Buel/Markley v. Rosenblum

570

On petitions to review ballot title and explanatory statement filed March 17,

under advisement June 23; ballot title referred to Attorney General for

modification, explanatory statement modified and, as modified, certified

to the Secretary of State July 2, 2020

Ronald A. BUEL,

Petitioner,

v.

Ellen F. ROSENBLUM,

Attorney General, State of Oregon

Respondent.

S067555 (Control)

Kyle MARKLEY,

Petitioner,

v.

Ellen F. ROSENBLUM,

Attorney General, State of Oregon

Respondent.

S067556

(SC S067555 (Control), SC S067556)

468 P3d 459

A joint legislative committee prepared a ballot title and an explanatory state-

ment for Legislative Referendum 401 (2020) (LR 401). Petitioners challenged

the ballot title and the explanatory statement on the grounds that they did not

substantially comply with the requirements of ORS 250.035 and ORS 251.235,

respectively. Held: The joint legislative committee’s ballot title and explanatory

statement for LR 401 do not substantially comply with the requirements of ORS

250.035 and ORS 251.235.

The ballot title is referred to the Attorney General for modification. The

explanatory statement is modified and, as modified, is certified to the Secretary

of State.

En Banc

Daniel W. Meek, Portland, filed the petition, reply, and

supplemental brief for petitioner Ronald A. Buel.

Eric C. Winters, Wilsonville, filed the petition, reply, and

supplemental brief for petitioner Kyle Markley.

Cite as 366 Or 570 (2020) 571

Carson L. Whitehead, Assistant Attorney General, Salem,

filed the answering memorandum and supplemental brief for

respondent. Also on the answering memorandum and sup-

plemental brief were Ellen F. Rosenblum, Attorney General,

and Benjamin Gutman, Solicitor General.

Daniel W. Meek, Portland, filed the memorandum for

amici curiae in S067556, Ronald A. Buel and Elizabeth

Trojan.

Steven C. Berman, Stoll Berne PC, Portland, filed the

brief for amici curiae Sonny Mehta and Yes for Fair and

Honest Elections.

BALMER, J.

The ballot title is referred to the Attorney General for

modification. The explanatory statement is modified and, as

modified, is certified to the Secretary of State.

572 Buel/Markley v. Rosenblum

BALMER, J.

By Legislative Referendum (LR) 401 (2020), the

legislature asks the voters to approve or reject a constitu-

tional amendment that would permit the legislature, local

governments, and the people through the initiative process

to pass laws regulating campaign finance and advertising.

As provided in Oregon Laws 2019, chapter 674, section 1,

a joint legislative committee drafted the ballot title and

explanatory statement for LR 401. In these consolidated

cases, petitioners seek review of the ballot title and the

explanatory statement. Petitioner Markley challenges all

parts of the ballot title; he contends that the caption, “yes”

and “no” result statements, and the summary do not comply

with the requirements set out in ORS 250.035(2). Petitioner

Buel challenges the ballot title summary and the explana-

tory statement.

After the parties completed briefing on petition-

ers’ challenges, this court decided Multnomah County v.

Mehrwein, 366 Or 295, 462 P3d 706 (2020), in which the

court concluded that a Multnomah County ordinance limit-

ing campaign contributions was not subject to a facial chal-

lenge under Article I, section 8, of the Oregon Constitution.

That decision overruled, in part, the court’s earlier decision

in Vannatta v. Keisling, 324 Or 514, 931 P2d 770 (1997), in

which the court held that certain statutes that provided

for, among other things, mandatory limits on contributions

to state political campaigns, violated Article I, section 8.

Because the ballot title “no” result statement and summary

and the explanatory statement all briefly describe the state

of the law before the court’s issuance of the Mehrwein deci-

sion, the court then asked the parties to submit supplemen-

tal briefing concerning the effect, if any, that Mehrwein has

on this matter. The parties have now filed supplemental

briefs on that issue.

For the reasons explained below, the ballot title’s

“no” result statement and summary and the explanatory

statement must be modified. We otherwise reject petitioners’

arguments. We refer the ballot title to the Attorney General

for modification of the “no” result statement and sum-

mary. Additionally, having concluded that the explanatory

Cite as 366 Or 570 (2020) 573

statement also must be modified, we modify the explanatory

statement as set out later in this opinion and certify it as

modified to the Secretary of State. Or Laws 2019, ch 674, § 6

(directing Supreme Court to review and certify explanatory

statement).

I. BACKGROUND

We begin with a brief description of the background

and the procedures adopted by the legislature for review of

LR 401. During the 2019 legislative session, the Legislative

Assembly passed Senate Joint Resolution (SJR) 18, which,

as we will discuss in more detail below, proposes to amend

Article II, section 8, of the Oregon Constitution, to allow

regulation of campaign finance and advertising. Paragraph

2 of SJR 18 provides that the constitutional amendment

proposed by that resolution shall be submitted to the people

for their approval or rejection at the next regular general

election held throughout the state.

Also during the 2019 session, the legislature

enacted Oregon Laws 2019, chapter 674, which, among

other things, sets out time frames and procedures for draft-

ing and review of a ballot title and explanatory statement

for any constitutional amendment referred to the people by

the legislature during that session, including SJR 18. Under

Oregon Laws 2019, chapter 674, a joint legislative commit-

tee is responsible for drafting the ballot title and explan-

atory statement. Or Laws 2019, ch 674, § 7. With certain

exceptions, the standards for ballot titles and explanatory

statements set out in ORS chapters 250 and 251 apply to

the ballot title and explanatory statement for this legisla-

tively referred measure. Notably, the otherwise applicable

statutory word limitations for the ballot title’s caption, “yes”

and “no” result statements, and summary do not apply.

Id. § 1(1)(a). However, the existing content requirements for

each element of a ballot title, set out in ORS 250.035(2), and

for an explanatory statement, set out in ORS 251.235, con-

tinue in force. Or Laws 2019, ch 674, § 5(4) (Supreme Court

shall review ballot title for substantial compliance with

the requirements of ORS 250.035); Or Laws 2019, ch 674,

§ 6(1) (person challenging explanatory statement must state

reasons explanatory statement is “insufficient or unclear,”

574 Buel/Markley v. Rosenblum

which is standard set out in ORS 251.235). If we determine

that modification of the ballot title is required, we may mod-

ify it ourselves or refer it to the Attorney General for modi-

fication. Or Laws 2019, ch 674, § 5(6). If we determine that

modification of the explanatory statement is required, we

make the required modifications and certify an explanatory

statement that complies with statutory standards. Or Laws

2019, ch 674, § 6(3) (the explanatory statement certified by

the court shall be the explanatory statement printed in the

voters’ pamphlet).

II. BALLOT TITLE REVIEW

As noted, SJR 18 amends Article II, section 8, of the

Oregon Constitution by adding provisions dealing with the

regulation of campaign finance and advertising. Specifically,

the measure allows state and local governing bodies and

the people through the initiative process to enact laws that

(1) “[l]imit contributions made in connection with political

campaigns or to influence the outcome of any election in a

manner that does not prevent candidates and political com-

mittees from gathering the resources necessary for effective

advocacy”; (2) “[r]equire the disclosure of contributions or

expenditures made in connection with political campaigns

or to influence the outcome of any election”; (3) “[r]equire

that an advertisement made in connection with a political

campaign or to influence the outcome of any election iden-

tify the persons or entities that paid for the advertisements”;

and (4) “[l]imit expenditures made in connection with polit-

ical campaigns or to influence the outcome of any elec-

tion to the extent permitted under the Constitution of the

United States.” The measure also provides that the amend-

ment applies retroactively to laws or ordinances enacted or

approved by the voters on or after January 1, 2016.

A joint legislative committee prepared the follow-

ing ballot title and filed it with the Secretary of State as

required by Oregon Laws 2019, chapter 674, section 1(1)(a):

“AMENDS CONSTITUTION: ALLOWS LAWS LIM-

ITING POLITICAL CAMPAIGN CONTRIBUTIONS

AND EXPENDITURES, REQUIRING DISCLOSURE

OF POLITICAL CAMPAIGN CONTRIBUTIONS AND

EXPENDITURES, AND REQUIRING POLITICAL

Cite as 366 Or 570 (2020) 575

CAMPAIGN ADVERTISEMENTS TO IDENTIFY WHO

PAID FOR THEM.

“RESULT OF ‘YES’ VOTE: ‘Yes’ vote allows laws, cre-

ated by the Legislative Assembly, local governments or

voters that limit contributions and expenditures made to

influence an election. Allows laws that require disclosure of

contributions and expenditures made to influence an elec-

tion. Allows laws that require campaign or election adver-

tisements to identify who paid for them. Campaign contri-

bution limits cannot prevent effective advocacy. Applies to

laws enacted or approved on or after January 1, 2016.

“RESULT OF ‘NO’ VOTE: ‘No’ vote retains current law.

Courts currently find the Oregon Constitution does not

allow laws limiting contributions to candidates or political

committees by a person, corporation, or union.

“SUMMARY: The Oregon Supreme Court has inter-

preted the Oregon Constitution to prohibit limits on cam-

paign contributions and expenditures. The proposed mea-

sure amends the Oregon Constitution to allow the Oregon

Legislative Assembly, local governments, and the voters by

initiative to pass laws that limit contributions and expen-

ditures made in connection with a political campaign and

contributions and expenditures made to influence an elec-

tion. The measure would allow laws that would require dis-

closure of political campaign and election contributions and

expenditures. The measure would allow laws that require

political campaign and election advertisements to identify

who paid for them. Laws limiting campaign contributions

cannot prevent effective advocacy. Measure applies to all

laws enacted or approved on or after January 1, 2016.”

As noted, we review the ballot title for “substan-

tial compliance with the requirements of ORS 250.035.”

Or Laws 2019, ch 674, § 5(4). The “substantial compliance”

standard is a flexible one, and it allows room for the exercise

of discretion by the ballot title drafter. As this court has

stated, “there has to be some play in the joints of the ballot

title writing process, if this court is to maintain its status

as a law-enforcing court, rather than an editorial board.”

Caruthers v. Myers, 343 Or 162, 168, 166 P3d 514 (2007). In

reviewing a ballot title, the court’s role is limited to deter-

mining whether the ballot title “is a concise and impartial

statement of the purpose of the measure, and we are not

576 Buel/Markley v. Rosenblum

concerned with whether the petitioner’s proposed title may

be better or even whether we could devise a better one our-

selves.” Priestley v. Paulus, 287 Or 141, 145, 597 P2d 829

(1979).

A. Caption

We begin with the caption, which must “reasonably

identif[y] the subject matter” of SJR 18. ORS 250.035(2)(a).

The caption should “state or describe the proposed measure’s

subject matter accurately, and in terms that will not confuse

or mislead potential petition signers and voters. * * * The

‘subject matter’ is the actual major effect of a measure or, if

the measure has more than one major effect, all such effects”

within any applicable word limit. Parrish v. Rosenblum, 365

Or 597, 599-600, 450 P3d 973 (2019) (citations and internal

quotation marks omitted). Again, the joint legislative com-

mittee’s caption provides:

“AMENDS CONSTITUTION: ALLOWS LAWS LIM-

ITING POLITICAL CAMPAIGN CONTRIBUTIONS

AND EXPENDITURES, REQUIRING DISCLOSURE

OF POLITICAL CAMPAIGN CONTRIBUTIONS AND

EXPENDITURES, AND REQUIRING POLITICAL

CAMPAIGN ADVERTISEMENTS TO IDENTIFY WHO

PAID FOR THEM.”

Petitioner Markley contends that the caption fails

to satisfy the statutory standard in several ways. For the

reasons set out below, we find none of those arguments

persuasive.

First, as an overarching criticism of the caption and

the other parts of the ballot title, petitioner Markley con-

tends that the words “limits” and “limiting” and the phrase

“influence the outcome of an election” should be placed in

quotation marks and described as “(undefined),” because, in

his view, it is unclear what types of actions could be viewed

as influencing the outcome of an election. However, nothing

in the measure suggests that those words have an unusual

meaning or that the words used would fail to alert voters to

the scope of the measure.

Second, petitioner Markley asserts that the caption

is deficient because it does not identify all the measure’s

Cite as 366 Or 570 (2020) 577

major effects. He points out that the “substantial compli-

ance” standard recognizes that, in an ordinary case, draft-

ers may have to employ terse phrasing and prioritize the

major effects of the measure to be identified in the caption

for the voters because of the strict word limitations set out

in ORS 250.035(2)(a). In this case, however, the drafters are

not constrained by word limits, and therefore, he argues,

there is no reason for the caption not to list all the major

effects of SJR 18. Specifically, petitioner Markley argues

that one major effect of the measure is that it would “extend

independent regulatory powers to all Oregon cities, counties

and districts with legislative authority over the transfer, use

and disclosure of money or things of value in elections,” but,

he asserts, that effect is not listed in the caption.

Petitioner Markley does not elaborate on the argu-

ment, and it is not clear to us what part of that “major effect”

he contends is actually missing from the caption. To the

extent that he is arguing that the caption should, but does

not, mention that “all Oregon cities, counties and districts

with legislative authority” may enact laws restricting cam-

paign contributions and expenditures, that concern is mis-

placed. The caption uses the phrase “allows laws limiting

political campaign * * * expenditures.” (Emphasis added.)

The words “allows laws” suggest that governing bodies with

authority to pass laws in general may specifically pass laws

limiting political campaign contributions and expenditures.

The caption need not enumerate all the types of governing

bodies that are authorized to enact laws in Oregon. And, in

any event, additional detail is provided in the “yes” result

statement and the summary, which refer to laws created by

the Legislative Assembly, local governments, and voters.

To the extent that petitioner Markley is arguing

that the caption should, but does not, mention that the laws

authorized under the measure may address the “trans-

fer, use and disclosure of money or things of value in elec-

tions,” that concern also is misplaced. The caption states

that the measure allows laws “limiting political campaign

contributions and expenditures [and] requiring disclosure

of political campaign contributions and expenditures.” The

phrase “limiting * * * expenditures” adequately encompasses

578 Buel/Markley v. Rosenblum

transferring and using money or things of value, and, like-

wise, the phrase “requiring disclosure of * * * expenditures”

adequately encompasses requiring disclosure of money or

things of value.

Third, petitioner Markley argues that the caption is

deficient because it does not inform voters “that their free-

dom of political expression may be restricted by future leg-

islation that would not be subject to protections currently

afforded by Oregon’s Bill of Rights.” Petitioner Markley

notes that SJR 18 provides that the measure permits laws

limiting expenditures made in connection with political

campaigns or to influence elections “to the extent permit-

ted under the United States Constitution.” He explains that

Oregon’s constitutional protections for speech are broader

than those provided by the federal constitution, and he sug-

gests that the measure might therefore permit campaign

expenditure restrictions that the Oregon Constitution would

prohibit. Petitioner Markley argues that the caption’s fail-

ure to describe that possible eventuality “misleads voters

who reasonably expect that constitutional rights would not

be severed without clear warning.”

As we have stated, the caption must state the major

effects of a proposed measure. The caption states that the

proposed measure “allows laws limiting political campaign

contributions and expenditures.” That sentence adequately

describes two major effects of SJR 18: It would permit laws

limiting political campaign contributions, and it would per-

mit laws limiting campaign expenditures. In arguing that

the caption is deficient because it does not explain that SJR

18 might permit certain restrictions that Article I, section

8, would prohibit, petitioner Markley is positing a poten-

tial ramification of the enactment of the proposed measure

that may or may not come to pass. That is not a legitimate

basis for modifying the ballot title. As we have often stated,

“[s]peculation about potential secondary effects has no place

in any part of a ballot title.” Bauman v. Roberts, 309 Or

490, 495, 789 P2d 258 (1990); accord Parrish, 365 Or at 602

(same); Kane v. Roberts, 310 Or 423, 428, 799 P2d 639 (1990)

(same). For that reason, petitioner Markley’s concern need

not be addressed in the caption or in other parts of the ballot

title.

Cite as 366 Or 570 (2020) 579

We are not persuaded that the ballot title caption

is deficient in any of the ways that petitioner Markley iden-

tifies. We therefore reject petitioner Markley’s objections to

the caption, and we conclude that the caption substantially

complies with the requirements of ORS 250.035(2)(a).

B. “Yes” Result Statement

Petitioner Markley also challenges the “yes” result

statement. A “yes” result statement must set out “[a] sim-

ple and understandable statement * * * that describes the

result” if a proposed measure is approved. ORS 250.035

(2)(b). The “yes” result statement “should describe the most

significant and immediate effects of the ballot initiative for

the general public.” Parrish, 365 Or at 603 (internal quota-

tion marks omitted).

Petitioner Markley confines his argument to stat-

ing that the “yes” result statement has “similar” flaws as

the caption and that it therefore does not substantially com-

ply with ORS 250.035(2)(b). As discussed above, we disagree

that the caption suffers from the flaws that petitioner

Markley identifies, and we conclude that the caption sub-

stantially complies with the requirements of ORS 250.035.

For the same reasons, we conclude that the “yes” result

statement is not deficient in any way that petitioner Markley

contends. The “yes” result statement substantially complies

with the requirements of ORS 250.035(2)(b).

C. “No” Result Statement

A “no” result statement must be “[a] simple and

understandable statement * * * that describes the result” if

a proposed measure is rejected. ORS 250.035(2)(c). The joint

legislative committee’s “no” result statement states:

“RESULT OF ‘NO’ VOTE: ‘No’ vote retains current law.

Courts currently find the Oregon Constitution does not

allow laws limiting contributions to candidates or political

committees by a person, corporation, or union.”

At the time that the joint legislative committee prepared the

ballot title and explanatory statement for LR 401, that “no”

result statement was a correct, if incomplete, description

580 Buel/Markley v. Rosenblum

of the state of the law. Prior to this court’s decision in

Mehrwein, it was correct to state that courts found that the

Oregon Constitution did not allow laws limiting contribu-

tions or expenditures. See Vannatta, 324 Or at 520-24 (so

holding).

As we have stated, after the parties submitted their

briefing on LR 401, this court overruled Vannatta in part

and held in Mehrwein that Article I, section 8, does not cat-

egorically prohibit limits on campaign contributions. Both

petitioners and the Attorney General now recognize that

the “no” result statement is inaccurate and that it must be

referred to the Attorney General for modification to reflect

that development. We agree. The parties have proposed dif-

ferent ways to reflect the change resulting from Mehrwein.

We are not required to draft modifications to the ballot title,

and we refer the ballot title to the Attorney General for that

purpose.

In his initial brief, petitioner Markley also chal-

lenged the “no” result statement on the ground that it fails to

“clearly reference all the rights that would be compromised

by passage of LR 401 (including the right to make politi-

cal expenditures).” We agree with petitioner Markley in one

respect: the joint legislative committee’s “no” result state-

ment fails to address the current state of the law regarding

limitations on expenditures. As petitioner Markley observes,

this court held in Vannatta that campaign expenditures

designed to indicate to others the spender’s preferred polit-

ical choice are a form of expression, and, under Article I,

section 8, they cannot be restricted. 324 Or at 520-24. That

ruling was not disturbed by this court’s recent decision in

Mehrwein. 366 Or at 331 (declining to reconsider Vannatta’s

expenditure holding). As we have stated, allowing laws that

limit campaign expenditures is a major effect of SJR 18.

For that reason, the current state of the law with respect to

limitations on campaign expenditures should be part of the

“no” result statement.

For those reasons, the “no” result statement does

not substantially comply with the requirements of ORS

250.035(2(c) and must be modified accordingly.

Cite as 366 Or 570 (2020) 581

D. Summary

Petitioners Markley and Buel challenge the ballot

title summary. For convenience, we repeat the summary

here:

“SUMMARY: The Oregon Supreme Court has inter-

preted the Oregon Constitution to prohibit limits on cam-

paign contributions and expenditures. The proposed mea-

sure amends the Oregon Constitution to allow the Oregon

Legislative Assembly, local governments, and the voters by

initiative to pass laws that limit contributions and expen-

ditures made in connection with a political campaign and

contributions and expenditures made to influence an elec-

tion. The measure would allow laws that would require dis-

closure of political campaign and election contributions and

expenditures. The measure would allow laws that require

political campaign and election advertisements to identify

who paid for them. Laws limiting campaign contributions

cannot prevent effective advocacy. Measure applies to all

laws enacted or approved on or after January 1, 2016.”

A ballot title summary must consist of a “concise and impar-

tial statement * * * summarizing the state measure and its

major effect.” ORS 250.035(2)(d).

As we have already explained with respect to the

“no” result statement, the first sentence of the joint legisla-

tive committee’s summary is incorrect in light of this court’s

recent decision in Mehrwein. The Attorney General must

modify the summary to reflect that change in the current

law.

Petitioner Markley also argues that the summary

is flawed in the same ways that he contends that the cap-

tion and “yes” result statement are flawed. We reject those

arguments for the same reasons that we rejected them with

respect to the caption and “yes” result statement.

Petitioner Buel asserts, with little explanation, that

the summary is deficient in four ways. As we shall explain,

none of his arguments is well taken.

First, petitioner Buel asserts that the summary

inaccurately states that current case law prohibits limits

on campaign contributions and expenditures. As noted, we

582 Buel/Markley v. Rosenblum

agree that, in light of Mehrwein, the summary’s descrip-

tion of current law respecting limits on contributions is now

inaccurate. However, petitioner Buel also argues that cur-

rent law respecting limits on expenditures is more nuanced

than the statement in the summary—“prohibit[s] limits on

campaign * * * expenditures”—suggests. We disagree. As

this court has stated, under Oregon law, campaign expen-

ditures “are forms of expression protected by [the constitu-

tion], thus making legislatively imposed limitations on indi-

vidual political campaign * * * expenditures impermissible.”

Meyer v. Bradbury, 341 Or 288, 299, 142 P3d 1031 (2006).

The summary’s description of current law with respect to

campaign expenditures is accurate.

Second, petitioner Buel contends that the summary

is deficient because it fails to address current law concern-

ing disclosure of donors and those who pay for political

advertisements. However, petitioner Buel does not identify

any current law that addresses that topic; in fact, he con-

cedes that there is no case law from this court or the Court

of Appeals addressing the constitutionality of such laws.

The summary provides:

“The measure would allow laws that would require disclo-

sure of political campaign and election contributions and

expenditures. The measure would allow laws that require

political campaign and election advertisements to identify

who paid for them.”

A “major effect” of the measure is that it would expressly

permit laws requiring disclosure of donors and those who

pay for political advertisements. The quoted sentences

accurately describe that major effect, as ORS 250.035(2)(d)

requires.

Third, petitioner Buel claims that the measure

incorrectly implies that the only way that voters may adopt

laws permitted under LR 401 is through the initiative pro-

cess and not through legislative referral. The summary

provides that the measure “allow[s] the Oregon Legislative

Assembly, local governments, and the voters by initiative to

pass laws” permitted under the measure. That phrasing mir-

rors the text of the measure, which authorizes lawmaking

Cite as 366 Or 570 (2020) 583

by the “Legislative Assembly, the governing body of a city,

county, municipality or district empowered by law or by this

Constitution to enact legislation, or the people through the

initiative process.” SJR 18, ¶ 1. The summary no more sug-

gests that legislative referrals are impermissible than does

the measure itself.

Fourth, and finally, petitioner Buel complains that

the summary “omits any explanation for the January 1,

2016, retroactive validation date.” By that he means that the

summary should, but does not, explain what laws would or

might be affected by the measure. He specifically contends

that the summary should explain to voters that the legis-

lature enacted a law in 2019 that will become effective on

December 3, 2020, which will among other things, require

communications made in support of or in opposition to a can-

didate to state the name of the person or persons who paid

for the communication. See HB 2716 (2019) (so providing).

The summary accurately describes the retroactiv-

ity provision as applying “to all laws enacted or approved

on or after January 1, 2016.” Neither ORS 250.035 nor this

court’s case law requires a ballot title summary to describe

which state laws might be affected by a measure. The major

effects of SJR 18 are to amend the constitution and to make

the amendment retroactive to January 1, 2016. The sum-

mary accurately describes those major effects.

To summarize, the joint legislative committee’s bal-

lot title summary states that this court has interpreted the

Oregon Constitution to prohibit limits on campaign contribu-

tions and expenditures. One part of that statement is inaccu-

rate in light of the court’s recent decision in Mehrwein. None

of petitioners’ other arguments are well taken; the remain-

der of the summary substantially complies with the require-

ments of ORS 250.035(2)(d). The summary must be modified

to reflect the change in current law, and we therefore refer

the summary to the Attorney General for modification.

III. EXPLANATORY STATEMENT REVIEW

Petitioner Buel challenges the explanatory state-

ment prepared by the joint legislative committee for LR 401

in multiple respects. Additionally, all parties agree that

584 Buel/Markley v. Rosenblum

the second paragraph of the explanatory statement, like

the ballot title’s “no” result statement and summary, is now

inaccurate in light of Mehrwein.

ORS 251.225 directs the joint legislative commit-

tee to prepare “an impartial, simple and understandable”

explanatory statement for each state measure. Under Oregon

Laws 2019, chapter 674, a person challenging the explana-

tory statement must provide reasons that the statement is

“insufficient or unclear.” Or Laws 2019, ch 674, § 6(1); ORS

251.235 (setting same standard). In reviewing an explana-

tory statement, the court defers to the committee’s drafting

choices; it is the petitioner’s burden to show that “the choices

that the committee [made in drafting the explanatory state-

ment] were legally ‘insufficient.’ ” Sizemore v. Myers, 327 Or

456, 468, 964 P2d 255 (1998). The court has held, further,

that it will not modify an explanatory statement “unless its

insufficiency is beyond reasonable argument.” Id. at 467.

The explanatory statement prepared by the joint

legislative committee for LR 401 provides:

“Ballot Measure XX amends the Oregon Constitution

to allow laws to place limits on political contributions and

expenditures, to require disclosure of campaign contribu-

tions and expenditures and to require political advertise-

ments to identify who paid for them.

“Courts currently find that the Oregon Constitution

prohibits limits on contributions and expenditures made

in connection with a political campaign or to influence the

outcome of an election.

“Ballot Measure XX amends the Oregon Constitution

to allow the Legislative Assembly, local governments and

the people through the initiative process to pass laws or

ordinances that limit contributions and expenditures made

in connection with a political campaign or to influence the

outcome of an election. The measure also allows laws that

require disclosure of contributions and expenditures made

in connection with a political campaign or to influence the

outcome of an election and laws that require an advertise-

ment made in connection with a political campaign or to

influence the outcome of an election to identify who paid for

the advertisement. Laws limiting campaign contributions

cannot prevent effective advocacy.

Cite as 366 Or 570 (2020) 585

“The proposed amendment applies to laws and ordi-

nances enacted or approved on or after January 1, 2016.”

Petitioner Buel’s initial challenges to the explan-

atory restatement simply repeat the arguments he made

with respect to the ballot title summary. For the same rea-

sons that we rejected petitioner Buel’s challenges to the

ballot title summary, we find that petitioner Buel has not

demonstrated that the explanatory statement is legally

insufficient.

We agree, however, that the explanatory statement

must be modified to reflect the change in the law after this

court’s decision in Mehrwein. Under Oregon Laws 2019,

chapter 674, this court must certify an accurate explanatory

statement to the Secretary of State. Because the explanatory

statement is inaccurate in light of Mehrwein, we must mod-

ify it. Or Laws 2019, ch 674, § 6 (directing Supreme Court

to review and certify explanatory statement); Livingston

v. Kroger, 347 Or 307, 315, 220 P3d 418 (2009) (modifying

explanatory statement).

Petitioner Buel has not given the court specific guid-

ance as to how to modify the wording of the second paragraph

of the explanatory statement to accommodate the changes

to current law arising from the court’s decision in Mehrwein.

Instead, he proffers as an alternative the summary that he

proposed for the ballot title, and he suggests that we adopt

that summary in its entirety in place of the joint legislative

committee’s explanatory statement. Petitioner Buel’s pro-

posed ballot title summary, among other things, sets out at

length the history of this court’s case law respecting stat-

utory limits on campaign contributions and expenditures

through to the present. Petitioner Buel has not offered a per-

suasive explanation why that information is necessary or

why, without it, the joint legislative committee’s explanatory

statement is “insufficient beyond reasonable argument,” so

as to justify replacing it wholesale with his proposed ballot

title summary.

The Attorney General, on the other hand, proposes

that we substitute the following for the explanatory state-

ment’s existing second paragraph:

586 Buel/Markley v. Rosenblum

“Courts currently find that the Oregon Constitution

prohibits limits on expenditures made in connection with

a political campaign or to influence the outcome of an elec-

tion. Limits on campaign contributions are allowed if the

text of the law does not target expression.”

That proposed wording is a simple and clear summary of

the state of the law after our decision in Mehrwein. With

that wording substituted for the existing wording of the sec-

ond paragraph in the explanatory statement, we conclude

that the explanatory statement would be legally sufficient.

We therefore modify the explanatory statement by substi-

tuting the foregoing paragraph for the second paragraph of

the explanatory statement prepared by the joint legislative

committee.

Pursuant to Oregon Laws 2019, chapter 674, sec-

tion 6(2), we certify to the Secretary of State the following

explanatory statement for LR 401:

“Ballot Measure XX amends the Oregon Constitution

to allow laws to place limitations on political contributions

and expenditures, to require disclosure of campaign con-

tributions and expenditures and to require political adver-

tisements to identify who paid for them.

“Courts currently find that the Oregon Constitution

prohibits limits on expenditures made in connection with

a political campaign or to influence the outcome of an elec-

tion. Limits on campaign contributions are allowed if the

text of the law does not target expression.

“Ballot Measure XX amends the Oregon Constitution

to allow the Legislative Assembly, local governments and

the people through the initiative process to pass laws or

ordinances that limit contributions and expenditures made

in connection with a political campaign or to influence the

outcome of an election. The measure also allows laws that

require disclosure of contributions and expenditures made

in connection with a political campaign or to influence the

outcome of an election and laws that require an advertise-

ment made in connection with a political campaign or to

influence the outcome of an election to identify who paid for

the advertisement. Laws limiting campaign contributions

cannot prevent effective advocacy.

Cite as 366 Or 570 (2020) 587

“The proposed amendment applies to laws and ordi-

nances enacted or approved on or after January 1, 2016.”

The ballot title is referred to the Attorney General

for modification. The explanatory statement is modified

and, as modified, is certified to the Secretary of State.