recognizing the courts’ equitable authority to award attorney fees “where the plaintiff brings suit in a representative capacity and succeeds in protecting the rights of others as much as [the plaintiffs] own”
How later courts described this case
- recognizing the courts’ equitable authority to award attorney fees “where the plaintiff brings suit in a representative capacity and succeeds in protecting the rights of others as much as [the plaintiffs] own”
- awarding attorney fees, under court’s inherent equitable power, because the plaintiffs action protected the “interest of the public in preservation of the individual liberties guaranteed against governmental infringement of the constitution”
- applying similar standard in awarding attorney fees; plaintiff's action protected the "interest of the public in preservation of the individual liberties guaranteed against governmental infringement of the constitution"
- explaining and exercising that authority
Written by the judges who cited it.
The opinion
TONGUE, J.,
specially concurring.
I agree with the result reached by the majority, but not with all of the statements made by it in its application of the “balancing test” to the constitutional issues presented in this case.
In the application of that test the majority relies not so much upon previous decisions by courts and upon recognized texts on constitutional law as upon statements made by the authors of various books and treatises on politics, campaign financing and related subjects. Upon the basis of such authorities the majority seemingly subscribes to the following propositions, among others:
“* * * the buying of candidates through large contributions has not constituted a major evil in elections”
and
“# * * The ‘break-in,’ the bribery, the ‘wire tap,’ the use of government servants for private political ends, the ‘cover up,’ the various ‘dirty tricks,’ and the other moral and legal deviations characterizing ‘Watergate’ had little or nothing to do with the fact that large sums of money were available to a political party.”
I cannot subscribe to these propositions. The fact that large campaign contributions may not com *68 pletely “buy” most candidates is not sufficient, in my opinion, to remove the taint of improper influence. And the large sums of money not subject to any public accounting provided the means for much of the attempted “cover up” which was perhaps the greatest shame of Watergate.
In my opinion, the result reached by the majority is inescapable without the necessity of embarking upon a discussion of the question whether, as stated by the majority, “assuming that the ‘purchasing’ of elections and candidates by wealthy contributors is such an evil,” a “limitation on expenditures would serve in any significant way to eradicate the evil.”
Under the terms of ORS 260.154 no citizen would be permitted to even buy post cards and stamps to mail to his friends, to his customers or clients, or to others in the same occupation, business, church or other organization in support of or opposition to a candidate unless the consent of a candidate has first been obtained. Clearly, this is an invalid limitation upon the constitutional right of freedom of expression and one that cannot be justified as “nominal” or “incidental.”
As stated by the majority, “the parties are in agreement that ORS 260.027 and ORS 260.154 are so intertwined in a single legislative scheme for the regulation of campaign expenditures that they must stand or fall together.”
It follows from this agreement by the parties that because ORS 260.154 is invalid we must also invalidate ORS 260.027 as part of that “single legislative scheme.” It does not necessarily follow, however, at least in my opinion, that the legislature may impose no regulations, restrictions, or limitations upon the financing of political campaigns.