The “Sweetcakes by Melissa” opinion from the Oregon Court of Appeals upholds the Bureau of Labor and Industries (BOLI) sanctions against the bakery that refused to bake a wedding cake for a lesbian couple. In terms of a tweet, you might summarize the opinion as saying “Running a public accommodation means accommodating everyone the same.”
The heart of the opinion is the court wrestling with who gets the benefit of the doubt: is it the lesbian couple that just wanted a wedding cake like their straight friends and family could get? If so, then the business almost surely loses.
Or is it the bakery, which creates a custom product with undeniably artistic elements, rather than operating a Costco-style factory for standardized baked products? In this case, the court would look very hard at the law as a burden on the artist’s right to speak as an artist, which includes the right not to be compelled to speak as well.
The court ends up saying that, yeah, while there are artistic elements in this custom bakery thing, there’s not enough to take this out of the world where it’s a business first, with artistry second. And, as a business that operates in the public domain, open to all, it’s subject to all the usual regulations unless the business can show some extraordinary reason that it is impossible for the business to operate if it has to treat all customers the same, straight and LGBTQ alike.
That’s pretty much the ballgame right there. Below is that key section, lightly edited for easier reading, mostly to remove excessive citations to other decisions. Taken from Oregon Appeals Reports, Vol. 289, starting at page 507; the selection below begins at page 517.)
- Meaning and scope of ORS 659A.403
In their first assignment of error, the Kleins argue that BOLI misinterpreted ORS 659A.403—specifically, what it means to deny equal service “on account of” sexual orientation. According to the Kleins, they did not decline service to the complainants “on account of” their sexual orientation; rather, “they declined to facilitate the celebration of a union that conveys messages about marriage to which they do not [subscribe] and that contravene their religious beliefs.” BOLI rejected that argument, reasoning that the Kleins’ “refusal to provide a wedding cake for Complainants because it was for their same-sex wedding was synonymous with refusing to provide a cake because of Complainants’ sexual orientation.” We, like BOLI, are not persuaded that the text, context, or history of ORS 659A.403 contemplates the distinction proposed by the Kleins. . . .
The text of ORS 659A.403(1) leaves little doubt as to its breadth and operation. It provides, in full:
“(1) Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.” (Emphases added.)
The phrase “on account of” is unambiguous: In ordinary usage, it is synonymous with “by reason of” or “because of.” Webster’s Third New Int’l Dictionary 13 (unabridged ed 2002); id. at 194 (defining “because of” as “by reason of : on account of”).
And it has long been understood to carry that meaning in the context of antidiscrimination statutes. E.g., 18 USC § 242 (1948) (making it unlawful to deprive a person of “any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race” (emphases added)).
Thus, by its plain terms, the statute requires only that the denial of full and equal accommodations be causally connected to the protected characteristic or status—in this case, “sexual orientation,” which is defined to mean “an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.” . . .
In this case, Sweetcakes provides a service—making wedding cakes—to heterosexual couples who intend to wed, but it denies the service to same-sex couples who likewise intend to wed. Under any plausible construction of the plain text of ORS 659A.403, that denial of equal service is “on account of,” or causally connected to, the sexual orientation of the couple seeking to purchase the Kleins’ wedding-cake service.
The Kleins do not point to any text in the statute or provide any context or legislative history suggesting that we should depart from the ordinary meaning of those words. What they argue instead is that the statute is silent as to whether it encompasses “gay conduct” as opposed to sexual orientation. The Kleins state that they are willing to serve homosexual customers, so long as those customers do not use the Kleins’ cakes in celebration of same-sex weddings. As such, according to the Kleins, they do not discriminate against same-sex couples “on account of” their status; rather, they simply refuse to provide certain services that those same-sex couples want. The Kleins contend that BOLI’s “broad equation of celebrations (weddings) of gay conduct (marriage) with gay status rewrites and expands Oregon’s public accommodations law.”
We see no evidence that the drafters of Oregon’s public accommodations laws intended that type of distinction between status and conduct. First, there is no reason to believe that the legislature intended a “status/conduct” distinction specifically with regard to the subject of “sexual orientation.” When the legislature in 2007 added “sexual orientation” to the list of protected characteristics in ORS 659A.403, Or Laws 2007, ch 100, § 5, it was unquestionably aware of the unequal treatment that gays and lesbians faced in securing the same rights and benefits as heterosexual couples in committed relationships. During the same session that the legislature amended ORS 659A.403 (and other antidiscrimination statutes) to include “sexual orientation,” it adopted the Oregon Family Fairness Act, which recognized the “numerous obstacles” that gay and lesbian couples faced and was intended to “extend benefits, protections and responsibilities to committed same-sex partners and their children that are comparable to those provided to married individuals and their children by the laws of this state.” Or Laws 2007, ch 99, §§ 2(3), (5). To that end, section 9 of that law provided:
“Any privilege, immunity, right or benefit granted by statute, administrative or court rule, policy, common law or any other law to an individual because the individual is or was married, or because the individual is or was an in-law in a specified way to another individual, is granted on equivalent terms, substantive and procedural, to an individual because the individual is or was in a domestic partnership or because the individual is or was, based on a domestic partnership, related in a specified way to another individual.”
Or Laws 2007, ch 99, § 9(1).
The Kleins have not provided us with any persuasive explanation for why the legislature would have intended to grant equal privileges and immunities to individuals in same-sex relationships while simultaneously excepting those committed relationships from the protections of ORS 659A.403. [fn 5]
[fn 5] At the time that the Oregon Family Fairness Act was enacted, Article XV, section 5a, of the Oregon Constitution defined “marriage” to be limited to the union of one man and one woman, and the Oregon Family Fairness Act expressly states that it “cannot bestow the status of marriage on partners in a domestic partnership.” Or Laws 2007, ch 99, § 2(7). Nonetheless, the act contemplated, but did not require, the performance of “solemnization ceremony[ies]” and left it to the “dictates and conscience of partners entering into a domestic partnership to determine whether to seek a ceremony or blessing over the domestic partnership.” Or Laws 2007, ch 99, § 2(8). Thus, the legislature was aware that same-sex couples would be participating in wedding ceremonies, and when it simultaneously chose to extend the protections of ORS 659A.403 to cover sexual orientation, there is no reason to believe that it intended to exempt places of public accommodation— such as cake shops, dress shops, or flower shops—so as to permit them to discriminate with regard to services related to those anticipated ceremonies.
Nor does the Kleins’ proposed distinction find support in the context or history of ORS 659A.403 more generally. As originally enacted in 1953, the statute (then numbered ORS 30.670) prohibited “any distinction, discrimination or restriction on account of race, religion, color or national origin.” Or Laws 1953, ch 495, § 1. One of the purposes of the statute, the Supreme Court has observed, was “to prevent ‘operators and owners of businesses catering to the general public to subject Negroes to oppression and humiliation.’ ” Schwenk v. Boy Scouts of America, 275 Or 327, 332, 551 P2d 465 (1976) (quoting a statement by one of the principal sponsors of the statute (emphasis removed)).
Yet, under the distinction proposed by the Kleins, owners and operators of businesses could continue to oppress and humiliate black people simply by recasting their bias in terms of conduct rather than race. For instance, a restaurant could refuse to serve an interracial couple, not on account of the race of either customer, but on account of the conduct—interracial dating—to which the proprietor objected. In the absence of any textual or contextual support, or legislative history on that point, we decline to construe ORS 659A.403 in a way that would so fundamentally undermine its purpose. See King v. Greyhound Lines, Inc., 61 Or App 197, 203, 656 P2d 349 (1982) (adopting an interpretation of Oregon’s public accommodation laws that recognizes that “the chief harm resulting from the practice of discrimination by establishments serving the general public is not the monetary loss of a commercial transaction or the inconvenience of limited access but, rather, the greater evil of unequal treatment, which is the injury to an individual’s sense of self-worth and personal integrity”)
Tellingly, the Kleins’ argument for distinguishing between “gay conduct” and sexual orientation is rooted in principles that they derive from United States Supreme Court cases rather than anything in the text, context, or history of ORS 659A.403. Specifically, the Kleins draw heavily on the Supreme Court’s reasoning in Bray v. Alexandria Women’s Health Clinic, 506 US 263, 113 S Ct 753, 122 L Ed 2d 34 (1993), which concerned the viability of a federal cause of action under 42 USC section 1985(3) against persons obstructing access to abortion clinics. In that case, the Supreme Court addressed, among other things, whether the petitioners’ opposition to abortion reflected an animus against women in general—that is, whether, because abortion is “an activity engaged in only by women, to disfavor it is ipso facto to discriminate invidiously against women as a class.” Id. at 271 (footnote omitted).
In rejecting that theory of ipso facto discrimination, the Court observed:
“Some activities may be such an irrational object of disfa- vor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can read- ily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women. Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women as a class—as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners’ unlawful demonstrations.”
The Kleins argue that “[t]he same is true here. Whatever one thinks of same-sex weddings, there are respectable reasons for not wanting to facilitate them.” They contend that BOLI simply “ignores Bray” and that BOLI’s construction of ORS 659A.403 “fails the test for equating conduct with status” that the Supreme Court announced in that case.
Bray, which involved a federal statute, does not inform the question of what the Oregon legislature intended when it enacted ORS 659A.403. But beyond that, Bray does not articulate a relevant test for analyzing the issue presented in this case. Bray addressed the inferences that could be drawn from opposition to abortion as a “surrogate” for sex-based animus, and it was in that context that the Supreme Court described “irrational object[s] of disfavor” that “happen to be engaged in exclusively or predominantly by a particular class of people,” 506 US at 270, such that intent to discriminate against that class can be presumed.
Here, by contrast, there is no surrogate. The Kleins refused to make a wedding cake for the complainants precisely and expressly because of the relationship between sexual orientation and the conduct at issue (a wedding). And, where a close relationship between status and conduct exists, the Supreme Court has repeatedly rejected the type of distinction urged by the Kleins. . . . We therefore reject the Kleins’ proposed distinction between status and conduct, and we hold that their refusal to serve the complainants is the type of discrimination “on account of * * * sexual orientation” that falls within the plain meaning of ORS 659A.403. [fn 6]
[fn 6] In doing so, we join other courts that have declined to draw a “status/ conduct” distinction similar to that urged by the Kleins. See, e.g., State v. Arlene’s Flowers, Inc., 187 Wash 2d 804, 823, 389 P3d 543, 552 (2017) (stating that “numerous courts—including our own—have rejected this kind of status/conduct distinction in cases involving statutory and constitutional claims of discrimination,” and citing cases to that effect).
The reasons for the Kleins’ discrimination on account of sexual orientation—regardless of whether they are “common and respectable” within the meaning of Bray— raise questions of constitutional law, not statutory interpretation. The Kleins, in the remainder of their argument concerning the construction of ORS 659A.403, urge us to consider those constitutional questions and to interpret the statute in a way that avoids running afoul of the “Speech and Religion Clauses of the Oregon and United States constitutions.” . . . Here, the Kleins have not made that threshold showing of ambiguity. Accordingly, we affirm BOLI’s order with regard to its construction of ORS 659A.403, and we turn to the merits of the Kleins’ constitutional arguments.
- Constitutional challenges to ORS 659A.403
The Kleins invoke both the United States and the Oregon constitutions in arguing that the final order violates their rights to free expression and the free exercise of their religion. Oregon courts generally seek to resolve arguments under the state constitution before turning to the federal constitution. . . . In this case, however, the Kleins draw almost entirely on well-developed federal constitutional principles, and they do not meaningfully develop any independent state constitutional theories. Accordingly, in the discussion that follows, we address the Kleins’ federal constitutional arguments first and their state arguments second. . . .
- Free expression
The Kleins argue that BOLI’s final order violates their First Amendment right to freedom of speech. BOLI argues that the order simply enforces ORS 659A.403, a content-neutral regulation of conduct that does not implicate the First Amendment at all. And each side argues that United States Supreme Court precedent is decisively in its favor.
The issues before us arise at the intersection of two competing principles: the government’s interest in promoting full access to the state’s economic life for all of its citizens, which is expressed in public accommodations statutes like ORS 659A.403, and an individual’s First Amendment right not to be compelled to express or associate with ideas with which she disagrees. Although the Supreme Court has grappled with that intersection before, it has not yet decided a case in this particular context, where the public accommodation at issue is a retail business selling a service, like cake-making, that is asserted to involve artistic expression. [fn 7]
[fn 7] The issue is currently before the Supreme Court in a case involving a Colorado bakery that similarly refused to make a wedding cake for a same-sex couple. Craig v. Masterpiece Cakeshop, Inc.
It is that asserted artistic element that complicates the First Amendment analysis—and, ultimately, distinguishes this case from the precedents on which the parties rely. Generally speaking, the First Amendment does not prohibit government regulation of “commerce or conduct” whenever such regulation indirectly burdens speech. . . .
When, however, the government regulates activity that involves a “significant expressive element,” some degree of First Amendment scrutiny is warranted. Arcara v. Cloud Books, Inc., 478 US 697, 706, 106 S Ct 3172, 92 L Ed 2d 568 (1986); id. at 705 (reasoning that the “crucial distinction” between government actions that trigger First Amendment scrutiny and those that do not is whether the regulated activity “manifests” an “element of protected expression”).
In the discussion that follows, we conclude that the Kleins have not demonstrated that their wedding cakes invariably constitute fully protected speech, art, or other expression, and we therefore reject the Kleins’ position that we must subject BOLI’s order to strict scrutiny under the First Amendment. At most, the Kleins have shown that their cake-making business includes some arguably expressive elements as well as non-expressive elements, so as to trigger intermediate scrutiny. We assume (without deciding) that that is true, and then conclude that BOLI’s order nonetheless survives intermediate scrutiny because any burden on the Kleins’ expressive activities is no greater than is essential to further Oregon’s substantial interest in promoting the ability of its citizens to participate equally in the marketplace without regard to sexual orientation.
(1) “Public accommodations” and the First Amendment
Oregon enacted its Public Accommodation Act in 1953. See Or Laws 1953, ch 495. The original act guaranteed the provision of “full and equal accommodations, advantages, facilities and privileges * * * without any distinction, discrimination or restriction on account of race, religion, color, or national origin.” Former ORS 30.670 (1953), renumbered as ORS 659A.403 (2001). It applied to “any hotel, motel or motor court, any place offering to the public food or drink for consumption on the premises, or any place offering to the public entertainment, recreation or amusement.” Former ORS 30.675 (1953), renumbered as ORS 659A.400 (2001).
Oregon’s statute was thus similar in scope to Title II of the federal Civil Rights Act of 1964, which prohibits discrimination “on the ground of race, color, religion, or national origin” in three broad categories of public accommodations: those that provide lodging to transient guests, those that sell food for consumption on the premises, and those that host “exhibition[s] or entertainment,” such as theaters and sports arenas. Pub L 88-352, Title II, § 201, 78 Stat 243 (1964), codified as 42 USC § 2000a(b). When the United States Supreme Court upheld the public accommodations provisions of Title II in 1964, it observed that the constitutionality of state public accommodations laws at that point had remained “unquestioned,” citing previous instances in which it had “rejected the claim that the prohibition of racial discrimination in public accommodations interferes with personal liberty.” Atlanta Motel v. United States, 379 US 241, 260-61, 85 S Ct 348, 13 L Ed 2d 258 (1964).
Over two decades, the Oregon legislature incrementally expanded the definition of “place of public accommodation” to include “trailer park[s]” and “campground[s],” Or Laws 1957 ch 724, § 1, and then to places “offering to the public food or drink for consumption on or off the premises,” Or Laws 1961, ch 247, § 1 (emphasis added). Then, in 1973, the legislature significantly expanded the definition to include “any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements or otherwise,” subject to an exception for “any institution, bona fide club or place of accommodation which is in its nature distinctly private.” Or Laws 1973, ch 714, § 2 (emphasis added). Other states similarly enlarged the scope of their public-accommodations laws over time. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 571-72, 115 S Ct 2338, 132 L Ed 2d 487 (1995) (describing the ways in which the Massachusetts legislature had “broaden[ed] the scope of” the state’s public accommodations law); Roberts v. United States Jaycees, 468 US 609, 624, 104 S Ct 3244, 82 L Ed 2d 462 (1984) (observing that Minnesota had “progressively broadened the scope of its public accommodations law in the years since it was first enacted, both with respect to the number and type of covered facilities and with respect to the groups against whom discrimination is forbidden”).
First Amendment challenges to the application of public-accommodations laws—and other forms of anti- discrimination laws—have been mostly unsuccessful. See, e.g., Roberts, 468 US at 625-29 (rejecting argument that a private, commercial association had a First Amendment right to exclude women from full membership); Hishon v. King & Spalding, 467 US 69, 78, 104 S Ct 2229, 81 L Ed 2d 59 (1984) (rejecting law firm’s claim that prohibiting the firm from discriminating on the basis of gender in making partnership decisions violated members’ First Amendment rights to free expression and association); Runyon v. McCrary, 427 US 160, 175-76, 96 S Ct 2586, 49 L Ed 2d 415 (1976) (rejecting private schools’ claim that they had a First Amendment associational right to discriminate on the basis of race in admitting students). The United States Supreme Court has repeatedly acknowledged that public accommodations statutes in particular are “well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination.” Hurley, 515 US at 572. The Court has further acknowledged that states enjoy “broad authority to create rights of public access on behalf of [their] citizens,” in order to ensure “wide participation in political, economic, and cultural life” and to prevent the “stigmatizing injury” and “the denial of equal opportunities” that accompanies invidious discrimination in public accommodations. Roberts, 468 US at 625. And the Court has recognized a state’s interest in preventing the “unique evils” that stem from “invidious discrimination in the distribution of publicly available goods, services, and other advantages.” Id. at 628.
However, as states adopted more expansive definitions of “places of public accommodation,” their anti-discrimination statutes began to reach entities that were different in kind from the commercial establishments that were the original target of public accommodations laws. As a result, on two occasions, the Court held that the application of such laws violated the First Amendment.
First, in Hurley, the court held that Massachusetts’s public accommodations law could not be applied to require a St. Patrick’s Day parade organizer to include a gay-rights group in its parade. 515 US at 573. Observing that state public accommodations laws do not, “as a general matter, violate the First or Fourteenth Amendments,” the Court went on to conclude that the Massachusetts law had been “applied in a peculiar way” to a private parade, a result that “essentially requir[ed]” the parade organizers to “alter the expressive content of their parade” by accommodating a message (of support for gay rights) that they did not want to include. Id. at 572-73 (emphasis added). The Court further reasoned that such an application of the statute “had the effect of declaring the [parade] sponsors’ speech itself to be the public accommodation,” which violated “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573.
Following Hurley, the Court decided Boy Scouts of America v. Dale, 530 US 640, 120 S Ct 2446, 147 L Ed 2d 554 (2000) (Dale), in which it held that applying New Jersey’s public accommodations law to require the Boy Scouts to admit a gay scoutmaster violated the group’s First Amendment right to freedom of association. The Court observed that, over time, public accommodations laws had been expanded to cover more than just “traditional places of public accommodation—like inns and trains.” Id. at 656. According to the Court, New Jersey’s definition of a “place of public accommodation” was “extremely broad,” particularly because the state had “applied its public accommodations law to a private entity without even attempting to tie the term ‘place’ to a physical location.” Id. at 657. The court dis- tinguished Dale from prior cases in which it held that public accommodations laws posed no First Amendment problem, observing that, in those prior cases, the law’s enforcement did not “materially interfere with the ideas that the organization sought to express.” Id.
Thus, Hurley and Dale demonstrate that the First Amendment may stand as a barrier to the application of state public accommodations laws when such laws are applied to “peculiar” circumstances outside of the usual commercial context. See Dale, 530 US at 657 (“As the definition of ‘public accommodation’ has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to member- ship organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.”).
In this case, the Kleins concede that Sweetcakes is a “place of public accommodation” under Oregon law because it is a retail bakery open to the public. But the Kleins contend that, as in Hurley and Dale, application of ORS 659A.403 in this case violates their First Amendment rights.
(2) First Amendment precedent
BOLI and the Kleins offer competing United States Supreme Court precedent that, they argue, clearly requires a result in their respective favors. We begin our analysis by explaining why we do not regard the authorities cited by the parties as controlling.
The Kleins argue that the effect of BOLI’s final order is to compel them to express a message—a celebration of same-sex marriage—with which they disagree. They pri- marily draw on two interrelated lines of First Amendment cases that, they contend, preclude the application of ORS 659A.403 here.
First, the Kleins rely on cases holding that the government may not compel a person to speak or promote a government message with which the speaker does not agree. See, e.g., Board of Education v. Barnette, 319 US 624, 63 S Ct 1178, 87 L Ed 1628 (1943) (holding that a state may not sanction a public-school student or his parents for the student’s refusal to recite the Pledge of Allegiance or salute the flag of the United States); Wooley v. Maynard, 430 US 705, 97 S Ct 1428, 51 L Ed 2d 752 (1977) (holding that New Hampshire could not force a person to display the “Live Free or Die” state motto on his license plate).
We do not consider that line of cases to be helpful here. In “compelled speech” cases like Barnette and Wooley, the government prescribed a specific message that the individual was required to express. ORS 659A.403 does nothing of the sort; it is a content-neutral regulation that is not directed at expression at all. It does not even regulate cake-making; it simply prohibits the refusal of service based on membership in a protected class. The United States Supreme Court has repeatedly held that such content-neutral regulations—although they may have incidental effects on an individual’s expression—are an altogether different, and generally permissible, species of government action than a regulation of speech. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 US 47, 62, 126 S Ct 1297, 164 L Ed 2d 156 (2006) (FAIR) (“[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” (Internal quotation marks omitted.)); R. A. V. v. St. Paul, 505 US 377, 385, 112 S Ct 2538, 120 L Ed 2d 305 (1992) (“We have long held * * * that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses * * *.”). In short, we reject the Kleins’ analogy of this case to Barnette and Wooley.
Second, the Kleins rely heavily on Hurley and Dale, which, as discussed above, invalidated the application of public accommodations statutes in “peculiar” circumstances outside of the usual commercial context. The difficulty with that analogy is that this case does involve the usual commercial context; Sweetcakes is not a private parade or membership organization, and it is hardly “peculiar,” as that term was used in Hurley, to apply ORS 659A.403 to a retail bakery like Sweetcakes that is open to the public and that exists for the purpose of engaging in commercial transactions. Indeed, the Kleins accept the premise that Sweetcakes is a place of public accommodation under Oregon law, and that, as such, it must generally open its doors to customers of all sexual orientations, regardless of the Kleins’ religious views about homosexuality. Thus, if the Kleins are to succeed in avoiding compliance with the statute, it cannot be because their activity occurs outside the ordinary commercial context that the government has wide latitude to regulate, as was the case in Hurley and Dale. The Kleins must find support elsewhere.
In BOLI’s view, on the other hand, the Kleins’ arguments are disposed of by the United States Supreme Court’s decision in FAIR. In that case, an association of law schools and law faculty (FAIR) sought to enjoin the enforcement of the Solomon Amendment, a federal law that requires higher-education institutions, as a condition for receiving federal funds, to provide military recruiters with the same access to their campuses as non-military recruiters. 547 US at 52-55. Because FAIR opposed the military’s policy at that time regarding homosexual service-members, FAIR argued that the equal-access requirement violated the schools’ First Amendment rights to freedom of speech and association. Id. at 52-53.
The Court rejected FAIR’s compelled-speech argument, reasoning that the Solomon Amendment “neither limits what law schools may say nor requires them to say anything,” and, therefore, the law was a “far cry” from the compulsions at issue in Barnette and Wooley. Id. at 60, 62. The Court acknowledged that compliance with the Solomon Amendment would indirectly require the schools to “speak” in a sense because it would require the schools to send emails and post notices on behalf of the military if they chose to do so for other recruiters. Nevertheless, the Court found it dispositive that the Solomon Amendment did not “dictate the content of the speech at all, which is only ‘compelled’ if, and to the extent [that,] the school provides such speech for other recruiters.” Id. The Court distinguished that situation from those where “the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Id. at 63-64 (citing, inter alia, Hurley, 515 US at 568).
In BOLI’s view, this case is like FAIR because ORS 659A.403 does not directly compel any speech; even if one considers the Kleins’ cake-making to involve some element of expression, the law only compels the Kleins to engage in that expression for same-sex couples “if, and to the extent” that the Kleins do so for the general public.
This case is distinguishable from FAIR, however, in a significant way. Essential to the holding in FAIR was that the schools were not compelled to express a message with which they disagreed. The schools evidently did not assert, nor did the Supreme Court contemplate, that there was a meaningful ideological or expressive component to the emails or notices themselves, which merely conveyed factual information about the presence of recruiters on campus. The Court thus distinguished the case from Barnette and Wooley, cases that addressed the harm that results from true compelled speech—that is, depriving a person of autonomy as a speaker and “inva[ding]” that person’s “ ‘individual freedom of mind,’ ” Wooley, 430 US at 714 (quoting Barnette, 319 US at 637); see Hurley, 515 US at 576 (“[W]hen dissemination of a view contrary to one’s own is forced upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the message is compromised.”).
Here, unlike in FAIR, the Kleins very much do object to the substantive content of the expression that they believe would be compelled. They argue that their wedding cakes are works of art that express a celebratory message about the wedding for which they are intended, and that the Kleins cannot be compelled to create that art for a wedding that they do not believe should be celebrated. And there is evidentiary support for the Kleins’ view, at least insofar as every wedding cake that they create partially reflects their own creative and aesthetic judgment. Whether that is sufficient to make their cakes “art,” the creation of which the government may not compel, is a question to which we will turn below, but even the Kleins’ subjective belief that BOLI’s order compels them to express a specific message that they ideologically oppose makes this case different from FAIR.
That fact is also what makes this case difficult to compare to other public accommodations cases that the United States Supreme Court has decided. It appears that the Supreme Court has never decided a free-speech challenge to the application of a public accommodations law to a retail establishment selling highly customized, creative goods and services that arguably are in the nature of art or other expression.
To put the problem into sharper focus, we see no reason in principle why the services of a singer, composer, or painter could not fit the definition of a “place of public accommodation” under ORS 659A.400. One can imagine, for example, a person whose business is writing commissioned music or poetry for weddings, or producing a sculpture or portrait of the couple kissing at an altar. One can also imagine such a person who advertises and is willing to sell those services to the general public, but who holds strong religious convictions against same-sex marriage and would feel her “freedom of mind” violated if she were compelled to produce her art for such an occasion. Cf. Barnette, 319 US at 637. For the Kleins, this is that case. BOLI disagrees that a wedding cake is factually like those other examples, but the legal point that those examples illustrate is that existing public accommodations case law is awkwardly applied to a person whose “business” is artistic expression. The Court has not told us how to apply a requirement of nondiscrimination to an artist.
We believe, moreover, that it is plausible that the United States Supreme Court would hold the First Amendment to be implicated by applying a public accommodations law to require the creation of pure speech or art. If BOLI’s order can be understood to compel the Kleins to create pure “expression” that they would not otherwise create, it is possible that the Court would regard BOLI’s order as a regulation of content, thus subject to strict scrutiny, the test for regulating fully protected expression. See Hurley, 515 US at 573 (application of public accommodations statute violated the First Amendment where it “had the effect of declaring the sponsors’ speech itself to be the public accommodation,” thus infringing on parade organizers’ “autonomy to choose the content of [their] own message”); see also Riley v. National Federation of the Blind, 487 US 781, 795- 98, 108 S Ct 2667, 101 L Ed 2d 669 (1988) (explaining that “[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech,” and subjecting such regulation to “exacting First Amendment scrutiny”).
Although the Court has not clearly articulated the extent to which the First Amendment protects visual art and its creation, it has held that the First Amendment covers various forms of artistic expression . . . . The Court has also made clear that a particularized, discernible message is not a prerequisite for First Amendment protection. [fn 8] . . .
[Fn 8] The First Amendment’s protection of artwork is distinct from the protections that extend to so-called “expressive conduct.” Expressive conduct involves conduct that may be undertaken for any number of reasons but, in the relevant instance, is undertaken for the specific purpose of conveying a message. . . . For example, a person may camp in a public park for any number of reasons, only some of which are intended to express an idea. . . . In contrast (as we understand the Supreme Court to have held), because the creation of artwork and other inherently expressive acts are unquestionably undertaken for an expressive purpose, they need not express an articulable message to enjoy First Amendment protection.
In short, although ORS 659A.403 is a content- neutral regulation that is not directed at expression, the Kleins’ arguments cannot be dismissed on that ground alone. Rather, we must decide whether the Kleins’ cake-making activity is sufficiently expressive, communicative, or artistic so as to implicate the First Amendment, and, if it is, whether BOLI’s final order compelling the creation of such expression in a particular circumstance survives First Amendment scrutiny.
(3) Whether these cakes implicate the First Amendment
If, as BOLI argues, the Kleins’ wedding cakes are just “food” with no meaningful artistic or communicative component, then, as the foregoing discussion illustrates, BOLI’s final order does not implicate the First Amendment; the Kleins’ objection to having to “speak” as a result of ORS 659A.403 is no more powerful than it would be coming from the seller of a ham sandwich. On the other hand, if and to the extent that the Kleins’ wedding cakes constitute artistic or communicative expression, then the First Amendment is implicated by BOLI’s final order. In short, we must decide whether the act that the Kleins refused to perform—to design and create a wedding cake—is “sufficiently imbued with elements of communication” so as to “fall within the scope” of the First Amendment. . . .
Consequently, the question is whether that customary practice, and its end product, are in the nature of “art.” As noted above, if the ultimate effect of BOLI’s order is to compel the Kleins to create something akin to pure speech, then BOLI’s order may be subject to strict scrutiny. If, on the other hand, the Kleins’ cake-making retail business involves, at most, both expressive and non-expressive components, and if Oregon’s interest in enforcing ORS 659A.403 is unrelated to the content of the expressive components of a wedding cake, then BOLI’s order need only survive intermediate scrutiny to comport with the First Amendment. . . .
The record reflects that the Kleins’ wedding cakes follow a collaborative design process through which Melissa uses her customers’ preferences to develop a custom design, including choices as to “color,” “style,” and “other decorative detail.” Melissa shows customers previous designs “as inspiration,” and she then draws “various designs on sheets of paper” as part of a dialogue with the customer. From that dialogue, Melissa “conceives” and customizes “a variety of decorating suggestions” as she ultimately finalizes the design. Thus, the process does not simply involve the Kleins executing precise instructions from their customers; instead, it is clear that Melissa uses her own design skills and aesthetic judgments.
Therefore, on this record, the Kleins’ argument that their products entail artistic expression is entitled to be taken seriously. That being said, we are not persuaded that the Kleins’ wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression.
In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins believe them to be pieces of art. See Nevada Comm’n on Ethics v. Carrigan . . . (“[T]he fact that a nonsymbolic act is the product of deeply held personal belief—even if the actor would like to convey his deeply held personal belief— does not transform action into First Amendment speech.” (Emphasis in original.)); see also Clark v. Community for Creative Non-Violence . . . (the burden of proving that an activity is protected expression is on the person asserting First Amendment protection for that activity).
For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others. . . . Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as “expression” rather than as food.
Although the Kleins’ wedding cakes involve aesthetic judgments and have decorative elements, the Kleins have not demonstrated that their cakes are inherently “art,” like sculptures, paintings, musical compositions, and other works that are both intended to be and are experienced predominantly as expression. Rather, their cakes, even when custom-designed for a ceremonial occasion, are still cakes made to be eaten. Although the Kleins themselves may place more importance on the communicative aspect of one of their cakes, there is no information in this record that would permit an inference that the same is true in all cases for the Kleins’ customers and the people who attend the weddings for which the cakes are created. Moreover, to the extent that the cakes are expressive, they do not reflect only the Kleins’ expression. Rather, they are products of a collaborative process in which Melissa’s artistic execution is subservient to a customer’s wishes and preferences. For those reasons, we do not agree that the Kleins’ cakes can be understood to fundamentally and inherently embody the Kleins’ expression, for purposes of the First Amendment. [fn 9]
[fn 9] To be clear, we do not foreclose the possibility that, on a different factual record, a baker (or chef) could make a showing that a particular cake (or other food) would be objectively experienced predominantly as art—especially when created at the baker’s or chef’s own initiative and for her own purposes. But, as we have already explained, the Kleins never reached the point of discussing what a particular cake for Rachel and Laurel would look like; they refused to make any wedding cake for the couple. Therefore, in order to prevail, the Kleins (as they implicitly acknowledge) must demonstrate that any cake that they make through their customary practice constitutes their own speech or art. They have not done so.
We also reject the Kleins’ argument that, under the facts of this case, BOLI’s order compels them to “host or accommodate another speaker’s message” in a manner that the Supreme Court has deemed to be a violation of the First Amendment. . . .
In the only such case that involved the enforcement of a content-neutral public accommodations law, Hurley, the problem was that the speaker’s autonomy was affected by the forced intermingling of messages, with consequences for how others would perceive the content of the expression. 515 US at 576-77 (reasoning that parades, unlike cable operators, are not “understood to be so neutrally presented or selectively viewed,” and “the parade’s overall message is distilled from the individual presentations along the way, and each unit’s expression is perceived by spectators as part of the whole” (emphasis added)). Here, because the Kleins refused to provide their wedding-cake service to Rachel and Laurel altogether, this is not a situation where the Kleins were asked to articulate, host, or accommodate a specific message that they found offensive. It would be a different case if BOLI’s order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer (“God Bless This Marriage,” for example) that they found offensive or contrary to their beliefs. . . .
The Kleins’ additional concern, as we understand it, is that a wedding cake communicates a “celebratory message” about the wedding for which it is intended, and the Kleins do not wish to “host” the message that same-sex weddings should be celebrated. But, unlike in Hurley, the Kleins have not raised a nonspeculative possibility that anyone attending the wedding will impute that message to the Kleins. We think it more likely that wedding attendees understand that various commercial vendors involved with the event are there for commercial rather than ideological purposes. Moreover, to the extent that the Kleins subjectively feel that they are being “associated” with the idea that same-sex marriage is worthy of celebration, the Kleins are free to engage in their own speech that disclaims such support. Cf. FAIR, 547 US at 65 (rejecting argument that law schools would be perceived as supporting any speech by recruiters by simply complying with the Solomon Amendment; noting that nothing prevented the schools from expressing their views in other ways).
In short, we disagree that the Kleins’ wedding cakes are invariably in the nature of fully protected speech or artistic expression, and we further disagree that BOLI’s order forces the Kleins to host, accommodate, or associate with anyone else’s particular message. Thus, because we conclude that BOLI’s order does not have the effect of compelling fully protected expression, it does not trigger strict scrutiny under the First Amendment.
As noted above, however, BOLI’s order is still arguably subject to intermediate First Amendment scrutiny if the Kleins’ cake-making activity involves both expressive and non-expressive elements. O’Brien, 391 US at 376 (“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important govern- mental interest in regulating the nonspeech element can jus- tify incidental limitations on First Amendment freedoms.”); see also Turner Broadcasting System, Inc., 512 US at 661-62.
Here, we acknowledge that the Kleins’ cake-making process is not a simple matter of combining ingredients and follow- ing a customer’s precise specifications. Instead, based on the Kleins’ customary practice, the ultimate effect of BOLI’s order is to compel them to engage in a collaborative process with a customer and to create a custom product that they would not otherwise make. The Kleins’ argument that that process involves individualized aesthetic judgments that are themselves within the realm of First Amendment protected expression is not implausible on its face.
Ultimately, however, we need not resolve whether that argument is correct. That is because, even assuming (without deciding) that the Kleins’ cake-making business involves aspects that may be deemed “expressive” for purposes of the First Amendment, BOLI’s order is subject, at most, to intermediate scrutiny, and it survives such scrutiny, as explained below. . .
by Kristin Eberhard, Sightline.org
Portlanders care about clean air, preventing climate change, preventing deaths, and relieving congestion. Unfortunately, expanding the I-5 Rose Quarter freeway will make pollution worse, won’t help safety, and won’t help with congestion. Here’s the answers to your questions.
1. Why won’t freeway expansion relieve congestion?
On “Free Cone Day,” Ben & Jerry’s ice cream shops have lines out the door because they are giving ice cream away for free. Freeways get congested because we give road space away for free. Expanding the freeway to get rid of congestion is like asking other ice cream shops to give away free ice cream to try to relieve the lines at Ben & Jerry’s. The new free ice cream shops will induce more people to show up now that a shop in their neighborhood is offering free ice cream, and new freeway lanes induce more people to drive now that the freeways are offering additional capacity.
If you don’t like my ice cream analogy, you can listen to researchers who have studied the phenomenon of “induced demand.” The American Economic Review looked at evidence from US cities and concluded the “Fundamental Law of Road Congestion,” is that increasing roads does not relieve congestion. Local economist Joe Cortright wrote about how induced demand played out in Houston and Louisville, and here it is at work in Los Angeles.
2. Why will congestion pricing relieve congestion?
While ice cream lines are linear—each additional person in line only makes the line one person slower—traffic flow is nonlinear—just a few additional cars can cause traffic to suddenly grind to a crawl. Traffic is sort of like a game of jenga: you can keep adding cars and traffic will keep chugging along but one extra car can push the system past a critical tipping point and make everything fall apart for everyone on the road. Once the system tips into congestion, its capacity decreases, meaning fewer vehicles can flow than were able to pass without congestion.
The silver lining to traffic flow’s nonlinear nature is that taking just a few cars off the road can disproportionately free up space and shorten travel times for all the other cars. Dissuading a handful of drivers who don’t really need to drive during peak hours, congestion pricing can make the whole system work better and more predictably for everyone. Stockholm, London, Milan, and Singapore have all shown that congestion pricing works in the real world.
3. Will a freeway expansion increase pollution?
Some people—including elected officials like Oregon State Senator Lee Beyer and Portland City Commissioner Amanda Fritz—conclude that cars and trucks idling in traffic must be emitting more pollution than they would if they were moving, so expanding the freeway will reduce pollution by restoring free flow of traffic. Unfortunately, that conclusion is wrong.
As explained above, a new freeway lane will get traffic flowing in the near term, but the new lanes will quickly attracts more freeway drivers and soon the road will be right back to the same frustrating idle. Only now a whole extra lane of drivers will be idling, meaning more pollution, not less. City Observatory digs into the data here.
In addition, highway construction emits between 1,400 and 2,300 tons of CO2 per lane-mile of new highway, so the act of adding two new lanes and shoulders to I-5 will by itself increase climate change pollution.
All in all, a 2007 Sightline analysis concluded that over the course of five decades, adding new highway lanes will lead to substantial increases in vehicle travel and CO2 emissions from cars and trucks.
4. Why is ODOT calling the mega freeway expansion a safety project?
Because they’re trying to pull one over on Portlanders.
Portlanders care about safety, as exemplified by the commitment to Vision Zero—a move toward zero traffic-related fatalities in the next ten years. Portlanders are not so keen on advantaging car drivers above other Portlanders, as exemplified by a history of killing big road projects.
Oregon Department of Transportation (ODOT) got the memo and is trying to sell a mega freeway expansion project as a safety project, claiming the purpose of the Rose Quarter expansion is to “improve safety and operations on I-5.” An ODOT spokesman recently told Willamette Week “The primary purpose of this project is to address a critical safety need,” and another ODOT representative pointed out there have been two fatalities on that stretch of freeway. But the proposed project has exactly zero relationship to those two fatalities. They were both homeless men—one may have had serious mental health issues and the other was intoxicated—who walked out onto the freeway. Adding more freeway lanes would not prevent those deaths.
If ODOT wanted to prioritize safety, it could use $450 million to fund Portland’s entire Vision Zero action plan about ten times over. Portland has used a data-driven approach to identify high crash corridors and intersections where many people have been injured or killed in recent years, identify the causes of those crashes, and design solutions that would prevent injuries and deaths. However, people driving on Portland’s streets continue to injure and kill people walking and biking as Portland works to implement its vision. Or if ODOT wanted to protect people experiencing homelessness, $450 million could get hundreds of people off the street and into housing.
The I-5 Rose Quarter Expansion is not a project to help keep Portlanders safe, it is a mega freeway project which futilely tries to make cars go faster.
5. Is the current freeway situation equitable?
Using taxpayer’s money to give out road space for free is not equitable. It gives a big handout to drivers, who, in Portland as elsewhere in the United States, are wealthier than people who take the bus or walk or bike to work or who don’t work. Even when roads are supposedly free, you have to pay an average of $8,558 per year to own and operate a car. For 20 percent of Portlanders, that would mean spending more than one third of their household income on one car. Given this, it is not surprising that people who pay to drive make more money than those who don’t. Freeways benefit (generally wealthier) drivers and don’t benefit (generally less wealthy) people who don’t drive.
Free road capacity also encourages sprawl, which can lock middle and working class families into expensive commutes. The “drive ‘til you qualify” approach to homebuying forces families to move further away from their job to be able to afford a mortgage, but in a location where they can’t get to work with the more affordable options of walking, biking, or transit.
Finally, highways are often located in lower-income neighborhoods where their pollution and noise disproportionately impacts lower-income people, while their free capacity disproportionately benefits higher-income people who drive.
No, the current freeway situation is not equitable.
6. Is a freeway expansion equitable?
Spending nearly half a billion dollars on a freeway expansion in Portland will just double down on the inequity of the current system. ODOT’s generous estimates, which assume cars drive faster than the legal speed limit, suggest the expansion could save peak-hour commuters 6.5 minutes during the morning commute and 8 minutes in the evening. (ODOT’s time savings estimates don’t acknowledge the well-documented effects of induced demand, which will generate more traffic and erase theoretical time savings). We’ve already seen that drivers on average make more money than non-drivers, but drilling down further we see that peak-hour drivers make more money than non-peak-hour drivers. In fact, one study showed that just 3 percent of Portland’s peak-hour single occupant car drivers are people with low incomes.
Peak-hour drivers impose the greatest cost on the transportation system. Charging all taxpayers to expand the freeway then letting peak drivers use it for free is not fair. Not only is it not equitable, it is not an efficient use of scarce dollars since investments in helping people move via transit, walking, and biking get more bang for the buck.
Those who claim or imply Portland should proceed with the freeway expansion because congestion pricing could be inequitable either haven’t thought through the equity implications of the options, or are disingenuously using the poor as an excuse to perpetuate a system which hurts the poor.
I can’t say it better than Michael Manville, Assistant Professor at UCLA, said it here:
It is appropriate to worry that priced roads might harm the poor while helping the rich. But we should also worry that free roads do the same, and think about which form of unfairness we are best able to mitigate. People who worry about harms to the poor when roads are priced, and not when roads are free, may be worried more about the prices than the poor.
7. Could congestion pricing be equitable?
It is true that tolls are regressive—the same toll presents a bigger burden for a lower-income driver than for a wealthier driver. But done right, congestion pricing could put more low-income people in a better position than they are in now.
Peak hour pricing asks those who place the greatest burden on the transportation system (those who drive during peak hours). Those drivers mostly also have the greatest ability to pay, to take more responsibility. That is fair. For the 3 percent or so of peak-hour drivers who have low-incomes, an equitable program could exempt them from paying the peak-hour fees. They would be better off with peak pricing because they could get to work faster at no extra cost.
And Oregon could go even further to make congestion pricing more equitable by investing the congestion pricing revenue in helping additional low-income people who don’t drive during peak hours, for example by:
- Improving bus service for non-drivers, for example by investing in Enhanced Transit Corridors
- Investing in walking and biking infrastructure for non-drivers
- Building affordable housing close to transit
- Assisting low-income transit riders, building on the Low-Income Fare program Trimet is already developing
- Exempting low-income residents, for example, anyone with an Oregon Trail card, from paying the tolls
- Funding a low-income tax credit
- Giving low-income residents a credit to use a ride-share carpool service (such as LyftLine or UberPool) on the congested route
8. Who wants the mega freeway expansion?
ODOT, the Port of Portland, the Oregon Trucker’s Association (OTA) and Portland Mayor Ted Wheeler, and possibly the full Portland City Council.
9. Who wants congestion pricing?
A large coalition of individuals and organizations, including OPAL Environmental Justice Oregon, Oregon Walks, BerniePDX, the Portland Chapter of the NAACP and others have joined to express concerns about the Rose Quarter Freeway expansion and ask ODOT and local partners to implement congestion pricing before expanding the freeway. Representatives from Neighbors for Clean Air, the Audubon Society, and 350PDX wrote an excellent op-ed here.
Portland Mayor Ted Wheeler also supports congestion pricing, but in addition to the freeway expansion project.
10. Does the City of Portland have a say?
State law already requires the Oregon Transportation Commission to pursue value pricing, but it also authorizes ODOT to pursue the freeway expansion megaproject. The City of Portland does not have authority over ODOT, but it can exert pressure. The city’s Central City 2035 plan currently includes features that give a blessing to the I-5 expansion project; by removing those or making a statement in favor of implementing congestion pricing first, the city could pressure ODOT in that direction.
11. How can I have a say?
If you live in Portland, you can contact the Mayor and other members of the city council. You can also submit comments to the members of the Portland Region Value Pricing Policy Advisory Committee.
No matter what issue you begin with, no matter what problem takes center stage for you — environment, racial justice, inequality, workers rights, health care access, you name it — eventually a persistent activist realizes that there are two parts to the problem, like an iceberg. There’s the visible part above sea level, and then there’s the much more massive part below that, hidden, that roots the visible problem in place and is much harder to deal with. The visible part is the problem that captured your attention. The bigger, invisible part is that American politics has succumbed to the very forces that America was created to counter, aristocratic inherited wealth.
One of the things that makes the Sightline Institute an OregonPEN favorite is that Sightline, originally an environmentally focused group, has recognized this and has put a lot of thought into how we have to solve the democracy problem (the takeover of our politics by wealth) in order to solve any of the others.
Sightline’s Kristin Eberhard tirelessly promotes essential reforms, not to be an academic, but because dealing with issues like climate disruption means we must start systematically removing the barriers to doing what has to be done.
Below is an April 2017 memo by Eberhard to present a concise shopping list of what we can do here in Oregon to restore democracy.
This memo is an articulation of Sightline’s internal strategy for voting systems reform. It is not a thoroughly vetted and reviewed report or article like most of our publications. All assertions are not cited or otherwise supported but instead reflect Sightline’s current judgment, which we may revise with further learning. Not all reforms mentioned are explained in this memo but are or will be explained in Sightline’s other published work.
If you are an Oregon resident or advocate excited by the energy around democracy reform in the United States, you might be wondering what the easiest or most impactful reform opportunities are close to home.
Fortunately, Oregon is ripe ground for voting reform. The state constitution specifically allows alternative and proportional voting. Charter counties and charter cities have autonomy to make changes without first seeking a change in state law. And all levels of government make liberal use of the citizens’ initiative process.
As in other places, reformers must consider the lack of alternative-ready vote- counting machines and the possible resistance of county auditors. But one Oregon county has already approved alternative voting, with several others poised to follow suit, and momentum is building around implementing proportional voting in Oregon’s largest city, Portland.
An effective and comprehensive strategy may involve a mix of easier and harder reforms. Demonstrating reforms in low-stakes elections or in localities before attempting statewide reform, for example, might be a good progression. This strategy memo is not based on public opinion research; such research would help prioritize among the objectives outlined here.
Below are the voting reforms we at Sightline would make if we could wave a magic wand, as well as our rough estimate of:
▪ how quickly or easily they might be accomplished (five stars is quick and easy, and one star is a long hard slog) and
▪ how much impact we think it might have (five stars means a significant improvement in democracy for a large number of Oregonians, and one star means a small improvement for a small number of people).
This memo is about voting systems reform, and we do not include other types of reforms that we are also researching, such as democracy vouchers for campaign funding and automatic voter registration. (You can find a similar document for Washington here.)
Our categories of preferred voting systems reforms are:
▪ Implement proportional voting for multi-member (legislative) bodies
▪ Implement improved voting for single-member offices
▪ Eliminate primaries or advance more candidates to the general election
▪ Create a unicameral state legislature
Implement proportional voting for multi-member (legislative) bodies
Although legislative bodies like the state legislature and city councils are meant to be reflective of all constituents, most Oregon jurisdictions use single-winner elections, either through single-member districts or numbered seats, to elect legislators. A series of single-winner elections yields a legislative body consisting almost entirely of the same kind of people because the majority in each district elects the sole representative from that district. Put together a body of majority winners and the majority is over-represented while voters in the minority are under-represented.
For example, in Oregon, white men make up 38 percent of the population but 67 percent of elected officials, while women of color make up 11 percent of the population but just three percent of elected officials. Democrats and Republicans win 100 percent of the seats, even though one-third of voters don’t affiliate with either of those parties.
Proportional voting could correct that unfair skew. To achieve more representative results, multi-member bodies like legislatures, councils, and school boards generally must be elected via multi-winner elections, not by single-winner elections based on single-member districts or at-large numbered seats. However, a hybrid system called Mixed Member Proportional voting achieves proportional representation while retaining some single-member districts. Several forms of voting can be used to achieve proportional or semi-proportional results, including:
▪ Single-Transferable Vote (STV): A proportional, multi-winner form of Ranked-Choice Voting (RCV). It is used in Cambridge, Massachusetts; Ireland; Australia; and for Academy Awards nominees. All candidates for the X-member district appear on the same ballot, and voters rank their candidates in order of preference. The top X candidates win seats.
▪ Mixed Member Proportional (MMP): Used in Germany and New Zealand, MMP retains some single-winner districts for local representation while adding multi-winner seats from party lists. Voters cast two votes: one for a local representative from a single-member district and one for a party.
▪ Reweighted Range Voting (RRV): A proportional, multi-winner form of Score Voting. It is now used to select the five OSCAR nominees for “Best Visual Effects.” All candidates for the X-member district appear on the same ballot, and voters give each candidate a score, for example from zero to 9. The top X candidates win seats.
▪ Proportional Score Runoff Voting (SRV-PR): A new method that would use a score ballot to select candidates one by one, with voters who supported a winning candidate having less say in subsequent rounds to ensure minority voters have a chance to elect a representative.
▪ Limited Voting: A semi-proportional form of voting used in jurisdictions across the United States. Voters can cast fewer votes than there are seats available. For example, in a five-member district, voters might be able to cast two votes, enabling minority voters making up about two-fifths of the population to elect two out of five seats.
▪ Cumulative Voting: A semi-proportional form of voting used in jurisdictions across the United States. Voters can cast as many votes as there are seats available but they can choose to allocate more than one vote per candidate. For example, in a three-member district, minority voters can give all three votes to their favorite candidate, ensuring that favorite wins a seat. Or they can give two votes to their favorite and one vote to their second-favorite, who also has support from some majority voters.
Federal courts sometimes order jurisdictions in violation of section 2 the Voting Rights Act to switch from “choose one” voting to Limited or Cumulative Voting because racial minorities who could not win representation under plurality voting can win seats under Limited or Cumulative Voting. Experts consider Limited Voting and Cumulative Voting to be “semi-proportional” because they achieve more proportional results than single-winner elections, but, depending on the strategies that parties and voters employ, they still are often less proportional than STV.
The national reform organization FairVote categorizes STV, MMP, limited, and cumulative systems under the moniker “Fair Representation Voting Systems.”
Multi-member offices can also use party-based proportional representation systems such as list voting, in which the ballot lists candidates by party, and voters can vote for their favorite candidate within a party list (in Open List systems) or for their favorite party, and the party then assigns seats based on its candidate list (in Closed List systems). But American voters tend to eschew strong party control, so these systems might be less popular in the near term.
A few cities in Oregon already elect multi-winner elections—electing multiple members in a single pool. Voters are allowed to “Vote for Three,” and the top three win, instead of the more common single-winner districts or numbered seats where voters can only “Vote for One.” These cities could make an easier switch to proportional voting, because the city would only need to switch to cumulative, limited, or ranked ballots, and not have to change anything else.
One challenge to adopting improved voting systems is that some Oregon counties’ vote-counting machines cannot yet tally alternative ballots. To ensure smooth implementation of voting reforms, these counties will need to update their scanners or software. On the bright side, because Oregon votes by mail, it does not have to purchase expensive polling-place machines, only the scanners and software that scan and count the ballots once they are mailed in to the county.
|Quick & Easy||Impact||Proportional
|***||****||State Legislature||Encourage Democratic legislators to head off the Republican redistricting effort by instead passing a redistricting law that adopts MMP, or draws multi- member districts, or requires multi-member districts for any area of the state lacking adequate racial representation.|
|***||****||Portland||2018 ballot initiative switching the city council from at- large numbered seats to multi-member districts with proportional voting.|
|***||****||Multnomah County||Ballot initiative switching the county council from single-member districts to multi-member districts with proportional voting.|
|***||****||Other Charter cities and counties||By vote of the council or by ballot initiative, adopt proportional voting to elect council.|
|*||*****||State House||Change Oregon law to elect state representatives in multi-member districts with proportional voting. For example, 60 reps from 20 three-member districts (and reduce size of Senate to 20 reps).|
|*||*****||State House||Change Oregon constitution and state law to elect state representatives via MMP. For example, 30 reps from existing senate single-member districts, plus 5 from each of 5 regional party lists (each region encompassing six districts), for a total of 55.|
|*||**||State Task Force||Encourage the Republican-led state Redistricting Task Force to recommend multi-member districts for the state legislature.|
|**||***||Charter cities that use multi-member districts and bloc voting||Fifteen or more charter cities—including Lake Oswego and Maywood Park in Multnomah County—already use multi-member districts and bloc voting (eg: “vote for 3”). Reformers could target these cities to make a switch to using a ranked-choice ballot and achieve proportional representation with no other changes.|
|**||****||Gresham||Urge 2020 Charter Review commission to put proportional voting on ballot to elect the 6 at-large city councilors in one or two multi-member districts.|
|*||*****||Interstate Compact||Cascadian interstate compact for fair representation in Congress: get Washington, Oregon, and Idaho to agree to elect their Congressional delegations by multi-member district.|
|**||***||School Boards||Ballot measures or urge Board vote to adopt proportional voting to elect board and to move elections to even years with higher turnout.|
Implement improved voting for single-winner races
Most elections in Oregon use single-winner plurality voting (voters “choose one” on the ballot, and the candidate with the most votes wins) for both executive and legislative seats. The state legislature and most local councils use single-winner districts (the city or state is carved into districts with one representative per district) or at-large numbered seats (several city councilors run for the city at-large, but instead of running against each other they each choose which of the numbered seats to run for.) Some cities use bloc voting in multi-winner elections.
A primary narrows the field to two candidates in nonpartisan elections or one candidate per party in partisan elections, and the candidate with the most votes in the general elections wins. Even elections for multi-member bodies, such as the state legislature, city councils, and school boards, use single-winner elections, either in single-member districts or at-large numbered seats.
Most elections in Oregon use single-winner plurality voting for both executive and legislative seats. Under single-winner plurality voting, voters may choose just one candidate on the ballot, and the candidate with the most votes—though not necessarily a majority of votes—wins.
The Oregon state legislature and all local councils use one of the following:
▪ single-winner districts, in which the city or state is carved into districts, with one representative per district;
▪ at-large numbered seats, in which several city councilors run for the city at-large, but instead of all running against each other, they each choose which of the numbered seats to run for;
▪ bloc voting, in which several city councilors run for, for example, three open city-wide seats on the council, and voters can vote for three candidates.
In many local elections, if a candidate wins a majority of votes in the primary, she wins; otherwise, the top two vote-getters advance to the general, and the candidate with more votes in the general election wins. Even elections for multi-member bodies, such as the state legislature, city councils, and school boards, use single- winner elections, either in single-member districts or at-large numbered seats.
Under single-winner plurality voting, third-party candidates are discouraged from running for fear of “spoiling” the election for the major-party candidate they are most similar to. This cuts down on nuanced discussion of the issues and reduces voter choice. If a third-party candidate persists in running, it can throw the election to the less popular, opposition major-party candidate, ultimately meaning that a majority of voters dislike the one person elected to represent them.
Aside from the third-party spoiler problem, plurality voting also rewards candidates for scaring away voters as much as for winning them over. If a candidate can get enough of her opponent’s voters to just stay home, disgusted with the spectacle of politics, she can win with just the minority of voters making up her base. This structural flaw encourages negative campaigning.
Single-member offices, such as governor, treasurer, and mayor, could instead be elected by Instant Runoff Voting (IRV, which is one form of Ranked-Choice Voting (RCV)). Under Instant Runoff Voting, voters rank their candidates in order of preference, and the ballots are counted in rounds: if a candidate wins more than half of the first-choice rankings, she wins. Otherwise, the candidate(s) with the
fewest first-choice rankings are eliminated, and their voters’ votes get transferred to their next-ranked candidate who is still in the running. Counting continues until one candidate wins more than half of the active votes. This one-minute video explains.
Score Runoff Voting (SRV) is a promising but as yet untested option for electing single-member offices. Under SRV, voters give each candidate a score from 0 (no support) to 5 or 9 (strong support). The scores are added up, and the two candidates with the top total scores go to an instant runoff. In the runoff, a voter’s vote goes to the runoff candidate he or she scored higher, and the candidate with the most votes wins.
Because they allow voters to give a rank or score to more than one candidate, both IRV and SRV would allow third-party candidates to run, enriching political dialogue and increasing options for voters. Because they reward candidates for winning additional support, these improved voting systems also encourage candidates to reach out to voters beyond their base, encouraging positive, policy-oriented campaigns.
Two other voting methods—Approval Voting and Score Voting—can, in theory, achieve excellent results. Under Approval Voting, voters vote for all the candidates they approve of, and the candidate with the most votes wins. Under Score Voting, voters give each candidate a score, and the candidate with the highest total score wins.
In practice, though, experience indicates that approval voting devolves to “bullet voting,” where voters only approve of their favorite candidate, out of (justified) fear that approving of their second or third favorite will hurt their most favorite.
Score Voting has not been used in a public election, so we can’t look to experience with it, but it suffers from the same structural flaw as Approval Voting— voting experts say it fails the “Later-No-Harm” criterion because voters can be harmed by scoring a less preferred candidate. Under Score Voting, voters would likely strategically give a top score to their favorite and no or very low scores to other candidates they actually like. (Note that Score Runoff Voting would likely overcome this flaw by encouraging voters to give scores to candidates other than their favorite to ensure they still have a vote in the runoff if their favorite doesn’t make it.)
Multi-member bodies, such as the state legislature, city councils, and school boards, are often elected by district or by numbered (also called posted) seats via single-winner methods. In this case, Instant Runoff Voting and possibly Score Runoff Voting would be an improvement over single-winner plurality voting.
However, even with such improvement, legislatures, councils, and school boards elected in single-winner elections will not proportionally reflect their constituents, and legislative bodies will continue to be mired in partisan gridlock. To achieve proportional representation and improved legislative capabilities, jurisdictions must use one of the methods detailed in the section above.
|Quick & Easy||Impact||Proportional
|*****||****||Benton County||Ensure that Benton County’s recently-adopted IRV is implemented well.|
|***||*****||Multnomah County||2018 ballot initiative adopting alternative voting.|
|***||*****||Portland||2018 ballot initiative adopting alternative voting.|
|****||****||State Leg. /
Sec. of State
|Require counties to acquire alternative voting-ready machines whenever turning over, or even to accelerate turnover.|
|****||****||Lane County||Urge council to put SRV on the ballot in 2017.|
|***||****||Other Charter cities and charter counties||By vote of the council or by ballot initiative, adopt alternative voting to elect single-member offices.
▪ Oregon has nine charter counties: Benton, Clatsop, Hood River, Jackson, Josephine, Lane, Multnomah, and Washington.
▪ Oregon has 111 charter cities.
▪ Oregon’s 241 general law cities also have the power of referendum and initiative, so it is possible they too could pass an alternative voting initiative, but it is not clear what the initiative would do since they don’t have a charter to amend.
|*****||*||Independent Party of Oregon (IPO)||Use IRV or SRV in next online election. The IPO has flexibility to quickly try things in its online elections, allowing for a quick and easy test with real voters.|
|*||*****||State Leg.||Adopt alternative voting for US Presidential primaries. Administratively difficult because all counties would need to be able to count alternative ballots.|
|**||***||Clatsop County||Use 2017 Charter Review process to propose alternative voting for county commissioners (elected by district).|
Eliminate primaries or advance more candidates to the general election
Primaries act as a modern poll tax.
Primary voters tend to be an extremely small (usually 10 to 20 percent) and non-representative (whiter, older, wealthier) share of the voting-eligible population. Primaries thus tend to nominate older, whiter, more conservative candidates. And primaries in single-winner districts that are “safe” for one or the other of the two major parties tend to nominate more sharply partisan candidates because they only have to campaign to win over their base in the party primary, not the general election. The primary thus narrows and skews the field, leaving general election voters with few options.
All of the alternative and proportional methods above could be used without a primary, so a switch in voting system could have the bonus of eliminating the 21st- century poll tax. Or, Oregon could mitigate the impact of the poll tax—and avoid the pitfalls of Washington’s “top two” system—by instead holding open primaries that advance three or four candidates to a general election, in which voters could use one of the alternative methods to select the winners. Either option would give general election voters more say in who represents them.
|Quick & Easy||Impact||Proportional
|*||***||State Leg.||Switch to ranked-choice voting for presidential primaries.|
|**||***||Charter cities and charter counties||Change charters to advance three or four people per seat to the general and to use ranked-choice voting in the general.|
Create a unicameral state legislature
The Oregon state bicameral legislature consists of two elected bodies representing exactly the same people and charged with doing the same thing twice. This makes it twice as hard as it should be to pass legislation. Nebraska has had a unicameral state legislature for nearly a century, cutting down on waste and streamlining government. Oregon could do the same.
|Quick & Easy||Impact||Proportional
|*||*****||Unicameral State Legislature||Ballot initiative to combine the state senate and state house into a single unicameral body elected through MMP voting or multi-member districts with proportional voting. For example, create one of the following:
▪ a single 60-member body elected from 20 three-member districts
▪ a single 75-member body elected from 15 five-member districts
▪ a 60-member MMP body with 30 representatives elected from single-member districts and 30 from six five-member party list regions.
Sightline Institute is a think tank that provides leading original analysis of energy, economic, and environmental policy in the Pacific Northwest.
Accomplishments | Sightline Institute
Tilling the Soil
Our research and communications tools brings together a community of thousands of northwesterners ready for change:
- On any given day, around 5,000 Cascadians rely on Sightline—via our websites, email, social media, and RSS feeds—to be inspired, stay informed, and be empowered.
- Our daily news service keeps Northwesterners informed about the latest, most important sustainability news from around the region and beyond.
- We inform news articles in reputable media outlets every week, reaching hundreds of thousands of regional and national readers.
- Every year, Sightline staff meet with hundreds of regional leaders and changemakers, participating in panels, briefings, and consultations.
Sometimes change happens in days, other times in years. But a good idea, once planted, is tenacious:
- Sightline Institute has long championed returning our democratic systems to the hands of everyday people, rather than leaving it to the interests of Big Money. In 2015, we helped to author the groundbreaking Honest Elections Seattle citizens’ initiative. It assembles into a single package some of the toughest corruption prevention and clean-election laws found anywhere in the United States, including a startlingly original campaign funding system called Democracy Vouchers.
- Sightline researchers have consulted with state and national delegates to lay out the most practical, effective solutions to climate change, as well as the best ways to message these solutions with the public. In 2008, British Columbia announced the most comprehensive carbon tax shift in the world, following the recommendations of our 1998 book, Tax Shift. Today, Washington and Oregon are both seriously considering legislation that would make polluters pay for their carbon pollution—efforts that Sightline research has heavily informed and helped to shape.
- Executive director Alan Durning’s latest book, Unlocking Home: Three Keys to Affordable Communities, has been used and cited by policymakers, urban planners, social service organizations, and media outlets nationwide as they seek new approaches to keeping urban housing affordable.
- Sightline’s research on Northwest Coal & Oil Exports has informed and empowered the fight against massive fossil fuel exports planned for our region, detailing everything from the local traffic impacts of the trains carrying these products to coastal ports to coal companies’ failing finances and more. As of early 2015, of the originally proposed six terminals, at Coos Bay, Grays Harbor, and Port Westward, three had canceled their development plans; the King County Council issued a strong statement against Northwest coal exports; and the Washington towns of Vancouver, Aberdeen, and Mount Vernon had all passed anti-oil train resolutions.
- Our blog series detailing legal barriers to sustainable solutions has inspired policy changes across Cascadia. These include expanded economic opportunities for African-style hair braiding in Oregon; right-to-dry legislation that would allow clotheslines everywhere; and changing the laws mandating white pages be provided to all households.
- Our cities are more family-friendly, thanks to measures like the 2013 Neighborhood Safe Streets Bill (WA), which allows cities to lower local speed limits—an idea that Sightline has helped promote since 2011. In addition, Sightline championed the newly improved stroller policies on King County (WA) Metro buses.
- Sightline has worked for years on issues related to toxics, be they in breastmilk or couches. In 2012, California—the largest US couch market and therefore a bellwether for the rest of the country—changed its rules on toxic flame retardants in couches. Our in-depth analysis and outreach in support of California-based activists, helped bring about the change.
- Sightline has championed sustainable transportation legislation, from launching Pay-As-You-Drive auto insurance to personal car-sharing—all the while documenting the region’s shifting attitudes toward driving.
- Low Impact-Development offers a common-sense solution to our region’s toxic stormwater woes. Our primer has been circulated among stormwater advocates and decision makers, and influenced the decisions of several LID projects in the Seattle area and beyond.
- Inspired by Sightline, in 2007, three talented developers created a hugely popular WalkScore online tool that rates neighborhood walkability around the US and beyond.
Each year, Sightline works with numerous other organizations to make change happen. Here are just a few of the groups who have used Sightline’s work in the past year:
- Oregon Environmental Council
- City of Portland
- Sierra Club
- Climate Solutions
- Washington Department of Ecology
- Nature Conservancy
- Cascadia Green Building Council
- Tyee Solutions Society
- Simon Fraser University
- CommunityWise Bellingham
- City of Seattle
- Washington Environmental Council
- Northwest Energy Coalition
- Natural Resources Defense Council
- Earth Ministry
- Columbia River Keepers
- City of Eugene
- Transportation Choices Coalition
8 Takeaways from Oregon’s Global Warming Commission’s Report 2015
by Kristin Eberhard, Sightline Institute
In its 2015 report, the Oregon Global Warming Commission offers the Oregon legislature a path towards transforming the state’s economy and meeting its statutory global warming pollution limits. Its scenario for meeting the state’s emissions limits looks like Thanksgiving dinner with all the fixins: a price on pollution, plus a package of complementary clean energy, energy efficiency, and transportation policies. The Commission, which includes representatives from the environmental community alongside the CEOs of Portland General Electric and Northwest Natural Gas, and representatives from Intel and the Port of Portland, unanimously approved the report.
Here are 8 takeaways.
1. Oregon has broken the link between global warming pollution and GDP.
Oregon’s economy and population have boomed in the past 25 years; yet its greenhouse gas pollution levels have been relatively flat, meaning that the carbon intensity of the Oregon economy (how many tons of pollution it emits per dollar of GDP) has been steadily decreasing.
2. Nonetheless, Oregon has further to go to de-carbonize its economy.
The report points out that Oregon has kept emissions relatively flat even as its population has increased, causing emissions per capita to drop since 1990. The City of Portland and Multnomah County—which do climate planning together—in particular have been very successful at promoting a low-carbon economy. Per capita emissions for this area are about half that of the United States average! But Oregon’s per-capita emissions are still higher than most prosperous European countries’ and will drop even further as Oregon transitions to a clean-energy economy.
3. Oregon met its statutory requirement to start reducing emissions by 2010.
Oregon greenhouse gas emissions peaked in 1999 and have declined 16 percent since then, almost returning to 1990 levels. Oregon complied with its statutory (bot non-binding) goal to arrest the growth of and begin reducing greenhouse gas emissions by 2010.
4. Current policies will likely keep Oregon emissions flat through 2035.
The Commission’s 2013 report predicted that “Business-As-Usual” (BAU) emissions would grow slightly through 2030 (yellow line in graph below). The 2015 report includes new or improved estimates of several pollution-busting policies in the Beaver State:
- Oregon’s 25 percent Renewable Portfolio Standard (RPS): By 2025, Oregon’s three largest utilities (Portland General Electric, PacifiCorp, and Eugene Water and Electric Board) will provide 25 percent of their power from renewable sources.
- Portland General Electric’s plan to shut down the coal-fired power plant at Boardman by the end of 2020
- Utility plans to invest in energy efficiency via the Energy Trust of Oregon
- The Clean Fuels bill passed in 2015: By 2025, transportation fuel sellers will decrease the lifecycle greenhouse gas emissions from their fuels by 10 percent.
- Clean Cars standards: Oregon is one of 14 states that have adopted standards requiring car manufacturers to cut emissions from the cars they sell in the state.
With all those policies in place, Oregon emissions will stay roughly flat for decades, only rising to 64.1 million metric tons (MMT) in 2035. The red line below shows this new improved forecast.
5. Unfortunately, Oregon is going to over-pollute in 2020.
Oregon has stopped digging deeper into a hole by putting into place policies that halted emissions’ growth. But climate stability (and Oregon statute) require the Beaver State to take the next step and act to drive emissions down, not just stabilize them. Oregon is supposed to cut pollution 10 percent below 1990 levels by 2020. But with 2020 just around the corner (yikes!), the Commission admits that Oregon will most likely miss that goal.
6. Therefore, Oregon should set its sights on 2035.
Oregon’s next statutory target—cut carbon pollution 75 percent below 1990 levels by 2050—is so far out that the Commission recommends setting an interim goal of trimming pollution 44 percent below 1990 levels by 2035 (the brown line above). This target means scaling down from the current 60.7 MMT of pollution per year to 32.7 MMT per year 20 years from now. Twenty years is a reasonable planning horizon. Indeed, it is the horizon that utilities use when making their resource plans, and Metro also uses a 20-year plan. Meeting this 2035 goal would put Oregon on the path to hits its 2050 goal.
7. Without a price, even aggressive regulations will not keep Oregon on track.
The Commission modeled an avid package of regulatory measures designed to trim emissions across the economy.
The measures to reduce residential, commercial, and industrial use of electricity and natural gas include:
- Weatherizing buildings
- Making better use of daylight
- Installing more efficient lighting, air conditioning, and appliances
- Upgrading industrial processes and storage
Oregon’s demand for electricity is expected to grow at about 1.2 percent per year for the next few decades. Implementing the measures above would reverse that trend line and actually decrease electricity load by 0.10 percent through 2030, reducing statewide electricity demand by a total of 4 percent in 2035. This achievement would be spectacular, making it easier to ramp down extraneous fossil fuel power and cheaper to provide clean energy to Oregonians. To achieve it, Oregon would need to double the Energy Trust of Oregon’s current efficiency plans.
The Commission put together a similarly ambitious set of measures in the transportation sector:
- Making land use changes to enable getting around by bus, bike, and foot
- Investing in public transportation
- Implementing pay-as-you-drive insurance
- Shifting away from single-occupancy vehicle trips to ride-sharing and transit
- Using intelligent transportation systems and demand management
- Implementing parking management
- Increasing vehicles’ fuel efficiency
- Increasing deployment of electric and plug-in hybrid vehicles
The report includes more measures to decrease emissions from goods movement, air travel, waste management, and agricultural practices. Even this comprehensive package of regulations falls short of reaching the interim 2035 pollution limit, illustrated by the gap between the colorful emissions reduction wedges and the brown goal trajectory in the graph below.
8. Oregon needs a price on pollution.
The Commission used Portland State University’s modeling to show that a carbon tax starting at $10 per ton and increasing to $60 per ton, in combination with the policies described above, would get Oregon to its 2035 pollution limit. PSU modeled a quickly escalating tax—reaching the maximum level of $60 per ton within the first 5 years and then staying at that level through 2035. The graph below indicates that such a sharp lift-off may not be necessary: Oregon’s emissions (gray line below) would dip far below its emissions goal trajectory (golden-brown line below) by 2020 and then flatten out to nearly make the 2035 goal.
The sharply dropping gray emissions line above suggests a slower price increase might achieve a steadier, straighter reductions path. A cap-and-trade program designed to keep emissions exactly on Oregon’s goal trajectory (golden-brown line below), in combination with the package of complementary policies described above, would likely result in a carbon price starting around $13 per ton and increasing at a rate of around 8 percent each year, reaching $61 per ton in 2035 (blue line below).
Oregon is moving in the right direction: breaking the link between GDP and pollution, hitting its 2010 statutory pollution limits, and putting policies in place that will keep emissions flat even as the state’s population continues to grow in coming decades. But to really break free of fossil fuels and transition to a low-carbon economy, it is clear that Oregon needs a meaningful price on carbon pollution.
There are a thousand
hacking at the branches of evil
to one who is striking at the root. — Thoreau
FairVote is that one.
Of all the groups offering diagnoses for the failings so abundantly evident on the American political scene, none of more astute than FairVote, a think tank that is determined not just to catalogue the failings we experience but also to identify their root causes and provide effective corrective prescriptions.
OregonPEN — Oregon Public Empowerment News — is proud to present chapters from FairVote’s most recent “Monopoly Politics” report series, one of the most important sustained efforts in political reporting and analysis in America.
If you want to create a legacy of investment in a better country, no place offers a better return on your investment.
Our Mission: FairVote is a nonpartisan champion of electoral reforms that give voters greater choice, a stronger voice, and a representative democracy that works for all Americans.
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This issue of OregonPEN — occurring right after the shattering of democratic norms represented by the current tax bill being rushed through the Congress — presents three chapters from the FairVote 2018 Monopoly Politics report. The full report is available from FairVote and deserves the widest possible attention.
The old classic about confusing cause and effect is the story of the rooster who bragged that the sun came up every morning just to hear his crowing. Money in politics is much the same — we see rivers of money flowing to the winners, and we think the winners must have won due to the rivers of money . . . not recognizing that the rivers go to the candidates who are likely to win whether any money is spent or not. This insight is one of the most persistently verified and yet overwhelmingly ignored truths of politics. Reformers love to point at campaign finance as “THE” cause of our problems, not recognizing that the design deficiencies of our election system — the way we design districts and elect a single representative from each — are the much deeper causes that gives money whatever (limited) influence it has over who makes it into the halls of power.
The Limited Impact of Money on Incumbent Success in the 2016 U.S. House General Elections
For decades, many reformers have viewed the role of money in elections as the greatest threat to American democracy. In the wake of the Supreme Court’s ruling in Citizens United, this belief has become even more pervasive.  While there are many ways that money might have a corrosive impact on the political process — such as buying access with legislators, funding primary challengers or influencing policy decisions — data from 2016 U.S. House races clearly suggest that campaign spending was not a decisive factor in the outcome of the vast majority of U.S. House general election races.
- The electoral impact of campaign spending in general elections is limited No more than a few percentage points separate candidates spending millions of dollars and those spending only tens of thousands.
- Spending by incumbents had no discernable impact on election outcomes. The results of our analysis suggest that only spending by challengers has a statistically significant relationship with their final share of the vote.
- Challenger spending has a weak relationship with election outcomes. While statistically significant, challenger spending was associated with a smaller effect on candidate vote shares than any of the other significant variables we examined.
- Money matters more in competitive races. However, candidate spending was still less impactful than other factors like district partisanship, party affiliation, and incumbents’ past performance.
As is explained in Chapter Three, “The Predictive Power of Partisanship,” fewer than 20 percent of U.S. House districts have been potentially competitive in recent elections. The hardening partisanship of voters and districts means that victory for one of the major party nominees in the remaining 80+ percent of House races is effectively out of reach, regardless of the amount of money they raise and spend. Even in competitive races, the impact of campaign spending, by candidates’ campaign committees, party committees, and independent outside spending, appears to be limited, with millions of dollars required for a candidate to buy anything more than a few percentage points in their final share of the vote.
Ultimately, the limited impact of campaign spending and the scarcity of competition in U.S. House elections mean that money was likely the decisive factor in only a handful of contests in 2016. Focusing solely on campaign spending overlooks inherent structural problems in our current winner-take-all electoral system that prevent competitive and representative U.S. House election outcomes.
Most of the academic work on the role of campaign spending in congressional elections comes from the 1990s or earlier, with authors generally concluding that money has a modest impact on outcomes, but disagreeing over whether the utility of spending extends to both challengers and incumbents, or to challengers alone. Others have suggested that even the modest effects attributed to campaign spending are a result of methodological problems, and that the true impact of campaign spending is in fact “extremely small.”
Whatever the impact of money on elections in the 1980s and 1990s, there is reason to believe that any advantage conferred by campaign spending in U.S. House elections might be smaller today than in the past. Over the last two decades, the number of competitive U.S. House elections has continued to decline, as voters today are far less likely either to “split” their tickets by voting for candidates from more than one party or to change their vote from one election to the next. With the increasing consistency of voters’ partisan preferences, fewer voters remain undecided as candidates mount their campaigns, and fewer voters are persuaded by the advertising and activity paid for with campaign funds.
Measuring the Impact of Campaign Spending in General Elections
To provide an updated assessment of the impact of campaign spending on election outcomes, we examine data from U.S. House races in 2016 and employ a regression analysis with variables measuring candidates’ spending (reported by the Center for Responsive Politics) and a range of other factors that can be expected to impact the outcomes of elections. Regression analysis can provide insights about the relative importance of these different factors, and can tell us if spending is still correlated with electoral success after taking these other possible explanations into account. Note that we exclude open seats from our model.
Our analysis suggests that campaign spending by incumbent candidates is not statistically significantly associated with their final share of the vote (Figures 4.1 and 4.2).
While this finding may seem counterintuitive, it is consistent with much of the previous research on the association between campaign spending and success in U.S. House elections.
Critics of this conclusion might argue that there are methodological issues that disguise the effects of incumbent spending on their vote share. For example, incumbents’ decisions about campaign spending are likely to be influenced by perceptions of their prospects for reelection. As a result, incumbents in tighter races may spend more than those who expect an easy victory, giving the appearance of a negative correlation between spending and incumbent performance, even if in reality its impact is positive. To control for this, our model includes a variable measuring candidates’ campaign expenditures as a proportion of funds raised, on the assumption that incumbents who view their reelection as threatened will likely spend more of their campaign funds on hand (in addition to other control variables, like district partisanship and incumbents’ past performance, that are themselves highly predictive of election outcomes).
The factors analyzed in our model:
- Total incumbent spending ($) (including spending by outside groups)
- Total challenger spending ($) (including spending by outside groups)
- Percent of funds (%) spent by incumbent
- Percent of funds (%) spent by challenger
- District partisanship
- Party of the incumbent
- Performance over partisanship of the incumbent in 2014 and in 2012
- Incumbent years in office
Challenger spending, on the other hand, does appear to play a significant role. Still, as Figures 4.1 and and 4.2 illustrate, the magnitude of this relationship is smaller than those between incumbent vote share and the other statistically significant variables in the model for all races, and is not completely determinative of outcomes even in the most competitive races. For ease of comparison, the results for the three continuous variables in Figure 4.1 are presented in terms of the impact of a one standard deviation increase in the value of the variable. Detailed explanation is offered in Figure 4.2.
A one standard deviation increase in the partisanship of the district (9.3 percentage points), in favor of the incumbent’s party, is associated with an increase of 6.2 percentage points in the incumbent’s share of the final two-party vote.
A one standard deviation increase in the variable measuring challenger spending, however, was associated with only a 3.1 percentage point reduction in the incumbent’s final share of the district vote. Relative to partisanship, challenger spending had a small impact on the outcome of the election.
Generally speaking, each dollar a campaign spends will be less effective than those spent before it. Consequently, like most other statistical analyses of the impact of campaign spending, our regression model uses the logarithm (base 10) of the value of candidates’ spending, rather than the raw amount, to account for the diminishing nature of returns on campaign expenditures. 
We estimate that the limited impact of challenger spending diminishes exponentially as their spending increases. For example, the mean level of challenger spending, $446,000, was associated with an improvement in vote share of about 3.8 percentage points over the vote share of a hypothetical challenger spending just $40,000. However, the model suggests that increasing this advantage by just one more percentage point would require spending almost twice as much ($850,000).
More Spending Yields More Votes in Competitive Races
The effects of challenger spending are more apparent in competitive races, but are also slightly lower, even as average challenger spending in these races is higher, further suggesting diminishing returns. Excluding districts with a partisanship of less than 44% or greater than 56% (safe districts) from out model produces different but consistent results. In competitive races, the relative magnitudes of the impact of the significant variables were much closer to one another, and challenger spending becomes the most significant variable. However, incumbent spending remained statistically insignificant to incumbent vote share.
As shown in Figure 4.3, a one standard deviation increase in our challenger spending variable retained comparable magnitude to the full model, while the predictive power and magnitude of most other variables significantly declined. Still, the magnitude of the effects on vote share associated with challenger spending remained low, and the continued relevance of partisanship as well as the increased significance of 2014 [performance over average candidate, or POAC] suggests that district fundamentals and candidate performance are still crucial in close races, despite the high significance of challenger spending.
Although returns on challenger spending in competitive races also appear to be subject to diminishing returns, the amounts of money spent in many of these races are large enough to be associated with meaningful shifts in the final two-party vote. The data suggest that the mean level of challenger spending in competitive races, $796,000, was associated with a 4.7% reduction in the incumbent’s final share of the vote relative to challengers spending $40,000.
However, due to diminishing returns, we estimate that the highest level of challenger spending observed in the sample of competitive races (over $4 million) generated only a 2.5 % increase in the challenger’s vote share over a candidate spending at the mean ($796,000).
Campaign Spending in Context
Our analysis shows that incumbent spending is not closely tied to the outcome of U.S. House elections when contested by an incumbent. Only challenger spending appears to be related to 2016 U.S. House election outcomes. This means that the only races in which our analysis clearly suggests that campaign spending may have affected the outcome are the eight elections in which a challenger defeated an incumbent. However, our model indicates that the high spending of these victorious challengers ($2.8 million on average) resulted in only a 1.2% increase in vote share over the spending of the average challenger in a competitive race($796,000). The vote share associated with each winning challenger’s spending also suggests that most would have won even if their expenditures were reduced to average levels.
While it is unfortunate that money would play a decisive role in any election over the ideological preferences of voters or the quality of candidates, the data suggest that campaign spending is not as influential in congressional elections as is commonly assumed. The eight races in which we estimate that campaign spending may have altered the final outcome in 2016 represent just 2% of the year’s 394 incumbent-contested U.S. House elections.
In these races, it appears that district partisanship, the national partisan swing of the election, and the incumbent’s recent electoral performance were the most immediate predictors of election outcomes. While it is true that winners of U.S. House elections nearly always outraise and outspend their opponents, our findings reinforce the view that this advantage is a result of donors making investments in candidates they see as likely winners, rather than a causal factor that explains their victories.
Still, methodological difficulties inherent in the measurement of the effects of campaign spending mean that these findings come with qualifications. For example, it may be that incumbent spending appears to be insignificant only because incumbents spend more when they expect a difficult election, reversing the link between spending levels and electoral outcomes. Our model attempts to control for this, but the control may be insufficient. Another factor, which we do not account for, is challenger quality. It may be that politically experienced challengers are both able to raise and spend more money, and achieve better electoral results creating a link between spending and results in our model that is in fact explained by this omitted factor.
Despite these difficulties, the magnitude of the relationship between campaign spending and electoral outcomes we observe is comparable to what has been found in previous studies. The key point, then, for those concerned about the state of American elections or exploring avenues for reform, is that campaign spending is not the primary driver of election results that it is sometimes made out to be. While money may have a wide range of pernicious effects on our political system, it is not to blame for uncompetitive elections and unrepresentative outcomes — its electoral impact only comes at the margins. Reformers looking to tackle these issues should focus on their most immediate cause — the inherent shortcomings of winner-take-all elections, exposed by an increasingly partisan political environment.