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OREGON LAW REVIEW
Spring 1999 – Volume 78, Number 1
(Cite as: 78 Or. L. Rev. 365)
OBSTACLES TO OREGON CAMPAIGN FINANCE REFORM: VANNATTA V. KEISLING
Courtney C. Muraski [FNa1]
Copyright © 1999 University of Oregon; Courtney C. Muraski
     On both state and federal levels, the issue of campaign finance reform is important to the American public
because it affects popular notions of governmental legitimacy.  Many people around the country engage in heated
discussions regarding the role of "soft money" [FN1] in the political process and its power to purchase access to
politicians.  While some argue for eliminating the use of "soft money" on philosophical grounds, practically
speaking, it is hard to imagine a system without it in light of the exorbitant cost of running political campaigns.  In
order to reduce the use of "soft money," various methods of campaign finance reform have been implemented across
the country.  One such method is to impose relatively strict limits on campaign contributions by individuals and
groups.  In 1994, Oregon citizens placed Measures 6 and 9 on the November ballot by initiative in an attempt to
implement state campaign finance reform.  Measure 6, a constitutional amendment, provided for limitations on
contributions depending on district origin and was closely related to Measure 9.  Measure 9, a statutory initiative,
provided for extremely low limits on campaign contributions by individuals or political action committees in
legislative and statewide races. Oregon voters passed Measure 9 by a large majority and Measure 6 by a more narrow
majority, [FN2] and both were in effect for the subsequent*366 November 1996 elections. [FN3]
  However, campaign finance reform efforts in Oregon, specifically Measure 6 and Measure 9, faced challenges at
both the state and federal levels.  In the federal court litigation, proponents of reform were defeated when Measure 6
was declared unconstitutional on First Amendment grounds. [FN4] Then, in February 1997, the Oregon Supreme
Court, in Vannatta v. Keisling, [FN5] declared Measure 9 unconstitutional in part for violating Article I, Section 8
of the Oregon Constitution.  These decisions return the state campaign financing system to the way it was before
the measures passed in 1994; the result is one step backward for those seeking reform.  As a result, in the November
1998 elections, there were no limits on campaign contributions and the cost of state-wide legislative races was
extremely high. [FN6]
  In this Note, I will examine the issues in the Vannatta litigation and provide some perspective on its impact on
campaign finance reform in Oregon.  I will focus primarily on the state court litigation and peripherally address the
federal court litigation.  I will argue that the citizen initiative is not the most effective way to resolve such a
politically polarizing issue as campaign finance reform because it bypasses the crucial legislative drafting stages, it
does not ultimately achieve the intended goal, and it faces increasing hostility in the courts.  Yet in Vannatta, the
Oregon Supreme Court was unable to resolve the problem either.  In fact, the state court only complicated the
problem by implicating federal free speech concerns in its decision.  By associating monetary contributions with
speech or expression, the court misdirected its analysis.  Until such a premise is re-evaluated, required reform will
run into legal obstacles.  If the heart of the problem stems from governmental legitimacy, then legislative action and
a system of public financing will be necessary for real campaign finance reform.
*367 I
Proponents and Opponents of Measure 9: The State Court Litigation
  In 1994, approximately seventy-two percent of Oregon voters passed Measure 9. [FN7]  Despite its overwhelming
voter support, this particular measure is one of five high-profile voter initiatives since 1994 to be overturned by the
Oregon courts as unconstitutional. [FN8]  The measure limited permissible contributions by individuals or political
committees in state political campaigns to $100 for candidates running for State Senate or State Representative and
$500 for candidates running for Governor, Secretary of State, State Treasurer, Superintendent of Public Instruction,
Attorney General, Commissioner of the Bureau of Labor and Industries, or judge of the Oregon Supreme Court,
Court of Appeals, or Tax Court. [FN9]  According to the measure, candidates or principal campaign committees of
candidates cannot contribute to other campaigns or accept contributions in excess of the limitations. [FN10]  It also
prohibited corporations, professional corporations, nonprofit corporations, or labor organizations from contributing
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to candidates or political committees. [FN11]  In addition, the measure provided political candidates with the
ability to file a declaration of voluntary expenditure limits with the Secretary of State.  Statements by the candidates
were then to be included in the voter's pamphlet indicating whether they agreed to limit their *368 expenditures.
[FN12]
  The petitioners in Vannatta included the Greater Salem Area Political Action Committee (PAC) (a political
committee), the Center to Protect Free Speech, Inc. (a non-profit corporation), Public Affairs, Inc. (a for-profit
corporation), a registered lobbyist, a potential candidate for state office, and the guardian ad litem of a minor.
[FN13]  They filed the petition based on the original jurisdiction conferred on the Oregon Supreme Court by section
23(1) of Measure 9. [FN14]  They sought a declaration from the court that the measure was unconstitutional as a
whole, or in the alternative, that specific sections violated state constitutional provisions. [FN15]
  Oregon Secretary of State Phil Keisling was the respondent in Vannatta.  [FN16]  He argued that Measure 9 did
not violate the Oregon Constitution because campaign contributions were distinguishable from expenditures and did
not constitute expression under Article I, Section 8 of the Oregon Constitution. [FN17]  He also argued that Article
II, Sections 8 and 22 of the Oregon Constitution prevented expression, which otherwise might be protected under
Article I, Section 8 of the Oregon Constitution, from being protected when it dealt with political campaigns.
[FN18]  Keisling further argued that the countervailing effect of Article II, Sections 8 and 22 of the Oregon
Constitution, which provided for the regulation of elections and political campaign contribution limitations based
on districts, removed political campaigns from the scope of protection under Article I, Section 8 of the Oregon
Constitution. [FN19]
  Other groups intervening in the case included the League of Women Voters and the Oregon State Public Interest
Research Group.  Amicus briefs were filed by the American Civil Liberties *369 Union and Common Cause of
Oregon. [FN20]
II
Procedural and Substantive Background Law
A. The Initiative Process in Oregon
  The citizen initiative in Oregon, a form of direct democracy, dates back to 1902. [FN21]  Article IV, Section 1 of
the Oregon Constitution allows voters to place statutes or constitutional amendments on the ballot. [FN22] In order
to be placed on the ballot, an initiative law requires a petition signed by six percent of the total number of votes
cast for Governor, and an initiative constitutional amendment requires a petition signed by eight percent of the total
number of votes cast for Governor. [FN23]  The statutes or amendments are limited to "embrac[ing] one subject
only and matters properly connected therewith." [FN24]
  Oregon voters have the privilege of signing petitions to place important issues on the ballot.  The initiative is a
prominent part of the republican form of government, and one in which Oregonians take great pride.  Overall,
twenty-four states use some form of the initiative system. [FN25]  Six states use statutory initiatives exclusively,
while one uses only constitutional initiatives. [FN26]  The initiative process is popular because it permits citizens
to take part in public-policy making while leaving the essential *370 lawmaking role to the legislature. [FN27]
  Nevertheless, while the initiative process is popular among many citizens, it also concerns other Oregonians
because of its operation. [FN28]  Some critics believe the initiative process is not as effective as the legislative
process because of inherent problems. [FN29]  They believe the lack of legislative involvement in the process is
dangerous because initiatives do not receive the same type of committee and hearing scrutiny that legislative
enactments receive. [FN30]  Thus, while the role of judicial review in the initiative process is disputed, in reality,
courts provide one of the only checks on initiatives. [FN31]  Because its goals include addressing legitimacy
concerns and preventing corruption, campaign finance reform can be addressed more adequately through the
legislative process than the initiative process.
B. The Initiative Process and State Campaign Finance Reform
  Oregon, Missouri, and Montana all passed initiatives in 1994 specifically related to aggressive campaign finance
reform. [FN32]  The initiatives from the three states established some of the lowest campaign contribution limits in
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the county. [FN33]  However, in 1995, the Eighth Circuit declared the Missouri voter initiative unconstitutional
*371 on federal First Amendment grounds. [FN34]  The Eighth Circuit held that the campaign contribution limits
in Missouri, which imposed incremental monetary limits from $100 to $300 per election cycle based on population,
were "not narrowly tailored to meet the compelling state interest of limiting the influence of corruption associated
with large campaign contributions," [FN35] and therefore, the limits "unconstitutionally burden[ed] the First
Amendment rights of association and expression." [FN36]
  The Carver court focused on the interests implicated by contribution limits, the level of review required under
Supreme Court precedent, and whether the limits were too low.  The Eighth Circuit acknowledged that even though
other states and the federal government have imposed contribution limits and the voters approved the limits because
they found them necessary to prevent corruption, "popular sentiment in favor of campaign finance reform . . . does
not assist [the court's] analysis, because voters may not adopt an unconstitutional law any more than the
legislature." [FN37]
  The Missouri case briefly compared the ballot initiatives enacted in both Montana and Oregon.  The limits in
Montana and Oregon are greater than the ones in Missouri when considered on an election cycle basis. [FN38]
While the Carver court's analysis is different because of its federal constitutional focus, the result questioned the
validity of the state contribution limits, and it was similar to what recently occurred in Vannatta.  The implication
is that voter initiatives are facing judicial obstacles to campaign finance reform across the nation.
C. Federal Campaign Finance Reform
  The topic of campaign finance reform continuously calls for analysis of the United States Supreme Court's
decision in Buckley v. Valeo. [FN39]  In 1976, the Supreme Court addressed federal campaign finance reform and
set the standards for campaign contributions and expenditures.  The Buckley Court held that limits on total federal
campaign expenditures were unconstitutional restrictions *372 of free speech and freedom of expression because they
did not serve any substantial government interest.  Thus, the Court struck them down. [FN40]  However, it upheld
a $1000 limit on individual contributions to candidates running for federal political office because such limits were
narrowly tailored. [FN41]
  Critics hope that the issue of campaign financing will be revisited by the Supreme Court and that the scope of
Buckley will be limited.  Since 1976, many scholars have disagreed with one premise upon which Buckley relied:
that money is equal to speech. [FN42]  Critics also have attacked the Court's distinction between campaign
contributions and expenditures under the First Amendment. [FN43]  Furthermore, opponents of Buckley have found
fault with the Court's failure to recognize the need for "equalizing the electoral influence of rich and poor." [FN44]
Together, these arguments recognize the fundamental problems with the Buckley Court's treatment of campaign
financing and emphasize the need for further reform. [FN45]
  Essentially, any citizen initiative attempting campaign finance reform has two sets of hurdles to clear.  An
initiative must pass both the state's constitutional standards and the federal constitutional standards.  The Supreme
Court in Buckley provided guidance on the federal level when it prohibited limits on expenditures.  However, it left
the door open to imposing limits *373 on contributions because Buckley left unanswered the question of whether
the First Amendment permits governments to regulate campaign financing to a greater extent. [FN46]
III
Measure 9 As Unconstitutional Reform
  In the state court litigation, the Oregon Supreme Court in Vannatta held that limits on contributions would be
impermissible under the Oregon Constitution.  The court found that Measure 9 did not even clear the state
constitutional hurdle, and thus it did not need to reach the federal constitutional hurdle.  The court declared that
certain sections of Measure 9, which limited or banned campaign contributions, violated Article I, Section 8 of the
Oregon Constitution and were void. [FN47]  As a result, it also held that other sections of Measure 9 were
"incomplete and incapable of being executed." [FN48]  Nevertheless, the court found that some sections of Measure
9, which dealt with voluntary expenditure provisions, did not violate Article I, Section 8 of the Oregon
Constitution. [FN49]  The Oregon Supreme Court did not focus its analysis on the level of monetary limits
imposed by Measure 9 or on the corruption sought to be prevented by contribution limits, which were First
Amendment concerns raised in several federal campaign finance reform cases, because it found that limits on
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campaign contributions violated the Oregon Constitution.
  The Oregon Supreme Court had original jurisdiction in this matter pursuant to the provisions of Measure 9 itself.
[FN50]  The court began its opinion by acknowledging the opinion's relatively narrow scope.  The court stated that
because petitioners' challenges involved the specific wording of the statutory enactment, the challenges were limited.
[FN51]  Arguably however, the scope of the opinion is not narrow considering the decision's overall effect on
campaign financing.
  *374 In the Oregon federal court litigation, which occurred around the same time as the state court litigation, the
U.S. District Court for the District of Oregon and the Ninth Circuit Court of Appeals provided review on the
constitutional issues related to both Ballot Measure 6 and Ballot Measure 9.  The district court eventually struck
down Ballot Measure 6 as unconstitutional and abstained from ruling on the constitutionality of Ballot Measure 9
because of the pending state court litigation. [FN52]  The court granted summary judgment to the plaintiffs and
dismissed the case. [FN53] The Ninth Circuit certified three questions to the Oregon Supreme Court, but the
Oregon court rejected the certification. [FN54]  The Ninth Circuit then affirmed the district court ruling. [FN55]
A. Article I, Section 8
1. Contributions
  Article I, Section 8 of the Oregon Constitution provides: "No law shall be passed restraining the free expression of
opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be
responsible for the abuse of this right." [FN56]  Petitioners relied on Deras v. Myers [FN57] in analyzing this
section of the Oregon Constitution and argued that the measure was unconstitutional because it restricted
expression.  Deras involved a statutory scheme for the regulation of campaign expenditures.  The court stated that
citizen interests protected by Article I, Section 8 outweighed the public interests protected by the statutes in
question [FN58] and that the statutory restrictions placed on free expression lacked justification. [FN59]  The court
in Vannatta, however, did not find Deras helpful in its modern Article I, Section 8 jurisprudence. The parties and
the court agreed in Vannatta that Article I, Section 8 covered expenditures, but they did not agree about
contributions. [FN60] Thus, the main issue in *375 Vannatta was whether political contributions and expenditures
were forms of expression covered under Article I, Section 8.
  While the United States Supreme Court in Buckley recognized federal campaign contributions as expression, it
nevertheless allowed limits on contributions because it found they were less central to First Amendment expression
than expenditures. [FN61]  Instead of arguing for contribution limits under the Buckley analysis, the Secretary of
State in Vannatta argued that the rationale behind that decision was unpersuasive because contributions really do not
constitute political expression; therefore, it follows that contributions can be regulated. [FN62]  The Oregon
Supreme Court determined that Oregon's Article I, Section 8 jurisprudence did not allow for the distinction used by
the United States Supreme Court regarding whether the contributions were more or less central to expression than
expenditures, but it did not agree with the Secretary of State's argument either.  Instead, it found that the $100
contribution limits were unconstitutional. [FN63]  The Oregon Supreme Court did not reach the federal First
Amendment issues because it struck the measure down on state law grounds.
  The Oregon Supreme Court criticized the Buckley analysis because of the assumption by the Buckley Court that
speech by contribution is that of the candidate, not the contributor.  The court also did not agree that contributions
only express general support. [FN64]  The Oregon Supreme Court evaluated expenditures and contributions as
closely related activities, thereby deserving the same protection. [FN65]  It regarded the distinction between
generalized or specific support as being unimportant to the expression analysis. [FN66]  The Oregon Supreme Court
found that many contributions were expressions of support, and it concluded that they should be protected under
Article I, Section 8.
  The Oregon Supreme Court employed a three-part analysis for the Article I, Section 8 issues in this case.  The first
level of analysis evaluated whether the provision was "on its face 'written in terms directed to the substance of any
"opinion" or any "subject" *376 of communication." ' [FN67]  If the challenged provision was written in such terms
and it was not subject to an "incompatibility" exception to Article I, Section 8, the statute was invalid. [FN68]  The
second level of analysis was whether the statute targeted a harm that could be inferred from context. [FN69]  If the
statute did not restrict expression, then the final level of analysis would be a vagueness challenge. [FN70]  In
Vannatta, the court concentrated on the first level of analysis.
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  The court determined that the contribution provisions in Measure 9 (sections 3, 4, and 16) fell under the first level
of Article I, Section 8 scrutiny, and that the provisions did not specify a harm that they were designed to protect,
nor could one be inferred; in essence, they were targeted at protected speech. [FN71]  The court found that "Measure
9 does not in itself or in its statutory context identify a harm in the face of which Article I, Section 8, rights must
give way." [FN72]  Also, the court found that the contribution provisions of Measure 9 did not meet an
"incompatibility" exception which would have removed it from the protection of Article I, Section 8. [FN73]
2. Expenditures
  In relation to the expenditure provisions of Measure 9 (sections 6, 13, and 19), the court determined that they did
not violate Article I, section 8 under the first level of analysis. [FN74]  The court looked at whether these sections
impermissibly coerced candidates and found that they did not for two reasons: (1) the publication requirement of
Measure 9, section 13 did not inflict a punishment, and (2) this kind of objective truth did not impermissibly
burden expression. [FN75] The expenditure provisions were also voluntary, which seemed to affect the court's
analysis as well.
*377 B. Article II, Sections 8 and 22
  In addition to the primary Article 1, Section 8 arguments discussed above, the Secretary of State argued that
Article II, Sections 8 and 22 of the Oregon Constitution further defined campaign contribution rights in Oregon.
[FN76]
1. Section 8
  The Secretary of State argued that Article II, Section 8, which has been in the constitution since statehood,
allowed the Legislative Assembly to enact laws that limit campaign expenditures and contributions. [FN77]
Petitioners argued that the provision applied only to the Legislative Assembly, not to the people by initiative, and
that the provision applied only to "elections," not to "campaigns."  The court disagreed with petitioners' first
contention by finding that the wording in the provision applied to the people by initiative, not just to the
Legislative Assembly, but it agreed with petitioners' second contention that the provision addressed "elections," not
"political campaigns." [FN78]
  The court relied on a dictionary definition of the word "election" from 1857, [FN79] not 1996, to limit the scope
of the provision and to reject the Secretary of State's argument for a broad interpretation of "elections" that would
include political campaigning activities. [FN80]  The court also used narrow definitions of other terms in the clause
to narrow the concept of "elections."  Furthermore, the court looked to the historical context of Article II, Section 8,
but it did not change the view that it gleaned from the textual interpretation. [FN81]  Finally, the court looked to
previous case law, but the survey did not change its prior determination. [FN82]
*378 2. Section 22
  Article II, Section 22, provided limits on contributions based on the electoral district of the candidate. [FN83]  It
passed by initiative at the same time Measure 9 passed, and the two measures were related. [FN84] The Secretary of
State argued that this provision of the constitution "preempts the entire field of campaign contributions" [FN85] and
negates the protections of Article I, Section 8.  The Oregon Supreme Court considered the merits of the Secretary of
State's argument, even though Measure 6 was being reviewed at the federal appellate level, but it nevertheless
determined that Article II, Section 22 did not preempt the protection found in Article I, Section 8 of the Oregon
Constitution. [FN86]
C. Specific Sections of Measure 9
  The court declared sections 3, 4, and 16 of Measure 9 unconstitutional because they targeted speech consisting of
political support for a candidate. [FN87]  Because the court found those sections unconstitutional, it then proceeded
to find sections 11, 14, 15, and 17 void for lack of purpose as well. [FN88]  The court did not agree *379 with
petitioners' claim that sections 6, 10, and 13 of Measure 9 violated Article I, Section 26 of the Oregon
Constitution. [FN89] The court did not specifically address petitioners' claims that sections 3(2), 3(3), 4(1)(a), 15,
and 16 of Measure 9 violated Article I, Section 20 of the Oregon Constitution because they were voided on other
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grounds. [FN90]
D. Attorney's Fees in Connection with Measure 9
  In the final portion of its decision, the Oregon Supreme Court denied petitioners' request for attorney's fees
because the petitioners involved were not entirely disinterested parties.  The public benefit resulting from the case
was not the key result, and thus, the court refused to exercise its equitable power by awarding attorney's fees.
[FN91]
E. Additional Information on the Federal Vannatta Litigation
  At the same time the Vannatta state court litigation was progressing, federal court litigation was advancing as
well.  Plaintiffs at the federal level included Fred Vannatta (a contributor), George Boehnke (a candidate), Charles
Gill (a contributor), Denny Smith (a candidate), and the Center to Protect Free Speech (a contributor).  Defendants
at the federal level included Oregon Secretary of State Phil Keisling and Oregon Attorney General Ted Kulongoski.
[FN92] Plaintiffs sought to enjoin the enforcement *380 of Ballot Measure 6 and requested that the court declare it
void. [FN93]  The court found that plaintiffs had standing to challenge sections 1 and 2 of Measure 6, but not
sections 3 and 4. [FN94] The court also found that the dispute was ripe for consideration of the First Amendment
rights of free expression. [FN95]
  In reaching the merits of the case, the district court found Ballot Measure 6 unconstitutional because it
impermissibly chilled political expression. [FN96]  Measure 6 in effect limited the amount of contributions that
candidates could accept from donors who were from another district and limited the amount that contributors could
make to out-of-district candidates. Applying strict scrutiny analysis, the court found that the law was not "narrowly
tailored" to serve the compelling state interest of preventing corruption. [FN97] The court found the measure
unconstitutional on First Amendment grounds and thus did not address the Plaintiff's Fifth Amendment,
Fourteenth Amendment, Privileges and Immunities Clause, and Commerce Clause arguments.
  At the federal appellate court level, the majority affirmed the lower court's decision. [FN98] The court attempted to
certify three questions to the Oregon Supreme Court regarding the validity of Measure 6 under the Oregon
Constitution, the interpretation of Article II, Section 22 in light of Article I, Section 8, and the meaning of the
word "individuals" as used in Measure 6.  The Oregon Supreme Court, however, declined to answer the questions
posed. [FN99] The appellants argued that Measure 6 was supported by the state's interest in preventing corruption
and the state's interest in a republican form of government. [FN100]  The court did not find either argument
persuasive enough to override the First Amendment concerns addressed by the lower court. [FN101]  The court
applied rigorous scrutiny whereby it looked to see if the law was "closely drawn" to advance a "sufficiently
important interest" and found that it failed to pass. [FN102]
*381 IV
Implications for Oregon Campaign Finance Reform
  The Oregon Supreme Court's decision in Vannatta, as well as the federal court decisions, will have a significant
effect on future elections and the legislative political agenda in Oregon.  When the reform measures were in effect,
the 1996 election cycle yielded the lowest campaign spending amounts in almost twenty years. [FN103] Already in
the 1998 election cycle, after the courts invalidated the measures, candidates were spending tremendous amounts of
money again.  By declaring limits on contributions to be an unconstitutional restriction on free expression, the
court  prevented limiting the price of campaigning in Oregon.  As a result, "pent-up money" that people were unable
to spend during the time Measure 9 was in effect can now be channeled into the political process. [FN104] Some
predicted there would likely be a return to big-spending legislative campaigns, and in reality, there was during
1998. [FN105]
  According to Phil Keisling, the Oregon Supreme Court's ruling, released one month after the start of the 1997
legislative session, affected behavior during the legislative session because the possibility of big contributions in
the future loomed.  He said that while he cannot give specific examples of corruption, "what the money does is, it
sends things off the table. Bills that ought to be heard don't even get heard. Votes that ought to be taken, to see
where people stand, don't get taken." [FN106]  Without the contribution limits imposed by Measure 9, various
groups in Oregon can now freely contribute to the campaigns of legislators that are in positions to beneficially affect
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the group's interests. [FN107]
  While campaign finance reform seems to be a hot issue today, one legislator does not think that many people are
losing sleep over the Oregon Supreme Court's decision regarding campaign financing limits.  Rep. Tony Corcoran,
D- Cottage Grove, also acknowledged the "ongoing self-interest" that lobbyists have in giving *382 money to
various campaigns. [FN108]  Nevertheless, the public at large should be concerned about campaign financing
because the problems have not gone away.  Keisling hopes that the public is still sufficiently concerned about
campaign finance reform to keep legislators accountable.
  The magnitude of the effect of the Oregon Supreme Court's decision on future elections is difficult to assess.  The
current system limits access to those who can pay to have their voice heard in government.  The Oregon Supreme
Court did not fix the problems facing campaign financing.  In fact, the court limited speech by its decision because
without money, one sometimes does not have a voice in the process.  By finding that the campaign contribution
limits of Measure 9 violated Article I, Section 8 of the Oregon Constitution, the court wrongfully linked money to
speech and in turn provided a flawed analysis of the key issues.
  The importance of yielding to constitutional concerns cannot be overlooked, and that is the court's role.  Yet, the
interface between constitutional protection for speech/expression on the one hand and the legitimacy of possible
campaign finance reform on the other, is problematic and unresolved by the decision.  How can this be resolved?  If
citizens seek campaign finance reform, they need to look at what forms it can take and what would be
constitutionally permissible.  Three options remain for advocates of campaign finance reform: (1) amending the
Oregon Constitution to overturn the Oregon Supreme Court's decision; (2) focusing on a model system using
incentives for voluntary spending limits by the candidates; or (3) creating a public funding mechanism for
campaigns which could be restricted constitutionally. [FN109]  The third option, public financing of elections,
seems to be the most plausible and effective solution.  Public funding is essentially a system of campaign subsidies
which attempts to equalize campaigns by funding the actual election process. [FN110]
  *383 Maine, Kentucky, Arizona, and Massachusetts could serve as models for Oregon reform. [FN111] For
example, the Maine Clean Elections Act provides for a method of voluntary public financing.  Even though it
passed by voter initiative, it has managed to withstand court scrutiny. [FN112]  While some scholars argue for a
public financing system on the federal level, their arguments equally apply to state levels. [FN113]  A public
financing system could in fact be less expensive than a system dependent on private contributions. [FN114]  It
could also achieve many of the goals of reform, such as political autonomy, efficiency, prevention of corruption,
enhancing political equality, increasing voter knowledge, enhancing quality of representation, and restoring
confidence in democracy. [FN115]
  During the 1999 Oregon Legislative Assembly, an effort at campaign finance reform was launched in hopes of
achieving intended goals through a new route. Secretary of State Keisling and the Working Group for Campaign
Finance Reform proposed bills in both the house and the senate in favor of public financing of state campaigns.
[FN116]  However, if proponents are unable to achieve success with the legislature, another initiative campaign is
likely to follow. [FN117]
Conclusion
  An important public interest exists in the search for campaign finance reform.  While campaign finance reform is at
the height of public awareness at this time, it fades in and out of the public consciousness.  Perhaps the Oregon
Supreme Court's decision is not so dramatic after all.  It merely serves to return the Oregon *384 election financing
system to the way it was before Measure 9 passed in 1994.  By creating an obstacle to campaign finance reform, the
Oregon Supreme Court makes the ultimate goal more difficult to achieve. The court assigns to the citizens and
legislators of Oregon the responsibility to create a better constitutional method of reform.
  Many agree that something needs to be done about campaign finance reform.  But perhaps the initiative process is
not the most efficient or most effective way to resolve the problem.  Measure 9 encountered a road block to
campaign finance reform in the courts.  One reason may have stemmed from the form in which it was passed: by
initiative.  The court attacked the language of the measure as well as other fundamental faults.  Properly inserting
the reformers' goals in the measure may have been one way to survive the court's attack.  The faults of Measure 9
could have potentially been cured by better drafting or at least an in-depth legislative review process.
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  A legislative vehicle for reform may ultimately be necessary if initiative reform does not work.  Even though the
legislative process is slower and it may take time for the system to change, legislators need to be accountable to
their constituents.  If people are truly upset and disgusted with the way political contributions and expenditures
currently operate, then the legislators will eventually have to provide a solution.  Through people exerting more
pressure, legislators will be forced to search for solutions or risk being voted out of office.
[FN1]. Nonfederal money that is unregulated is commonly referred to as  "soft" money.  For a further description of
the distinction between "hard" and "soft" money, see Note, Soft Money: The Current Rules and the Case for
Reform, 111 Harv. L. Rev. 1323, 1323-25 (1998).
[FN2]. Ballot Measure No. 9 passed by a vote of 851,014 to 324,224 on November 8, 1994.  It went into effect on
December 8, 1994.  1995 Or. Laws ix, ch. 1 (codified at Or. Rev. Stat. § 260 (1997) (containing various provisions
on campaign finance regulation and election offenses)).  Ballot Measure No. 6 passed by a vote of 628,180 to
555,019.  1995 Or. Laws ix; Or. Const. art II, § 22.
[FN3]. Ashbel S. Green, Lawmakers Weigh Changing Measures, Oregonian, Feb. 22, 1997, at B1.
[FN4]. Vannatta v. Keisling, 899 F. Supp. 488, 496-97 (D. Or. 1995).
[FN5]. 324 Or. 514, 521-22, 931 P.2d 770, 775-76 (1997).
[FN6]. While campaign spending was considerably lower than in the past during the 1994 elections, it skyrocketed
during the 1998 elections after the measures were overturned.  See To Limit or Not to Limit?, Register Guard, Jan.
3, 1998, at 12A (citing campaign spending during 1996 as the lowest in 20 years); Campaign Reform DOA?,
Register Guard, March 6, 1999, at 18A (stating that campaign spending during 1998 was around $11.4 million,
"the highest amount in state history").
[FN7]. See supra note 2.  See also Letting Voters Have Their Say, Oregonian, June 15, 1995, at C06 (stating that
72% of voters approved of Measure 9); Green, supra note 3, at B1 (stating that 74% of voters approved of Measure
9).
[FN8]. Judicial action overturning numerous voter initiatives has generated voter frustration.  Five measures since
1994 have been rejected by the courts as unconstitutional including one involving victim's rights, one allowing
doctor-assisted suicide, one requiring public employees to allocate a portion of their salaries toward their pensions,
and two limiting campaign contributions.  See Green, supra note 3, at B2 (citing four of them).  See also Armatta
v. Kitzhaber, 327 Or. 250, 959 P.2d 49 (1998) (for a fifth voter initiative that was overturned by the courts).
[FN9]. 1995 Or. Laws ch. 1, § 3 (codified at Or. Rev. Stat. § 260.160(1)(a) and (b) (1997)).
  An individual shall not contribute in any calendar year an aggregate amount exceeding $100 to any one political
committee other than a principal campaign committee or a political committee organized exclusively to support or
oppose one or more candidates for national or political party office or one or more measures.
Or. Rev. Stat. § 260.160(3).
[FN10]. 1995 Or. Laws ch. 1, § 4 (codified at Or. Rev. Stat. § 260.168  (1997)).
[FN11]. 1995 Or. Laws ch. 1, § 16 (codified at Or. Rev. Stat. § 260.172  (1997)).
[FN12]. 1995 Or. Laws ch. 1, §§ 6, 13 (codified at Or. Rev. Stat. §§ 260.180, 260.184 (1997)).
[FN13]. 324 Or. at 517-18, 931 P.2d at 774.
[FN14]. "Upon petition of any person, original jurisdiction is vested in the Supreme Court of this state to review
and determine the constitutionality of this Act.  The Supreme Court shall have sole and exclusive jurisdiction of
proceedings initiated under this section." 1995 Or. Laws 11, ch. 1, § 23.
[FN15]. Vannatta, 324 Or. at 517-18, 931 P.2d at 774.
[FN16]. Id.
9
[FN17]. Id. at 520, 931 P.2d at 775.
[FN18]. Id. at 525, 931 P.2d at 778.
[FN19]. Id.
[FN20]. Id. at 518, 931 P.2d at 774.
[FN21]. For a history of the initiative's origin in Oregon and its modern- day importance, see David Schuman, The
Origin of State Constitutional Direct Democracy: William Simon U'Ren and "The Oregon System," 67 Temp. L.
Rev. 947 (1994).  See also Hans A. Linde, Who is Responsible for Republican Government?, 65 U. Colo. L. Rev.
709 (1994).  Seth Lewelling and William U'Ren were charismatic leaders who started a movement toward using
direct legislation to deal with the problems in the political system in Oregon.  The City Club of Portland, The
Initiative and Referendum in Oregon 6 (1996) [[hereinafter City Club Report].
[FN22]. "The people reserve to themselves the initiative power, which is to propose laws and amendments to the
Constitution and enact or reject them at an election independently of the Legislative Assembly."  Or. Const. art. IV,
§ 1(2)(a).
[FN23]. Or. Const. art. IV, §§ 1(2)(b) and (c).
[FN24]. Or. Const. art. IV, § 1(2)(c).  For a recent discussion of the single subject jurisprudence in Oregon, see
Armatta v. Kitzhaber, 327 Or. 250, 959 P.2d 49 (1998).
[FN25]. See City Club Report, supra note 21, at 6.
[FN26]. See City Club Report, supra note 21, at 7 (citing David Kehler and Robert M. Stern, Initiative in the
1980s and 1990s: Table 5.15: Statewide Initiative and Referendum, The Book of the States 1994-95, The Council
of State Governments, Vol. 30, 1995, at 294).  The map on page 7 indicates which states use the initiative process,
including Washington, Oregon, California, Idaho, Nevada, Montana, Colorado, Arizona, Utah, Wyoming, North
Dakota, South Dakota, Nebraska, Oklahoma, Michigan, Maine, Massachusetts, Indiana, Illinois, Missouri, Florida,
Arkansas, Mississippi, and Alaska.
[FN27]. See City Club Report, supra note 21.
[FN28]. For a description of early constitutional challenges to initiatives, see Schuman, supra note 21, at 956-58
(citing Kadderly v. City of Portland, 44 Or. 118 (1903) (holding statutory initiatives did not violate Or. Const. art
IV, § 4); Pacific States Telephone and Telegraph Co. v. Oregon, 223 U.S. 118 (1912) (finding that the issue was a
political question to be decided by Congress, not the federal courts)).  See also City Club Report, supra note 21, at
8 (citing Keirnan v. Portland, 57 Or. 454 (1910) (concluding that popular petitions do not violate the guarantee of a
republican form of government)).
[FN29]. See generally Jane S. Schacter, The Pursuit of "Popular Intent": Interpretive Dilemmas in Direct
Democracy, 105 Yale L.J. 107(1995) (identifying various problems regarding the search for popular intent and how
to interpret direct democracy law making).  But see  Clayton P. Gillette, Plebiscites, Participation, and Collective
Action in Local Government Law, 86 Mich. L. Rev. 930 (1988) (discussing numerous theories underlying the
political process, both plebiscitary and legislative, and dispelling common misconceptions).
[FN30]. Abner Mikva, Address at the Morse Chair Lecture at the University of Oregon (Oct. 15, 1997).  See also
City Club Report, supra note 21, at 12.
[FN31]. See City Club Report, supra note 21, at 11-12.
[FN32]. See William J. Connolly, Note, How Low Can You Go? State Campaign Contribution Limits and the
First Amendment, 76 B.U. L. Rev. 483 (1996).
[FN33]. Id. at 484.
10
[FN34]. See Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995), cert. denied,  518 U.S. 1033 (1996).
[FN35]. Id. at 645.
[FN36]. Id. at 644.
[FN37]. Id. at 640.
[FN38]. Id. at 642 n.9.
[FN39]. 424 U.S. 1 (1976) (per curiam).
[FN40]. Id. at 54-58.
[FN41]. Id. at 26-29, 58-59.
[FN42]. Interview with Abner Mikva, Wayne Morse Chair of Law and Politics at the University of Oregon (Oct.
17, 1997).  Having worked in all three branches of the government, Abner Mikva provides a unique perspective on
divided government.  See also  Jamin Raskin and John Bonifaz, The Constitutional Imperative and Practical
Superiority of Democratically Financed Elections, 94 Colum. L. Rev. 1160 (1994); Robert Peck et al.,
Constitutional Implications of Campaign Finance Reform, 8 Admin. L.J. Am. U. 161 (1994); Burt Neuborne, One
Dollar, One Vote? The Supreme Court's Buckley Decision Virtually Assures a Campaign Dollar Chase, The Nation,
Dec. 2, 1996, at 21 [hereinafter One Dollar, One Vote?]; J. Skelly Wright, Politics and the Constitution: Is Money
Speech?, 85 Yale L.J. 1001, 1001-06 (1976).
[FN43]. Neuborne, supra note 42.
[FN44]. See Neuborne, supra note 42, at 21, 22.  See also Peck et al., supra note 42, at 167.
[FN45]. A more recent decision of the United States Supreme Court regarding campaign financing is Colorado
Republican Campaign Committee v. FEC, 518 U.S. 604 (1996).  That case provides additional guidance on the
issues involved, but does not limit the effect of Buckley's underlying rationales.
  Another important case that could impact overall campaign finance reform and the Buckley analysis is Nixon v.
Shrink Missouri Government PAC, 161 F.3d 519 (8th Cir. 1998), cert. granted, 119 S. Ct. 901 (1999).
[FN46]. See Connolly, supra note 32, at 496.
[FN47]. Vannatta v. Keisling, 324 Or. 514, 541, 931 P.2d 770, 787 (1997).
[FN48]. Id. at 517, 931 P.2d at 773-74.  The court declared that  sections 3, 4, and 16 of Measure 9 violated Or.
Const. art I, § 8 (codified at Or. Rev. Stat. §§ 260.160, 260.168, 260.172 respectively).  Sections 11, 14, 15, and
17 of Measure 9 were also void after the court's initial determination (codified at Or. Rev. Stat. §§ 260.999,
260.190, 260.164, 260.192 respectively).
[FN49]. Vannatta, 324 Or. at 542-46, 931 P.2d at 787-89.
[FN50]. Id. at 518, 931 P.2d at 774.
[FN51]. Id.
[FN52]. Vannatta v. Keisling, 899 F. Supp. 488 (D. Or. 1995).
[FN53]. Id. at 497.
[FN54]. Vannatta v. Keisling, 151 F.3d 1215, 1217 (9th Cir. 1998), cert. denied, Miller v. Vannatta, 119 S. Ct.
870 (1999).
11
[FN55]. Id. at 1218.
[FN56]. Or. Const. art. I, § 8.
[FN57]. 272 Or. 47, 535 P.2d 541 (1975).
[FN58]. Id. at 54, 535 P.2d at 545.
[FN59]. Id. at 65, 535 P.2d at 550.
[FN60]. 324 Or. 514, 520, 931 P.2d  770, 775 (1997).
[FN61]. 424 U.S. at 28-29.
[FN62]. 324 Or. at 521, 931 P.2d at 776.
[FN63]. Id. at 522, 931 P.2d at 776.
[FN64]. Id. at 521-22, 931 P.2d at 776.
[FN65]. Id. at 524, 931 P.2d at 777.
[FN66]. Id.
[FN67]. Id. at 536, 931 P.2d at 784 (citing State v. Stoneman, 323 Or. 536, 543, 920 P.2d 535, 539 (1996)
(citations omitted)).
[FN68]. Id.
[FN69]. Id. (citing Stoneman, 323 Or. at 546, 920 P.2d at 541).
[FN70]. Id.
[FN71]. Id. at 538, 931 P.2d at 785.
[FN72]. 324 Or. at 539, 931 P.2d at 785. The court also stated "the  'harm' that legislation aims to avoid must be
identifiable from legislation itself, not from social debate and competing studies and opinions."  Id.
[FN73]. Id. at 540, 931 P.2d at 786.
[FN74]. Id. at 543, 931 P.2d at 787.
[FN75]. Id.
[FN76]. Id. at 525, 931 P.2d at 778.
[FN77]. "The Legislative Assembly shall enact laws to support the privilege of free suffrage, prescribing the manner
of regulating, and conducting elections, and prohibiting under adequate penalties, all undue influence therein, from
power, bribery, tumult, and other improper conduct."  Or. Const. art. II, § 8.
[FN78]. 324 Or. at 528-29, 931 P.2d at 779-80.
[FN79]. 324 Or. at 529-30, 931 P.2d at 780.  The limited definition the court used for the word "election" was:
"The act of choosing a person to fill an office or employment, by any manifestation of preference, as by ballot,
uplifted hands or viva voce[.]"  Id. (citing Webster's American Dictionary of the English Language (1828)).
[FN80]. 324 Or. at 529-30, 931 P.2d at 780.  The broader definition of  "election" which the Secretary of State
would have preferred was: "the act or process of choosing a person for office, position, or membership by voting."
12
Id. (citing Webster's Third New Int'l Dictionary 731 (unabridged 1993)).
[FN81]. Id. at 533, 931 P.2d at 782.
[FN82]. Id. at 535, 931 P.2d at 783.  For additional cases dealing with the scope of Article II, Section 8 of the
Oregon Constitution, see In re Fadeley, 310 Or. 548, 802 P.2d 31 (1990); Libertarian Party of Oregon v. Roberts,
305 Or. 238, 750 P.2d 1147 (1988); City of Eugene v. Roberts, 305 Or. 641, 756 P.2d 630 (1988); and White v.
Commissioners, 13 Or. 317, 10 P. 484 (1886) (Thayer, J., dissenting).
[FN83]. "For purposes of campaigning for an elected public office, a candidate may use or direct only contributions
which originate from individuals who at the time of their donation were residents of the electoral district of the
public office sought by the candidate, unless the contribution consists of volunteer time, information provided to
the candidate, or funding provided by federal, state, or local government for purposes of campaigning for an elected
public office."  Or. Const. art. II, § 22(1).
[FN84]. Ballot Measure 6, which amended Article II of the Oregon Constitution, was an initiative petition as well.
It was adopted on November 8, 1994 as Or. Const. art. II, § 22.  See supra introduction.
[FN85]. 324 Or. at 527, 931 P.2d at 779.
[FN86]. Id.  Petitioners argued that respondents could not rely on  Article II, Section 22 because a federal district
court in Oregon declared it void.  Vannatta v. Keisling, 899 F. Supp. 488 (D. Or. 1995).  However, the federal
court left certain issues regarding the constitutionality of Measure 9 to be resolved by the state court.  Because that
case was on appeal to the Ninth Circuit at the time, the Oregon Supreme Court considered the merits of the
Secretary of State's argument.  324 Or. at 526, 931 P.2d at 778.
[FN87]. 324 Or. at 541, 931 P.2d at 787.  1995 Or. Laws ch. 1, sections 3, 4, and 16 related to the actual monetary
limits imposed on contributions, the prevention of candidate or political committee contributions to other
campaigns or acceptance of contributions in excess of the statutory limits, and prohibition of corporate or labor
organization contributions.
[FN88]. 324 Or. at 546, 931 P.2d at 789.  1995 Or. Laws ch. 1, section 11 dealt with civil penalties for
contributions in violation of sections 3, 4, or 16.  1995 Or. Laws ch. 1, section 14 further defined the nature of
contributions from political committees.  1995 Or. Laws ch. 1, section 15 related to section 3 and personal
contributions and independent expenditures.  1995 Or. Laws ch. 1,section 17 specified further contribution and
expenditure guidelines relating to sections 3 and 6.
[FN89]. 324 Or. at 547, 931 P.2d at 790.  1995 Or. Laws ch. 1, section 6 dealt with a candidate's voluntary
expenditure limits and declaration of such limits.  1995 Or. Laws ch. 1, section 10 provided for civil penalties
against candidates who exceed their voluntary expenditure limits.  1995 Or. Laws ch. 1, section 13 required the
Secretary of State to include a candidates statement of voluntary expenditure limits in the voters' pamphlet. None of
these sections violated the Oregon Constitution.
  "No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable
manner to consult for their common good; nor from instructing their Representatives; nor from applying to the
Legislature for redress of grievances." Or. Const. art. I, § 26.
[FN90]. 324 Or. at 548, 931 P.2d at 790.
[FN91]. Id. at 549, 931 P.2d at 791.  For an in-depth discussion relating to attorneys fees and fee-shifting reform,
see Sean D. Schrock, Attorney Fees in State Constitutional Litigation: A Proposed Legislative Reform for Oregon,
34 Willamette L. Rev. 57 (1998).
[FN92]. Vannatta v. Keisling, 899 F. Supp. 488, 491 & n.2 (1995).
[FN93]. Vannatta, 899 F. Supp. at 491.
[FN94]. Id. at 493.
13
[FN95]. Id. at 495.
[FN96]. Id. at 496-97.
[FN97]. Id. at 497.
[FN98]. Vannatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998), cert. denied, Miller v. Vannatta, 119 S. Ct. 870
(1999).
[FN99]. Id. at 1217.
[FN100]. Id.
[FN101]. Id. at 1218.
[FN102]. Id. at 1223 (Brunetti, concurring in part and dissenting in part).
[FN103]. To Limit or Not to Limit?, Register Guard, Jan. 3, 1998, at 12A.
[FN104]. Harry Esteve, Campaign Finance Issue on Back Burner, Register Guard, Sept. 22, 1997, at 1A.
[FN105]. Id.
[FN106]. Id.
[FN107]. Recently enacted term limits would arguably limit the extent that the threat could loom for any individual
legislator.  See Or. Const. art. II, § 20.
[FN108]. See Esteve, supra note 104, at 6A.
[FN109]. According to Keisling and OSPIRG, these three options are available in Oregon.  See Esteve, supra note
104, at 6A.  See also Harry Esteve, Capitol Conversations: Keisling Disappointed by Legislature, Register Guard,
Sept. 22, 1997, at C1.  For additional, comparable reforms and analysis of each on the federal level, see Kathleen
M. Sullivan, Political Money and Freedom of Speech, 30 U.C. Davis L. Rev. 663 (1997).
[FN110]. Burt Neuborne, The Values of Campaign Finance Reform, Campaign Finance Reform and the First
Amendment, ABA Section of Individual Rights and Responsibilities CLE Program, Aug. 4, 1997.  See also
Mikva, supra note 30.
[FN111]. See Neuborne, One Dollar, One Vote?, supra note 42, at 24.  See also Campaign Reform DOA?, supra
note 6, at 18A.
[FN112]. See also Michael E. Campion, The Maine Clean Election Act: The Future of Campaign Finance Reform,
66 Fordham L. Rev. 2391 (1998).
[FN113]. See Raskin and Bonifaz, supra note 42, at 1189-1201.
[FN114]. See Peck, supra note 42, at 183.
[FN115]. See generally Neuborne, One Dollar, One Vote?, supra note 42.
[FN116]. Group Seeks Campaign Finance Reform, Register Guard, March 4, 1999 at 3C.  "If the public really
wants to see less partisanship, more ideas, and better decision-making from political leaders, the public--not special
interests--must own the campaign process."  Id. (quoting Secretary of State Phil Keisling).  See also Senate Bill
890 and House Bill 3015.
[FN117]. Id.  See also Campaign Reform DOA?, supra note 6, at 18A  (indicating that the bills may not even get
legislative hearings this session).
14
[FNa1]. Third-year law student, University of Oregon School of Law.  Articles Editor, Oregon Law Review,
1998-1999.  The author would like to thank Professor Lisa A. Kloppenberg for her helpful comments on this Note.