State v. Moyer

*84LANDAU, J.

Defendants were charged with violating ORS 260.402 (2003),1 which provides, in essence, that it is unlawful to lie about the source of political campaign contributions. Defendants demurred to the indictment on the ground that the statute, on its face, violates various provisions of the state and federal constitutions, in particular, the free speech guarantees of Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution. The trial court allowed the demurrer on the ground that the statute violates both state and federal constitutional guarantees of freedom of expression. The state appeals, arguing that the trial court erred in concluding that the statute is unconstitutional. We agree with the state and reverse and remand.

I. FACTS

Because this appeal comes to us on the allowance of a demurrer, the only relevant facts are those alleged in the indictment. State v. Illig-Renn, 341 Or 228, 230 n 2, 142 P3d 62 (2006). The first count of the indictment in this case stated:

“The said defendants THOMAS PAUL MOYER and VANESSA COLLEEN KASSAB, on or about May 16, 2003, in the County of Multnomah County, State of Oregon, did unlawfully and knowing[ly] make a contribution to a candidate, in relation to his campaign for election to public office, in a name other than * * * that of the person who in truth provided the contribution, to-wit: by making a contribution of $2,500 in the name of VANESSA KASSAB’ to Jim Francesconi in support of his campaign for the Mayor of Portland, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon[.]”

(Boldface and uppercase in original.) The second count asserted the same charge against defendants Moyer and Tune for a $2,000 contribution in the name of “Sonja Tune.”

*85Defendants demurred and moved to dismiss the indictment, contending that ORS 260.402, the statute that defines the offense, is, on its face, an unlawful restraint on speech and political association and is also impermissibly vague and overbroad, all contrary to limitations on legislation contained in the state and federal constitutions. The trial court allowed the demurrer. The trial court explained that it agreed with defendants that the statute violates the state and federal guarantees of freedom of expression. According to the trial court, “political contributions are clearly speech,” and the challenged statute equally clearly regulated it without the safe harbor of a historical exception to the protections afforded by constitutional free speech guarantees. The trial court disagreed with defendants that the statute is unconstitutionally vague.

On appeal, the state argues that the trial court erred in concluding that ORS 260.402 is facially unconstitutional under Article I, section 8, of the Oregon Constitution. The state also asserts that ORS 260.402 is constitutional under the First Amendment to the United States Constitution under the principles articulated in Buckley v. Valeo, 424 US 1, 96 S Ct 612, 46 L Ed 2d 659 (1976).

Defendants submit that ORS 260.402 violates Article I, section 8, and the First Amendment because it makes it a crime to engage in speech of a particular content— a political contribution in a false name — and because the statute cannot be narrowed to restrict only the effects of conduct not protected under either Article I, section 8, or the First Amendment. Moreover, defendants cross-assign error and contend that the statute is too vague to be enforced under either the federal or state constitution.

II. ANALYSIS

We begin with a brief description of the challenged statute and the framework of election law of which it is an integral part. We then turn to an analysis of defendants’ state constitutional claims, before turning to defendants’ federal constitutional contentions. See MacPherson v. DAS, 340 Or 117, 125-26, 130 P3d 308 (2006) (Oregon courts analyze state constitutional challenges before turning to federal constitutional challenges).

*86A. Oregon election campaign finance statutes

ORS 260.055(1) provides that all political candidates and treasurers for political committees must “keep detailed accounts” of contributions received and expenditures made by or on behalf of the candidate or the political committee. At various points during an election cycle, the candidates and political committees are required to file statements of such contributions and expenditures with the appropriate “filing officer.” E.g., ORS 260.058 (statements of candidates and principal campaign committees for elections other than general elections); ORS 260.063 (statements of political committees other than principal campaign committees for elections other than general elections); ORS 260.068 (statements of candidates and principal campaign committees for general elections); ORS 260.073 (statements of political committees other than principal campaign committees for general elections); ORS 260.076 (statements of legislative officials or candidates for legislative office).

Any contribution from a person or campaign committee “that contributed an aggregate amount of more than $50” must be listed in the statement individually, along with the contributor’s name, address, and occupation. ORS 260.083(l)(a). “The statement may list as a single item the total amount of other contributions, but shall specify how those contributions were obtained.” Id.

The filing officer is required to review the statements of contributions and expenditures and notify candidates or committees who have failed to file statements as required or who have failed to file statements that comply with all statutory requirements. ORS 260.205; ORS 260.215. Failure to file a proper statement of contributions and expenditures can lead to a court order compelling such a proper filing, ORS 260.225(1); imposition of civil penalties, ORS 260.232; and removal of the candidate or measure from the ballot, ORS 260.241(2).

The filing officer is then required to preserve the filed statements and to prepare for each election a summary that is to be made available to the public. ORS 260.255(1), (2). *87The summaries are required to include a list of “all expenditures that total $100 or more to any one person and a list of all contributions of more than $50.” ORS 260.255(3).

The source of a candidate’s or a committee’s information about contributions is the contributor himself or herself. Obviously, the linchpin of the system of reporting contributions is the accuracy of the information reported to the candidate or committee; it is that information that provides the basis for the candidate’s or the committee’s statements to the filing officer. As a result, the legislature enacted what is now codified at ORS 260.402, making it a criminal offense for a person to provide false information about the source of campaign contributions to a candidate or committee. Specifically, that statute provides, in part:

“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.”

As defined by ORS 260.005(3)(a), “contribution” includes:

“(A) The payment, loan, gift, forgiving of indebtedness, or furnishing without equivalent compensation or consideration, of money, services other than personal services for which no compensation is asked or given, supplies, equipment or any other thing of value:
“(i) For the purpose of influencing an election for public office or an election on a measure, or of reducing the debt of a candidate for nomination or election to public office or the debt of a political committee; or
“(ii) To or on behalf of a candidate, political committee or measure; and
“(B) Any unfulfilled pledge, subscription, agreement or promise, whether or not legally enforceable, to make a contribution.”

Thus, a violation of ORS 260.402 occurs by an actual or promised transfer of money, certain services, or things of value directly or indirectly to a political campaign “in any name other than that of the person who in truth provides the *88contribution.” A false name contribution could occur by a contributor using either someone else’s name or someone else’s money in the making of the contribution. In either event, the gravamen of the offense is the fact that the contributor is supplying false information to the recipient of the contribution. At issue in this case is the constitutionality of the statute that prohibits providing such false information.

B. Article 1', section 8

1. The analytical framework

We begin with the question whether ORS 260.402 violates the free speech guarantee of Article I, section 8, of the Oregon Constitution. That section provides that “[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for abuse of this right.” In State v. Robertson, 293 Or 402, 649 P2d 569 (1982), the Supreme Court set out a framework for challenges to the constitutionality of state statutes under that provision. That framework involves first classifying the challenged statute in terms of whether it constitutes a regulation of the content of speech, as opposed to proscribing harmful effects of speech. Then, depending on the classification, the framework requires different types of analysis. See generally State v. Johnson, 345 Or 190, 193-94, 191 P3d 665 (2008) (most recent summary of Robertson analysis).

If the focus of the challenged statute is the content of speech itself, the statute is unconstitutional “unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.” Robertson, 293 Or at 412. The court cited as examples of such “historical exceptions” perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud, “and their contemporary variants.” Id.

If a law is aimed not at the content of speech but at specific harms or proscribed effects that could be caused by speech, its constitutionality is tested by the breadth of the *89law or particulars of its application; that is, we must determine whether the statute “appears to reach privileged communication or whether it can be interpreted to avoid such ‘overbreadth.’ ” Id. at 418.

Although describing the framework can be accomplished without much difficulty, applying it has proved somewhat more challenging to the courts. In particular, the line between a first-category regulation (one that targets the content of speech) and a second-category regulation (one that targets only the harmful effects of speech) has proved somewhat elusive. It has been stated, for example, that, in order to qualify as a second-category regulation that focuses not on speech but on harmful effects, the “operative text” of the statute must “specify adverse effects.” City of Portland v. Tidyman, 306 Or 174, 185-86, 759 P2d 242 (1988). On the other hand, it also has been said that, “[e]ven when the statute does not, by its terms, target a harm, a court may infer the harm from context.” Vannatta v. Keisling, 324 Or 514, 536, 931 P2d 770 (1997); accord State v. Stoneman, 323 Or 536, 545-47, 920 P2d 535 (1996) (the focus of a statute on harmful effects, if not plainly stated in its text, may nevertheless be inferred from its context and apparent purpose).

In identifying the proper classification of ORS 260.402, we are greatly aided by the fact that the Oregon Supreme Court addressed, in Vannatta, if not that particular statute, then at least the general subject of the proper classification of laws pertaining to the regulation of election contributions. In that case, the court addressed the constitutionality of a ballot measure that, among other things, directly limited the amount of political contributions. 324 Or at 517. The court concluded that the contribution limitations violated Article I, section 8. Id. at 541. In arriving at that conclusion, the court first addressed whether contributions to political candidates and campaigns are a form of “expression” under the state constitution. Id. at 522-24. The court concluded that “many political contributions constitute expression.” Id. at 523 (emphasis added). It is important to emphasize that the court did not say that all contributions *90constitute expression.2 Moreover (and more important to this case), the court noted that, even if a particular form of political contributions constitutes expression, it does not necessarily mean that Article I, section 8, protects it. Id. at 522 n 10. It depends, the court said, on the nature of the restriction — in particular, whether the restriction is on the contribution itself.

“If it can be shown that financial contributions and expenditures are the free expression of opinion, laws limiting such activities run afoul of the constitutional protection. But lawmakers might choose to impose requirements distinct from contribution or expenditure limitations {e.g., requirements of disclosure of financing sources and the extent of any gift) as well as various sanctions {e.g., civil or criminal penalties, disqualification from the ballot or Voters’ Pamphlet, and the like) and their choice may not necessarily offend the constitutional requirement.”

Id. at 523 (internal quotation marks omitted; first emphasis added, second emphasis in original). In other words, regulations of the contributions or expenditures themselves — limitations on their amounts, for example — are Robertson first-category regulations and are unconstitutional unless wholly contained within a well-established historical exception. But regulations that impose requirements “distinct from contribution or expenditure limitations,” Vannatta, 324 Or at 523 — such as disclosure requirements — are treated differently; they are Robertson second-category regulations, which do not necessarily offend the constitution, unless they are overbroad.

2. Application: ORS 260.402 as a second-category statute

With that in mind, we turn to the statute at issue in this case. ORS 260.402 does not limit contributions directly. *91It does not specify how much may or may not be contributed. Nor does it impose any restriction on who may receive the contribution. Under ORS 260.402, any person can give any amount to any political campaign.

The only restriction that the statute imposes is that the person truthfully report the source of the contribution. As such, ORS 260.402 would seem to fall within the sort of reporting requirement that the Supreme Court in Vannatta specifically said is not a first-category statute, but is, instead a second-category statute that does “not necessarily offend” the constitution. 324 Or at 523 (emphasis in original).

At that point, the question becomes whether the statute targets harm that the legislature is entitled to target; said another way, the question is whether the statute “reaches privileged communication and, if it does so more than rarely, then whether a narrowing construction is possible to save it from overbreadth,” State v. Rangel, 328 Or 294, 299, 977 P2d 379 (1999). In this case, the answer to that question is fairly straightforward. Vannatta itself stated that the legislature is entitled to enact election statutes that impose penalties for misleading the public. 324 Or at 544.

The dissent contends that we err in concluding that ORS 260.402 targets harmful effects of speech, and not speech itself. According to the dissent, the statute “is a direct prohibition on a type of speech,” namely, a contribution made under a false name. 225 Or App at 104 (Sercombe, J., dissenting). Having identified the focus of the statute as certain types of contributions, the dissent easily concludes that, under Vannatta, it is a regulation of speech itself, that is, a Robertson first-category statute. The dissent, however, overlooks the fact that, as we have observed, the statute does not actually impose any limits on contributions themselves, only on the information that is reported by the contributor regarding the source of the contributions. Under Vannatta, that is not a first-category statute.

The dissent acknowledges what Vannatta says in that regard, but insists that we should not read the decision so broadly, because doing so puts it at odds with other cases that require the harmful effects of a statute either to be expressly stated in the wording of the statute or, at the least, *92necessarily a consequence of violating the statute. In this case, the dissent contends, the violation of ORS 260.402 does not necessarily produce any particular harm because, under current law, a candidate or committee is not required to pass on to filing officials all reports of contributions, rather, only total aggregate contributions of more than $50 from a single person. Because no harm flows from the false reporting of the sources of such small contributions, the dissent reasons, the harm cannot fairly be said necessarily to flow from the violation of ORS 260.402. 225 Or App at 107-08 (Sercombe, J., dissenting).

We are not persuaded. Even assuming, for the sake of argument, that harm must necessarily flow from violation of the statute for it to qualify as a second-category statute, it does not logically follow that harm does not necessarily flow from every violation of ORS 260.402.

As we have noted, the Supreme Court has explained that whether a statute targets harmful effects of speech, as opposed to speech itself, is a question of legislative intent. See, e.g., Stoneman, 323 Or at 546 (citing PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993)). To ascertain legislative intent, it is always appropriate to examine prior versions of a statute, Krieger v. Just, 319 Or 328, 336, 876 P2d 754 (1994); prior judicial construction of the statute, State v. Murray, 343 Or 48, 52, 162 P3d 255 (2007); and other, related statutes, including the legislative histories of those statutes, Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, 322 Or 406, 415-16, 908 P2d 300 (1995), modified on recons, 325 Or 46, 932 P2d 1141 (1997); State v. Stamper, 197 Or App 413, 420-21, 106 P3d 172, rev den, 339 Or 230 (2005).

What is now ORS 260.402 was enacted by the people in 1908 (later known as the Corrupt Practices Act) and prohibited — among many other things (it was an extraordinarily long initiative measure) — falsely reporting the source of a contribution and required candidates to report all contributions. The legislative history of that enactment shows that the people were concerned that “the secret use of money to influence elections [is] dangerous to liberty, because [it is] always used for the advantage of individuals or special *93interests and classes, and never for the common good.” Official Voters’ Pamphlet, General Election, June 1, 1908, 103. As the Supreme Court observed in Nickerson v. Mecklem, 169 Or 270, 277, 126 P2d 1095 (1942), the enactment was adopted “to prevent fraud and insure purity of elections.” “People,” the court said, “have the right to know — and it is so contemplated by the act — who is spending money and the amount thereof * * Id. The “evil” that the statute addresses, the court summarized, is concealing the names of election campaign contributors and the amounts that they contribute. Id. at 282.

In other words, the harm necessarily occurs whenever an individual makes election campaign contributions without reporting accurately who is making the contribution. The people have the right to know all contributors and the amounts that they contribute. To the extent that that does not happen, there is harm.

The dissent gets side-tracked by the fact that the legislature later decided that some contributions are so small that it is simply not worth the effort to regulate them, regardless of the harm that results. The people and the legislature, however, are not obligated to regulate the full extent of any harm that they legitimately target. And the fact that the legislature has chosen over the years to exempt from actual reporting the receipt of aggregate contributions in small amounts — originally $5, later raised to $25 and then to $50, and most recently raised again to $100 — logically does not mean that the harm in not reporting does not exist. See ORS 260.070(4) (1953) ($5); Or Laws 1971, ch 749, § 16 ($25); Or Laws 1995, ch 607, § 87 ($50); Or Laws 2005, ch 809, § 8 ($100).

3. Application: ORS 260.402 as a first-category statute

Even assuming, for the sake of argument, that the dissent is correct that ORS 260.402 is properly classified as a first-category statute, we are not persuaded that it necessarily follows that the statute runs afoul of the free speech guarantee of Article I, section 8. As we have noted, under Robertson and subsequent cases, such a statute is unconstitutional unless wholly contained within a historical exception. Robertson, 293 Or at 412. It bears some emphasis that *94it is not required that the statute under examination match precisely, element by element, a historical exception. Robertson speaks of historical exceptions in terms of nineteenth-century offenses “and their contemporary variants.” Id. By definition, there can be no such variant if the analysis requires a precise matching of elements. Robertson itself explains that Article I, section 8, “locks neither the powers of lawmakers nor the guarantees of civil liberties into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle.” Id. at 434.

An example close in point may be found in Vannatta, in which the Supreme Court stated that state laws that impose penalties for political candidates “who mislead the public or engage in fraud” do not violate Article I, section 8, because they would come within a historical exception for conduct constituting fraud. 324 Or at 544. It is interesting to note that the court offered the observation without engaging in an element-by-element comparison of current and historical legislation. Moreover, the court concluded that the modern statutes setting out the offenses of misleading the public and election fraud would both be subject to the same historical exception. That is especially noteworthy in that the statute describing the offense of misleading the public, ORS 260.532, does not appear to contain all the elements of common-law fraud.3

In a similar vein, in State v. Huntley, 82 Or App 350, 356, 728 P2d 868 (1986), rev den, 302 Or 594 (1987), this court concluded that ORS 260.715(1), a statute prohibiting false statements, oaths, or affidavits in elections, was subject to the historical exception for conduct constituting perjury. We did so even though the nineteenth-century exception itself was limited to falsely sworn oaths or affirmations and did not include unsworn false statements. Id.

With that in mind, we turn to the question whether a historical exception applies to ORS 260.402. In light of what we have just recounted regarding the Vannatta and Huntley *95decisions, it seems to follow that one or both of the historical exceptions that were mentioned in those cases apply to ORS 260.402.

First, as noted, in Vannatta, the Supreme Court stated that laws prohibiting candidates from making statements that mislead the public fall within the historical exception for fraud. 324 Or at 544. We can identify no reason why a law that prohibits a contributor from providing misleading information to the candidate — information that that candidate is then required to pass on to the voters — is not subject to the same exception. In either case, the prohibited act results in the public being misled during the election process.

The dissent rejects fraud as a potential historical exception because ORS 260.402 does not require that the misleading information be material, which is an element of common-law fraud. As we have mentioned above, however, the cases do not require an exact match to each and every element of a historical exception. Aside from that, the dissent never explains how the element of materiality could be satisfied in a way that the statute does not already state. The fact is that the people and the legislature have determined that providing false information is harmful to the election process.

Second, again as noted, in Huntley, we upheld the statute that prohibits making a “false statement, oath or affidavit” when the election laws require any statement, oath, or affidavit, ORS 260.715(1). In that particular case, the defendant was accused of supplying false information for the voters’ pamphlet. 82 Or App at 352. We concluded that the statute was subject to the historical exception for conduct constituting perjury. Id. at 356. We did so even though the nineteenth-century perjury statutes did not apply to unsworn statements. We concluded that the form the defendant had signed — stating that the information that he had supplied was true to the best of his knowledge — was sufficient to indicate that the defendant was aware of the seriousness of the document that he was signing. Id. We said that, although that was not a sworn statement, it was enough to address the gravamen of the underlying historical offense. Id. We expressly saved for another day the question whether *96even the certification that the defendant provided was required to establish the applicability of the historical exception of peijury. Id. at 356 n 7.

The dissent rejects peijury as an applicable historical exception in this case because there is “nothing equivalent in ORS 260.402 to the oath or affirmation that is a fundamental part of the crime of peijury.” 225 Or App at 113 (Sercombe, J., dissenting). The dissent, however, overlooks the fact that there was nothing in the language of the statute that we upheld in Huntley that was the equivalent to an oath or affirmation either. The dissent also suggests that the statute that we upheld in Huntley applied only to false statements to the public, not to private persons or political committees. “Lying to a public official,” the dissent reasons, “has more presumed bad effects than lying to a private person.” 225 Or App at 113 n 4 (Sercombe, J., dissenting). What the dissent fails to grasp, though, is that the false information that is given to a candidate or political committee in violation of ORS 260.402 is required by law to be passed on to the filing officer and, ultimately, to the public.

In short, ORS 260.402 passes muster as a Robertson second-category statute that is not unconstitutionally over-broad. In the alternative, if it is a Robertson first-category statute, it nevertheless is wholly contained within a well-established historical exception. In either case, the trial court erred in ruling that ORS 260.402 violates Article I, section 8, of the Oregon Constitution.

D. First Amendment

The First Amendment to the United States Constitution provides, in part, that “Congress shall make no law * * * abridging the freedom of speech, or of the press.” The amendment has been held to apply to the states through the Due Process Clause of the Fourteenth Amendment. New York Times Co. v. Sullivan, 376 US 254, 264 n 4, 84 S Ct 710, 11 L Ed 2d 686 (1964).

In Buckley, 424 US 1, the United States Supreme Court concluded that a statutory requirement that campaign contributors disclose their identities does not violate the *97First Amendment. The Court explained that “[t]he burden imposed by [disclosure] is no prior restraint, but a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view.” Id. at 82.

If a law that requires disclosure of a contributor’s identity does not offend First Amendment guarantees, we do not understand how a law that merely requires that such disclosures be truthful does. We conclude that the trial court also erred in ruling that ORS 260.402 violates the First Amendment.

C. Defendants’ cross-assignment: Vagueness

Finally, defendants contend that, if the trial court erred in concluding that ORS 260.402 violates the free speech guarantees of the state and federal constitutions, we nevertheless should affirm the judgment allowing defendants’ demurrer because the court erred in rejecting their argument that the statute is unconstitutionally vague. According to defendants, the statute offers “no discernible standard of conduct at all” in that it prohibits contributions “relating to” a nomination or election of a candidate in a name other than that of the person who “in truth provides” the contribution. Neither term, defendants complain, is capable of meaningful definition and application. The state insists that the statute is sufficiently precise and that the trial court did not err in rejecting defendants’ vagueness challenge.

We agree with the state that the trial court did not err in that regard. As we explained in State v. Krueger, 208 Or App 166, 170-71, 144 P3d 1007 (2006) (quoting Illig-Renn, 341 Or at 239-40),

“to say that a law is unconstitutionally ‘vague’ can refer to any of three different problems. First, a statute may be so vaguely crafted as to permit arbitrary or unequal application and uncontrolled discretion, in violation of Article I, sections 20 and 21, of the Oregon Constitution. Second, a statute may create an ‘unlawful delegation issue’ under the Due Process Clause of the Fourteenth Amendment in that it contains no identifiable standards or employs standards *98that rely on the ‘shifting and subjective judgments of the persons who are charged with enforcing it.’ Third, a statute may be so poorly written as to fail to provide ‘fair warning’ of the conduct that it prohibits, in violation of the Due Process Clause.”

(Citations omitted.) Defendants contend that ORS 260.402 is flawed in each of those respects, although they do not explain precisely why that is so, beyond complaining that the two phrases that we have quoted are “lacking in specificity.”

“[A]bsolute precision,” however, “is not required to overcome a facial vagueness challenge.” Illig-Renn, 341 Or at 243. As the Supreme Court explained in State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985), “[a] criminal statute need not define an offense with such precision that a person in every case can determine in advance that a specific conduct will be within the statute’s reach.” What is required is “a reasonable degree of certainty.” Id.

In our view, neither of the two phrases about which defendants complain is unconstitutionally vague in any of the three senses that are prohibited. To begin with, our task is not to examine the challenged words or phrases in a vacuum. While it may be the case that, for example, a definition of “truth” as an abstract proposition can be difficult to articulate, it does not necessarily follow that, when viewed in the context of the statute at issue, its meaning is not fairly straightforward. Moreover, when examined as a whole, the statute does not call for the sort of subjective assessments that can lead to arbitrary or discriminatory application. Nor does it deprive anyone of fair notice of the conduct that is prohibited.

We reject defendants’ vagueness challenge without further discussion. The trial court did not err in rejecting defendants’ constitutional challenge to ORS 260.402 on that ground. As we have explained, however, the trial court did err in concluding that the statute violates state and federal constitutional guarantees of freedom of expression.

Reversed and remanded.

Haselton and Ortega, JJ., join in this opinion.

Unless otherwise noted, all references to ORS chapter 260 in this opinion are to the 2003 version, which is the version that applies to this case.

In a footnote, the court expressly noted the limited nature of its holding:

“We qualify our statement with the limiting word, ‘many,’ because there doubtless are ways of supplying things of value to political campaigns or candidates that would have no expressive content or that would be in a form or from a source that the legislature otherwise would be entitled to regulate or prevent.”

Vannatta, 324 Or at 522 n 10.

Among other things, ORS 260.532(3) makes the candidate responsible for misleading campaign representations if the candidate knows of and consents to the publication of such material, followed by ORS 260.532(4), which creates a rebuttable presumption that the candidate has such knowledge.