Oregon Measure 47--Reviewing The Law--Findings

As I had noted yesterday, this year Oregon voters approved Measure 47, which among, other things, imposed limits on contributions to candidates, limited candidate self-funding and prohibits corporate contributions, all matters previously permitted by Oregon law. However, what voters failed to do was approve a measure that laid the groundwork for the full enactment of Measure 47. In a letter from the Secretary of State's office to the sponsors of Measure 47, the state said that Measure 47 would be codified but not enforced.

The plain text of Section (9)(f) requires that the entire measure is to be codified as part of the statutory law of Oregon. That text also specifies that "this Act"-referring singularly to the entire measure-will be ineffective until such time as "the Oregon Constitution is found to allow, or is amended to allow," limitations on campaign contributions and expenditures. Because Measure 46 was not approve by the people, the conditions required by Section (9)(f) for the rest of Measure 47 to become operative will not have been fulfilled on December 7, 2006. Accordingly, the effect of Section (9)(f) is that no part of the measure presently is enforceable. According to the plain, natural, and ordinary meaning of the words of Section (9)(f), all of Measure 47 will remain dormant until such time as "the Oregon Constitution is found to allow, or is amended to allow," limitations on campaign contributions and expenditures.

So this measure will sit on the books likely until the next election when supporters will attempt again to get Measure 46 passed in order to activate Measure 47. One of the benefits to the Secretary of State and the Attorney General coming to this interpretation is that they will probably avoid the need to defend the law until such time as it becomes enforceable law.

Over the course of a number of posts, I would like to take a look at some of the provisions of Measure 47. Although it will be current though unenforced law, Measure 47 is the latest major attempt in a state wide fashion to drastically alter the landscape of campaign finance and if the voters ever approve a descendant of Measure 46, this law will almost certainly be challenged and will almost certainly end upon the Supreme Court docket at some point.

The first section of the law is the Findings section. Without a doubt, this is one of the most extensive "parade of horribles" to be placed into campaign finance law. With twenty-five lettered sections and ten numbered subsections reformers can find all the hits of campaign finance reformers; the findings section takes on the appearance of corruption, the corrupting influence of corporate and unlimited individual contributions, features nasty names like Enron, discusses the "arms race" of campaign finance and the distortion of campaign "war chests" amassed by incumbents, and exalts the ever-present "money buys access and influence at the expense of the little guy" argument. Indeed if you want a quick and dirty list of all the arguments advanced by reformers, one only need look at Measure 47.

Given the outlook of the sponsors of Measure 47, some distortions are to be expected, but there is one matter that immediately leaps out to those who would know better but not the voters.

(m) Even if all other contributions were prohibited or limited, large contributions by candidates to their own campaigns would also have the adverse effects noted above, because it would allow candidates with personal wealth to overwhelm the efforts of other candidates and compel those candidates to become beholden to large contributors and special interests in order to compete. Statewide campaigns in Oregon governed by the federal contribution limits have been dominated by candidate personal wealth. In 1996, for example, the winning candidate for an Oregon seat in the U.S. Senate, Gordon Smith, spent over $2 million of his personal wealth, defeating Tom Bruggere, who spent $1 million of his personal wealth.

While this may seem to be an example of extreme personal spending, this activity would not, could not and will never be regulated by the state of Oregon. Smith and Bruggere were running for federal office and their financial activities are governed by federal law. But placing this "finding" into the law has the desired effect--making people afraid of large personal expenditures on a candidate's own effort to win election.

The writers and supporters of this measure should know better and if they do not, they should be admonished. Such a "finding" is not a distortion or a "framing" mistake, but an outright lie to the voters of Oregon.

But not all is negative about these findings. Personally, I like the idea behind finding (o):

Candidates should not be allowed to carry over campaign funds from one election cycle to another, because the accumulation of such "war chests" distorts and corrupts the election process by deterring other candidates from competing for public office and thereby unfairly entrenching incumbents in future elections. One example: In 2002, incumbent members of the Oregon Legislature entered their races with over $785,000 in funds carried over from previous campaigns. Every incumbent Senator running for re-election won, as did every incumbent member of the House of Representatives, except one who switched parties in 2001. Further, the carried over funds do not necessarily reflect the current views of the contributors on the merits of the candidates in the later race.

Later in the Measure, this activity of carrying over funds is prohibited. I have long thought the carrying over of funds, no matter what level of government we are discussing unfairly burdens the challengers of a sitting lawmaker. By forcing each and every candidate to start at the same place, i.e. zero, you can level the playing field somewhat. There is no way to effectively limit the incumbency advantage, but prohibiting the carry over of campaign funds from one election to the next will go a long way to making elections a little more competitive.

Finally, I want to examine finding (d):

Candidates engage in the money "arms race" due to their accurate perception that expenditures influence the outcome of elections. In contests for the Oregon Senate, the candidate spending the most money won 87% of the races in 2002 and 94% of the races in 2004. The two exceptions in 2002 and the only exception in 2004 were former legislators who still spent an average of $195,000 each. In contests for the Oregon House of Representatives, the candidate spending the most money won 92% of the races in 2002 and 90% of the races in 2004. The five exceptions in 2002, including two incumbents, spent an average of $167,000 each.

In much of the reporting on campaign finance, one of the most common measures of campaign spending is how much money is spent in a given race. We will aggregate together the amount of money raised or spent by all the candidates, the major party candidates or, unfortunately, an improper mix of the two, which ever leads to the most dramatic results.

However, this reporting skews the viewpoint of campaign expenditures rather badly. For example, candidate expenditures cover all sorts of activity that has little to do with voter contact, such as rent for office space, payroll taxes for paid staff, salaries, office equipment rental, etc. But even assuming that you make the case that these expenses are for voter persuasion, the measure of spending by a candidate is a poor measure indeed.

A far better measure would be to examine the amount of money spent per citizen in the district or per voter, or even per vote obtained. Even without looking much beyond the numbers cited in Finding (d), the amount spent per citizen is not all that much. According to the Oregon Legislature's website, each of the state's 60 representatives serves a constituency of about 57,000 citizens. This means that for that average of $167,000, the candidates spent about just $2.92 per citizen. If you assume that voter turnout in the 2006 election is indicative of the turnout in 2002, the average voting population in contested races is an estimate 20,500 voters or so, which is a pretty healthy 36 percent turnout. On that basis, the candidates spent about $8.15 per voter.

For comparison purposes, Darlene Hooley the U.S. Representative from the 5th District of Oregon, according to her pre-general election report, spent $1.57 million on her campaign, an average of $5.79 per voter in her district, that is prior to the final three weeks of campaign spending which won't be known for a couple more weeks.

So what is troubling about finding (d) is not the data the it provides but rather the lack of context for the data it provides. The method of simply providing an average total of expenditures simply fails to show how much is being spent per voter, which is many cases might be less than a trip to the movies per voter.

When viewed through those terms, spending