S056990, Opinion — State v. Moyer

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Argued and submitted September 18, 2009, decision of Court of Appeals affirmed;
judgment of circuit court reversed, and case remanded to circuit court for further
proceedings April 29, 2010

STATE OF OREGON,
Respondent on Review,
U.
THOMAS PAUL MOYER,
Petitioner on Review.
(CC 0409-35104; CA A128796 (Control))
STATE OF OREGON,
Respondent on Review,
v.
VANESSA COLLEEN STURGEON,
aka Vanessa Sturgeon,
aka Vanessa Colleen Kassab,
Petitioner on Review.
(CC 0409-35105; CA A128797)
STATE OF OREGON,
Respondent on Review,
v.
SONJA R. TUNE,
Petitioner on Review.
(CC 0409-35106; CA A128798)
(SC S056990)
230 P3d 7

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CJS, Constitutional Law § 601.

# En Banc

On review from the Court of Appeals .*

\* Appeal from Multnomah County Circuit Court, John A. Wittmayer, Judge.
225 Or App 81, 200 P3d 619 (2009).

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Ronald H. Hoevet, Hoevet, Boise & Olson P.C., Portland,
argued the cause for petitioner on review Vanessa Colleen
Sturgeon. With him on the joint briefs were Michael T.
Garone and David Axelrod, Schwabe, Williamson & Wyatt,
P.C., Portland; and Janet Lee Hoffman and Shannon
Riordan, Hoffman Angeli, LLP, Portland.

Erika L. Hadlock, Deputy Solicitor General, Salem,
argued the cause for respondent on review. With her on the
brief were John R. Kroger, Attorney General, and Jerome
Lidz, Solicitor General.

Linda K. Williams and Daniel W. Meek, Portland, filed a
brief on behalf of amici curiae Policy Initiatives Group, Joan
Horton, Ken Lewis, Bryn Hazel, Francis Nelson, Tom
Civiletti, David Delk, and Gary Duell.

Thomas M. Christ, Portland, filed a brief on behalf of
amicus curiae ACLU Foundation of Oregon, Inc.

DE MUNIZ, C. J.

The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

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State v. Moyer

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# DE MUNIZ, C. J.

Defendants are charged with violating ORS 260.402
(2003),1 which provided, in part, that "[n]o person shall make
a contribution to any other person, relating to a nomination
or election of any candidate or the support or opposition to
any measure, in any name other than that of the person who
in truth provides the contribution." Defendants demurred to
the indictment on the ground that the statute, on its face, vio-
lates the free expression clauses of Article I, section 8, of the
Oregon Constitution and the First Amendment to the United
States Constitution. The trial court agreed with defendants
and sustained the demurrer. The state appealed, and the
Court of Appeals reversed. State v. Moyer, 225 Or App 81, 200
P3d 619 (2009). We allowed defendants' petition for review
and, for the reasons that follow, affirm the decision of the
Court of Appeals.

Because the trial court sustained defendants' demur-
rer, the only relevant facts on review are those alleged in the
indictment. State v. Illig-Renn, 341 Or 228, 230 n 2, 142 P3d
62 (2006). The first count of the indictment states:

"The said defendants THOMAS PAUL MOYER and
VANESSA COLLEEN KASSAB, on or about May 16,
2003, in the County of Multnomah County, State of Oregon,
did unlawfully and knowinglly] make a contribution to a
candidate, in relation to his campaign for election to public
office, in a name other than * * * that of the person who in
truth provided the contribution, to-wit: by making a contri-
bution of $2,500 in the name of 'VANESSA KASSAB' to
Jim Francesconi in support of his campaign for the Mayor of

1 ORS 260.402 (2003) provided:

"No person shall make a contribution to any other person, relating to a
nomination or election of any candidate or the support or opposition to any
measure, in any name other than that of the person who in truth provides the
contribution. No person shall knowingly receive the contribution or enter or
cause it to be entered in accounts or records in another name than that of the
person by whom it was actually provided. However, if the contribution is
received from the treasurer of any political committee, it shall be sufficient to
enter it as received from the treasurer."

The statute has been amended since defendants were charged in this case. How-
ever, the wording changes in the current statute are not material to the issues in
this case. Unless otherwise noted, all references to ORS chapter 260 in this opinion
are to the 2003 version, which is the version that applies to this case.

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Portland, contrary to the statutes in such cases made and
provided and against the peace and dignity of the State of
Oregon[.]"

(Boldface and uppercase in original.) The second count
asserted the same charge against defendants Moyer and
Tune, based on a $2,000 contribution in the name of "Sonja
Tune." Defendants demurred to the indictment, contending
that ORS 260.402 unlawfully restrains expression and polit-
ical association and also is impermissibly vague and over-
broad. Although the trial court rejected the claim that the
statute is unconstitutionally vague, it sustained defendants'
demurrer, agreeing with defendants that the statute imper-
missibly restrains expression in violation of state and federal
constitutional free speech guarantees.

The state appealed, and defendants cross-assigned
error, asserting that the trial court erred when it concluded
that the statute was not unconstitutionally vague. As noted
above, the Court of Appeals reversed, issuing a plurality
opinion, two concurring opinions, and a dissenting opinion.
The plurality applied the methodology for analyzing free
expression challenges under Article I, section 8, set out in
State v. Robertson, 293 Or 402, 649 P2d 569 (1982). The plu-
rality first concluded that, because the only restriction ORS
260.402 imposes is that a person must truthfully report the
source of a campaign contribution, the statute is aimed at a
forbidden effect of the unlawful expression, not the content of
expression, and therefore must be analyzed under the second
Robertson category. Moyer, 225 Or App at 91-93. According to
the plurality, the legislature is entitled to enact election stat-
utes that impose penalties for misleading the public, and the
statute is not overbroad; therefore, the statute does not vio-
late Article I, section 8. Id. As an alternative holding, the plu-
rality analyzed the statute under the first Robertson cate-
gory, assuming that ORS 260.402 is a restraint on the
content of expression. Id. at 93. Under that Robertson cate-
gory, the plurality concluded that the statute did not violate
the free expression guarantee in Article I, section 8, because
it came within a historical exception for fraud or perjury.2 Id.
at 95.

2 There were two concurring opinions. Chief Judge Brewer and Judge
Edmonds agreed that ORS 260.402 was a Robertson category-two law, because it
focused on harmful effects and not on speech. Moyer, 225 Or App at 99 (Brewer,
C. J., concurring). Judge Schuman, however, concluded that ORS 260.402 prohibits

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With regard to defendants' First Amendment argu-
ment, the plurality relied on Buckley v. Valeo, 424 US 1, 96 S
Ct 612, 46 L Ed 2d 659 (1976), in which the United States
Supreme Court held that a statutory requirement that cam-
paign contributors disclose their identities does not violate
the First Amendment. Moyer, 225 Or App at 96-97. The plu-
rality reasoned that, under Buckley, a statutory requirement
that such a disclosure be truthful similarly did not violate the
First Amendment. Id.

Finally, the plurality rejected defendants' argument
that the statute is unconstitutionally vague, concluding that
the statute does not permit arbitrary or unequal application,
is not an unlawful delegation of too much discretion to law
enforcement, and provides fair warning of the conduct it pro-
hibits. Id. at 97-98.

The dissent rejected the plurality's Article I, section
8, analysis. The dissent concluded that ORS 260.402 regu-
lates the content of expression, because the statute regulates
"the making of a contribution." Id. at 106 (Sercombe, J., dis-
senting). The dissent further concluded that ORS 260.402
does not fit within any historical exception and therefore vio-
lates Article I, section 8, of the Oregon Constitution. Id. at
108-13 (Sercombe, J., dissenting).

On review, defendants assert that, because the stat-
ute does not specify the forbidden effects to which it is
directed, and because the presumed forbidden effects are not
identified in any related statute and are not elements of the
offense, the Court of Appeals mistakenly categorized ORS
260.402 as a Robertson second-category statute. Instead,
defendants argue that, because the statute regulates cam-
paign contributions, the statute directly restrains free
expression and therefore is a Robertson first-category stat-
ute. According to defendants, the statute also violates Article
I, section 8, because it is not wholly confined to any historical
exception to Oregon's free expression guarantee. Defendants
also reassert their claim that the statute similarly violates
the free speech guarantee of the First Amendment.

expression but concurred with the conclusion in the lead opinion that the statute is
a contemporary variant of a historical exception to free expression guarantees. 225
Or App at 99-100 (Schuman, J., concurring).

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To provide a complete understanding of the meaning
and effect of ORS 260.402, we begin with an examination of
its text and statutory context. The statute was originally
passed by voter initiative and became effective in 1908 as
part of the Corrupt Practices Act (Oregon Laws 1909, chapter
3), an initiative to limit candidates' election expenses and to
define, prevent, and punish corrupt and illegal practices in
nominations and elections. At that time, the statute
provided:

"No person shall make a payment of his own money or of
another person's money to any other person in connection
with a nomination or election in any other name than that
of the person who in truth supplies such money; nor shall
any person knowingly receive such payment or enter or
cause the same to be entered in his accounts or records in
another name than that of the person by whom it was actu-
ally furnished; provided, if the money be received from the
treasurer of any political organization it shall be sufficient
to enter the same as received from said treasurer."

(Emphasis in original.) The Corrupt Practices Act required
candidates to report all contributions, and was intended to
maintain the "purity" of the ballot and to prohibit illegal
practices in elections, whether a measure or a candidate was
involved. Nickerson v. Mecklem, 169 Or 270, 277, 126 P2d
1095 (1942). In an argument in support of the Act, the
People's Power League of Oregon stated that, among other
things,

"the secret use of money to influence elections [is] danger-
ous to liberty, because [it is] always used for the advantage
of individuals or special interests and classes, and never for
the common good. * * * The primary purpose of this bill is,
as nearly as possible, to prevent the use of any means but
arguments addressed to the voter's reason in the nomina-
tions and elections of Oregon."

Official Voters' Pamphlet, General Election, June 1, 1908,
103. Since then, the Corrupt Practices Act has required pub-
lic disclosure of campaign contributions and has prohibited
false name contributions like those alleged to be at issue
here. See, e.g., Oregon Code, title XXXVI, ch XXIV, § 36-2418
(1930) ("No person shall make a payment of his own money or
of another person's money to any other person in connection

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with a nomination or election in any name other than that of
the person who in truth supplies such money * * *. ").

Currently, ORS 260.402 is a part of ORS chapter
260, which addresses campaign finance regulation, reporting
requirements, election offenses, and enforcement. ORS
260.055(1) provides that all political candidates and treasur-
ers for political committees must "keep detailed accounts" of
contributions received and expenditures made by or on
behalf of the candidate or the political committee. At various
points during an election cycle, the candidates and political
committees are required to file statements of their contribu-
tions and expenditures with the appropriate "filing officer."
ORS 260.058; ORS 260.063; ORS 260.068; ORS 260.073;
ORS 260.076; ORS 260.083. Any contribution from a person
or campaign committee that "contributed an aggregate
amount of more than $50" must be listed in the statement
individually, along with the contributor's name, address, and
occupation. ORS 260.083(1)(a).3 "The statement may list as a
single item the total amount of other contributions, but shall
specify how those contributions were obtained." Id.

The filing officer is required to review the state-
ments of contributions and expenditures and notify candi-
dates or committees who have failed to file statements or
whose statements fail to comply with all statutory require-
ments. ORS 260.205; ORS 260.215. Failure to file a proper
statement of contributions and expenditures can lead to a
court order compelling a proper filing, ORS 260.225(1); to the
imposition of civil penalties, ORS 260.232; or even to the
removal of a candidate or measure from the ballot, ORS
260.241(2).

The filing officer is also required to preserve the filed
statements and may be required to prepare before each elec-
tion a summary of the filed statements, which is to be made
available to the public. ORS 260.255(1), (2). Those summa-
ries must list "all contributions of more than $50." ORS
260.255(3).

3 The statute was amended in 2007 and now provides similar requirements for
contributors in "an aggregate amount of more than $100."

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As noted, ORS 260.402 (2003) provided, in part, that
"[n]o person shall make a contribution to any other person,
relating to a nomination or election of any candidate or the
support or opposition to any measure, in any name other
than that of a person who in truth provides the contribution."

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

"(A) The payment, loan, gift, forgiving of indebted-
ness, or furnishing without equivalent compensation or
consideration, of money, services other than personal serv-
ices for which no compensation is asked or given, supplies,
equipment or any other thing of value:

"(i) For the purpose of influencing an election for pub-
lic office or an election on a measure, or of reducing the debt
of a candidate for nomination or election to public office or
the debt of a political committee; or

"(ii) To or on behalf of a candidate, political committee
or measure; and

"(B) Any unfulfilled pledge, subscription, agreement
or promise, whether or not legally enforceable, to make a
contribution."

Thus, the text and context of ORS 260.402 make it clear that
the statute prohibits an actual or promised transfer of
money, certain services, or things of value, either to a politi-
cal campaign or for purposes of influencing an election for
public office or an election on a measure, "in any name other
than that of the person who in truth provides the contribu-
tion." As noted, according to defendants, that statutory pro-
hibition impermissibly restrains expression in violation of
Article I, section 8. We turn to that claim.

Article I, section 8, of the Oregon Constitution,
provides:

"No law shall be passed restraining the free expression
of opinion, or restricting the right to speak, write, or print
freely on any subject whatever; but every person shall be
responsible for the abuse of this right."

In State v. Plowman, 314 Or 157, 163-64, 838 P2d
558 (1992), cert den, 508 US 974 (1993), the court summa-
rized the framework established in Robertson to analyze free

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expression challenges under Article I, section 8. First, laws
that are directed to the substance of any opinion or any sub-
ject of communication violate Article I, section 8,

" 'unless the scope of the restraint is wholly confined within
some historical exception that was well established when
the first American guarantees of freedom of expression
were adopted and that the guarantees then or in 1859
demonstrably were not intended to reach.'"

Plowman, 314 Or at 164 (quoting Robertson, 293 Or at 412).
Second, laws that focus on proscribing the pursuit or accom-
plishment of forbidden results are divided further into two
categories: (a) laws that focus on forbidden effects, but
expressly prohibit expression used to achieve those effects,
which are analyzed for overbreadth; and (b) laws that focus
on forbidden effect, but do not refer to expression at all, which
are analyzed for vagueness or for as-applied unconstitution-
ality. Plowman, 314 Or at 164.

Our first task, then, is to determine whether the
statute is "written in terms directed to the substance of any
'opinion' or any 'subject' of communication." Robertson, 293
Or at 412. As noted, ORS 260.402 is violated by an actual or
promised transfer of money, services, or thing of value,
directly or indirectly to a political campaign, "in any name
other than that of the person who in truth provides the
contribution."

As the Court of Appeals plurality observed in this
case, describing the Robertson framework is not difficult;
however, determining "the line between a [Robertson] first-
category regulation (one that targets the content of speech)
and a [Robertson] second-category regulation (one that tar-
gets only the harmful effects of speech) has proved somewhat
elusive." 225 Or App at 89. The debate over whether ORS
260.402 is a Robertson category-one statute because it
restricts campaign contributions-the dissenting view-or
whether the statute is a Robertson category-two statute
because it focuses on a forbidden effect but prohibits expres-
sion used to achieve that effect-the plurality view-was one
of the issues (in addition to the disagreement over the appli-
cability of a historical exception) that splintered the Court of
Appeals.

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Much of the debate in the Court of Appeals appears
to have been prompted by conflicting signals from this court
in at least two respects. First, the parties and the judges of
the Court of Appeals disagreed about the meaning, effect,
and application of certain statements by this court in
Vannatta v. Keisling, 324 Or 514, 523, 921 P2d 770 (1997)
(Vannatta I). We acknowledge that this court's various state-
ments in Vannatta I to the effect that campaign contributions
are constitutionally protected forms of expression by the
political contributors could be understood to mean that, in
every instance, the delivery to a candidate or campaign of a
contribution is constitutionally protected expression. How-
ever, we recently clarified those statements in Vannatta v.
Oregon Government Ethics Comm., 347 Or 449, 465, 222 P3d
1077 (2009) (Vannatta II). In Vannatta II we pointed out
that, Vannatta I had "assumed a symbiotic relationship
between the making of contributions and the candidate's or
campaign's ability to communicate a political message," for
purposes of that case, however, the court had not decided
that, "in every case, the delivery to a public official, a candi-
date, or a campaign of money or something of value also is
constitutionally protected expression as a matter of law." 347
Or at 465.

Second, the Court of Appeals plurality noted this
court's statement in City of Portland v. Tidyman, 306 Or 174,
185-86, 759 P2d 242 (1988), that, to qualify as a Robertson
category-two statute-a statute that focuses not on speech
but on harmful effects-the operative text must "specify
adverse effects" targeted by the legislature. Moyer, 225 Or
App at 89. However, in Vannatta I, this court commented
that, "[e]ven when the statute does not, by its terms, target a
harm, a court may infer the harm from context." 324 Or at
536. That statement in Vannatta I was based on this court's
analysis of the statute at issue in State v. Stoneman, 323 Or
536, 545-47, 920 P2d 535 (1996). In Stoneman, this court
stated that, in determining the nature of the harmful effect
targeted by a statute, the statute cannot be read in a vacuum:
"An examination of the context of a statute, as well as of its
wording, is necessary to an understanding of the policy that
the legislative choice embodies." Id. at 546 (emphasis in orig-
inal). Consistently with this court's statement in Tidyman,

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the court's contextual analysis in Stoneman established that
the statute at issue in that case "prohibited the purchase of
certain communicative materials, not in terms of their com-
municative substance, but in terms of their status as the
products of acts that necessarily have harmed the child partic-
ipants." 323 Or at 548 (first emphasis in original; second
emphasis added). In our view, Stoneman correctly states that
a statute should not be read in isolation, and that the legis-
lature's policy choice (the harm that is the target of the
criminal prohibition) in some cases may be determined not
only from the statute's text, but also from its context. That
said, we now analyze ORS 260.402 under the Robertson
methodology.

As noted, defendants are charged with "knowing[ly]"
violating the part of ORS 260.402 that states that "[n]o per-
son shall make a contribution to any other person, * * * in
any name other than that of the person who in truth provides
the contribution." In Vannatta I, this court observed that not
every law related to the regulation of political campaign con-
tributions and expenditures runs afoul of Article I, section 8:

"[L]awmakers [may] choose to impose requirements distinct
from contribution or expenditure limitations (e.g., require-
ments of disclosure of financing sources and the extent of
any gift) as well as various sanctions (e.g., civil or criminal
penalties, disqualification from the ballot or Voters'
Pamphlet, and the like) and their choice may not necessar-
ily offend the constitutional requirement."

Vannatta I, 324 Or at 523 (first emphasis added; second
emphasis in original). On its face, ORS 260.402 seems more
akin to the kind of statutes described in Vannatta I that do
not offend the Article I, section 8, expression guarantee. The
statute imposes no restriction on what any person may say,
whether contributor, campaign agent, or candidate. More-
over, as we explained in Vannatta II, defendants' argument
that the delivery of gifts, money, or services is expression in
every case is incorrect.

Robertson makes it clear, however, that statutes
that impose criminal sanctions for deception that can be

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accomplished only through expression violate Article I, sec-
tion 8, unless they fall within some well-established histori-
cal exception to free expression guarantees. Id., 293 Or at 412
(listing examples such as "perjury, solicitation or verbal
assistance in crime, some forms of theft, forgery and fraud
and their contemporary variants"). Here, ORS 260.402 pro-
hibits communicating a name to the recipient of the contri-
bution when that name is not the name of "the person who in
truth provides the contribution." In other words, the falsity
that the statute prohibits can only be achieved through
expression-through one person's communication of a false-
hood to another person. It is for that reason that the statute
must be classified as a Robertson category one law.4 As a
result, ORS 260.402 violates Article I, section 8, unless the
statute falls within a historical exception as described in
Robertson. We turn to that question.

In Robertson, this court recognized that historical
exceptions to Article I, section 8, were not restricted solely to
the actual statutes or the common law in place when the
Oregon Constitution was adopted. Instead, the court recog-
nized that successive legislatures would continue to revise
crimes and other laws and create new crimes and laws in the
light of societal changes and needs:

"The legislature, of course, may revise these crimes and
extend their principles to contemporary circumstances or
sensibilities. If it was unlawful to defraud people by crude
face-to-face lies, for instance, free speech allows the legis-
lature some leeway to extend the fraud principle to sophis-
ticated lies communicated by contemporary means. Consti-
tutional interpretation of broad clauses locks neither the
powers of lawmakers nor the guarantees of civil liberties into

4 The Court of Appeals plurality concluded that the statute is directed, not at
the expression itself, but at the harmful effects of expression (concealing from the
recipient and the public the true identity of a contributor). The difficulty, however,
is that, although the statute is directed against concealing the identity of a contrib-
utor, the law is violated whether or not the recipient of the contribution or the pub-
lic actually is misled about the identity of the contributor. In other words, the stat-
ute is violated when the contribution is made, whether or not any harmful effect
occurs. Because the targeted effects are not expressed in the statute, and because,
unlike the statute at issue in Stoneman, the targeted harm need not occur to vio-
late the statute, the statute cannot be classified under the Robertson methodology
as a category-two law.

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their exact historic forms in the 18th and 19th centuries, as
long as the extension remains true to the initial principle."

Robertson, 293 Or at 433-34 (emphasis added).

Whether a statute that restrains expression is
"wholly confined within some historical exception" requires
the following inquiries: (1) was the restriction well estab-
lished when the early American guarantees of freedom of
expression were adopted, and (2) was Article I, section 8,
intended to eliminate that restriction. State v. Henry, 302 Or
510, 515-25, 732 P2d 9 (1987).

As with the question whether the statute is a
Robertson category-one or category-two law, the parties and
the Court of Appeals disagree whether ORS 260.402 qualifies
as a contemporary variant of some well-recognized restric-
tion on expression at the time that Article I, section 8, was
adopted. In that regard, the state takes the position that ORS
260.402 is a contemporary variant of the historical prohibi-
tion against fraud, forgery, and perjury involving false com-
munication that preceded the adoption of Article I, section 8.
Although defendants agree that such restrictions were in
place before the adoption of the Oregon Constitution, they
contend that ORS 260.402 cannot be considered a modern
variant of common-law fraud, because it "contains none of the
traditional elements of fraud."" According to defendants,
unlike common-law fraud, ORS 260.402 does not require that
a representation be made in connection with the contribu-
tion; the statute does not contain an intent-to-deceive ele-
ment; the statute is not limited to material misrepresenta-
tions; and the statute does not require reasonable reliance or
injury in fact.6 We are not persuaded. For the following rea-
sons, we conclude that ORS 260.402 falls within a historical
exception to Article I, section 8.

5 Defendants also argue that the statute is not a modern variant of perjury,
false swearing, or forgery achieved through false communication. Because we con-
clude that ORS 260.402 is a modern variant of fraud and therefore is within a his-
torical exception, we need not address defendants' arguments regarding perjury,
false swearing, or forgery.

6 According to defendants, proof of fraud requires a showing that (1) the
accused falsely represented a material fact; (2) the accused knew the representa-
tion was false; (3) the representation was made with the intent to induce the recip-
ient to act or refrain from acting; (4) the recipient justifiably relied on the misrep-
resentation; and (5) the recipient was damaged by that reliance.

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First, in his Commentaries on the Laws of England,
William Blackstone recognized that misrepresentations that
contributed to "public inconvenience" were actionable
offenses. In the volume entitled "Of Public Wrongs,"
Blackstone wrote:

"The vice of lying, which consists (abstractedly taken) in a
criminal violation of truth, and therefore in any shape is
derogatory from sound morality, is not however taken
notice of by our law, unless it carries with it some public
inconvenience, as spreading false news; or some social
injury, as slander and malicious prosecution, for which a
private recompense is given."

William Blackstone, 4 Commentaries on the Laws of England
*41-42 (1769) (emphasis added). At that time, the "public
inconvenience" associated with misrepresenting one's iden-
tity in court or before a public official was considered grievous
and was classified as a felony under English law. In his sec-
tion on offenses against public justice, Blackstone noted:

"Likewise by statute 21 Jac. I. c. 26 to acknowledge any
fine, recovery, deed enrolled, statute, recognizance, bail, or
judgment, in the name of another person not privy to the
same, is felony without benefit of clergy. Which law extends
only to proceedings in the courts themselves: but by statute
4 W. & M. c. 4 to personate any other person [before any]
commissioner authorized to take bail in the country, is also
felony. For no man's property would be safe, if records might
be suppressed or falsified, or persons' names be falsely
usurped in courts, or before their public officers."

Blackstone, 4 Commentaries at *127 (emphasis added).
Given Blackstone's observations that providing false identi-
fying information to governmental officials or public bodies
were sanctionable offenses, it is unlikely that the framers of
the United States Constitution or the Oregon Constitution
considered that kind of false communication a form of consti-
tutionally protected expression.

In Oregon, misrepresentations made with intent to
injure or defraud, somewhat like those described by
Blackstone, were statutorily prohibited as criminal acts as
early as 1864, only five years after the adoption of the Oregon
Constitution in 1859. That early statute covered a variety of

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misrepresentations, including those aimed at defrauding
individuals and the "body politic."7 See General Laws of
Oregon, Crim Code, ch LIII, § 727, pp 577-78 (Deady 1845-
1864) (so stating). The 1864 statute provided:

"If any person shall, with intent to injure or defraud any
one, falsely make, alter, forge or counterfeit any public rec-
ord whatever, or any certificate, return or attestation of any
clerk, notary public or other public officer, in relation to any
matter wherein such certificate, return or attestation may
be received as legal evidence, or any note, certificate or
other evidence of debt issued by any officer of this state, or
any county, town or other municipal or public corporation
therein, authorized to issue the same, or any contract, char-
ter, letters patent, deed, lease, bill of sale, will, testament,
bond, writing obligatory, undertaking, letter of attorney,
policy of insurance, bill of lading, bill of exchange, promis-
sory note, evidence of debt, or any acceptance of a bill of
exchange, endorsement or assignment of a promissory note,
or any warrant, order or check, or money, or other property,
or any receipt for money or other property, or an acquit-
tance or discharge for money or other property, or any plat,
draft or survey of land, or shall, with such intent, knowingly
utter or publish as true and genuine, any such false, altered,
forged or counterfeited record, writing, instrument or matter
whatever, such person, upon conviction thereof, shall be
punished by imprisonment in the penitentiary, not less
than two, nor more than twenty years."

7 Although the term "defraud" was undefined within the 1864 statute, lawyers
of the day would have understood that a variety of meanings could be attached to
the term. A contemporaneous legal dictionary of the period, defining "fraud" and
"to defraud" together in the same passage, provided, among other meanings:

"4. Frauds may be also divided into actual or positive and constructive
frauds.

"5. An actual or positive fraud is the intention and successful employment
of any cunning, deception, or artifice, used to circumvent, cheat, or deceive
another. * * *

"6. By constructive fraud is meant such a contract or act, which, though
not originating in any actual evil design or contrivance to perpetrate a positive
fraud or injury upon other persons, yet by its tendency to deceive or mislead
them, or to violate private or public confidence, or to impair or injure the public
interests, is deemed equally reprehensible with positive fraud, and therefore,
is prohibited by law, as within the same reason and mischief as contracts and
acts done malo animo."

John Bouvier, 1 Law Dictionary 547 (9th ed 1860) (emphasis in original; internal
citations omitted).

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General Laws of Oregon, Crim Code, ch XLV, § 584, pp 545-46
(Deady 1845-1864) (emphasis added).

The 1864 statute prohibiting various forms of false
communication, consistent with Blackstone's observations, is
a further demonstration of the unlikelihood that the framers
of the Oregon Constitution-many of whom were serving
in the legislature when the 1864 statute was enacted-
considered false communication in connection with public
records and matters of legitimate governmental concern to be
protected by Article I, section 8's guarantee of the free expres-
sion of opinion.8

Second, this court previously has upheld campaign
laws providing sanctions and penalties for political candi-
dates who mislead the public or engage in fraud. Vannatta I,
324 Or at 544. In Vannatta I, this court upheld, as within a
historical exception, a provision of a ballot measure providing
that, when a candidate reneges on a promise not to exceed a
specified amount of campaign expenditures, the Secretary of
State is required to publish in the Voters' Pamphlet a bold-
print notice that the candidate failed to abide by his or her
promise. The court described a candidate who reneges on his
or her promise as one who "has misled the electorate" and
stated that "[l]aws that are targeted at fraud do not violate
Article I, section 8, because they constitute a historical excep-
tion to Article I, section 8." Id.

Despite this court's observation in Vannatta I, defen-
dants argue strenuously that, because ORS 260.402 does not
contain an intent-to-deceive element, the statute cannot be
considered a modern variant of common-law fraud. We have
two responses. First, we note that here the indictment alleges
that defendants "knowing[ly]" made "a contribution to a can-
didate * * * in a name other than * * * that of the person who
in truth provided the contribution." Necessarily, then, the
state will be required to prove at trial that defendants acted
with an awareness that their conduct was of a "nature so
described or that a circumstance so described exists." See

8 A cursory review of the Oregon Revised Statutes reveals at least 150 statutes
that impose sanctions and punishments for various forms of false communication.
In particular, many of those statutes involve the communication of identifying
information in one form or another to governmental entities.

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ORS 161.085(8) ("knowingly" or "with knowledge," when
used with respect to conduct or to a circumstance described
by a statute defining an offense, means that a person acts
with an awareness that the conduct of the person is of a
nature so described or that a circumstance so described
exists).9

Second, this court already has held that a statute
that prohibits fraud on the electorate need not include an
intent element to come within a historical exception.
Vannatta I upheld the constitutionality of a provision requir-
ing the public identification of candidates who broke expen-
diture-cap promises, even though that provision did not
require that the deceit have been intentional:

"The fact that a candidate may have intended to abide
by expenditure limitations when he or she made the pledge,
and only later decided to ignore that promise, does not
make the failure to abide by the promise any less a fraud on
the voters who have relied on the candidate's Voters'
Pamphlet statement to choose their candidate."

324 Or at 544 n 28.

In our view, there is no important difference
between statutes requiring the public identification of candi-
dates who violate expenditure-cap pledges, statutes prohib-
iting candidates from making material misstatements dur-
ing campaigns, and the statutory requirement in ORS
260.402 that the identification of political contributors be
truthful. As our cases establish, the elements of a modern
statute need not be identical or matched perfectly with his-
torical prohibitions to fall within a historical exception. Pro-
hibiting the concealment of the identity of the true provider
of a political contribution from either the recipient of the con-
tribution, the public, or both, is, we conclude, an extension or
modern variant of the initial principle that underlies the
historic legal prohibition against deceptive or misleading
expression. Thus, in our view, ORS 260.402 falls within a
"historical exception," whether the exception is described as
one related to misleading the electorate, as identified in

9 Whether it would be permissible under Article I, section 8, to punish a con-
tributor for inadvertently making a contribution in the name of another person is a
question not presented in this case.

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Vannatta I, or simply is described as a contemporary variant
of the exception for common-law fraud. Because the restric-
tion on making a contribution using another person's name
in ORS 260.402 falls within a historical exception, the statute
does not violate Article I, section 8, of the Oregon
Constitution.

We turn to defendants' other arguments. Defendants
assert that the statute violates the First Amendment to the
United States Constitution because it is overbroad, in that it
criminalizes contributions made in another's name without
requiring the intent to deceive.

As we noted in Vannatta I, 324 Or at 521, the United
States Supreme Court takes a different approach to expres-
sion challenges under the First Amendment than this court
does with regard to expression challenges under Article I,
section 8. In Buckley v. Valeo, the United States Supreme
Court determined that political expenditures and contribu-
tions were forms of expression under the First Amendment,
but also concluded that contributions were less central to core
First Amendment expression, and therefore could be subject
to governmental restriction through a balancing-of-interests
analysis. 424 US at 28-29. The court in Buckley concluded
that contributions are a less-protected form of expression
than are expenditures, based on two assumptions about con-
tributions: (1) although contributions may result in speech,
that speech is by the candidate and not by the contributor;
and (2) contributions express only general support for a can-
didate and do not communicate the reasons for that support.
Buckley, 424 US at 21. Relying on those assumptions, the
Supreme Court concluded that a statutory requirement that
campaign contributors disclose their identities did not violate
the First Amendment, because the disclosure requirement
was narrowly limited to those situations in which the infor-
mation sought had a substantial connection with the govern-
mental interests to be advanced; that is, "disclosure helps
voters to define more of the candidates' constituencies." Id. at
81. The Court explained that "[t]he burden imposed by [dis-
closure] is no prior restraint, but a reasonable and minimally
restrictive method of furthering First Amendment values by
opening the basic processes of our federal election system to

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public view." Id. at 82. See also Citizens United v. Federal
Election Commission, _ US_, 130 S Ct 876 (2010)
(campaign expenditure disclosure and disclaimer require-
ments do not unconstitutionally restrain speech; such require-
ments provide the electorate with information and insure
that the voters are fully informed as to who is speaking). A
law that forbids making a contribution using another per-
son's name is not, in our view, more burdensome than a law
like the one at issue in Buckley, requiring disclosure of the
identity of the contributor in the first instance. We therefore
conclude that ORS 260.402 does not violate the First
Amendment.10

Finally, we turn to defendants' contention that ORS
260.402 is unconstitutionally vague under Article I, sections
20 and 21, of the Oregon Constitution and the First and
Fourteenth Amendments to the United States Constitution.
Defendants argue that the statute provides insufficient
notice of the criminalized conduct, delegates too much discre-
tion to law enforcement, and has a chilling effect on protected
speech.

10 Defendants also argue that the statute is overbroad, because it criminalizes
speech that would not deceive the electorate. Defendants observe that ORS
260.402 criminalizes all contributions made in another person's name, regardless
of the dollar amount contributed. Defendants assert, however, that ORS 260.083
does not require statements of contributions and expenditures to report the iden-
tity of contributors who contribute less than a specific dollar amount ($50 in 2003).
Therefore, defendants contend, ORS 260.402 criminalizes some speech that could
not deceive the public-contributing $50 or less under a false identity-because the
false identity would never be disclosed to the public.

Defendants' reasoning misses an important point, however. The $50 limit in
ORS 260.083 is not the amount of a single contribution-it is the total dollar
amount contributed by a particular individual. ORS 260.083 required the state-
ment of contributions and expenditures to "list the name, occupation and address
of each person * * * that contributed an aggregate amount of more than $50."
(Emphasis added.) By making the disclosure of the contributor's identity turn on
the aggregate amount contributed, the statute prohibits contributors from conceal-
ing their identity by breaking contributions into amounts of $50 or less.

One cannot determine whether a contributor's aggregate contributions exceed
$50 without knowing the identities of all contributors, including those who contrib-
uted $50 or less. To comply with ORS 260.083, then, the party required to file the
statement of contributions and expenditures must know the true identities of all
contributors, whether or not their individual contributions exceed $50. Thus, a
false representation as to the identity of a contributor-regardless of the amount of
the contribution-deceives the filing party and interferes with the proper opera-
tion of ORS 260.083.

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Regarding a vagueness challenge under the Oregon
Constitution, this court stated in State v. Graves, 299 Or 189,
195, 700 P2d 244 (1985), that:

"[A] criminal statute must not be so vague as to permit a
judge or jury to exercise uncontrolled discretion in punish-
ing defendants, because this offends the principle against
ex post facto laws embodied in Article I, section 21, of the
Oregon Constitution. The equal privileges and immunities
clause is also implicated when vague laws give unbridled
discretion to judges and jurors to decide what is prohibited
in a given case, for this results in the unequal application of
criminal laws. A criminal statute need not define an offense
with such precision that a person in every case can deter-
mine in advance that a specific conduct will be within the
statute's reach. However, a reasonable degree of certainty
is required by Article I, sections 20 and 21."

(Internal citations and footnote omitted.)

This court has also stated that "absolute precision is
not required to overcome a facial vagueness challenge." Illig-
Renn, 341 Or at 243. Here, defendants assert that the statu-
tory phrases "relating to" and "in truth provides" are not ade-
quately defined by common usage or context. Defendants
argue that, as a result, the statute could reach any donation
that "eventually serves to benefit a measure or campaign."
According to defendants, the words "relating to" are so broad
that the statute criminalizes a person's decision to pick up
the dinner tab when the person and his or her friends "decide
if they should encourage a person to run for a local office." We
disagree with defendants. The phrase "relating to" must be
read in the context of the entire statute. For the convenience
of the reader, we again set out the text of ORS 260.402, which
provided, in part:

"No person shall make a contribution to any other person,
relating to a nomination or election of any candidate or the
support or opposition to any measure, in any name other
than that of the person who in truth provides the
contribution."

"Contribution" is defined by ORS 260.005(3), which
we quoted earlier. (Exceptions to the definition of "contribu-
tion" are set out in ORS 260.007.) The phrase "relating to"

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thus ties "contribution" to only transfers made "[f]or the
purpose of influencing an election for public office or an
election on a measure, or of reducing the debt of a candi-
date for nomination or election to public office or the debt
of a political committee," or payments made "[t]o or on behalf
of a candidate, political committee or measure[.]" ORS
260.005(3)(a)(A)(i), (ii). In addition, by using the present-
tense phrase "relating to," the legislature established that
the contribution must relate to a candidate or measure at the
time it is made. See Martin v. City of Albany, 320 Or 175, 181,
880 P2d 926 (1994) ("[t]he use of a particular verb tense in a
statute can be a significant indicator of the legislature's
intention"). Thus, contributions "relating to" a candidate or
measure are those that are made to the candidate or to the
campaign supporting a measure, or for the purpose of influ-
encing an election.

Defendants also challenged the phrase "in truth pro-
vides" as vague. Again, we disagree. ORS 260.402 provides
that a person who makes a contribution "in any name other
than that of the person who in truth provides the contribu-
tion" violates the statute. Because the statute applies only to
contributions made in the name of a specific person, the stat-
ute applies only when money has been contributed "in" some-
one's "name"-that is, when the contribution is attributed to
a specific person.11 When read as a whole, the statute pro-
vides adequate notice of what conduct is proscribed, and thus
is not impermissibly vague in violation the Oregon
Constitution.

11 Because ORS 260.402 applies only to those contributions that are made in
someone's name, it does not criminalize anonymous contributions. However, ORS
260.083 requires that committees disclose the names and addresses of all individ-
uals and entities that contribute more than the threshold reporting amount.
Accordingly, the Secretary of State's administrative rules require campaigns to
refuse or to disgorge contributions for which campaigns cannot provide that infor-
mation-those funds that are donated anonymously. See 2010 Campaign Finance
Manual at 29 ("No committee shall accept an anonymous contribution. If a com-
mittee cannot identify a contributor, the contribution must be donated to an organ-
ization that can accept anonymous contributions."); OAR 165-012-0005 (designat-
ing Campaign Finance Manual and associated forms "as the procedures and
guidelines to be used for compliance with Oregon campaign finance regulations").
This case does not involve anonymous contributions, and we do not address
whether Article I, section 8, would prevent the legislature from prohibiting anon-
ymous campaign contributions.

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In assessing a claim that a criminal statute fails to
give fair warning under the United States Constitution, we
adhere to the standard that federal courts have applied to
criminal and quasi-criminal statutes-whether the statute
would " 'give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited so that he may act
accordingly.'" Illig-Renn, 341 Or at 241 (quoting Grayned v.
City of Rockford, 408 US 104, 108, 92 S Ct 2294, 33 L Ed 2d
222 (1972)). As we explained above, when read as a whole,
the statute provides adequate notice of what conduct is pro-
scribed. Accordingly, we conclude that ORS 260.402 gave
adequate notice that it is unlawful to make a contribution
using another person's name. Therefore, we reject defen-
dants' vagueness challenge.

The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.