The debate debate

Since my last article, the Democrats and Republicans and their nominees for Oregon Governor have been busy.

Oregon Senators Nathanson (Democrat) and Boquist (Republican) asked Legislative Counsel whether Oregon Campaign Contribution laws required Debate sponsors to include all major party candidates or if not, be required to report a political contribution to the candidates they did invite. Dan Gilbert, Deputy Counsel provided an analysis that ended with:

“If the hypothetical debate (That left out Independent candidate Patrick Starnes) occurred within 60 days of the general election, we therefore believe that it would likely fall within the expanded definition of a “communication in support of or in opposition to a clearly identified candidate or measure” set forth in HB 2505. Moreover, as there are currently three major political parties in Oregon and not all of them would be invited, we believe that the requirements for the exception set forth ORS 260.007 (10) would not be met. It is likely that the media outlet would therefore have to report the value of the debate as (depending on the involvement of the participating campaigns in the debate) either an independent expenditure or a contribution to the campaigns of the two participating candidates.”

In essence, here’s LC’s opinion: We assume a debate is an “independent expenditure”. As such, the law provides that if a debate/forum occurs within 60 days of the general election (September 8, 2018), then the debate sponsors must either include all major party candidates, or report the value of the debate as an independent expenditure. That seems like a potential win for Independent Candidate Starnes. Since sponsors are typically non profits like City Club of Portland and League of Women Voters and AARP of Oregon who would be jeopardizing their non profit 501c3 status if they made an independent political expenditure. And broadcasters like KATU and KGW and OPB could violate their broadcasting licenses if they made a political expenditure.

The Independent Party fired back. Saying that the 60 day rule doesn’t apply and it doesn’t matter when the debate/forum is held, all major party candidates need to be included in debates or the sponsor must report the value of the debate. They argue that is because a debate/forum is not an independent expenditure, it’s either a coordinated expenditure, or its a contribution. If they are correct, than the 60 day rule contained in 260.005 doesn’t appear to apply.

Here is the legal language in dispute over this issue:

“an expenditure by a person for a communication in support of or in opposition to a clearly identified candidate or measure that is not made with the cooperation or with the prior consent of, or in consultation with, or at the request or suggestion of, a candidate or any agent or authorized committee of the candidate, or any political committee or agent of a political committee supporting or opposing a measure.” ORS 260.005 (10)

The BOLD language is the text the LC cited as it’s rationale as to why a debate/forum is an independent expenditure. However, the IPO points out that the LC ignored the rest of the sentence (in italics). The argument is, debates and forums are always done with the cooperation, coordination, request and suggestion of the candidates. So, it is coordinated expenditure and/or a campaign contribution.

Willamette University is organizing a forum and all the major party candidates have been invited. According to one of the organizers, the students are most excited about the appearance and inclusion of the Independent nominee.

The Oregon League of Women Voters, AARP Oregon and Portland City Club are holding a debate within 60 days of the election. (date currently uncertain) They have sent a questionnaire to all candidates for Governor asking them to prove the seriousness of their campaign and their viability and stating that they will be the final arbiters of who is included in the debate. They are calling this application to their debate an invitation. That’s sort of like telling your second grader that they need to invite all their school mates to their birthday party, then finding out that the child sent their classmates an application asking them what clothes they were planning on wearing, what type of present they would bring and asking who is included in their clique and advising that they would then be asked to come based on some subjective standard. Doesn’t really pass the smell test as an “invitation”.

But perhaps they are sending these applications out to all major and minor party candidates with the understanding that the three major party candidates have to be invited but they don’t want to single out minor party candidates for special vetting.

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