The rules of Oregon’s House of Representatives are clear: Representatives cannot accept campaign donations during a legislative session.
As he runs for governor, state Rep. Ed Diehl is doing it anyway.
Diehl is testing his chamber’s longstanding prohibition on in-session fundraising. As of Friday morning, the Republican from Scio had reported receiving more than $1,300 since the Legislature convened Monday. More Republicans appear ready to follow suit.
The question now is whether majority Democrats will do anything about it.
The contributions buck decades of practice in the House, but they also might be perfectly legal. A recent opinion from the Legislature’s attorneys strongly suggested that the ban on contributions during session violates free speech protections in the Oregon and U.S. constitutions. Both of those documents protect political speech, including campaign contributions.
In a Jan. 23 analysis written to Tim Sekerak, the chief clerk of the House, Deputy Legislative Counsel Wenzel Cummings wrote that “a court is more likely than not to find a prohibition against a member of the House soliciting contributions and expenditures on behalf of the member to be facially unconstitutional.”
Despite the advice, Democrats who control the House declined to change the rule for this year’s session. As the chamber voted to approve those rules at the outset of session on Monday, some Republicans cried foul.
State Rep. Virgle Osborne, R-Roseburg, served on the legislative committee that crafted chamber rules. He said he was told by Democrats that altering the contribution rule during an election year would look suspicious to Oregonians.
“Frankly, I don’t give a darn about the optics when it comes to the First Amendment,” Osborne said on the House floor Monday. “If I did, then what would I be here for?”
Others, including Diehl, noted that the state Senate has no prohibition on in-session contributions. That’s one reason why Christine Drazan, another leading Republican candidate for governor, pushed to move to the Senate from the House last year despite planning to run for higher office.
“The Senate can do it, the optics are fine there,” Diehl said in the House on Monday, adding his supporters opposed the chamber’s rule. “But in the House the optics aren’t? It doesn’t make any sense.”
Under a former Oregon statute, all lawmakers were blocked from accepting campaign cash during session, a measure intended to avoid the appearance of impropriety that could arise if people seeking votes from lawmakers were handing them money at the same time.
But in 2005, the state’s attorney general found the law did not pass constitutional muster, according to Cummings’ recent legal analysis. Lawmakers repealed the statute, but the House kept the practice in its chamber rules. The Senate, where members run every four years versus every two in the House, did not. Congress also doesn’t have limits on campaign giving while lawmakers are meeting.
Some big campaign donors self-censor during the legislative session. The Capitol Club, an organization that comprises most lobbyists who stalk the halls in Salem, prohibits its members from cutting checks while lawmakers are convened.
But everyday citizens have no-such rule. One concern raised by House members in both parties are the small, monthly donations that some people set up to occur through fundraising platforms. It’s awkward, lawmakers say, to have to reject those kinds of contributions.
Diehl said Friday that he is just being open about what is already common practice.
“Here’s how the game’s been played for years. And both parties do it,” he wrote in a text message to OPB. “They collect and hold their checks until the end of session and then they deposit them.”
During legislative sessions, lawmakers and other state elected officials must report campaign contributions within two business days.
Whatever the case, the next steps for the House aren’t clear.
Democrats have so far defended the no-contribution rule. On Monday, some likened it to rules that require decorum and appropriate attire in the House. They asked: Should those be tossed, too?
“My constituents have never asked me to make it easier for us to campaign during the 35 days of this year that we have to create legislation,” said state Rep. Willy Chotzen, D-Portland. “My constituents want us to avoid any appearance of conflicts of interest. They want us to be above approach.”
State Rep. David Gomberg, D-Otis, led the legislative committee that crafted rules for this year’s session. He said Monday that the group could not agree on the issue, but did agree to talk about it further before lawmakers convene next year.
“There was also, I believe, a consensus that, should this rule be violated, that there not be huge penalties in response to those violations,” Gomberg said, adding that the House clerk told legislators that there is not currently a mechanism for enforcing the rule.
Sekerak, the House chief clerk, did not respond to an inquiry about the process on Friday. House Speaker Julie Fahey, a Democrat from Eugene, “has been made aware of the contributions and will be looking into the matter in the days to come,” according to a spokeswoman.
There is some precedent for Diehl’s maneuver. In 2015, then state Rep. Knute Buehler, R-Bend, received a “letter of correction” after he donated $12,000 to his own campaign committee during the session.
This year, Diehl is not the only one interested in pressing the issue. State Rep. Kevin Mannix, a Salem Republican, reported a contribution on Thursday that appears designed to test the rule. It was an in-kind donation from Oregon Excellence, LLC, a company that Mannix runs, to his campaign account.
Diehl said he expects others will follow suit.
“It’s not just me,” he said.
