In Arlington/University Club news...
Portland movie theater mogul-turned-real estate tycoon Tom Moyer is breathing easier today. Yesterday he and his co-defendants on felony charges of making campaign contributions under false names got the law prohibiting such conduct stricken down as an unconstitutional infringement on free speech. The judge scheduled to hear the criminal charges apparently ruled from the bench that the law is "overly broad and restrains political speech," according to this morning's Oregonian (motto: "Always right there when West Hills money gets off the hook on corruption charges").
Among the arguments that the defense made in the case was this one, according to the O:
The defense told [Judge] Wittmayer that the law could put a lot of innocent political contributors in jeopardy. [Defense attorney] Hoffman suggested that if a group of teenagers washed cars to raise money for an environmental campaign, they could be compelled to report to the campaign the names of the people who gave them money.Next thing you know, the O will be naming Moyer citizen of the year for standing up for the rights of politically active teeangers. A true philanthropist! But in fairness, I believe his lawyers have a point. The last time I checked (although it was a while ago), the First Amendment allows folks to challenge facially overbroad restrictions on speech, even if they themselves engaged in conduct that could clearly have been prohibited by a more carefully drawn statute.
It's kind of ironic, though, that a guy who's accused of having other people make his campaign contributions for him is now making other people's constitutional arguments for them. So it goes with the Bill of Rights. I ain't complaining.
Anyway, here's the text of the bad, bad unconstitutional law:
No person shall make a contribution to any other person relating to a nomination or election of any candidate or the support or opposition to any measure, in any name other than that of the person who in truth provides the contribution.The case will now go up on appeal, and the judges who are waiting to decide whether Damon Stoudamire's boatload-o'-pot bust was bogus will also let us know eventually whether Moyer and Crew can be prosecuted for allegedly dummying up his campaign gifts to the Scone. My guess? They'll all walk.
| Posted at 4:48 PM | Permalink |
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Comments (9)
At first I thought that statute was all peachy, and couldn't see the problem. But now I wonder. Let's say we all gave $50 to FuturePac or MoveOn or some other group. If they then used our pooled money to support a candidate, would the law require them to list each of us by name? (this, of course, assuming that the definition of "person" includes entities)
Alternatively, is there a plain text argument regarding the First Amendment? It DOESN'T say: "Congress shall make no law...abridging the freedom of speech unless they use a false name."
Posted by Jud | March 30, 2005 5:54 PM
There are all kinds of well-worn and necessary exceptions to the "plain text" reading, for false and misleading speech, defamation, fighting words, etc.
As for us having to supply a list with all our names when we pool our money, I'd say that should be required, at least if we're talking about each of us putting up $5,000.
Posted by Jack Bog | March 30, 2005 6:01 PM
Bravo. If I had money I could have had fun with the Secretary of State and the Attorney General too, both at the same time. Seriously, this is all too silly.
Posted by Ron Ledbury | March 30, 2005 8:46 PM
Mr. Moyer (through his lawyer) makes an interesting point. Certainly the public is interested, and rightly so, in knowing who's financing which campaign. But at last report the public's interest in transparent campaign financing, unlike the public's interest in the right to free speech, hasn't been embedded in the constitution. I may wish to speak on a matter of public concern, and yet be unwilling to speak if I have to attach my name to my speech. Similarly I may be willing to support a particular candidate or cause only if my name isn't attached to my speech. Whether I want to remain anonymous because I don't want to be bothered by solicitors for other campaigns, or because I don't want my name attached to the cause I'm supporting, shouldn't matter.
Posted by Isaac Laquedem | March 30, 2005 11:11 PM
This is getting a little ridiculous. Under Oregon law, a campaign contribution from an individual or entity only has to be reported if it exceeds $50 for local races or $100 for statewide races. Unless kids are running a pretty expensive car-washing operation, they wouldn't have to report individual customer payments in any event (even assuming the customers are making a political donation instead of simply buying a car wash).
That is not the same as giving someone $1,000 with the understanding that the recipient will contribute that $1,00 to candidate X so that the first person either won't show up at all on candidate X's contribution & expenditure report or won't show up as a particularly big donor (particularly if that person launders several $1,000 contributions through a number of different people).
It is the latter situation that the Oregon law is designed to prevent and while it hasn't worked perfectly (because it's often hard to prove), it has been a pretty good law.
It doesn't apply to Political Action Committees because they are already required to report who gives them money and who they give money to, just the same as individual candidate committees do. It has generally been assumed, however, that it would apply if the contribution to a PAC is conditioned on the PAC sending that specific contribution to a specified candidate, although I'mnot sure if there has ever been a case enforcing that interpretation.
Because the Oregon Supreme Court has ruled caps on campaign contributions are unconstitutional, we have been forced to rely on rules requiring full disclosure. If the court now throw that out, we will have nothing.
Posted by Jack Roberts | March 31, 2005 6:37 AM
Jack Bog,
It's my understanding that the "false and misleading" speech exception applies to commercial speech, not political. There have been cases where political speech has been restricted, but I think those have been cases related to false statements about a particular candidate. The Supreme Court, I think, has been loathe to restrict political speech more than that, and has suggested that false political speech should not be restricted but could be the basis of a suit for fraud. I lack citations at the moment, but could dig if anyone cared.
Posted by Jud | March 31, 2005 7:24 AM
Jud, you may be right. My point was that there are exceptions. As I said, I haven't looked at this too carefully in a while.
Posted by Jack Bog | March 31, 2005 11:18 AM
Deception and threats to make unlawful use of power to influence an election apply to the speech of politicians in power. Threats to cut school days comes to mind.
Posted by Ron Ledbury | March 31, 2005 11:36 AM
I think Bill Sizemore and Loren Parks ran into legal problems in the courts involving their uses of Sizemore's PACs as a front for Parks or others' very large contributions to certain specific issues (or candidates?). I don't remember the details but it was in the news a few years ago.
re prior Jack Roberts blog on this subject:
"It doesn't apply to Political Action Committees because they are already required to report who gives them money and who they give money to, just the same as individual candidate committees do. It has generally been assumed, however, that it would apply if the contribution to a PAC is conditioned on the PAC sending that specific contribution to a specified candidate, although I'mnot sure if there has ever been a case enforcing that interpretation.
Posted by LIZ | April 2, 2005 1:13 PM