The Oregon Supreme Court has likely closed off any chance Oregon voters will limit political spending this year, declining on Friday to hear a challenge that might have paved the way for such a proposal on the November ballot.
In a 5-page ruling, the state’s high court said it would not take up a challenge to a decision Secretary of State Shemia Fagan made last month. Fagan rejected three proposed ballot measures to institute limits on campaign contributions, sayingthey did not meet technical requirements.
Three proponents of the measures – Jason Kafoury, James Ofsink and Rebecca Gladstone – challenged the determination; they asked the Supreme Court to step in and rule that Fagan’s interpretation of the state Constitution was incorrect. If justices had agreed, it might have given the group enough time to collect signatures and put one of their proposals before voters.
But the court ruled Friday that intervening in the case would not be appropriate. In the written decision, justices said that stepping in to rule on Fagan’s decision – rather than allowing the matter to first be heard in Marion County Circuit Court, as is the normal process – was not warranted.
“This is not a case in which exceptional circumstances persuade us that the issue that relators raise is so novel and significant, and that immediate resolution is so imperative, that we should exercise our discretionary mandamus jurisdiction on an expedited basis,” the justices wrote. They added that “petitioners’ efforts may be delayed, but they are not foreclosed.”
The decision is almost certainly a fatal blow to the effort to institute campaign finance limits this year, said Kafoury, a Portland lawyer and chief petitioner behind the measures. Even if he and other petitioners do opt to challenge Fagan’s decision in Marion County, there is no chance the matter would be resolved at the circuit and appeals court levels soon enough to allow them to gather signatures by the July deadline.
“The most likely outcome here is that we’re going to have to regroup and look at filing something for 2024,” Kafoury said.
Fagan, who had welcomed justices to weigh in on the matter, nevertheless cheered the decision Friday.
“I am one of the millions of Oregonians eager to see speedy, meaningful progress on campaign finance reform,” she said in a statement, adding: “If the petitioners decide to challenge the Constitution’s ‘full text’ rule in a lower court, my office will continue to make every effort to streamline the court’s decision process.”
Oregon is one of a handful of states that places no limits on how much an individual or entity can give to candidates, a fact that has helped campaign spending explode in recent elections. But voters have signaled they’re eager to end that trend. A ballot measure that altered the state Constitution to formally allow limits on campaign giving passed in a landslide in 2020.
Kafoury and others had submitted three initiative petitions in December, and they planned to ultimately pick one to put on the November ballot. The three proposals differed in their specifics, but all would have limited the amount that individual donors and other entities could contribute.
But Fagan ruled last month that the petitions suffered from a major flaw: They did not include the entire wording of a section of state law they sought to change. In their proposals, the petitioners changed a subsection of the state’s law against bribery by fewer than 20 words. But they failed to also include another subsection of the law that they didn’t want to touch.
Relying on a 2004 case, Fagan said that technical glitch meant the proposals did not pass constitutional muster, and so she rejected them. The decision was at odds with how some past secretaries scrutinized proposed ballot measures, but was consistent for Fagan, who last year rejected another proposal on the same grounds.
While Fagan said that the petitioners behind the campaign finance measures could re-file measures so that they comply with the Constitution, Kafoury and others argued that would not grant them enough time to collect signatures before the deadline. They instead asked the Supreme Court to weigh in.
In their ruling Friday, justices suggested that the campaign finance group should have left themselves more time.
“Relators could have begun the initiative process earlier, so that, if the secretary identified deficiencies, relators could have taken timely steps to contest or cure them within the same election cycle,” the opinion said.
The campaign limit advocates have the option of asking justice to reconsider their ruling by next week. Kafoury said Friday they would probably do so, though he acknowledged it was unlikely to change the outcome.
Since lawmakers failed to address campaign finance limits in their recent legislative session, and several other ballot proposals to create limits aren’t likely to move, the issue will likely be kicked to early 2023. House Speaker Dan Rayfield, D-Corvallis, and other lawmakers have pledged to take up the matter when lawmakers next meet, though the issue of political spending caps has repeatedly proven toxic in Salem.
“The really disappointing part is all Oregonians would like clarity on this full-text determination by the secretary of state,” Kafoury said. “There are many other petitions for 2022 and 2024 that need clarity on this issue.”
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