You probably voted for it in November. Parts of it might be unconstitutional. And soon, in a perhaps unprecedented move, a Multnomah County judge will have a say on whether a strong new campaign finance law ever sees the light of day.
The Multnomah County Board of Commissioners voted unanimously last Thursday to send the county’s brand-new campaign finance policy, approved by 89 percent of voters last fall, for a court validation proceeding. That means that well before its September start date—before anyone has even formally complained about it—there will be a preemptive court battle to determine the law’s constitutionality.
Commissioners support the finance reforms, they said last week, but want more “clarity” before they are implemented on September 1.
That’s all but unheard of. Deputy County Attorney Jacquie Weber tells the Mercury it’s the first time in her 25 years at the county that a voter-approved law will need a judge’s permission to be put in place.
And in a move that’s outraged supporters of campaign finance reform, the county says it won’t even bother to defend the policy’s legality.
“We don’t advocate for or against it,” Assistant County Attorney Katherine Thomas said at last week’s meeting. “We ask a court what we can implement and then carry that forward.”
Last year’s Measure 26-184, the “Honest Elections Multnomah County Charter Amendment,” capped how much money people and political committees can give to a candidate for county office (county commissioner, county chair, auditor, sheriff, and district attorney), and how much money can be spent to advocate independently for a candidate—neither of which are regulated under Oregon’s permissive finance laws.
Those provisions mean the law is at odds with a controversial (i.e., bad) 1997 Oregon Supreme Court ruling (Vannatta v Keisling), and the 2010 US Supreme Court’s Citizens United decision that gave corporations and other deep-pocketed entities permission to spend as much as they wanted touting a candidate (or tearing down her opponent).
Such conflict was partly the point. Backers of the ballot measure said they hoped for a court challenge that would give them a chance to overturn flawed past rulings.
“The voters said they want these reforms, and Multnomah County’s going ‘Meh, well, who cares, we’re going to throw it over to the courts and not even assert its validity,’” says Dan Meek, a volunteer attorney with the group Honest Elections Multnomah County.
Weber and other county officials stand by the decision.
“We’re aware there are constitutional issues with what the voters passed,” Weber says. “We are asking the court to tell us if we can implement this as written and what parts we can implement without violating our citizens’ constitutional rights.”
That neutral position is “extremely alarming,” Meek told commissioners last week.
“The county needs to have a position... not just punt it over to the courts with no position and obligating, basically, me to go defend it” in front of the judge, he said.
Weber tells the Mercury it’s possible the county attorneys’ stance will change—but only if commissioners tell them to change it.
“We will take the board’s direction on that,” she says. “As there is additional briefing on the issue, it’s possible for the county to take a position, but right at this point we don’t know what that’s going to look like.”
Portland attorney and longtime campaign finance reform advocate Jason Kafoury—cousin to County Chair Deborah Kafoury, who voted in favor of the validation proceeding—said, “We’re outraged they’re not defending what the voters want.”
“The thing that frustrates me is it’s been five months since this thing’s passed and no one’s challenged it,” Jason Kafoury said. “There’s no guarantee it would have been challenged, it might have just gone into effect in September.”
But Kafoury adds that he’d have been happy to see a challenge, since it would open a possible window to overturning that ’97 state Supreme Court decision, which found “that both campaign contributions and expenditures are forms of expression” and can’t be constitutionally limited.
“There are 44 other states that have limits on contributions that have not been deemed unconstitutional,” he says.
Campaign finance reform advocates note that Oregon gets an “F” grade from the Center for Public Integrity in political transparency and accountability, and ranks only ahead of Mississippi (Mississippi!) for laws on political financing.
But to county commissioners, the campaign finance reform measure they all support is too legally murky to devote resources to implementing it before the law is on solid ground.
“I hope that the public is heartened by the fact that this commission is in support of campaign finance reform,” Deborah Kafoury said last Thursday, before voting for the court validation process. “I supported this measure at the ballot, I voted for it, and believe this is the right direction... Having the courts make a definitive statement will be helpful not just for those of us sitting here on the dais, but folks in the public who might want to run.”
Commissioner Sharon Meieran, who was vocal in her support of the reform measure during her own campaign last year, said, “I still strongly believe we need campaign finance reform and I personally believe this is a very good measure. That being said, I feel the [court validation proposal] before us now provides the most efficient and fastest path to clarity on this question.”
Weber says the paperwork for the court hearing will likely be filed within the next two weeks. It will take at least three weeks beyond that before a hearing actually takes place.
Until then, advocates for the reforms will be showing up to county board meetings every week to testify, and urge commissioners to defend the law their voters enshrined.
“We are planning to show up every Thursday and make a large amount of citizen comments during the public session,” Jason Kafoury says.