The Oregon Supreme Court on Thursday considered whether it will overturn one of its more notable rulings – the two-decade-old decision that struck down the state’s voter-approved campaign finance limits.
And after 90 minutes of spirited debate with the attorneys in the case, it seems clear the justices were animated by the issue of whether they should do exactly that.
The court is considering the constitutionality of a 2016 ordinance passed by Multnomah County voters that places a $500-per-person limit on campaign donations. But the stakes are larger than that. If the justices revisit their 1997 ruling, it could also open the door to the imposition of strict limits at the state level.
Currently, Oregon is one of only a handful of states with no limits on contributions to state and local races. That's produced some of the most expensive campaigns in the country on a per-voter basis and stirred controversy about the influence of big donors. In the last major election, for example, Nike co-founder Phil Knight gave GOP gubernatorial candidate Knute Buehler $2.5 million.
In Thursday’s hearing, several of the justices peppered attorneys on both sides with questions.
Chief Justice Martha Walters expressed wariness about overturning the court’s 1997 ruling, which found that limiting campaign contributions limits the free-speech rights of donors and candidates.
“What gives us the right to go back and dispute that?” she asked.
But later on, Walters was equally quick to challenge Greg Chaimov, a Portland attorney representing business groups opposed to the Multnomah County limits.
She pointed out that state and local laws place limits on outdoor advertising.
“If you can limit the number of signs someone can have,” she said, “why can’t you limit the amount of dollar contributions someone can make?”
Justice Lynn Nakamoto chimed in with a similar question.
“If one person can donate $100,000 versus the many who can maybe donate $40,” she said, “isn’t that sort of the ill that’s being addressed by the measure – that sort of outsized influence of the big contributor?”
Dan Meek, a Portland attorney representing several supporters of the Multnomah County ordinance, argued that the writers of Oregon’s Constitution didn’t intend for the free-speech protections to prevent campaign money prohibitions.
Meek said several other states with similar free-speech clauses had already adopted restrictions. And he said this historical record hadn’t been considered when the court struck down campaign-finance limits in 1997.
Katherine Thomas, a Multnomah County assistant attorney, argued that the court had previously opened the door to rethinking its 1997 ruling. She noted that the court later upheld a 2007 law that placed curbs on gifts – such as meals and travel – that lobbyists and others could give to legislators.
That makes it clear, she said, that some limits on political-oriented donations are acceptable.
Chaimov said the limit on lobbyist gift-giving is fundamentally different from campaign contributions. He said donations are an inherent form of free speech.
Justice Chris Garrett expressed some interest in that point.
“Isn’t the problem that once a person caps out at the limit, they’re not allowed to express anymore,” he said, adding, “We don’t say, ‘After you speak once, you don’t get to speak again.’”
While the justices are concerned with upholding precedent, none of them were on the court when the 1997 ruling was handed down. And five of the seven justice have been appointed to the court by Gov. Kate Brown, starting in 2016.
Brown supports a proposed constitutional amendment passed by the Legislature that would make it clear the Oregon Constitution doesn’t prohibit limits on the flow of political money. That measure will go to voters for their approval at the November 2020 election.
If the justices were to uphold the Multnomah County ordinance, that could open the way for the imposition of statewide campaign finance limits that were approved by voters in 2006. So far, that law has not taken effect because of the court’s 1997 ruling.
Portland voters have also adopted similar limits to the Multnomah County ordinance that would also be affected by the court’s decision.
The justices don’t have a time limit on issuing any ruling in this case.