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COMMENTS ON DRAFT BALLOT TITLE FOR PETITION 12 (2018)

April 28, 2017

Elizabeth Trojan and Ron Buel [hereinafter "we"] are electors and are the chiefpetitioners on this petition. We o�er these comments on the draft ballot title(DBT) for Petition 12 (2018).

The entire text of the measure is this:

Be it enacted by the People of the State of Oregon, there is added anArticle II, Section 25, of the Constitution of Oregon:

Oregon laws consistent with the freedom of speech guarantee of the

United States Constitution may regulate contributions and

expenditures (including transfers of money or resources) with the

purpose or e�ect of in�uencing the outcome of any election.

The draft ballot title reads:

Amends Constitution to allow laws regulating political campaign

contributions/expenditures. Revives previous voter-enacted campaign

�nance measure.

Result of "Yes" Vote: "Yes" vote amends constitution to authorize lawsregulating campaign contributions/expenditures; 2006 voter-enactedinitiative takes e�ect, limiting contributions/expenditures and imposingdisclosure/reporting requirements.

Result of "No" Vote: "No" vote retains Oregon Constitution�s currentprovisions, which prohibit campaign contribution and expenditure limits;voter-enacted contribution/expenditure limits and disclosure/reportingrequirements remain inoperative.

Summary: Amends the Oregon Constitution. The free-expression provisionof the Oregon Constitution (Article I, section 8) has been interpreted by theOregon Supreme Court to protect most political campaign contributionsand expenditures from limits. The proposed measure amends Oregon�sconstitution to allow laws that regulate campaign contributions andexpenditures. If the amendment passes, Measure 47 (enacted by thevoters in 2006) will become operative and will alter current election laws.Measure 47 limits campaign contributions and expenditures, andestablishes new reporting and advertising disclosure requirements for thesources and amounts of campaign contributions/expenditures. Even if theamendment passes, laws regulating campaign contributions and

COMMENTS ON DRAFT BALLOT TITLE FOR PETITION 12 (2018) Page 1

expenditures (including Measure 47) still must comply with the free-speechprovision of the First Amendment to the United States Constitution.

I. CAPTION.

ORS 250.035(2)(a) requires a "caption of not more than 15 words thatreasonably identi�es the subject matter of the state measure." The DBT reads:

Amends Constitution to allow laws regulating political campaign


�nance measure.

We suggest:

Amends Constitution: Allows laws regulating political campaign


�nance reform [or limits] measure. (15 words)

The DBT�s caption adds "to" after "Amends Constitution" instead of insertingthe traditional colon there (which does not count as a word). Substituting acolon in place of "to" allows re�nement of the caption to include the word"reform" or the word "limits" just before the last word of the caption. Thisclari�es the nature of the previous voter-enacted measure.

We agree that Petition 12 "revives previous voter-enacted campaign �nancemeasure." That was a prominent part of the certi�ed ballot title for Petition 77(2016).

We also agree that the previous measure should be referred to as a "voter-enacted measure." That distinguishes it from a measure enacted by theLegislature and clari�es that Petition 12 does not seek to reinstate a lawenacted by the Legislature.

We also agree that Petition 12 is correctly interpreted as referring to "lawsregulating political campaign contributions/expenditures." Petition 12 refers to"contributions and expenditures (including transfers of money or resources)with the purpose or e�ect of in�uencing the outcome of any election." Thatphrase is the same as that used in Petition 77 (2016), where the certi�ed ballottitle correctly abbreviated it to "laws limiting campaigncontributions/expenditures." It is also essentially the same as that used inPetition 8 (2006), where the certi�ed ballot title correctly abbreviated it tolaws * * * regulating campaign contributions, expenditures." See Meyer v.

Bradbury, 341 Or 288, 142 P3d 1031 (2006).


II. YES/NO STATEMENTS.

ORS 250.035(2)(b) requires a "simple and understandable statement of notmore than 25 words that describes the result if the state measure isapproved," while ORS 250.035(2)(c) requires a similar statement describing theresult if the measure is not approved.

A. THE "YES" STATEMENT.

The DBT reads:

Result of "Yes" Vote: "Yes" vote amends constitution to authorize lawsregulating campaign contributions/expenditures; 2006 voter-enactedinitiative takes e�ect, limiting contributions/expenditures and imposingdisclosure/reporting requirements.

We suggest:

Result of "Yes" Vote: "Yes" vote authorizes laws limiting campaigncontributions/expenditures; revives 2006 voter-enacted statewideinitiative limiting campaign contributions/expenditures, requiringpolitical advertisements identify largest campaign funders. (24 words)

The DBT�s "yes" statement omits a central, key feature of Petition 12: revivingthe 2006 voter-enacted measure�s requirement that political advertisementsidentify the largest donors to the campaign (or to the independent expendituree�ort). This is known as a "tagline" or "disclaimer" requirement.

It is not necessary, or traditional, for the "yes" statement to repeat that themeasure amends the Oregon Constitution. And "revives" can be used in placeof "takes e�ect."

The saved words can instead clarify the measure by stating that the 2006initiative was "statewide" and to more speci�cally identify the major disclosurerequirement of the 2006 measure ("requiring political advertisements identifylargest campaign funders").

If it is absolutely necessary to again state that this measure amends theconstitution (although ballot titles for many amendments do not mention that inthe "yes" statement), we suggest:

Result of "Yes" Vote: "Yes" vote amends constitution to authorizelaws limiting campaign contributions/expenditures; revives 2006voter-enacted initiative limiting campaign contributions/expenditures,requiring political advertisements identify largest funders. (25 words)

Also, the DBT�s "yes" statement is only 24 words, so at least the word"statewide" should be inserted after "voter-enacted."


B. THE "NO" STATEMENT.

The DBT reads:

Result of "No" Vote: "No" vote retains Oregon Constitution�s currentprovisions, which prohibit campaign contribution and expenditure limits;voter-enacted contribution/expenditure limits and disclosure/reportingrequirements remain inoperative.

We suggest:

Result of "No" Vote: "No" vote retains Oregon Constitution�s prohibitionon political campaign contribution and expenditure limits; 2006voter-enacted contribution/expenditure limits and disclosure/reportingrequirements remain inoperative. (24 words)

Our version uses fewer words to convey the same meaning, allowing us to addthe word "political" to more speci�cally identify "campaign contribution andexpenditure limits." Our version is 24 words.


III. SUMMARY.

ORS 250.035(2)(d) requires a ballot title summary consisting of a "concise andimpartial statement of not more than 125 words summarizing the state measureand its major e�ect."

The draft ballot title summary reads:

Summary: Amends the Oregon Constitution. The free-expression provisionof the Oregon Constitution (Article I, section 8) has been interpreted by theOregon Supreme Court to protect most political campaign contributionsand expenditures from limits. The proposed measure amends Oregon�sconstitution to allow laws that regulate campaign contributions andexpenditures. If the amendment passes, Measure 47 (enacted by thevoters in 2006) will become operative and will alter current election laws.Measure 47 limits campaign contributions and expenditures, andestablishes new reporting and advertising disclosure requirements for thesources and amounts of campaign contributions/expenditures. Even if theamendment passes, laws regulating campaign contributions andexpenditures (including Measure 47) still must comply with the free-speechprovision of the First Amendment to the United States Constitution.

We suggest:

Summary: Amends the Oregon Constitution. The free-expression provisionof the Oregon Constitution (Article I, section 8) has been interpreted by theOregon Supreme Court to ban some laws that limit political campaigncontributions and expenditures. The proposed measure amends Oregon�sConstitution to allow laws that regulate campaign contributions andexpenditures. If the amendment passes, Measure 47 (enacted by thevoters in 2006) will become operative and will alter election laws.Measure 47 (1) limits political campaign contributions and expenditures, (2)establishes new reporting requirements for the sources and amounts ofcampaign contributions/expenditures, and (3) requires politicaladvertisements to identify the largest funders of the campaign. Lawsregulating campaign contributions and expenditures (including Measure 47)still must comply with the free-speech provision of the First Amendment tothe United States Constitution. (124 words)

First, the sweeping statement about current interpretation of Article I, § 8, isunwarranted. That section has not been interpreted by the Oregon SupremeCourt to ban necessarily "most" laws that limit political campaign contributionsor expenditures. Thus, we use the word "some" to moderate that statement.

Second, we believe clarity is served by referring to the Oregon Supreme Court�scurrent view of the Oregon Constitution as "to ban some laws that limit political


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STATEMENT ON COMPLIANCE WITH PROCEDURAL CONSTITUTIONAL

REQUIREMENTS FOR PETITION 12 (2018)

April 28, 2017

Elizabeth Trojan and Ron Buel [hereinafter "we"] are electors and are the chiefpetitioners on this petition. We o�er this statement regarding Petition 12�scompliance with procedural constitutional requirements.

The Secretary of State�s process for accepting such comments is inherently unfairto chief petitioners and other supporters of a proposed measure, because it allowsopponents to �le comments anytime before 5 p.m. on the �nal day that commentscan be �led by the chief petitioners, thus allowing chief petitioners no opportunityto see the arguments made by opponents or to respond to those arguments.

Some may argue that Petition 12 violates Article XVII of the Oregon Constitutionby proposing multiple unrelated amendments. The Secretary of State correctlyrejected this argument when it was raised against Petition 8 (2006), which becameMeasure 46 (2006). ACLU then �led suit to appeal the Secretary�s determination.After over 18 months of litigation, and considerable cost to the State and to thepetitioners, the Oregon Supreme Court ruled that the multiple amendmentsproposed by Petition 8 (2006) were "closely related" and thus allowed by ArticleXVII. Meyer v. Bradbury, 341 Or 288, 142 P3d 1031 (2006). That decision hassince governed "multiple amendment" cases in Oregon: State v. Rogers, 352 Or510 (2012); Martinez v. Kulongoski, 220 OrApp 142 (2008); Lincoln Interagency

Narcotics Team (LINT) v. Kitzhaber, 341 Or 496 (2006).

Some may raise that Petition 77 (2016) was rejected by Secretary of State Atkinson "single amendment" grounds. The chief petitioners there declined to appealthat decision to the courts, because of the late date within the election cycle.Petition 77 contained separate subsections:



United States Constitution may:

(1) limit contributions and expenditures (including transfers of money or

resources) to in�uence the outcome of any election; and

(2) require disclosure of the true sources and amounts of such

contributions or expenditures (a) to the public and (b) in the

communications they fund.

Petition 12 contains no such enumeration or bifurcation. It simply states:


STATEMENT ON PROCEDURAL CONSTITUTIONAL REQUIREMENTSRE PETITION 12 (2018) Page 1


United States Constitution may regulate contributions and expenditures

(including transfers of money or resources) with the purpose or e�ect of

in�uencing the outcome of any election.

Petition 8 (2006) read:

Be it enacted by the People of the State of Oregon, there is added anArticle II, Section 24, of the Constitution of Oregon, as follows:

Notwithstanding any other provision of this Constitution, the

people through the initiative process, or the Legislative

Assembly by a three-fourths vote of both Houses, may enact

and amend laws to prohibit or limit contributions and

expenditures, of any type or description, to in�uence the

outcome of any election.

Note that Petition 8 (2006) included authority for (2) laws to prohibit contributions,(2) laws to limit contributions, (3) laws to prohibit expenditures, and (4) laws tolimit expenditures. The Oregon Supreme Court con�rmed that Petition 8 (2006)did not run afoul of Oregon Constitution, Article XVII, section 1. It is notnecessary that an amendment proposed by initiative have no conjunctions in it.

Note the very similar wording of Petition 8 (2006) and Petition 12. Both refer tocontributions and expenditures to "to in�uence the outcome of any election" orwith that purpose or e�ect. The Oregon Supreme Court concluded that Petition 8(2006) did not contain unrelated amendments:

First, IP 8 does not change di�erent constitutional provisions that conferdi�erent fundamental rights on di�erent groups of persons. See Armatta,327 Or at 28384, 959 P2d 49 (changes to constitutional provisionsinvolving separate constitutional rights granted to di�erent persons notclosely related for separate-vote requirement); see also Lehman, 333 Orat 246 n9, 37 P.3d 989 (when separate constitutional provisionsconferring separate rights on di�erent groups are a�ected by proposedamendment, it is "strong indication" that provisions not closely relatedfor separate-vote requirement).

Meyer v. Bradbury, 341 Or 288, 301, 142 P3d 1031, 1038, 2006 WL 2567430(2006). It is easy to observe that Petition 8 (2006) certainly contained morealleged "amendments" than does Petition 12.

Some persons may �le comments stating that Petition 12 violates Article IV,Section (1)(2)(d). That section states:

(d) An initiative petition shall include the full text of the proposed law oramendment to the Constitution. A proposed law or amendment to the

STATEMENT ON PROCEDURAL CONSTITUTIONAL REQUIREMENTSRE PETITION 12 (2018) Page 2

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