Oregon Advisory Opinions January 13, 1976: OAG 76-4 (January 13, 1976)

OAG 76-4.

The subject of what might be called a "diversionary" candidacy is addressed in ORS 260.412 and 260.452. ORS 260.412 provides in part:

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"(1) No person, acting either alone or with or through any other person, shall directly or indirectly subject any person to undue influence with the intent to induce any person to:

". . . .

". . . .

"(2) As used in subsection (1) of this section, 'undue influence' means force, violence, restraint or the threat thereof, inflicting injury, damage, harm, loss or the threat thereof, fraud or giving or promising to give money, benefits or other thing of value."

One of the elements of "undue influence" as defined above must exist in order for inducement of a diversionary candidate to be a violation of the statute. Otherwise ORS 260.412 is not violated.

ORS 260.452, however, provides:

"No person shall receive or pay money or other thing of value for becoming or refraining from becoming a candidate for nomination or election to public office, or by himself or in combination with any other person become a candidate for the purpose of defeating the nomination or election of any other person and not with a bona fide intent to obtain the office."

It thus appears that merely inducing another to become a diversionary candidate, without any payment or promise of money or other thing of value, would not be a violation of ORS 260.412. It would, however, be a violation of the second portion of ORS 260.452:

"No person shall . . . by himself or in combination with any other person become a candidate for the purpose of defeating the nomination or election of any other person and not with a bona fide intent to obtain the office."

The words "in combination with any other person" apparently attempt to describe and prohibit a conspiracy or agreement for one person to become a candidate for the prohibited purpose, rather than to contemplate that two persons must both become candidates in concert. The words would otherwise be unnecessary, since even without them each person becoming a candidate for the prohibited purpose would be in violation of ORS 260.452. It may be true that the language is too imprecise or ambiguous to justify imposition of criminal penalties on a person who merely induces the unlawful candidacy; but if so, the same conduct is also contrary to law under ORS 161.150 and 161.155, the latter of which provides:

"A person is criminally liable for the conduct of another person constituting a crime if:

". . . .

"(2) With the intent to promote or facilitate the commission of the crime he:

"(a) Solicits or commands such other person to commit the crime; or

"(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime; or . . . ."

Thus since it is a misdemeanor for a person to become a candidate for the sole purpose of defeating another candidate, the same crime is committed by another person who urges him to become a candidate for that sole purpose.

Payment of such a diversionary candidate's filing fee would be another method of aiding or abetting the unlawful candidacy, and arguably would also be a violation of the prohibition in the first part of ORS 260.452, of paying or receiving money or other thing

of value for becoming a candidate for nomination or election to public office. However, if applied literally this first portion of statute could prohibit the bona fide potential candidate from seeking pledges toward election expenses, including the filing fee, until after a final commitment to run. It frequently occurs that a potential candidate defers a decision on candidacy until after obtaining sufficient pledges; and supporters may with their pledges induce a person to run who otherwise would not. Applied to an otherwise valid candidacy, this portion of the statute would be valid, at most, only if limited to payment or acceptance of valuable inducements over and above anything which could be considered a campaign expense.

For the same reason, "giving or promising to give money" to reimburse any campaign expense, including the payment of a filing fee, could not be construed to be use of "undue influence" to induce a person to be a candidate in violation of ORS 260.412.

Thus urging and inducing another person to become a candidate for the sole purpose of defeating another candidate, and not with a bona fide intent to obtain the office, and aiding in that objective by payment of the filing fee, both constitute violations only of the second portion of ORS 260.452, and not of its first portion or of ORS 260.412.

Payment of a candidate's filing fee by an opponent, for any other purpose, would not be prohibited by ORS 260.452. The opponent may be paying it as an act of perceived "good sportsmanship" so that the additional candidate will not face the necessity of (or reap the supposed benefit of) a petition drive which would place his name on the ballot without payment of a

fee. Or it may be paid as a publicity gesture. In neither case is the person receiving the money necessarily making his candidacy dependent upon such payment.

The purpose of the diversionary candidacy and of the urging and support for it are critical. It is apparent that proof of such a purpose might be difficult. We must also point out at least the possibility that the statute could be held unconstitutional as an infringement of First Amendment rights. The statute is entitled to the benefit of the presumption of constitutionality. But every election sees candidates who have no expectation of election, and perhaps no desire to be elected, but who wish to have a wider hearing for the expression of their opposition to the leading candidate or candidates. In some cases, at least, they hope to draw votes from a candidate sufficient to cause his defeat. It seems unlikely that such a candidacy could constitutionally be held unlawful, and it is difficult to see how it can be distinguished under the statute from a candidacy induced by another candidate.