objections to modifed ballot title fled March 22, 2018;
considered and under advisement April 10, 2018.
Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, fled
the objection for petitioners Markley and Hedbor.
C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC,
Portland, fled the objection for petitioner Lutz.
W. Meek, Portland, fled the brief on behalf of amici curiae
B. Elizabeth Trojan and Ronald A. Buel.
appearance by respondent.
Summary: After the Supreme Court referred the certified
ballot title for an initiative petition to the Attorney
General for modification in Markley/ [362 Or. 856]
Lutz v. Rosenblum, 362 Or. 531, 413 P.3d 966 (2018),
the Attorney General fled a modified ballot title. The same
petitioners who objected to the originally certified ballot
title objected to the modified ballot title under ORS
250.085(9). Held: The caption and "yes"
vote result statement do not comport with the Supreme
Court's directive in its previous opinion that, in using
the word "regulate, " the ballot title must
"signal that 'regulate' is undefined and could
encompass some or all of a range of regulatory
measures." Because the caption and "yes"
result statement do not substantially comply with the
requirements in ORS 250.035, the modified ballot title is
referred to the Attorney General for modification.
Or. 857] PER CURIAM.
MarkleylLutz v. Rosenblum, 362 Or. 531, 413 P.3d 966
(2018), we referred the ballot title for Initiative Petition
28 (IP 28) to the Attorney General for modification. The
Attorney General has filed a modified ballot title, and the
two sets of petitioners who challenged the original ballot
title have challenged the modified title. We write to address
one of their challenges.
if enacted, would modify Article I, section 8, of the Oregon
Constitution to permit either a legislative body or the
people exercising their initiative power to regulate campaign
contributions and expenditures. See id. at 533-34
(describing the proposed measure). In describing the subject
matter of the proposed measure, the caption of the original
ballot title explained that the measure would permit the
"regulation]" of campaign contributions and
expenditures, which this court has held constitute expressive
activity. See id. (setting out original ballot title
and describing previous decisions).
other things, petitioners challenged the ballot title's
unqualified use of the word "regulate." They noted,
and we agreed, that "the word 'regulate, ' when
used in the context of regulating expressive activity, can
encompass a range of different types of regulations."
Id. at 537. Regulation of contributions and
expenditures could authorize only the disclosure and
reporting of those activities, or it could go further and
authorize substantive limitations on the permissible amount
of contributions and expenditures. Id. We concluded
that, "[b]ecause the measure does not identify the
extent to which IP 28 would permit the regulation of campaign
contributions and expenditures, we think that the caption
should signal that 'regulate' is undefined and could
encompass some or all of a range of regulatory
measures." Id. at 537-38. We held that other
parts of the ballot title that also used "regulate"
without any qualification suffered from the same problem.
See id. at 539, 541 (noting issue in the
"yes" result statement and summary). For that and
other reasons, we referred the ballot title to the Attorney
General for modification.
Or. 858] The Attorney General filed the following modified
"Amends Constitution: Allows laws that
'regulate contributions and
expenditures' made to 'influence the
outcome of any election' "Result of
'Yes' Vote: 'Yes' vote allows laws
passed 'by initiative or by an elected legislative body
by a three-fourths vote' that 'regulate contributions
and expenditures' to influence elections.
"Result of 'No' Vote:
'No' vote retains Oregon Constitution's existing
free-expression provision; laws limiting contributions to
candidates or political committees by a person, corporation
or union violate constitution.
"Summary: Amends Constitution. The
Oregon Supreme Court has interpreted the Oregon
Constitution's free-expression provision (Article I,
section 8) to prohibit limits on many political campaign
contributions and expenditures. The proposed measure amends
Article I, section 8 to allow laws that 'regulate
contributions and expenditures' made to 'influence
the outcome of any election' (quoted terms undefined).
Such laws would need to be consistent with the federal
constitution's free-speech provision and 'adopted or
amended by initiative or by an elected legislative body by a
three-fourths vote.' If amendment passes, Measure 47
(2006), which limited campaign contributions/ ...