Oregon Supreme Court Upholds Law Requiring Truthful Reporting of Sources of Political Contributions

but the unanimous decision does not address whether the current ban on anonymous contributions is valid
April 29, 2010

The Oregon Supreme Court today issued its opinion in State of Oregon v. Thomas Paul Moyer, in which a person accused of making political contributions in a false name challenged the the constitutionality of Oregon's statute that prohibits any political contribution from being made "in any name other than that of the person who in truth provides the contribution to." ORS 260.402. This law was enacted by voter initiative over 100 years ago and has never before been challenged. Local businessman Tom Moyer was accused by the Multnomah County District Attorney of contributing to a campaign for Mayor of Portland in the names of his relatives and employees.

The opinion is at: http://www.publications.ojd.state.or.us/supreme.htm#apr10

The brief of Amicus Curiae and other briefs are here: http://fairelections.net/court/moyer

The attorneys representing the defendants (Michael Garone, Ronald Hoevet, and Janet Lee Hoffman) argued that requiring anyone to truthfully identify himself as the source of a political contribution violates the First Amendment of the U .S. Constitution and the free speech provisions of the Oregon Constitution. The State of Oregon argued that the statute is valid, as did the Policy Initiatives Group and seven Oregon voters (the Amicus Curiae) represented by attorneys Dan Meek and Linda Williams, who also have represented FairElections Oregon (sponsor of Oregon's recent campaign finance reform statewide ballot measures).

The Multnomah County Circuit Court had ruled that the law is invalid under the Oregon Constitution's free speech provisions. This decision was reversed in January 2009 by a 6-4 decision of the Oregon Court of Appeals, but there was no majority of the 10 judges (en banc) in agreement on any single rationale for upholding this law. Instead, a combination of two rationales were cobbled together to uphold the law. The Oregon Supreme Court the granted review and held oral argument in September 2009.

In general, under the Oregon Supreme Court 's current analysis, any law that by design restricts speech is invalid, under Article I, Section 8, of the Oregon Constitution, unless the law comes within an "historical exception," meaning that it was the type of law that existed at the time of the adoption of the Oregon Constitution in 1859. The brief of the Amicus Curiae focused on whether the law at issue came within an historical exception. The Oregon Supreme Court agreed that ORS 260.402 did come within an historical exception. The Court also narrowed the sweep of its previous decision involving campaign contributions and expenditures, Vannatta v. Keisling (1997), noting that not all political contributions are "constitutionally protected expression."

The Amicus also pointed out that, if prohibiting campaign contributions in a false name is a violation of "free speech," then the government cannot require accurate reporting or disclosure of campaign contributions at all. Candidates in Oregon should then expect to receive massive contributions from "anonymous." They could reject the anonymous contributions but place themselves at a huge disadvantage to the candidates who accept them. And, if many Oregon politicians, from both major parties, decide to take the anonymous money, it will not be a potent campaign issue for their opponents to use against them.

If Article I, § 8, of the Oregon Constitution does not allow the government to require that campaign contributions not be made "in any name other than that of the person who in truth provides the contribution," ORS 260.402(1), then the government also cannot require that the sources of campaign contributions be accurately reported. If Article I, § 8, invalidates the requirement that a campaign contributor truthfully reveal her contribution, in her own name, then it would be impossible for a campaign to accurately report its contributors under the requirements of ORS Chapter 260.

The federal government and every one of the 50 states requires public reporting of political campaign contributions. Campaign Disclosure Project, Grading State Disclosure 2008 (Pew Charitable Trusts 2009). Of those states, 37 have freedom of speech clauses essentially identical to Oregon's. Each of them declares that every person has the right "to speak, write, or print freely on any subject." Some of them use the word "publish" instead of "print," but they are otherwise the same as Oregon's. [table omitted] We are not aware of any reported cases in which the political contribution reporting requirements of any of these states has been held to be invalid due to the free speech clause (or any other clause) in the state's constitution.

The Oregon Supreme Court in today's decision expressly did not reach the issue of whether the current ban on anonymous campaign contributions violates the Oregon Constitution, because ORS 260.402 (the statute at issue) does not ban anonymous contributions. Instead, it bans contributions "in any other name than that of the person who in truth supplies such money." "Anonymous" is not a "name." "No doubt someone now will challenge the constitutionality of the ban on anonymous contributions," said Dan Meek. "We will be there again to defend the right of Oregonians to know who is funding political campaigns in this state.

For more information:

Daniel Meek, attorney
(503) 293-9021
dan@fairelections.net

Linda Williams, attorney
(503) 293-0399
linda@fairelections.net