Writings and observations

Subtle restrictions

The just-released Oregon Supreme Court decision in Fred Vanatta v. Oregon Government Ethics Commission is being hailed at a blow for regulation of, well, bribery and efforts just short of that. Oregon, after all, defines free speech and expression a little more broadly than most other states.

Such limits – basically things like gifts to legislators – that are routinely regulated in other states, got a close parsing in Oregon. The decision was so down the middle it may be hard to apply (and in fact was referred back to lower court for more action).

The group Fair Elections Oregon said in a statement that the “Oregon Supreme Court upholds limits on lobbyist gifts to public officials and legislators; but the limits have no practical effect in Oregon’s regime of unlimited campaign contributions and virtually no limits on how they are spent.”

Here’s a key paragraph from the court’s decision”

Plaintiffs assert that, “by prohibiting * * * expenditures to inform or persuade legislators regarding legislative matters, the lobbying restrictions impermissibly restrain Oregon inhabitants from ‘instructing their Representatives’ or ‘applying to the Legislature for redress of’ grievances.'” However, plaintiffs have failed to support their assertions with any case law, or with any analysis of the origins, the historic concerns, or the drafters’ political theories that underlie Article I, section 26. See State v. Montez, 309 Or 564, 604, 789 P2d 1352 (1990) (without extensive briefing on the origins, historic concerns, and political theories underlying federal Guarantee Clause, court would not consider full range of arguments that could be made regarding impact of Guarantee Clause on constitutionality of death penalty statute). In the absence of that kind of extensive and focused analysis in this case, we fail to see how the rights to assemble, to instruct representatives, and to apply to the legislature for redress of grievances, as protected by Article I, section 26, necessarily must include a constitutional right for public officials to receive gifts, entertainment, and honoraria, or for lobbyists to give restricted gifts to public officials. The fact that gifts may be “helpful” in creating goodwill with public officials does not mean that Article I, section 26, protects the delivery of gifts to them.

Sounds as if it’s time to head back to the drawing board.

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