[CFR-Clips] Statesman-Journal: Oregon's high court upholds intent of ethics law

[Dan Meek]

     January 1, 2010

Oregon's high court upholds intent of ethics law

Ruling prohibits public officials from accepting gifts worth more than $50
/
By Peter Wong
Statesman Journal/

Lobbyists can offer gifts worth more than $50, but public officials 
cannot accept them, under a decision issued Thursday by the Oregon 
Supreme Court.

The justices upheld a 2007 law that restricts the value of gifts from 
one person to a public official or close relative to $50 in a calendar 
year. They ruled that an official's acceptance of a gift can be 
restricted because, as "non-expressive conduct," it is not a violation 
of the state and federal constitutional guarantees of free expression.

The justices also ruled, however, that the law's restrictions on 
lobbyists offering gifts violated the state constitutional guarantee of 
free expression.

"We accomplished what we needed to accomplish --- getting the gifts out 
of the legislative process," said House Speaker Dave Hunt, D-Gladstone, 
who was majority leader when the 2007 law was passed.

The unanimous decision, written by Chief Justice Paul De Muniz, upholds 
in part and overturns in part an August 2008 ruling by Marion County 
Circuit Judge Joseph Guimond that supported all the changes to Oregon's 
government-ethics law. The case returns to circuit court for further 
proceedings.

The 2007 Legislature tightened restrictions on gifts --- including 
meals, lodging and travel --- to public officials and their relatives 
after news accounts about some lawmakers taking but not reporting 
lobbyist-paid trips to Hawaii and other destinations.

Some of the law's other provisions, especially its reporting 
requirements, prompted some local officials to resign volunteer 
positions, although most complied. Lawmakers made additional changes in 
2009 to deal with some of the objections. Entertainment, which had been 
banned under the 2007 law, was restored in 2009 with a $50 annual limit.

The lawsuit was filed by Fred VanNatta of Salem, a longtime lobbyist who 
also successfully challenged a voter-imposed limit on campaign 
contributions in 1997, when the court overturned the 1994 limit as a 
violation of the free-expression guarantee.

But the court drew a distinction in this case between campaign 
contributions and gifts, which it does not consider a form of speech.

"Giving a gift to a public official is not inextricably linked with a 
public official's ability to carry out official functions," De Muniz 
wrote in his opinion.

"Public officials can speak whether or not lobbyists have given them 
gifts, which distinguishes this case from VanNatta I (in 1997) 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. We agree with the state that the restrictions on 
receiving gifts withstand plaintiffs' constitutional challenge because 
the lobbying activity on which plaintiffs based their challenge --- 
giving gifts to public officials --- is non-expressive conduct."

John DiLorenzo, a Portland lawyer who represented VanNatta, said he 
thinks there is still a case to be made because the ban on officials 
accepting gifts valued at more than $50 nullifies the right of a 
lobbyist to offer them.

"The scenario is tantamount to allowing citizens to advertise on the 
radio but jamming the airwaves to prohibit the audience from listening," 
DiLorenzo said.

He said he may ask the court to reconsider part of the case --- a step 
the court rarely takes --- because the justices did not deal with a 
distinction between lobbyists and others seeking to influence public 
officials' actions.

Dan Meek, a Portland lawyer who filed a friend-of-the court brief, said 
the decision "has no practical consequences."

Meek said most states limit gifts to officeholders and candidates, and 
"it is good that the court upheld the limits." But Oregon is one of a 
handful of states that do not limit campaign contributions.

"As our brief in the case demonstrated, the lobbyists can provide the 
same benefits to public officials and candidates ... in the form of 
'campaign contributions,' which the Legislature has chosen not to 
restrict," Meek said. "Some of the widely publicized legislator luxury 
trips to Hawaii were actually paid for with campaign contributions, and 
today's court decision will not prevent such trips in the future."

Meek was one of the chief supporters of a pair of 2006 ballot measures 
that would have restricted campaign contributions. Voters approved legal 
limits under one measure, but rejected a companion constitutional 
amendment that would allow such regulation despite Oregon's 
free-expression guarantee, under which the court has interpreted 
contributions as a form of protected expression.

State officials have chosen not to implement the 2006 law passed by 
voters, and Meek is suing the state.

In his opinion, De Muniz drew back from the assertion in the court's 
1997 decision that campaign contributions are protected as a form of 
free expression regardless of the "ultimate use to which the 
contribution is put." He said that statement was not necessary to 
support the 1997 ruling.

"On further reflection, we conclude that that observation was too broad 
and must be withdrawn," he wrote.

/pwong at StatesmanJournal.com <mailto:pwong at StatesmanJournal.com> or (503) 
399-6745/

Additional Facts
Link

OREGON SUPREME COURT

(VanNatta v. Oregon Government Ethics Commission)

http://www.publications.ojd.state.or.us/S057570.htm

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