One piece of unexpected legislation during this session was introduced by the Senate Majority leader on behalf of the firefighter’s union. Concerned that they could no longer run their annual “fill the boot” campaigns to raise money for muscular dystrophy by soliciting contributions from drivers along the roadways, the firefighters introduced SB 1084. The reason for this proposal has a lot to do with previous ACLU of Oregon successful litigation.
In the past, laws related to roadside solicitation have been used to bar individuals from asking for personal donations while allowing others to engage in the same activity unencumbered, depending on their purpose. It’s interesting to note that there was no testimony from the firefighters that they had ever been stopped from running their “fill the boot” campaigns.
In 1996, the ACLU represented a man who was cited under Oregon law for unlawful solicitation on or near a highway. The law made it illegal to solicit “on or near a highway if the person was soliciting for employment, business, selling or soliciting contributions.” The Oregon Court of Appeals held in our favor in a three sentence decision noting that the state conceded that the law violated Article I, section 8 of the Oregon Constitution, our Free Expression provision.
Despite that ruling in 1996, local governments continued to enforce this law against those asking for money (but not others). After a number of legal challenges where local governments were required to pay damages and attorney fees because they were enforcing a clearly unconstitutional law, the Oregon legislature repealed the state law in 2005.
After discovering that change, the firefighters submitted SB 1084 for this session providing a special exemption to allow a person who “is a member of a group” and is soliciting contributions “on behalf of the group as part of a fundraising drive for the benefit of an organization” to be on a roadway.
This proposal was facially unconstitutional. Free speech rights (to ask for money, or ask to have a petition signed, to join an organization, to vote for a candidate) cannot be given only to certain people for certain purposes. Here, SB 1084 was doing just that by limiting it to individuals who were members of a group and raising money on behalf of that group as part of a fundraising drive. We testified against SB 1084 raising this issue. Recognizing that the bill was unconstitutional, it was amended to allow for all persons to solicit. However, the legislation still requires a person to obtain a permit and obtain liability insurance in an amount of not less than $1 million. While that requirement is neutral on its face, we still believe it is intended to limit this activity to the firefighters’ campaign. Most individuals cannot secure an insurance policy for $1 million and most groups would only be able to obtain one at a significant cost for each use, whether or not they were trying to raise money or urge voters to oppose a ballot measure or sign an initiative petition, neither of which are fundraising efforts.
We continued to express our opposition but were unsuccessful and the bill passed. We will be carefully reviewing the rules that the Oregon Department of Transportation drafts in compliance with the new law. They testified they would seek the counsel of the firefighters union in preparing rules, which seems to support the argument that this law was and continues to be intended for one group only.
SB 1084 passed the Senate (24-6) and the House (40-15).
