Thursday his clients believe the issue should have been addressed in the court of appeals in order to better clarify the issues involved.
"The issue that we understand the proponents are going to be making hasn’t been addressed by an appellate court in a couple of decades," Chaimov said. "We thought it would be a good idea to have that first round of considerations before we argued all those."
Kafoury, on the other hand, argued sooner is better—he'd like the matter settled before the 2020 general election.
“I think the Oregon Supreme Court decided to do direct review because they knew it was going to end up in their laps at some point,” said Kafoury. “Why wait four to five years for the Oregon Court of Appeals process?”
Kafoury and his allies at the group Honest Elections Oregon think they stand a good chance of convincing state justices that campaign finance limits don’t restrict free speech. Kafoury says dozens of states have the same free speech protections as those written into Oregon’s constitution, but they still allow contribution limits.
“I think the makeup of the Oregon Supreme Court is completely different than it was in 1997," he said. "Based on all those factors, and the huge influence of money in politics we’ve seen over the last 20 years since that decision, I think the Oregon Supreme Court is going to realize the corrupting influence of money in politics and allow limits on individual contributions.”
If Kafoury’s right, the court’s decision would come at an interesting time.
Brown, coming off the most expensive gubernatorial race in Oregon history, has vowed to push campaign finance limits. She’s asking lawmakers to refer a constitutional change to voters in November 2020 that would explicitly allow such caps. If such a referral happens, a court ruling allowing campaign finance restrictions could render a ballot measure moot.
The issue is urgent enough that Senate President Peter Courtney, D-Salem, created a legislative committee this year specifically to take up campaign finance matters. Beyond a ballot referral, lawmakers are expected to consider new rules tightening reporting requirements for campaigns, forcing so-called "dark money" groups to disclose their donors, and potentially even creating a system of public funding for campaigns.
A Supreme Court ruling enshrining the Multnomah County limits would make that moot, and open the door for statewide campaign finance regulations. Candidates for office in Multnomah County and the City of Portland, where voters approved similar limits last fall, would be subject to finance regulation.
The Supreme Court is scheduled to hear oral arguments in the case in September.