Multnomah County v. Mehrwein

295

Argued and submitted November 14, 2019; judgment of circuit court affirmed

in part and reversed in part, and case remanded to circuit court for further

proceedings April 23, 2020

In the Matter of Validation Proceeding to Determine

the Regularity and Legality of Multnomah County Home

Rule Charter Section 11.60 and Implementing Ordinance

No. 1243 Regulating Campaign Finance and Disclosure.

MULTNOMAH COUNTY,

Petitioner-Appellant,

and

Elizabeth TROJAN,

Moses Ross, Juan Carlos Ordonez, David Delk,

James Ofsink, Ron Buel, Seth Alan Woolley,

and Jim Robison,

Intervenors-Appellants,

and

Jason KAFOURY,

Intervenor,

v.

Alan MEHRWEIN,

Portland Business Alliance,

Portland Metropolitan Association of Realtors,

and Associated Oregon Industries,

Intervenors-Respondents.

(CC 17CV18006) (CA A168205) (SC S066445)

462 P3d 706

The county initiated a validation proceeding over its campaign finance ordi-

nances. The trial court held that the county’s campaign contribution limits,

independent expenditure limits, and disclosure rules were unconstitutional. The

Court of Appeals certified the appeal to the Supreme Court. Held: (1) Vannatta

v. Keisling, 324 Or 514, 931 P2d 770 (1997), is overruled; (2) the county’s contri-

bution limits are not facially invalid under Article I, section 8, of the Oregon

Constitution; (3) the case is remanded for the trial court to decide whether the con-

tribution limits violate the First Amendment to the United States Constitution;

(4) the county’s independent expenditure limits violate both constitutions; and

(5) a subsequent amendment to the county’s disclosure rules makes the question

of their validity in their prior form moot.

The judgment of the circuit court is affirmed in part and reversed in part,

and the case is remanded to the circuit court for further proceedings.

296 Multnomah County v. Mehrwein

En Banc

On certification from the Court of Appeals under ORS

19.405.*

Katherine Thomas, Multnomah County Attorney’s Office,

Portland, argued the cause for appellant Multnomah County.

Jenny M. Madkour, Multnomah County Attorney, filed the

briefs. Also on the briefs was Katherine Thomas.

Daniel W. Meek, Portland, argued the cause and filed

the briefs for intervenors-appellants Moses Ross, Juan

Carlos Ordonez, James Ofsink, Seth Alan Woolley, and Jim

Robison.

Linda K. Williams, Portland, argued the cause and filed the

briefs for intervenors-appellants Elizabeth Trojan, David

Delk, and Ron Buel.

Gregory A. Chaimov, Davis Wright Tremaine LLP,

Portland, argued the cause and filed the brief for intervenors-

respondents.

Adam Kiel, Kafoury McDougal Law Firm, Portland,

filed the briefs on behalf of amici curiae Derek Cressman,

Sightline Institute, Asian Pacific American Network of

Oregon, Bernie PDX, League of Women Voters of Oregon,

League of Women Voters of Portland, Portland Forward,

Portland Jobs with Justice, Alliance for Democracy, and

Unite Oregon.

Carson L. Whitehead, Assistant Attorney General, Salem,

filed the brief on behalf of amicus curiae Kate Brown,

Governor. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Cody Hoesly, Larkins Vacura Kayser LLP, Portland,

filed the brief for amici curiae Independent Party of Oregon,

Oregon Progressive Party, Pacific Green Party, and Honest

Elections Oregon.

Kelly K. Simon, ACLU Foundation of Oregon, Inc.,

Portland, filed the brief on behalf of amicus curiae American

______________

* On certified appeal from a judgment of the Multnomah County Circuit

Court, Eric J. Bloch, Judge.

Cite as 366 Or 295 (2020) 297

Civil Liberties Union Foundation of Oregon, Inc. Also on the

brief were Katherine McDowell, McDowell Rackner Gibson

PC, Portland, and Daniel Belknap Bartz, Eugene.

Denis M. Vannier, Senior Deputy City Attorney, Portland,

filed the brief on behalf of amicus curiae City of Portland.

Also on the brief was Naomi Sheffield, Deputy City Attorney.

Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter

P.C., Portland, filed the brief on behalf of amicus curiae

Planned Parenthood of Oregon. Also on the brief were Nadia

H. Dahab and Lydia Anderson-Dana.

Kyle Markley, Hillsboro, filed the brief on behalf of amicus

curiae Kyle Markley.

Owen Yeates, Institute for Free Speech, Alexandria,

Virginia, filed the brief on behalf of amici curiae Taxpayers

Association of Oregon and Taxpayers Association of Oregon

Political Action Committee. Also on the brief was Allen

Dickerson.

WALTERS, C. J.

The judgment of the circuit court is affirmed in part and

reversed in part, and the case is remanded to the circuit

court for further proceedings.

298 Multnomah County v. Mehrwein

WALTERS, C. J.

In the November 2016 election, Multnomah County

voters approved Measure 26-184, an amendment to the

Multnomah County Home Rule Charter containing campaign

finance provisions. Multnomah County then adopted new

ordinances, Multnomah County Code (MCC) §§ 5.200 - 203,

mirroring and implementing those charter provisions. The

first substantive section, MCC § 5.201, restricts campaign

contributions. It limits the amount of money that donors

may contribute and the amount that a candidate or cam-

paign organization may receive from a particular donor. The

second section, MCC § 5.202, limits what are known as inde-

pendent expenditures. It sets a cap on the amount that indi-

viduals, acting independently of a campaign, can spend on

communications supporting a candidate and forbids entities

from spending any amount on communications supporting a

candidate. The third section, MCC § 5.203, contains disclo-

sure rules, which require that disclaimers about the sources

of funding be attached to communications in support of a

candidate.

We consider the validity of those ordinances under

the free speech provisions of both the Oregon and United

States Constitutions—Article I, section 8, and the First

Amendment. As we explain, we reach four conclusions:

(1) the county’s contribution limits do not, on their face, vio-

late Article I, section 8, of the Oregon Constitution; (2) we

must remand this case to the trial court for factual findings

and to consider, in the first instance, whether the contri-

bution limits violate the First Amendment; (3) the county’s

expenditure limits are invalid under both constitutional

provisions; and (4) the parties’ dispute with respect to the

disclosure provisions is moot.

I. PROCEDURAL BACKGROUND

In May 2017, Multnomah County initiated this val-

idation action in the circuit court. Under ORS 33.710, the

county sought judicial examination of MCC §§ 5.200 - 203, its

new campaign finance ordinances, and a judgment uphold-

ing their legality. Two groups of intervenors joined in that

court proceeding. See ORS 33.720(3) (permitting interested

Cite as 366 Or 295 (2020) 299

parties to appear in the validation proceeding). Respondents1

appeared in the action to contest the validity of the county’s

ordinances, arguing that they violate Article I, section 8, of

the Oregon Constitution and the First Amendment of the

United States Constitution. Trojan2 intervened in the action

to support the county’s position that the county’s ordinances

are valid.

Article I, section 8, provides that “[n]o law shall

be passed restraining the free expression of opinion, or

restricting the right to speak, write, or print freely on any

subject whatever; but every person shall be responsible

for the abuse of this right.” With respect to that provision,

respondents’ arguments centered on Vannatta v. Keisling,

324 Or 514, 931 P2d 770 (1997) (Vannatta I), a decision in

which this court struck down limits on campaign contribu-

tions and expenditures. The proponents acknowledged that

Vannatta I was unfavorable precedent but urged the trial

court to reject its reasoning in light of this court’s decision

in Vannatta v. Oregon Government Ethics Comm., 347 Or

449, 222 P3d 1077 (2009) (Vannatta II), which had distin-

guished Vannatta I and upheld restrictions on the receipt of

gifts by public officials.

The trial court ruled that, under Article I, section 8,

all three sections of the county ordinances were facially

invalid. The trial court considered Vannatta I controlling

on the contribution and expenditure limit issues. Because

the court resolved the case on state constitutional grounds,

it did not address the ordinances’ validity under the First

Amendment. State v. Copeland, 353 Or 816, 821, 306 P3d 610

(2013) (“[W]e consider state constitutional issues before we

consider federal claims.”). The county and Trojan appealed,

and the Court of Appeals certified the appeal to this court.

See ORS 19.405. We begin with the question of whether the

county’s contribution limits violate the Oregon Constitution.

1

Alan Mehrwein, Portland Business Alliance, Portland Metropolitan

Association of Realtors, and Associated Oregon Industries (respondents).

2

Elizabeth Trojan, Moses Ross, Juan Carlos Ordonez, David Delk, James

Ofsink, Ron Buel, Seth Woolley, and Jim Robison (Trojan). On appeal, Trojan,

Delk, and Buel raise assignments of error relating to the contribution and expen-

diture limits while Ross, Ordonez, Ofsink, Woolley, and Robison principally raise

assignments of error relating to the disclosure rules.

300 Multnomah County v. Mehrwein

II. CONTRIBUTION LIMITS

A. Article I, Section 8

MCC § 5.201 limits the amount of money that

donors may contribute in county elections and the amount

that a candidate or campaign organization may receive

from a particular donor. Much of the briefing in this case,

from the parties and the 11 amici curiae, focuses on the

role of campaign contributions in our political system and

the asserted harms that are remediated, or not, by the

county’s ordinance. Under the First Amendment, it is not

unusual for courts to approach campaign finance cases in

part by weighing those harms, and the government’s inter-

est in abating them, against the importance of campaign

contributions and expenditures to political expression. See

Buckley v. Valeo, 424 US 1, 19-22, 26-27, 96 S Ct 612, 46 L

Ed 2d 659 (1976) (adopting that approach); Citizens United

v. Federal Election Comm’n, 558 US 310, 364, 130 S Ct 876,

175 L Ed 2d 753 (2010) (discussing the effects of corporate

expenditure limits in light of circumvention and changing

technology). We need not wade into that thicket, however, to

determine the validity of the contribution limits under the

Oregon Constitution. In this validation proceeding, the only

question that is before us is whether MCC § 5.201 is uncon-

stitutional on its face. As we will explain, not all laws are

subject to a facial challenge under Article I, section 8, and

we have an established framework for determining which

laws may be so challenged. Using that framework, the ques-

tion presented is whether the contribution limits are “writ-

ten in terms directed to the substance of any ‘opinion’ or any

‘subject’ of communication.” State v. Robertson, 293 Or 402,

412, 649 P2d 569 (1982).

In considering that question, we do not write on a

clean slate. Respondents rely, as they did in the trial court,

on Vannatta I and on our determination that the limits that

we considered in that case were subject to a facial challenge

and our holding that those limits were unconstitutional. We

agree that, if the analysis and the holding in Vannatta I

are controlling, then the contribution limits at issue here

also are subject to facial challenge and unconstitutional. To

decide whether to adhere to that aspect of Vannatta I we

Cite as 366 Or 295 (2020) 301

must examine not only Vannatta I and Vannatta II, but also

the Robertson framework and the limited category of laws

that we have held to be subject to facial challenge under

Article I, section 8. That, therefore, is where we begin.

1. The Robertson framework

Under Robertson, a law restricting speech falls into

one of three categories. The first Robertson category encom-

passes any law “that is ‘written in terms directed to the

substance of any “opinion” or any “subject” of communica-

tion.’ ” State v. Babson, 355 Or 383, 393-94, 326 P3d 559

(2014) (quoting Robertson, 293 Or at 412). Laws in that cat-

egory are unconstitutional on their face, “unless the restric-

tion is wholly confined within an historical exception.”

Id. at 394. In State v. Moyer, 348 Or 220, 230 P3d 7 (2010),

we examined the validity of such a law—a statute that

makes it an offense to make a campaign contribution in a

name “other than that of the person who in truth provides

the contribution.” ORS 260.402 (2003). We reasoned that

“the falsity that the statute prohibits can only be achieved

through expression—through one person’s communication

of a falsehood to another person,” and, for that reason, we

concluded that “the statute must be classified as a Robertson

category one law.” Moyer, 348 Or at 232 (emphasis added).

Although we ultimately concluded that the law fell within a

recognized historical exception, and upheld it on that basis,

id. at 237-38, that case nonetheless provides a good example

of a law that is directed at expression and only expression

and therefore falls within the first Robertson category. The

first category is, by design, a limited one, as it includes only

laws that expressly prohibit speech.

The second category shares that limitation. To fall

into the second category, the law also must expressly regu-

late speech but do so only insofar as that speech is linked

to a particular harm—that is, where “the actual focus of the

enactment is on an effect or harm that may be proscribed,

rather than on the substance of the communication itself.”

State v. Stoneman, 323 Or 536, 543, 920 P2d 535 (1996)

(emphases in original). For example, in State v. Moyle, 299

Or 691, 705 P2d 740 (1985), we considered the constitution-

ality of a law that forbids making a threat that is expected

302 Multnomah County v. Mehrwein

to and does cause alarm. We concluded that “[s]peech and

writing are merely the means, albeit the only prohibited

means, of achieving the forbidden effect—actual and rea-

sonable alarm.” Id. at 699. Laws that fall within the second

category are analyzed for overbreadth and are held facially

invalid if they are overbroad. Compare Robertson, 293 Or at

435-37 (striking down a second-category law as overbroad),

with Moyle, 299 Or at 704-05 (concluding that the statute

under consideration was not overbroad).

Most laws fall into the third Robertson category—

which includes laws that do not expressly restrict speech

but that may have the effect of prohibiting or limiting it.

Robertson third-category laws are not facially invalid, but

they are subject to as-applied challenges. Babson, 355 Or at

404. We have considered the difference between laws that

expressly restrict speech—those in the first two Robertson

categories—and those that do not—placing them in the

third Robertson category—on many occasions. This case,

too, requires particular attention to that distinction, and it

behooves us to examine it in greater detail, beginning with

our 1992 decision in State v. Plowman, 314 Or 157, 838 P2d

558 (1992).

In Plowman, the defendant was convicted of first-

degree intimidation, a crime then defined as “two or more

persons, acting together, [who] ‘[i]ntentionally, knowingly, or

recklessly cause physical injury to another because of their

perception of that person’s race, color, religion, national ori-

gin or sexual orientation.’ ” Plowman, 314 Or at 159 (quot-

ing ORS 166.165(1)(a)(A) (1991)). The defendant had, during

an assault, exclaimed racial slurs at the victims and loudly

yelled “white power” or “white pride.” Id. at 160. He argued

that the law was facially invalid under Article I, section 8,

because it provided for an enhanced punishment—relative

to the lesser offense of fourth-degree assault—on the basis

of his beliefs. Id. at 163.

This court recognized that the relevant question

was whether the law was “ ‘written in terms directed to the

substance of any “opinion” or any “subject” of communica-

tion’ ” and concluded that it was not. Plowman, 314 Or at

165 (quoting Robertson, 293 Or at 412). We explained that

Cite as 366 Or 295 (2020) 303

the law did not proscribe opinion or speech, that “[p]ersons

can commit that crime without speaking a word, and hold-

ing no opinion other than their perception of the victim’s

characteristics.” Id. at 165. Instead, we explained, the law

proscribed a forbidden effect:

“the effect of acting together to cause physical injury to a

victim whom the assailants have targeted because of their

perception that that victim belongs to a particular group.

The assailants’ opinions, if any, are not punishable as such.

ORS 166.165(1)(a)(A) proscribes and punishes committing

an act, not holding a belief.”

Id. Thus, in Plowman, any proscription of speech was not

express. Although the law certainly punished conduct that

could be expressive in nature—as the defendant’s conduct in

that case appears to have been—the possibility, or even cer-

tainty, that the law would punish some expressive conduct

did not bring the law within the first Robertson category.

We reached an analogous conclusion in 2014, in

Babson. That case concerned a challenge to a rule prohib-

iting overnight use of the steps in front of the state capitol.

355 Or at 386. The defendants were protestors who had con-

ducted a vigil on the steps after 11:00 p.m., in violation of the

rule. Id. They argued that the rule was an express restric-

tion on speech and either facially invalid as a Robertson cat-

egory one law or overbroad as a Robertson category two law.

Babson, 355 Or at 394. This court rejected both contentions.

First, this court explained, the rule was not “ ‘writ-

ten in terms’ directed at expression or the content of expres-

sion.” Id. at 395. Although the rule had the effect of prohib-

iting the defendants’ vigil, it was not written in those terms;

it was written to bar all use, including nonexpressive use,

of the capitol steps during certain hours. Because a person

could violate the rule without engaging in any expressive

activities—by, for instance, using the steps as a shortcut

while crossing the capitol grounds at a time when the leg-

islature was not conducting business—the rule was not a

Robertson category one law. Id. at 396-97.

Second, this court concluded that the rule was not

subject to an overbreadth challenge as a Robertson category

304 Multnomah County v. Mehrwein

two law. Id. at 398. Again, the terms of the rule did not

include “expression as an element or ‘proscribed means’ of

causing targeted harm.”3 Id. We rejected the defendants’

argument that apparent applications to speech were suffi-

cient to make the rule one that “directly refer[s] to speech”

within the second Robertson category:

“Similarly, here, although the guideline does not directly

refer to speech, the guideline does have apparent applica-

tions to speech, as defendants contend. A restriction on use

of the capitol steps will prevent people like defendants from

protesting or otherwise engaging in expressive activities on

the capitol steps overnight. That fact alone, however, does

not subject the guideline to Article I, section 8, scrutiny

under the second category of Robertson. The guideline is

not simply a mirror of a prohibition on words. The guideline

also bars skateboarding, sitting, sleeping, walking, storing

equipment, and all other possible uses of the capitol steps

during certain hours. Thus, because the guideline does not

expressly refer to expression as a means of causing some

harm, and it does not ‘obviously’ prohibit expression within

the meaning of Moyle, it is not subject to an overbreadth

challenge under the second category of Robertson.”

Babson, 355 Or at 403-04; see also State v. Illig-Renn, 341 Or

228, 236-37, 142 P3d 62 (2006) (“In summary, the state is

correct that only statutes that by their terms proscribe the

exercise of the constitutionally protected rights of assembly

or expression are susceptible to a facial overbreadth chal-

lenge under Article I, sections 8 and 26.”). In so holding, we

noted only one exception, that where a law used “creative

wording that does not refer directly to expression, but which

could only be applied to expression, would be scrutinized

under the first two categories of Robertson.” Babson, 355 Or

at 403 (emphasis in original). As a result, laws that restrict

conduct that only sometimes has an expressive component—

and that do not refer to the expressive component in defin-

ing the conduct that is restricted—are not laws directed at

speech.

3

The first two Robertson categories require an express restriction on speech.

We need not decide, in this case, whether those requirements are identical,

because we think it clear that the requirement attendant to the first Robertson

category is at least as demanding as that applicable to the second.

Cite as 366 Or 295 (2020) 305

We now turn to an examination of the Vannatta

cases, and this court’s application of the Robertson frame-

work in those cases. We first analyze whether Vannatta I

correctly applied the Robertson framework, considering both

the reasoning of that court and the reasoning of the court

in Vannatta II. As we explain, we conclude that Vannatta I

erred in treating the campaign contribution limits at issue

there as Robertson category one laws. We then apply stare

decisis principles and conclude that that reasoning must be

abandoned and that Vannatta I’s holding that those laws

were unconstitutional on that basis must be overruled.

Finally, we apply Robertson to the county’s contribution

limits at issue here and conclude that the text of the ordi-

nances does not expressly refer to speech and that they are

not facially invalid under Article I, section 8.

2. The Robertson framework and the Vannatta cases

In Vannatta I, this court considered challenges to

several campaign finance laws, including laws limiting both

contributions and expenditures. The state conceded that the

expenditure limits were express restrictions on expression,

but it made no equivalent concession as to contributions.

Rather, the state “argued that campaign contributions

merely are gifts which in themselves are devoid of political

expression and, as such, constitute conduct that permissibly

may be regulated.” Vannatta I, 324 Or at 521. Vannatta I

rejected that argument, concluding that the campaign con-

tribution limits fell into the first Robertson category.4

Vannatta I began its analysis without reference to

Robertson, instead considering, in the abstract, whether

contributions to political campaigns and candidates “are a

form of expression under Article I, section 8.” 324 Or at 522.

The court concluded “that many—probably most—are.” Id.

In laying out the principal reasoning supporting that con-

clusion, the court again emphasized that “[w]e think that it

4

Vannatta I also considered and rejected several other arguments about

the validity of the contribution limits, including arguments resting on consti-

tutional provisions other than Article I, section 8. In this opinion, however, we

reconsider Vannatta I only to the extent that it placed the contribution limits in

the first Robertson category, and we therefore do not summarize the portions of

Vannatta I that do not bear on that issue.

306 Multnomah County v. Mehrwein

takes little imagination to see how many political contribu-

tions constitute expression.” Id. at 523.

Vannatta I reached that conclusion in two ways.

First, the court explained that a campaign contribution is

expression by the contributor, the equivalent of a citizen

standing on a street corner and announcing “ ‘I support can-

didate X.’ ” Id. at 524. Second, it reasoned that, just as an

individual’s purchase of a newspaper ad in favor of a can-

didate was speech, so was an individual’s contribution to

a “collective ‘pot’ ” that could be used for such expression.

Id. at 523-24:

“We assume, for example, that no one would deny the right

of a citizen to purchase individually a newspaper ad that

urges others to support a particular candidate or cause.

And, if the individual can persuade enough neighbors

and friends to join in the effort, the resulting spending

power may produce much larger ads or television or radio

commercials. No one, we take it, would gainsay the right

of the individual to amplify his or her voice through col-

lective buying power—gaining adherents for one’s views

is the essential purpose of political advocacy. It then fol-

lows ineluctably that the contribution of the collective

‘pot’ thus collected is expression, just as the individual’s

ad was. Indeed, it does not even matter if the money goes

directly into an ad created by the contributors themselves

or, instead, the money goes to professionals who create the

ad for a fee. The outcome is the same—‘expression,’ for the

purposes of Article I, section 8.

“Viewed in the foregoing way, expenditures and contri-

butions can be better seen for what they are—not opposite

poles, but closely related activities.”

Vannatta I, 324 Or at 523-24.

It is significant that, in setting out the two prongs

of its reasoning, this court did not assert that campaign con-

tributions are always expressive. With respect to the first

prong, the court stated somewhat categorically that a “con-

tribution, in and of itself, is the contributor’s expression of

support for the candidate or cause—an act of expression that

is completed by the act of giving and that depends in no way

on the ultimate use to which the contribution is put.” Id. at

522 (emphasis in original). But the court also qualified its

Cite as 366 Or 295 (2020) 307

conclusion, stating only that “many—probably most” con-

tributions are expressive. Vannatta I, 324 Or at 522. And

the court also acknowledged that a contribution may not be

intended as speech, as when money is given to a politician

without anticipating that it will be put toward a political

campaign. Id. at 522 n 10.

In the second prong of its reasoning, the court made

it even more clear that “many political contributions con-

stitute expression.” Id. at 523 (emphasis added). The court

did not say that campaign contributions can only be used

to express the views of the contributor. After all, campaign

contributions may be used to amplify one’s voice, but they

also may be used for other purposes, such as currying influ-

ence with a candidate.5 Moreover, the court acknowledged

that a contribution “may never be used to promote a form of

expression by the candidate; instead, it may (for example)

be used to pay campaign staff or to meet other needs not

tied to a particular message.” Id. at 522. Nevertheless, the

court concluded, from the fact that “many” campaign con-

tributions are expressive, that “campaign contributions” are

expression. Id. at 523-24.

Only after that abstract consideration of the nature

of campaign contributions did the court turn to Robertson.

Although the court could have concluded, as it had in

Plowman, that a person can make a contribution to a can-

didate without saying a word and without expressing any

opinion, it did not. Instead, without discussing Plowman,

the court stated its conclusion in two short sentences:

“All the listed provisions of Measure 9 either expressly

limit, or ban outright, campaign contributions that may be

given to or that may be accepted by a candidate. By their

terms, those provisions are targeted at protected speech.”

Id. at 537-38. That is, relying on its prior conclusion that

campaign contributions are speech—a conclusion itself

5

The United States Supreme Court has observed that,

“in 1996 and 2000, more than half of the top 50 soft-money donors gave sub-

stantial sums to both major national parties, leaving room for no other con-

clusion but that these donors were seeking influence, or avoiding retaliation,

rather than promoting any particular ideology.”

McConnell v. Federal Election Comm’n, 540 US 93, 148, 124 S Ct 619, 157 L Ed

2d 491 (2003), overruled by Citizens United, 558 US 310 (emphasis in original).

308 Multnomah County v. Mehrwein

premised on an observation that many or most contributions

are expressive—the court concluded that limits on contribu-

tions fall into the first Robertson category.

That reasoning was erroneous. As was established

before Vannatta I in Plowman and reaffirmed afterward in

Babson, a law that is directed at conduct that is only some-

times, rather than necessarily, expressive is not subject to

a facial challenge as a law “written in terms directed to

the substance of any ‘opinion’ or any ‘subject’ of commu-

nication.” Robertson, 293 Or at 412. Treating a law as an

express restriction of speech because many or even most of

its applications restrict expression not only calls into ques-

tion the specific results in Plowman and Babson, it also sub-

stantially expands the first Robertson category.

We have previously observed that “most purposive

human activity communicates something about the frame of

mind of the actor[.]” Huffman and Wright Logging Co. v. Wade,

317 Or 445, 449-50, 857 P2d 101 (1993). As the governor’s

amicus brief argues, a rule that laws directed at conduct that

is typically expressive fall into the first Robertson category—

and thus are valid only under narrow circumstances—would

reach far beyond campaign contributions:

“For example, a parent can express affection for a child

by giving that child a large inheritance. And yet, under

Vannatta I’s rationale, an inheritance tax presumably

would be a restriction on speech itself because it affects the

expression embodied by that transfer of property—a propo-

sition that cannot be true.”

The court’s observation that campaign contribu-

tions often may be used by a candidate to communicate a

message also fails to convert campaign contributions into

conduct that is necessarily expressive. Vannatta I noted that

contributed “money may never be used to promote a form of

expression by the candidate; instead, it may (for example) be

used to pay campaign staff or to meet other needs not tied

to a particular message.” Vannatta I, 324 Or at 522. That

statement was correct: Although the personal use restric-

tions applicable to funds received as contributions eliminate

some nonexpressive uses of contributions, they do not win-

now down the possible uses such that only expressive uses

Cite as 366 Or 295 (2020) 309

remain. See ORS 260.407(1) (limiting permissible uses of

campaign contributions by candidates and principal cam-

paign committees). Under Oregon law, campaign contribu-

tions need not be used for campaign expenses at all; they

may be used for expenses incurred as a holder of public

office. ORS 260.407(1)(a)(A), (1)(b)(A). Money contributed to

a campaign may ultimately be used to finance expression,

but that does not distinguish money given to a political cam-

paign from money given to a politician as a gift—or from

money in general.

Thus, when we now look at Vannatta I, it is appar-

ent that the court’s reasoning and resulting determination

that the campaign contribution limits at issue there were

facially invalid as Robertson category one laws was errone-

ous. Our analysis of Vannatta I is complicated, however, by

that opinion’s partial reconsideration in Vannatta II. That

case, decided more than 10 years after Vannatta I, involved

what could be seen as a reductio ad absurdum of the rea-

soning employed in Vannatta I: an argument that Article I,

section 8, protected the right of a lobbyist to give money to

politicians. More concretely, the case involved facial chal-

lenges to several provisions of Oregon’s ethics laws which,

among other things, prohibited public officials from receiv-

ing gifts above particular amounts and prohibited individ-

uals, including lobbyists, from offering gifts to politicians.

Vannatta II, 347 Or at 453-54. For example, ORS 244.025(1)

prohibited (and prohibits) public officials, candidates, and

their relatives from receiving gifts in excess of $50 from a

source with a legislative or administrative interest. See also

ORS 244.025(4)(a); ORS 244.042(1) - (2).

This court’s treatment of the gift receipt limits in

Vannatta II highlighted the tension between Plowman and

Vannatta I.6 First, Vannatta II laid out the elements of the

statute limiting gifts and relied on Plowman to explain why

that statute did not fall into the first Robertson category.

The court emphasized that, just as in Plowman, “[a] public

official who is subject to restrictions on the receipt of gifts

6

Vannatta II separately analyzed the restrictions on offering gifts, conclud-

ing that those restrictions expressly regulated speech and violated Article I, sec-

tion 8. 347 Or at 468. That portion of the analysis in Vannatta II did not implicate

Vannatta I.

310 Multnomah County v. Mehrwein

can violate the restrictions without saying a word, with-

out engaging in expressive conduct, and regardless of any

opinion that he or she might hold.” Vannatta II, 347 Or at

459. The court further emphasized that the receipt restric-

tions “do not focus on the content of speech or writing, or

on the expression of any opinion.” Id. That is, because the

restriction could be violated without engaging in expressive

conduct, they were not express restrictions on expressive

conduct.

That reasoning involved a straightforward, and

correct, application of Plowman. Were it not for Vannatta I,

the court could have left the matter there. However, the

Vannatta II plaintiffs resisted that conclusion in several

ways, one of which is particularly pertinent here: an argu-

ment that “any constitutional protection for political contri-

butions should apply equally to gifts to legislative officials

because they are indistinguishable from political contri-

butions.” Vannatta II, 347 Or at 459. That is, the plaintiffs

asked the court to adopt reasoning analogous to that fol-

lowed in Vannatta I.7

This court addressed those arguments and, in the

process, attempted to limit and to distinguish Vannatta I.

Unfortunately, it did so in ways that were less than clear.

In brief, it concluded that Vannatta I had relied on two

premises: first, that contributions are the expression of the

contributor, and second, that contributions are inextricably

intertwined with the speech of the campaign or candidate.

Vannatta II, 347 Or at 464-65. Vannatta II characterized the

first as being primarily a response to Buckley, the United

States Supreme Court decision that had approved of lim-

its on campaign contributions but disapproved of limits on

expenditures and independent expenditures, relying in part

on a conclusion that the expression involved in campaign con-

tributions was less significant, 424 US at 21-22. Vannatta II

7

In Vannatta II, the state principally argued that the gift receipt statutes

were Robertson category two laws, that they fell within an exception to the

Robertson framework, or that they were time, place, and manner restrictions. The

argument that the court adopted—that the gift provisions were not an express

restriction on speech at all—was advanced by the state primarily as a fallback

argument. See Brief on the Merits of Respondents on Review at 31, Vannatta II.

The state embraced the validity of the reasoning in Vannatta I and attempted to

distinguish gifts from contributions. Id. at 36.

Cite as 366 Or 295 (2020) 311

concluded that the first premise on which Vannatta I was

based was therefore not essential to the holding and with-

drew it. 347 Or at 465. Vannatta II then explained that the

second premise—that contributions are inextricably inter-

twined with speech—was not applicable to gifts:

“Giving a gift to a public official is not inextricably linked

with a public official’s ability to carry out official func-

tions. Public officials can speak whether or not lobbyists

have given them gifts, which distinguishes this case from

Vannatta I and its focus on the connection between the

restriction on campaign contributions and the candidate’s

or campaign’s ability to communicate a political message.”

Vannatta II, 347 Or at 465. Vannatta II did not discuss whether

Vannatta I’s reasoning comported with Robertson, nor did it

discuss how the distinction that it drew between contribu-

tions and gifts mapped onto the Robertson framework.

In hindsight, that treatment of Vannatta I was

unsatisfactory. First, Vannatta II’s characterization of

Vannatta I’s holding was not entirely accurate. It is true that,

at one point, Vannatta I discussed its view of contributions

as an expression of support by the contributor in the context

of its disagreement with Buckley. But Vannatta I returned to

that theme without mention of Buckley later in its analysis of

whether campaign contributions constitute expression. 324

Or at 524. Vannatta II’s explanation for its withdrawal of the

first premise—that it was not part of Vannatta I’s holding

was therefore strained. And Vannatta II’s discussion of the

second prong of the reasoning in Vannatta I also is unclear.

Vannatta II stated that Vannatta I’s holding “assumed that

restricting campaign contributions restricts a candidate’s or

a campaign’s ability to communicate a political message.”

Vannatta II, 347 Or at 465. But Vannatta I emphasized that

“a contribution is protected as an expression by the contribu-

tor, not because the contribution eventually may be used by

a candidate to express a particular message.” Vannatta I,

324 Or at 522 (emphasis in original). Both of the premises

for Vannatta I’s reasoning rested on the contribution being

the expression of the contributor. Vannatta I did not discuss

the practical impact of campaign contribution restrictions

on political expression by a candidate or campaign.

312 Multnomah County v. Mehrwein

Second, and more importantly, Vannatta II distin-

guished Vannatta I in a way that deepened, rather than

resolved, the tension between Vannatta I and Plowman.

Vannatta II distinguished the contribution limits at issue

in Vannatta I from the gift limits at issue in Vannatta II

based on a claimed difference in their effects on speech.

Vannatta II stated that Vannatta I’s holding rested on an

assumed “symbiotic relationship between the making of

contributions and the candidate’s or campaign’s ability to

communicate a political message.” Vannatta II, 347 Or at

465. Vannatta II explained that the giving of gifts did not

create that assumed relationship:

“Public officials can speak whether or not lobbyists have

given them gifts, which distinguishes this case from

Vannatta I and its focus on the connection between the

restriction on campaign contributions and the candidate’s

or campaign’s ability to communicate a political message.”

347 Or at 465. Thus, Vannatta II drew a distinction between

campaign contributions and gifts in terms of their effects on

the ultimate ability of politicians to speak. But Vannatta II

did not explain why that distinction was meaningful in the

Robertson analysis.

In determining that the limits on gifts to public offi-

cials did not fall into the first Robertson category and hold-

ing that those limits are constitutional, Vannatta II adhered

to the Robertson framework. However, in its discussion of

Vannatta I and the distinction that it drew between gifts

to public officials and campaign contributions, Vannatta II

deviated from that framework by implying that a law that is

not an express limit on speech can fall into the first Robertson

category. That deviation is confusing, and much of the brief-

ing filed in this case reflects that confusion. Trojan and the

county ask us to overrule Vannatta I in light of Vannatta II,

by asking that we place further emphasis, as they do, on

the distinction that Vannatta II drew between contribu-

tions and gifts. For example, the county reads Vannatta II

as holding “that any protection for campaign contributions

must stem from an inextricable link between the contribu-

tion and a candidate’s ability to engage in political speech.”

The county therefore argues that the key question in this

case is whether the county’s contribution limits are so low

Cite as 366 Or 295 (2020) 313

as to prevent candidates from being able to effectively

engage in expression. That is not an unreasonable reading

of Vannatta II, but it is a reading that takes us far from

ordinary applications of Robertson. If a law falls into the

first Robertson category as an express restriction on speech,

it cannot be defended based on the availability of alternative

modes of expression. Conversely, a law that is not an express

restriction on speech is not subject to a facial challenge at

all.

We conclude that, just as Vannatta I’s reasoning is

inconsistent with Robertson, so too is Vannatta II’s effort to

shore up Vannatta I in the process of distinguishing it. To the

extent that Vannatta II can be understood as interpreting

Vannatta I to place laws within the first Robertson category

when they are not written in terms directed to the substance

of any opinion or subject of communication, but instead may

have an “effect” on such expression, that interpretation too

would be at odds with Robertson and its progeny and would

be erroneous. Under the Robertson framework, a law that

restricts conduct without expressly regulating speech is not

a Robertson category one law directed toward expression,

even if the law may affect a person’s ability to speak. And

the fact that contributions may enable speech also does not

turn the conduct of making a campaign contribution into

conduct that is necessarily expressive. Therefore, limita-

tions on campaign contributions that regulate conduct and,

in doing so, make it either easier or more difficult for a per-

son to speak also are not properly analyzed as Robertson

category one limitations.

We conclude that both Vannatta I and Vannatta II

were erroneous in reasoning that the contribution limits at

issue in Vannatta I are Robertson category one laws. As a

result, we also conclude that Vannatta I erred in holding

that those laws are facially invalid on that basis.

3. Stare decisis

That does not mean, however, that we must or should

overrule Vannatta I. In their defense of Vannatta I, respon-

dents place their emphasis on stare decisis. They argue, cor-

rectly, that “a philosophical disagreement with a conclusion

is not grounds for reconsideration” and that this court does,

314 Multnomah County v. Mehrwein

and should, overrule its constitutional precedents in a very

limited set of circumstances.

Our most sustained consideration of when a consti-

tutional precedent may be overturned was in Couey v. Atkins,

357 Or 460, 355 P3d 866 (2015). In that case, emphasizing

that “[s]tare decisis does not permit this court to revisit a

prior decision merely because the court’s current members

may hold a different view than its predecessors about a par-

ticular issue,” id. at 485, we distilled from our prior decisions

three categories of cases in which a constitutional precedent

could warrant reconsideration:

“First, there are cases in which a prior pronouncement

amounted to dictum or was adopted without analysis or

explanation. Second, there are cases in which the analysis

that does exist was clearly incorrect—that is, it finds no

support in the text or the history of the relevant consti-

tutional provision. Third, there are cases that cannot be

fairly reconciled with other decisions of this court on the

same constitutional provision.”

Id. at 485-86 (internal citations omitted). Respondents argue

that those circumstances are not present here. We disagree.

This case, like Couey itself, falls into the third category. As

we noted above, and discuss in more detail below, Vannatta I

adopted an approach to the Robertson analysis that conflicts

with our other Article I, section 8, decisions.

In Couey, we faced the question of whether to over-

rule our precedent on the subject of justiciability. We con-

fronted a situation where two applicable cases pointed in

opposite directions. Id. at 489. Here we face an analogous

situation. Were we to focus on the fact that the law before

us is a contribution limit, we might reason that this case

is controlled by Vannatta I and therefore conclude that the

ordinance must be struck down. Conversely, if we focus on

the text of the county’s ordinance and attempt to answer the

question of whether it expressly proscribes speech, the hold-

ing of Vannatta II would be directly applicable, because the

limits on financial transfers to candidates here are no more

directed to the substance of any opinion or subject of com-

munications than was the prohibition on financial transfers

to candidates at issue in Vannatta II.

Cite as 366 Or 295 (2020) 315

And we are not faced with inconsistency only

between those two cases. We have decided many cases

under Article I, section 8, and our application of Robertson

to campaign contributions in Vannatta I conflicts not only

with our application of Robertson to gifts in Vannatta II but

with several other decisions of this court, before and since

Vannatta I. Those cases include Plowman and Babson, but

the tension is not confined to those decisions.

State v. Ciancanelli, 339 Or 282, 121 P3d 613 (2005),

furnishes another example of that tension. In that case, we

considered the validity of two statutes. The first was ORS

167.062 (2003), a prohibition on certain “live public sex

show[s].” The law prohibited sadomasochistic abuse and sex-

ual conduct, but only when that conduct took place in a live

public show, defined as follows:

“(a) ‘Live public show’ means a public show in which

human beings, animals, or both appear bodily before spec-

tators or customers.

“(b) ‘Public show’ means any entertainment or exhi-

bition advertised or in some other fashion held out to be

accessible to the public or member of a club, whether or

not an admission or other charge is levied or collected and

whether or not minors are admitted or excluded.”

ORS 167.062(5) (2003). The state argued that the law

addressed “conduct,” rather than expression. We disagreed:

“In arguing against the suggestion that ORS 167.062 is

directed at expression, the state also relies on this court’s

recognition, in Huffman and Wright Logging Co. v. Wade,

317 Or 445, 857 P2d 101 (1993), that conduct is not pro-

tected expression under Article I, section 8, merely because

the actor intends the conduct to convey a message. But, in

so arguing, the state loses sight of the fact that the issue

here is the overall constitutionality of a statute, not whether

defendant can claim that his particular conduct is expres-

sive and therefore immunized from any and all criminal

liability. It may or may not be true that the sexual acts that

defendant directed were conduct in the most basic sense

and, as such, could be punished under some other statute.

But the fact remains that the statute at issue here—ORS

167.062—prohibits and criminalizes those acts only when

they occur in an expressive context, i.e., in a ‘live public

316 Multnomah County v. Mehrwein

show.’ Under those circumstances, we cannot avoid the con-

clusion that the statute is directed primarily, if not solely,

toward the expressive aspect of the conduct that it describes.

That is, the statute is one restraining free expression.”

Ciancanelli, 339 Or at 320-21 (emphasis in original). By con-

trast, in the same case, we rejected the defendant’s challenge

to his conviction for promoting prostitution. We explained:

“ORS 167.012 prohibits promoting prostitution—owning,

controlling, managing, or supervising a prostitution enter-

prise—regardless of the presence or absence of any circum-

stances that might add an expressive element to the conduct.

It is not targeted either at expression itself or at the expres-

sive aspects of certain conduct. It therefore does not, in and

of itself, raise an issue of facial unconstitutionality under

Article I, section 8. Defendant’s contrary argument is not

well taken.”

Id. at 323 (emphasis added; footnote omitted). Those con-

trasting dispositions adhere to the rule discussed above.

The first statute restricted nude dancing—conduct that

may be but is not necessarily expressive—but did so only

when it was expressive. That law was expressly directed

at speech, fell into the first Robertson category, and was

invalid. The second law restricted promoting prostitution—

conduct that might be linked to or involve expression in some

circumstances—regardless of whether any expressive com-

ponent was present. That law was not expressly directed at

speech, did not fall into the first Robertson category, and

was sustained.

Along similar lines, this court decided City of

Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988), a

case involving a challenge to zoning regulations targeted

at adult bookstores, which used the content of the publica-

tions sold by those establishments as its basis for zoning

restrictions. We determined that the ordinance fell within

the first Robertson category, and we therefore held that it

violated Article I, section 8. But we emphasized that that

decision was a consequence of the fact that the city’s ordi-

nance had expressly based its restrictions on the content of

the bookstores’ speech, and that zoning regulations that did

not depend on content of communicative merchandise could

be sustained against a facial challenge:

Cite as 366 Or 295 (2020) 317

“Thus the city could regulate the location of a business

that sells other merchandise, ‘adult’ or otherwise, even if it

purveys communicative materials, as long as selling such

other merchandise is not permitted at the location. A gro-

cery store gains no privilege against a zoning regulation

by selling The National Enquirer and Globe at its check-

out counter. * * * Many regulations are not impermissible

laws ‘restricting the right to speak, write, or print freely on

any subject whatever,’ although they can be impermissibly

applied in individual cases.”

Tidyman, 306 Or at 182.

All of those cases point in the same direction: laws

that proscribe conduct that is often, but not necessarily,

expressive cannot be facially invalid under the Robertson

framework. We affirmed that principle most clearly in

Plowman, Vannatta II, and Babson, all of which involved

challenges to laws that proscribed conduct that could, but

need not, be expressive. In all three cases we held that

those laws did not fall within the first Robertson category.

By contrast, in Ciancanelli we were faced with a law that

proscribed conduct only when it occurred in an expressive

context. That, therefore, was the type of law that Robertson

forbade, and we held it unconstitutional.

The distinction between laws that expressly regu-

late speech and laws that restrict expressive activity in only

some of their applications is a significant one. The former

laws are those “restraining the free expression of opinion, or

restricting the right to speak, write, or print freely on any

subject whatever,” Article I, section 8—the category of laws

that the constitutional provision most explicitly forbids and

hence the laws which this court approves most infrequently.

The latter category—those that do not expressly restrict

speech but that are written to restrict a broader category of

conduct that is sometimes but not always expressive—may

encompass nearly every law to a greater or lesser degree.

Laws falling into that latter category are subject to

only as-applied challenges. “When a law does not expressly or

obviously refer to expression, the legislature is not required

to consider all apparent applications of that law to protected

expression and narrow the law to eliminate them.” Babson,

318 Multnomah County v. Mehrwein

355 Or at 400. The limits on the first Robertson category do

not make it an empty set, but they do restrict its application,

and the accompanying high standard for facial validity, to

those laws that, in directly regulating speech, pose the most

danger to the expression protected by Article I, section 8.

The above limitation holds, and we have stuck to

it, even when the law has readily apparent applications to

speech. It may be, and may have been, that many of the

assaults prohibited by the law at issue in Plowman had

some expressive content—that they were intended to con-

vey disapproval of individuals or to communicate hatred of

certain groups. Similarly, in Babson, it may have been, and

likely was, the case that very many foreseeable uses of the

Capitol steps bore some connection to expressive activity

and that, as a practical matter, certain forms of expression

were limited. Babson, 355 Or at 403 (“although the guide-

line does not directly refer to speech, the guideline does

have apparent applications to speech, as defendants con-

tend”). Nevertheless, we did not place those laws into the

first Robertson category.

“We do not lightly decide to overrule an earlier con-

stitutional decision.” State v. Savastano, 354 Or 64, 95, 309

P3d 1083 (2013). But the inconsistency that Vannatta I has

produced is comparable to that which previously has jus-

tified our abandonment of an aberrant constitutional deci-

sion. In Savastano, we overruled our prior decision in State

v. Freeland, 295 Or 367, 667 P2d 509 (1983), which had held

that Article I, section 20, of the Oregon Constitution required

prosecutors to develop coherent, systematic policies to gov-

ern certain charging decisions. In Savastano, reviewing our

other Article I, section 20, cases, we concluded that Freeland

could not be reconciled with decisions before and since that

set a less stringent standard in similar contexts. 354 Or at

91.

To be sure, in all reconsiderations of precedent, we

must take into account the “undeniable importance of sta-

bility in legal rules and decisions.” Stranahan v. Fred Meyer,

Inc., 331 Or 38, 53, 11 P3d 228 (2000). In Savastano, we noted

that Freeland had been a relative outlier and that “the cases

that have followed Freeland have eroded its precedential

Cite as 366 Or 295 (2020) 319

value and effectively returned to the more limited and his-

torically grounded principle stated in [State v. Clark, 291 Or

231, 630 P2d 810, cert den, 454 US 1084, 102 S Ct 640, 70

L Ed 2d 619 (1981)].” Savastano, 354 Or at 96. By contrast,

in Ciancanelli, where we were asked to overrule Robertson

and declined, we emphasized that “[m]any decisions of this

court serve as precedent in later decisions. Thus, disavow-

ing one case may undermine the precedential significance

of several others,” 339 Or at 290—an observation that was

especially true of Robertson, this court’s foundational deci-

sion on Article I, section 8. As we explained in Ciancanelli,

“The contrast between Stranahan and this case illustrates

the foregoing principle. In Stranahan, the allegedly errone-

ous decision had been rendered less than 10 years earlier,

and few intervening precedents had relied on the earlier

case, Lloyd Corporation v. Whiffen, 315 Or 500, 849 P2d 446

(1993). The Stranahan majority simply acted at the earliest

possible moment to correct what it perceived to be an ana-

lytical mistake made in the immediately preceding case,

Lloyd Corporation. The present case, by contrast, involves a

challenge not only to Robertson, but also to the many cases

that this court has decided since 1983 that have utilized its

methodology.”

Id. at 290-91.

In terms of the importance of stability in the law,

Vannatta I resembles Lloyd Corporation. Although more

time has passed between Vannatta I and this case than

elapsed between Lloyd Corporation and Stranahan, the por-

tion of Vannatta I’s holding in question here—its application

of Robertson’s first category—has not been relied on in any

other case. To the contrary, the only case to discuss it in

detail, Vannatta II, distinguished Vannatta I and withdrew

a material portion of its reasoning.8 And, in Vannatta II,

no party asked this court to reconsider Vannatta I. Our

other cases applying Robertson since Vannatta I, including

8

In Moyer we relied on different portions of Vannatta I, relating to the scope

of the historical exception to Robertson. 348 Or at 236. To be clear, Vannatta I

was an opinion that discussed many issues, only some of which are contested in

this case, and only one of which we reconsider in this opinion. We do not disavow

all portions of Vannatta I, only those that, as we have explained, conflict with the

Robertson framework.

320 Multnomah County v. Mehrwein

Ciancanelli and Babson, have made no mention of Vannatta I,

despite reasoning in ways that conflict with Vannatta I. And

two cases on similar topics, Vannatta II, 347 Or at 464, and

Moyer, 348 Or at 230, have attributed confusion by parties

and lower courts to Vannatta I. Vannatta I is the “immedi-

ately preceding” case on campaign contributions. Although

we have decided cases since Vannatta I touching on cam-

paign finance, we have not reached the merits of an Article I,

section 8, challenge in any of those cases.9

Respondents note that in those cases we referred

to Vannatta I as governing precedent. But that is hardly

surprising, as Vannatta I was governing precedent in each

of those cases—a point that we made sure to distinguish,

where appropriate, from the question of whether Vannatta I

was correctly decided. Vannatta I derives little additional

precedential force from the fact that, primarily in ballot title

cases, we acknowledged its existence without endorsing its

reasoning.

In assessing the prudential factors that may coun-

sel for or against overruling Vannatta I, we also consider the

effect of a ballot measure that was submitted to the voters

in 2006—Measure 46 (2006)—which “sought to amend the

Oregon Constitution to permit the enactment of laws pro-

hibiting or limiting electoral campaign ‘contributions and

expenditures, of any type or description.’ ” Hazell v. Brown,

352 Or 455, 458, 287 P3d 1079 (2012). Voters rejected

Measure 46, although they approved Measure 47 (2006), a

companion ballot initiative creating new campaign finance

measures, conditional on a change in the constitutional lim-

itation, such as the passage of Measure 46 or a judicial over-

ruling of Vannatta I. Hazell, 352 Or at 462-63, 469. Measure

46 plainly was directed at overruling the key holdings of

Vannatta I, and it was rejected. Of course, a ballot measure

that did not pass cannot change the meaning of the consti-

tution or affect our duty to interpret it. Whether such a mea-

sure may affect our stare decisis analysis is a more nuanced

9

See Markley/Lutz v. Rosenblum, 362 Or 531, 533, 413 P3d 966 (2018); Hazell

v. Brown, 352 Or 455, 467-68, 287 P3d 1079 (2012); Meyer v. Myers, 343 Or 399,

404-05, 171 P3d 937 (2007); Meyer v. Bradbury, 341 Or 288, 293 n 4, 142 P3d 1031

(2006).

Cite as 366 Or 295 (2020) 321

issue. But even assuming that, in an appropriate case, an

event like the failure of Measure 46 might weigh against

overturning a precedent, it has little impact here.

Just as the “legislature may decline to address a

judicial decision for any number of reasons, none of which

necessarily constitutes an endorsement of the decision’s rea-

soning or result,” Farmers Ins. Co. of Oregon v. Mowry, 350

Or 686, 696, 261 P3d 1 (2011), so too may the people decline

to adopt a proposed constitutional amendment for a myriad

of reasons. And there are explanations for Measure 46’s fail-

ure other than the possibility that voters meant to express

their approval of Vannatta I’s contribution limits holding.

Most obviously, Vannatta I struck down both contribution

limits and expenditure limits, and Measure 46 would have

amended Article I, section 8, with respect to both. However,

independent expenditures present a different, and poten-

tially more difficult, constitutional problem than campaign

contributions. For example, under the First Amendment,

the United States Supreme Court has, since Buckley,

held that expenditure limits place a greater burden on

constitutionally protected expression than contribution lim-

its do. Even some proponents of campaign finance reform

view a constitutional amendment permitting expenditure

limits as dangerous, in view of the effect that such an

amendment might have on other areas of law. See Richard L.

Hasen, Three Wrong Progressive Approaches (and One Right

One) to Campaign Finance Reform, 8 Harv L & Pol’y Rev

21, 26-27 (2014). Thus, voters could have rejected Measure

46 because of its application to expenditure limits, even if

they supported the measure to the extent that it applied to

contribution limits.

Moreover, parsing the amendment’s failure in this

case is even more difficult, because of the simultaneous adop-

tion of Measure 47 (2006), which would have created limits

on both contributions and expenditures if Measure 46 was

adopted or Vannatta I was overruled to a sufficient degree.

See Hazell, 352 Or at 458. One voter could have supported

such limits but believed that the constitutional amendment

went too far. Another could have preferred to have this court

reconcile such limits with the constitution, rather than risk-

ing an amendment that could threaten speech. As a result,

322 Multnomah County v. Mehrwein

the rejection of Measure 46 deserves no real weight in our

stare decisis analysis.

Ultimately, we do not believe that we can have one

Article I, section 8, approach to laws restricting campaign

contributions and another for all other laws. Vannatta I

itself rejected any “distinctions based on the ‘centrality’ of

particular forms of expression” when explaining why, contra

Buckley, it would not apply a different standard to contribu-

tion limits than to expenditure limits. 324 Or at 521. And

we cannot honor stare decisis by expanding Vannatta I’s

application of the first Robertson category to all laws—

allowing facial challenges to laws restricting conduct that

has an expressive component in many or most applications.

That also would require overturning precedent, and more

of it. Vannatta II, although correct in its own application of

Robertson, did not successfully rehabilitate Vannatta I, nor

did it supply a viable basis on which Vannatta I could be

distinguished from this court’s other Article I, section 8,

cases. Rather, it deepened the confusion surrounding

Vannatta I’s basis and validity. Given the clear conflict

between Vannatta I and our other cases, it is Vannatta I

that must give way. We disavow the reasoning in Vannatta I

that campaign contribution limits necessarily are Robertson

category one laws. Vannatta I erred in holding contribution

limits unconstitutional based on that reasoning. The correct

inquiry, under Robertson, is whether such limits are “writ-

ten in terms directed to the substance of any ‘opinion’ or

any ‘subject’ of communication.” Robertson, 293 Or at 412.10

The remaining question in this case is whether the county’s

contribution limit ordinance is such an express restriction.

4. Application to this case

We now undertake that inquiry and examine the

text of the campaign contribution limits at issue here. MCC

§ 5.201 provides:

“(A) An Individual or Entity may make Contributions

only as specifically allowed to be received in this Section.

“(B) A Candidate or Candidate Committee may receive

only the following contributions during any Election Cycle:

10

Vannatta I did not conduct that inquiry, and we need not decide here what

result would have obtained if it had.

Cite as 366 Or 295 (2020) 323

“(1) Not more than five hundred dollars ($500) from

an Individual or Political Committee other than a Small

Donor Committee;

“(2) Any amount from a Small Donor Committee; and

“(3) No amount from any other Entity.”

The county’s definition of “contribution,” contained

in MCC § 5.200, cross-references the definitions in ORS

260.005(3) and ORS 260.007.11 ORS 260.005(3) provides:

“Except as provided in ORS 260.007, ‘contribute’ or ‘con-

tribution’ includes:

“(a) The payment, loan, gift, forgiving of indebtedness,

or furnishing without equivalent compensation or consid-

eration, of money, services other than personal services for

which no compensation is asked or given, supplies, equip-

ment or any other thing of value:

“(A) For the purpose of influencing an election for pub-

lic office or an election on a measure, or of reducing the debt

of a candidate for nomination or election to public office or

the debt of a political committee; or

“(B) To or on behalf of a candidate, political committee

or measure; and

“(b) The excess value of a contribution made for com-

pensation or consideration of less than equivalent value.”

However, the county argues that only a portion of

that definition is operative in the context of MCC § 5.201.

That contention requires a brief digression into statutory

construction. There is no dispute that MCC § 5.201 sets

limits on contributions to candidates and candidate com-

mittees. The plain text of MCC § 5.201(B) establishes that

a candidate can accept a thing of value from an individ-

ual or entity only if (1) it falls within the contribution lim-

its or (2) it is excluded from the definition of “contribution”

by MCC § 5.200 or ORS 260.007. However, amicus Oregon

Taxpayers Association (OTA) argues that MCC § 5.201(A)

also prohibits contributions to ballot measure campaigns

and contributions to be used in independent expenditures.

11

ORS 260.007 contains exceptions to the definitions of “contribution” and

“expenditure.”

324 Multnomah County v. Mehrwein

The county disavows both applications and contends that

MCC § 5.201(A) applies only to contributions to candidates

and a principal candidate committee.

We agree with the county that the contribution

limits imposed by MCC § 5.201 apply only to contributions

to candidates in Multnomah County candidate elections

and their principal candidate committees. We approach

the question using our usual methodology for statutory

interpretation. State v. Gaines, 346 Or 160, 206 P3d 1042

(2009). To begin with, it makes little sense to read the text

of MCC § 5.201(A)—“[a]n Individual or Entity may make

Contributions only as specifically allowed to be received in

this Section”—as a complete prohibition on all contributions

in all elections. The title of that provision—which was part

of the text submitted to voters—is “CONTRIBUTIONS IN

MULTNOMAH COUNTY CANDIDATE ELECTIONS”

(uppercase in original). It therefore makes sense to read

§ 5.201(A), in context, as a prohibition on contributions in

Multnomah County candidate elections, not a much more

extensive proscription. That reading is confirmed by legis-

lative history. As submitted to voters, the ballot measure

explained that it would create a new charter provision lim-

iting “[c]ontributions to political campaigns for candidates

running for county elective offices.” Multnomah County

Voters’ Pamphlet, General Election, November 8, 2016, M-28.

The fact that the county’s ordinance cross-references a state

statutory definition of “contribution” that refers to “mea-

sures” does not mean that the substantive limits imposed

by the county provision apply beyond their intended scope.

Similarly, OTA’s argument that MCC § 5.201(A)

forbids all contributions to be used in independent expen-

ditures proves unpersuasive in light of its context. Other

provisions of the county’s ordinance clearly contemplate

that such contributions will take place. For example, MCC

§ 5.202(C)(3) provides that

“[a] Political Committee may make aggregate Independent

Expenditures of not more than ten thousand dollars

($10,000), provided that the Independent Expenditures are

funded by means of contributions to the Political Committee

Cite as 366 Or 295 (2020) 325

by Individuals in amounts not exceeding five hundred dol-

lars ($500) per Individual per year.”

If OTA’s reading of MCC § 5.201(A) were correct, MCC

§ 5.202(C)(3) would be rendered a nullity, because no polit-

ical committee other than a candidate committee could

accept contributions of any size. The more plausible reading,

and the only reading consistent with the legislative history

quoted above, is that MCC § 5.201(A) restricts contributions

only to candidates and candidate committees, the two enti-

ties to which the limits in MCC § 5.201(B) apply.

Therefore, only a portion of the definition of “con-

tribution” quoted above is operative in the context of MCC

§ 5.201. The other parts of that definition would have a role

to play in a more expansive restriction of contributions—

such as the contribution limits at issue in Vannatta I or

OTA’s broad reading of MCC § 5.201(A). But, because the

county’s contribution limits apply only to contributions to

candidates or candidate committees, only a portion of the

statutory definition is left with any role to play. With irrele-

vant or redundant portions omitted, the operative definition

reads:

“(a) The payment, loan, gift, forgiving of indebtedness,

or furnishing without equivalent compensation or consid-

eration, of money, services other than personal services for

which no compensation is asked or given, supplies, equip-

ment or any other thing of value:

“* * * * *

“(B) To or on behalf of a candidate [or] political com-

mittee * * *; and

“(b) The excess value of a contribution made for com-

pensation or consideration of less than equivalent value.”

No portion of that definition contains an express reference

to speech. Nor, as in Ciancanelli, does the definition target

conduct only insofar as it is expressive. Instead, “contribu-

tion” is defined in terms of conduct that is not necessarily

expressive. Vannatta II’s analysis of the gift limit, which

was written in similar terms, controls here:

326 Multnomah County v. Mehrwein

“A public official who is subject to restrictions on the receipt

of gifts can violate the restrictions without saying a word,

without engaging in expressive conduct, and regardless of

any opinion that he or she might hold.”

347 Or at 459.12

Accordingly, we conclude that MCC § 5.201(A) and (B)

are not subject to facial challenge under Robertson. They

are not, therefore, facially invalid under Article I, section 8.

The county’s limits may be subject to as applied challenges.

But, in this case, respondents have raised only a facial chal-

lenge to the county’s contribution limits, and we reject that

challenge.

B. Contribution Limits and the First Amendment

Because the trial court concluded that the county’s

contribution limits violated Article I, section 8, it did not

reach the question of whether the limits violate the First

Amendment. The First Amendment sets limits on the reg-

ulation of campaign contributions. In Buckley, the Supreme

Court upheld individual contribution limits of $1,000, recog-

nizing that, although contribution limits restricted speech

to some extent, the government had a significant interest in

preventing corruption or the appearance of corruption. 426

US at 26. Although Buckley upheld contribution limits of

$1,000, the Supreme Court has since made clear that Buckley

did not set a floor. In Nixon v. Shrink Missouri Government

PAC, 528 US 377, 120 S Ct 897, 145 L Ed 2d 886 (2000), the

Supreme Court rejected a First Amendment challenge to

Missouri’s $1,075 individual contribution limit in statewide

elections. That limit, when adjusted for inflation, was lower

than that upheld in Buckley in 1968. Nevertheless, empha-

sizing that Buckley did not set a floor, the Court rejected

the challenge. Shrink Missouri Government PAC, 528 US at

396-97.

Randall v. Sorrell, 548 US 230, 126 S Ct 2479, 165

L Ed 2d 482 (2006), was the first Supreme Court decision

12

We need not, and do not, consider whether a contribution limit in which

ORS 260.007(a)(A)—and its reference to “the purpose of influencing an election

for public office or an election on a measure”—were operative would be an express

restriction of speech. For that reason, we do not consider whether Vannatta I’s

result—which was to strike down a broader set of contribution limits where con-

tributions were so defined—was incorrect.

Cite as 366 Or 295 (2020) 327

to find a contribution limit facially invalid. In that case, six

Justices, across three opinions, held that Vermont’s con-

tribution limit scheme, which involved contribution limits

for statewide races as low as $200, was unconstitutional.

Although no rationale commanded a majority of the Court,

Justice Breyer’s opinion provided the narrowest ground for

the judgment and is therefore binding on this court. See

Marks v. United States, 430 US 188, 193, 97 S Ct 990, 51

L Ed 2d 260 (1977) (“When a fragmented Court decides a

case and no single rationale explaining the result enjoys

the assent of five Justices, the holding of the Court may be

viewed as that position taken by those Members who con-

curred in the judgments on the narrowest grounds.” (Internal

quotations and citation omitted.)); Thompson v. Hebdon,

___ US ___, ___, 140 S Ct 348, 350 & n (2019) (per curiam)

(recognizing that Justice Breyer’s opinion in Randall is

controlling).

The opinion in Randall framed the question as

being whether the contribution limits

“prevent candidates from ‘amassing the resources neces-

sary for effective [campaign] advocacy’; whether they mag-

nify the advantages of incumbency to the point where they

put challengers to a significant disadvantage; in a word,

whether they are too low and too strict to survive First

Amendment scrutiny.”

Randall, 548 US at 248 (opinion of Breyer, J.) (quoting

Buckley, 424 US at 21; alteration in Randall; internal cita-

tion omitted). The opinion in Randall answered that ques-

tion using a two-staged approach. It explained that

“where there is strong indication in a particular case, i.e.,

danger signs, that such risks exist (both present in kind

and likely serious in degree), courts, including appellate

courts, must review the record independently and carefully

with an eye toward assessing the statute’s ‘tailoring,’ that

is, toward assessing the proportionality of the restrictions.”

Id. at 249.

First, the opinion identified “danger signs,” princi-

pally that Vermont’s “contribution limits are substantially

lower than both the limits we have previously upheld and

328 Multnomah County v. Mehrwein

comparable limits in other States.” Id. at 253. Having reached

that conclusion, the opinion turned to a closer examina-

tion of Vermont’s contribution limits, considering evidence

concerning the likely effect of those limits. Ultimately, the

opinion noted five characteristics that led it to conclude that

Vermont had set its contribution limits too low, including an

unusually expansive definition of “contribution” and the fact

that the same limits that applied to individuals applied to

political parties. Id. at 256-61. The opinion concluded that

the scheme, as a whole, was facially invalid. Id. at 261.

Since Randall, and after briefing in this case was

completed, the Supreme Court weighed in once again. In

Thompson, the court held that Alaska’s $500 contribution

limit for all political candidates had “danger signs” similar

to those found in Randall. ___ US at ___, 140 S Ct at 350-51.

Some of those “danger signs” are present here.

Multnomah County’s contribution limits are substantially

lower than those upheld by the Supreme Court in the past—

adjusted for inflation, $500 is less than a third of the limit

upheld in Shrink Missouri. See Thompson, ___ US at ___,

140 S Ct at 351 (doing similar math). Both Randall and

Thompson treated similar comparisons as “danger signs,”

although neither viewed that single factor as dispositive.

See Thompson, ___ US at ___, 140 S Ct at 350-51; Randall,

548 US at 251. And the $500 limit at issue here is effectively

lower than the $500 limit found problematic in Thompson.

Under the county’s ordinance, $500 is the maximum

individual-to-candidate contribution over a two-year election

cycle. MCC §§ 5.200, 5.201(B). By contrast, the $500 Alaska

limit analyzed in Thompson limits individual-to-candidate

contributions “to $500 per year,” Thompson, ___ US at ___,

140 S Ct at 348 (emphasis added), meaning that it “allows

a maximum contribution of $1,000 over a comparable two-

year period,” id. at ___, 140 S Ct at 350-51.

Yet the county’s ordinance differs from the laws con-

sidered in Randall and Thompson in pertinent respects. The

county’s $500 limits apply only to county elections. While in

Randall and Thompson the Court emphasized that the laws

it was considering were out of step with contribution limits

set by other states, it is less clear that Multnomah County’s

Cite as 366 Or 295 (2020) 329

limits are inconsistent with those set by comparable munic-

ipalities. See Zimmerman v. City of Austin, Texas, 881 F3d

378, 387 (5th Cir 2018), cert den, ___ US ___, 139 S Ct 639,

202 L Ed 2d 492 (2018) (upholding Austin’s $350 city council

contribution limits based, in part, on comparisons to con-

tributions limits in other large municipalities). In addition,

in both Randall and Thompson, the Court deemed it par-

ticularly problematic that the contribution limits at issue

in those cases were not indexed for inflation. Multnomah

County’s contribution limits are automatically adjusted for

inflation in every odd-numbered year. MCC § 5.205.

The controlling Supreme Court precedent makes it

difficult to decide whether the county’s contribution limits

violate the First Amendment without further proceedings in

the trial court. In a First Amendment analysis, the constitu-

tionality of a contribution limit depends not only on whether

there are “danger signs,” but also on the government’s inter-

est in imposing contribution limits and the effect the limits

could have on candidates’ ability to conduct an effective cam-

paign. See Randall, 548 US at 253-56 (opinion of Breyer, J.)

(evaluating the likely effect of Vermont’s contribution limits

in light of the evidence in the record); Thompson, ___ US at

___, 140 S Ct at 351 (remanding for consideration of whether

Alaska had shown a special justification for its contribution

limit). Here, the parties and amici submitted evidence on

the problems that the contribution limits addressed and

their likely effects, and the county relies in part on that evi-

dence and other empirical support for its argument that its

ordinances survive First Amendment scrutiny. Those argu-

ments turn on facts that are not conceded and on particular

inferences that may be—but need not be—drawn from that

evidence. Because the trial court never reached the First

Amendment issue, it did not make the factual findings that

are necessary to that analysis. We therefore remand the

case to the trial court to address the validity of the county’s

contribution limits under the First Amendment in the first

instance.

III. EXPENDITURE LIMITS

We next consider the validity of the county’s expen-

diture limits under Article I, section 8. The two provisions of

330 Multnomah County v. Mehrwein

the county’s expenditure ordinance that the trial court held

invalid state:

“(A) No Individual or Entity shall expend funds to

support or oppose a Candidate, except those collected from

the sources and under the Contribution limits set forth in

this Section.

“* * * * *

“(C) Only the following Independent Expenditures

are allowed per Election Cycle to support or oppose one

or more Candidates in any particular Multnomah County

Candidate Election:

“(1) An Individual may make aggregate Independent

Expenditures of not more than five thousand dollars

($5,000).

“(2) A Small Donor Committee may make Independent

Expenditures in any amounts from funds contributed in

compliance with Section 5.200.

“(3) A Political Committee may make aggregate

Independent Expenditures of not more than ten thousand

dollars ($10,000), provided that the Independent Expenditures

are funded by means of contributions to the Political

Committee by Individuals in amounts not exceeding five

hundred dollars ($500) per Individual per year.”

The county’s expenditure limits cannot be distin-

guished from those held unconstitutional in Vannatta I. The

county argues that Vannatta I did not fully consider the

question of whether expenditures are protected expression

and takes the position that its expenditure limits do not vio-

late Article I, section 8. However, the county acknowledges

that its expenditure limits violate the First Amendment

under existing Supreme Court precedent13 and for that rea-

son accepts that this is not an appropriate case in which to

reconsider the validity of expenditure limits under Article I,

section 8. Trojan also argues that the validity of expendi-

ture limits was paid insufficient attention in Vannatta I and

contends that we should uphold the county’s expenditure

limits under Article I, section 8.

13

The county argues that the controlling federal cases were wrongly decided,

but it acknowledges that this court is not the proper forum for that argument.

Cite as 366 Or 295 (2020) 331

We decline to reconsider Vannatta I’s expenditures

holding for three reasons. First, nothing that we have dis-

avowed regarding Vannatta I’s reasoning concerning contri-

bution limits calls into question Vannatta I’s conclusion that

limits on independent expenditures are an express restric-

tion on speech subject to a facial challenge under Robertson.

The definition of “independent expenditure” refers expressly

to the content of the communications whose funding it

restricts, bringing the limits on independent expenditures

within the first Robertson category. ORS 260.005(10) (2015),

made applicable by MCC § 5.200 (“Unless otherwise indi-

cated by the text or context of this Section, all terms shall

have the definitions at Chapter 260 of Oregon Revised

Statutes, as of November 8, 2016.”), defined an independent

expenditure as “an expenditure by a person for a commu-

nication in support of or in opposition to a clearly identified

candidate or measure” made independently of a candidate

or campaign. That phrase is further defined to refer to a

communication that “clearly and unambiguously urges the

election or defeat of a clearly identified candidate for nom-

ination or election to public office, or the passage or defeat

of a clearly identified measure,” ORS 260.005(10)(c)(A)(i)

(2015), or communications that “refer[ ] to a clearly identi-

fied candidate who will appear on the ballot or to a political

party,” ORS 260.005(10)(c)(B)(ii) (2015). As in Ciancanelli,

even if expenditures may be viewed as conduct, the county’s

ordinance restricts them only insofar as they are expressive.

Second, although the county, Trojan, and some amici

have argued that Vannatta I should be overturned as to

expenditure limits as well, the briefing that they have filed

is more straightforwardly directed to the validity of the con-

tribution limits, and the expenditure limit briefing is not as

well developed.

Third, as the county concedes, and we agree, the

county’s expenditure limits unambiguously violate the First

Amendment. Buckley held that the government cannot

restrict independent expenditures by individuals, 424 US at

47-51. Citizens United, 558 US 310, held that independent

restrictions by corporations and unions cannot be restricted

either. The county’s ordinance restricts both. To be sure,

we interpret the Oregon Constitution independently of the

332 Multnomah County v. Mehrwein

First Amendment, and our free speech jurisprudence does

not track the Supreme Court’s interpretation of the First

Amendment. But, although Buckley and Citizens United are

not relevant to the question of whether Vannatta I was cor-

rectly decided, the futility of reconsidering Vannatta I with

respect to this plainly unconstitutional ordinance weighs

against doing so in this case. See State v. Avila-Nava, 356

Or 600, 621, 341 P3d 714 (2014) (Kistler, J., concurring in

part and concurring in the judgment) (“There would be lit-

tle point * * * in announcing a state constitutional rule that

permits Oregon courts to consider evidence that the Fifth

Amendment precludes them from considering.”).

Accordingly, we affirm the trial court’s decision that

MCC § 5.202(A) and (C) are invalid.

IV. DISCLOSURE PROVISIONS

Some of the intervenors assign error to the trial

court’s decision on the disclosure provisions, but that issue

is now moot: During the pendency of this proceeding, the

county amended the disclosure provisions of its ordinance

and a decision about the validity of the former provisions

will have no practical effect. See Kerr v. Bradbury, 340 Or

241, 244, 131 P3d 737, adh’d to on recons, 341 Or 200, 140

P3d 1131 (2006) (stating that case is moot when a decision

will “no longer have some practical effect on the rights of

the parties to the controversy” (internal citations and quo-

tations omitted)). Although it is sometimes appropriate

for an appellate court to vacate the affected portion of the

trial court’s judgment, we have not been asked to employ

the “ ‘equitable remedy of vacatur,’ ” id. at 249 (quoting U.S.

Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 US

18, 25, 115 S Ct 386, 130 L Ed 2d 233 (1994)), and we do not

do so.

V. CONCLUSION

The trial court ruled that three provisions of the

county’s ordinances violated Article I, section 8. We conclude

that the contribution limits are not facially invalid under

Article I, section 8, and therefore reverse that portion of the

trial court’s decision and remand the case to the trial court

so that it can consider whether the contribution limits are

Cite as 366 Or 295 (2020) 333

valid under the First Amendment. We agree with the trial

court that the expenditure limits violate Article I, section 8,

and we affirm the trial court’s judgment as to those provi-

sions. Although the trial court held that the disclosure rules

violated Article I, section 8, that part of its decision became

moot on appeal, and we decline to decide the now-theoretical

question.

The judgment of the circuit court is affirmed in part

and reversed in part, and the case is remanded to the circuit

court for further proceedings.