With hours to go until election results for the Portland mayoral race started rolling in Tuesday evening, Mayor Ted Wheeler got a spot of good, if expected, news: The city auditor’s office dismissed a complaint against Wheeler that alleged he violated Portland’s self-funding campaign finance limits with a $150,000 loan to his campaign.
The dismissal comes after Multnomah County Circuit Court Judge Thomas Ryan ruled on Oct. 23 that the city auditor needed to open an investigation into whether Wheeler violated the strict campaign finance limits voters approved in 2018. These included a $5,000 cap on how much money candidates can loan themselves.
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City Auditor Mary Hull Caballero had maintained since April that she wasn’t enforcing the self-funding portion of the campaign finance limits as she believed it conflicted with the U.S. Supreme Court precedent. After the mayor’s large loan brought her decision not to penalize into the spotlight, Wheeler’s opponent, Sarah Iannarone, sued the auditor to try and make her enforce the cap.
Wheeler’s campaign received “a notice of determination” letter from the auditor’s office Tuesday that found neither Wheeler nor his campaign had violated the limits. In the notice, City Elections Officer Louise Hansen wrote that the self-funding limits were unenforceable and referenced case law that found the First Amendment guaranteed candidates “the unfettered right to make unlimited personal expenditures” on behalf of their campaigns.
“Because candidates have a clear First Amendment right to self-fund, enforcement on the self-funding limit would be unconstitutional,” she wrote. “Therefore I take no further action and find no violations because the Charter and Code sections on which the Self-Funding limit is based are unconstitutional.”
This outcome was expected. At the court hearing in October, a city attorney representing the auditor’s office had told the judge the outcome of the investigation was likely a foregone conclusion due to the concerns the city had about the measure’s legality.
“The investigation would essentially be ‘we’ve opened the investigation, this limit is unconstitutional. We will not enforce that limit,’” said City Attorney Maja Haium at the time.
But Tuesday’s decision opens the door for Iannarone’s campaign to appeal. Her campaign has already vowed to challenge the decision if the auditor’s office found no violation and bring the questions surrounding the legality of these limits back in front of a judge.
“Any argument that Mayor Wheeler’s massive loan to his campaign, during this pandemic, is covered under any First Amendment protections not only flies in the face of Portland voters but is also frankly ludicrous,” wrote campaign manager Gregory McKelvey in a statement at the time. “If the auditor dismisses the complaint due to her position that all money is free speech, we will again challenge this in court.”
An appeal must be filed within 30 days.