May 6, 2004

Bill Bradbury
Oregon Secretary of State
Elections Division
141 State Capital
Salem, Oregon 97310

Dear Mr. Bradbury,

The Oregon State Bar (OSB) recently published the results of a poll among its members as to the selections of the judiciary. They also published, posted on the internet, the responses of individual judicial candidates to inquiries.

It is my clear understanding that public agencies are expressly prohibited by Oregon campaign finance laws from engaging in political activity. This is particularly heightened when the campaign is for named individuals rather than merely an issue campaign.

If the Oregon Department of Education conducted a poll among Oregon certified teachers about the various candidates and then posted the data on a government web site then we would clearly have a violation. If the candidates, regardless of whether it was a selected sampling or all of them so as to avoid favoritism, were able to deliver answers in a government chosen format and in response to questions posed by the ODE we would again have a clear campaign violation.

Other analogous arguments could be made for the Oregon Real Estate Agency as well. And likewise to many other licensed professions in the state of Oregon.

The Oregon State Bar is an agency too. Its function, under the direction of the Oregon Supreme Court, is to protect the public through assuring that licensed attorneys in the state have the proper skill and judgment to perform their task. It is distinguishable, however, from most other agencies only in that it is a state agency springing from the judicial branch rather than from the executive branch. This distinction does not itself bear any rational relationship to an exception from the other state agencies in the conduct of elections.

A recognized limit on the prohibitions in campaigning by government officials, even for named candidates, applies only to elected officials such as the Governor. There is no such elected official speaking their mind here on election matters, unless of course it is the elected Oregon Supreme Court itself that is speaking with one voice. The source of the money, either directly through general taxes or through the ever-popular license fee process (as in license to practice law, etc.) should not itself offer a justification of an exception to the rules that apply to all other Oregonians on like terms.

Is the Oregon State Bar registered as a political action committee? If so, whom might I ask are the personally liable persons at the head of the committee? The election laws of the state provide elevated rights to persons and entities aggrieved by Political Action Committees, though perhaps confined to instances where the outcome of a vote is shown to have been affected. The statutory law does make specific exceptions to campaign finance liability for free press entities, though conditioned upon the express separation of advertisers and the words spoken through the paper in its own name. I can see no free press exception to which the OSB may avail itself here. The Oregonian can request a list of OSB members in electronic form and perform a mass mailing poll as well as individually ask judicial candidates to respond to questions. The OSB, or a couple of volunteer members, could likewise have supplied the questions and sample survey to The Oregonian. At least then I would only have to fight the special rights accorded to free press rather than the additional impediment of attacking the government itself to assure accuracy and completeness in the presentation of matters of public concern.

I would like to pose an issue myself both [to] the members of the OSB and to the judicial candidates. In particular:

The issue of protecting governmental action from citizen challenge is a challenging one. On the one hand it is essential to assuring that the government can take some action, or any action, without being always hobbled by court action. On the other hand it gives great weight, in the judicial context, to politically aligned groups who have already had an opportunity to wield their full weight in the political arena. The role of the individual, and the protection of their individual rights, often get lost through the lack of an organized advocate or through the direct and express judicial avoidance of weighty, and politically unpopular, results. The frequently used method today of reaching a settlement on procedures to a law suit on politically or financially sensitive matters where the government is a party, either on just one just one side or on both, threatens to convert the judiciary into a functional legislative branch. The result is an advisory opinion, of general public interest but not responsive to specific individual rights, where only the judiciary is left sua sponte to assert that an issue (one already seemingly settled) is non-justiciable. How can this stalemate to be resolved?

[If you like long sentences then the prior paragraph is just for you.]

I, of course, have two timely issues applicable to the above; in specific cases. One, why not assert that the remedy in the same-sex marriage challenge should be to withdraw the special rights accorded to any marriage at least as to any state action (a limitation on governmental power) between the state and individual parties to the openly civil (and purely private) contract? Two, why allow the PERS debaters to totally ignore the legislative bargain made in Oregon Laws 1999 Chapter 317, Section 9, specifically and expressly negating any future underfunding liability as a trade-off for PERS beneficiaries to retain their contemporaneously extraordinary gains; particularly in light of the special rights accorded to judges, public attorneys, legislators, and top governmental staff members whom all seem savvy enough to make wise investments wholly independent of reliance upon the State Treasurer of Oregon and his team of advisors. The havoc brought upon the political process by the lack of a judicial philosophy that demands genuine and vigorous advocacy should be apparent to lawyer and laymen alike.

The lack of a voice within the OSB itself to assert the clear violation of Oregon’s campaign finance laws is a symptom of the systemic problem and should speak for itself.

[Me and my address.]

Copies to:

Oregon State Bar
5200 SW Meadows Road
Lake Oswego, OR 97035

Poll results:
http://www.osbar.org/_docs/leadership/elections/0416electionresults.pdf