VAN HOOMISSEN, J.
This original proceeding consolidates three challenges to a certified ballot title for a proposed initiative measure to amend the Oregon Constitution. If approved by the voters, the amendment would exempt laws regulating the financing of election campaigns from the provisions of Article I, sections 8 and 26, of the Oregon Constitution. We modify the certified ballot title.
The proposed initiative measure provides:
“Be It Enacted by the People of the State of Oregon:
“PARAGRAPH 1.
Section 8, Article II of the Constitution of the State of Oregon is amended to read:
“Sec. 8. (1) The Legislative Assembly shall enact laws to support the privilege of free suffrage, prescribing the manner of regulating, and conducting elections, and prohibiting under adequate penalties, all undue influence therein, from power, bribery, tumult, and other improper conduct. [-]
“(2) Notwithstanding Article I, section 8 and Article I, section 26, of this Constitution, the people, as provided in this Constitution, or the Legislative Assembly may enact laws regulating the financing of election
campaigns,”
The Attorney General certified the following ballot title to the Secretary of State pursuant to ORS 250.067(2):
“EXEMPTS ELECTION FINANCE LAWS FROM CONSTITUTIONAL FREE EXPRESSION, ASSEMBLY PROTECTIONS
“Question: Shall election campaign finance laws be exempted from the Oregon Constitution’s prohibitions against laws restraining free expression or free assembly?
“Explanation: Amends state constitution. The measure would allow voters and the legislature to enact laws regulating
election campaign financing that currently would be prohibited by the state constitution’s free expression and free association provisions. Exempts laws that regulate the financing of election campaigns from the effect of Article I, section 8, which prohibits laws that restrain free expression of opinion. Also exempts such laws from Article I, section 26, which prohibits laws that restrain free assembly or access to legislative representatives or the legislature.”
All petitioners timely submitted written comments on the Attorney General’s draft ballot title; therefore, they may seek a different title. ORS 250.085(2) and (5).
We review the certified ballot title for substantial compliance with the requirements of ORS 250.035
and ORS 250.039,
infra.
ORS 250.085(4).
Each petitioner contends that the certified ballot title fails to comply with ORS 250.035 in various respects. We shall not identify or discuss at length contentions that are not
well taken.
Nelson v. Roberts,
308 Or 417, 421 n 1, 781 P2d 344 (1989).
Petitioner Deras argues that the certified ballot title’s caption and question, which state that the measure “exempts” certain laws from “protections” or “prohibitions * * * restraining,” use “confusing double or triple negatives which really mean — and should say — simply that such laws will be allowed to do what the restrictions prohibit,
i.e.,
limit free speech and assembly.” He also argues that the words “free speech” or “freedom of expression” should be substituted for “free expression” because the former phrases are better understood by most voters and “free speech” is the term commonly used by the press for this right; that the phrase “Bill of Rights” should be used somewhere in the ballot title in place of the word “constitution” to more readily identify the nature of the proposed changes to be made by the measure; that deleting the word “campaign” from the caption in the Attorney General’s draft ballot title was “error” because the measure is aimed at the campaigns which precede elections, not elections themselves; that the reference to “finance” throughout the ballot title is misleading because it suggests that only
money
transfers would be affected if the measure is approved whereas, in fact, other transactions also would be affected; and that the statement summarizing the measure does not sufficiently describe the full panoply of rights of expression that enactment of the measure would affect. He asks that the summary separately mention every constitutional right that would be “implicated” by the measure.
Petitioners Paulus and Burton contend that the caption of the certified ballot title does not reasonably identify
the subject of the measure, which they assert is “to give the people of the state, and the Legislative Assembly, the authority to enact laws regulating the financing of election campaigns.”
They assert that:
“[I]t is questionable now whether the people and the Legislature have this authority. The means used to insure that laws may be enacted regulating election financing are to make clear that the existing constitutional provisions found in Article I, section 8, and Article I, section 26, of the Constitution do not prohibit such regulation.”
They also argue that the certified ballot title’s question does not plainly phrase the chief purpose of the measure as required by ORS 250.035(1)(b). They assert that the chief
purpose
of the measure is “to allow the voters and the Legislature to enact campaign finance laws,” rather than to exempt these laws from the free expression and assembly protections of the Oregon Constitution. They concede, however, that the major
effect
of the proposed initiative will be to exempt such laws from Article I, sections 8 and 26.
Petitioners Remington and the American Civil Liberties Union of Oregon, Inc.
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VAN HOOMISSEN, J.
This original proceeding consolidates three challenges to a certified ballot title for a proposed initiative measure to amend the Oregon Constitution. If approved by the voters, the amendment would exempt laws regulating the financing of election campaigns from the provisions of Article I, sections 8 and 26, of the Oregon Constitution. We modify the certified ballot title.
The proposed initiative measure provides:
“Be It Enacted by the People of the State of Oregon:
“PARAGRAPH 1.
Section 8, Article II of the Constitution of the State of Oregon is amended to read:
“Sec. 8. (1) The Legislative Assembly shall enact laws to support the privilege of free suffrage, prescribing the manner of regulating, and conducting elections, and prohibiting under adequate penalties, all undue influence therein, from power, bribery, tumult, and other improper conduct. [-]
“(2) Notwithstanding Article I, section 8 and Article I, section 26, of this Constitution, the people, as provided in this Constitution, or the Legislative Assembly may enact laws regulating the financing of election
campaigns,”
The Attorney General certified the following ballot title to the Secretary of State pursuant to ORS 250.067(2):
“EXEMPTS ELECTION FINANCE LAWS FROM CONSTITUTIONAL FREE EXPRESSION, ASSEMBLY PROTECTIONS
“Question: Shall election campaign finance laws be exempted from the Oregon Constitution’s prohibitions against laws restraining free expression or free assembly?
“Explanation: Amends state constitution. The measure would allow voters and the legislature to enact laws regulating
election campaign financing that currently would be prohibited by the state constitution’s free expression and free association provisions. Exempts laws that regulate the financing of election campaigns from the effect of Article I, section 8, which prohibits laws that restrain free expression of opinion. Also exempts such laws from Article I, section 26, which prohibits laws that restrain free assembly or access to legislative representatives or the legislature.”
All petitioners timely submitted written comments on the Attorney General’s draft ballot title; therefore, they may seek a different title. ORS 250.085(2) and (5).
We review the certified ballot title for substantial compliance with the requirements of ORS 250.035
and ORS 250.039,
infra.
ORS 250.085(4).
Each petitioner contends that the certified ballot title fails to comply with ORS 250.035 in various respects. We shall not identify or discuss at length contentions that are not
well taken.
Nelson v. Roberts,
308 Or 417, 421 n 1, 781 P2d 344 (1989).
Petitioner Deras argues that the certified ballot title’s caption and question, which state that the measure “exempts” certain laws from “protections” or “prohibitions * * * restraining,” use “confusing double or triple negatives which really mean — and should say — simply that such laws will be allowed to do what the restrictions prohibit,
i.e.,
limit free speech and assembly.” He also argues that the words “free speech” or “freedom of expression” should be substituted for “free expression” because the former phrases are better understood by most voters and “free speech” is the term commonly used by the press for this right; that the phrase “Bill of Rights” should be used somewhere in the ballot title in place of the word “constitution” to more readily identify the nature of the proposed changes to be made by the measure; that deleting the word “campaign” from the caption in the Attorney General’s draft ballot title was “error” because the measure is aimed at the campaigns which precede elections, not elections themselves; that the reference to “finance” throughout the ballot title is misleading because it suggests that only
money
transfers would be affected if the measure is approved whereas, in fact, other transactions also would be affected; and that the statement summarizing the measure does not sufficiently describe the full panoply of rights of expression that enactment of the measure would affect. He asks that the summary separately mention every constitutional right that would be “implicated” by the measure.
Petitioners Paulus and Burton contend that the caption of the certified ballot title does not reasonably identify
the subject of the measure, which they assert is “to give the people of the state, and the Legislative Assembly, the authority to enact laws regulating the financing of election campaigns.”
They assert that:
“[I]t is questionable now whether the people and the Legislature have this authority. The means used to insure that laws may be enacted regulating election financing are to make clear that the existing constitutional provisions found in Article I, section 8, and Article I, section 26, of the Constitution do not prohibit such regulation.”
They also argue that the certified ballot title’s question does not plainly phrase the chief purpose of the measure as required by ORS 250.035(1)(b). They assert that the chief
purpose
of the measure is “to allow the voters and the Legislature to enact campaign finance laws,” rather than to exempt these laws from the free expression and assembly protections of the Oregon Constitution. They concede, however, that the major
effect
of the proposed initiative will be to exempt such laws from Article I, sections 8 and 26.
Petitioners Remington and the American Civil Liberties Union of Oregon, Inc. (ACLU) argue that the Attorney General’s caption does not reasonably identify the subject of the measure, which, they assert, is “an amendment of the Oregon Constitution to allow certain kinds of future legislation which [are] now absolutely prohibited.” They also argue that the Attorney General’s caption fails to adequately inform
voters that the proposed “exemption” will, as they assert, restrain free speech and free assembly. They argue that the Attorney General’s question “obfuscates the issue” by addressing the measure’s purpose in terms of “exemptions from prohibitions against restraints.” They assert that the purpose of the measure is “to allow what the constitution would otherwise prohibit.” Finally, they argue that the Attorney General’s statement fails to express fully the measure’s “major effect,” which they assert is to “permit election finance laws that limit free speech, freedom of association and assembly, and freedom to complain to elected officials.” They seek a certified ballot title that affirmatively states that the measure would permit enactment of election finance laws restricting rights that are now protected by Article I, sections 8 and 26, of the Oregon Constitution.
The Attorney General responds that the certified ballot title is substantially modeled after a ballot title approved by this court in
Clark v. Paulus,
295 Or 673, 669 P2d 794 (1983), and that, in any event, all the title’s component parts satisfy the requirements of ORS 250.035. With the foregoing in mind, we proceed to consider each of the certified ballot title’s components.
CAPTION
The caption must reasonably identify the subject of the measure in not more than ten words. ORS 250.035(1)(a). Here, the subject of the measure is the exemption of “laws regulating the financing of election campaigns” from the prohibitions of Article I, sections 8 and 26 of the Oregon Constitution. The Attorney General’s caption reads:
“EXEMPTS ELECTION FINANCE LAWS FROM CONSTITUTIONAL FREE EXPRESSION, ASSEMBLY PROTECTION.”
We agree with petitioner Deras that the measure is not aimed at “elections,” but, rather, at the campaigns which precede them. We also agree that the word “protections” may be confusing in light of the words “prohibitions” and “restraining” which follow in the Attorney General’s question. Accordingly, we modify the caption to read:
“EXEMPTS CAMPAIGN FINANCE LAWS FROM CONSTITUTION’S FREE EXPRESSION, ASSEMBLY GUARANTEES”
QUESTION
The question must plainly phrase the chief purpose
of the measure in not more than twenty words so than an affirmative response to the question corresponds to an affirmative vote on the measure. ORS 250.035(1)(b). Here, the chief purpose of the measure is to exempt election campaign finance laws from the prohibitions of Article I, sections 8 and 26. The question is whether those prohibitions should be relaxed to allow the enactment of election campaign finance laws that presently would violate those state Bill of Rights prohibitions. The Attorney General’s question reads:
“Question: Shall election campaign finance laws be exempted from the Oregon Constitution’s prohibitions against laws restraining free expression or free assembly.”
We find that the Attorney General’s question plainly phrases the chief purpose of the measure so that an affirmative response to the question corresponds to an affirmative vote on
the measure. Nevertheless, for “readability” reasons, which will be explained
infra,
we modify the question to read:
“Question:
Shall election campaign finance laws be exempt from the state constitution’s guarantees of free speech, assembly, and access to legislators?”
STATEMENT
The statement must concisely and impartially summarize the measure and its major effect in not more than 85 words. ORS 250.035(1)(c). The Attorney General’s statement reads:
“Explanation:
Amends state constitution. The measure would allow voters and the legislature to enact laws regulating election campaign financing that currently would be prohibited by the state constitution’s free expression and free association provisions. Exempts laws that regulate the financing of election campaigns from the effect of Article I, section 8, which prohibits laws that restrain free expression of opinion. Also exempts such laws from Article I, section 26, which prohibits laws that restrain free assembly or access to legislative representatives or the legislature.”
After considering each of petitioners’ objections to specific portions of the Attorney General’s statement, we conclude that it substantially complies with the requirements of ORS 250.035(l)(c).
FLESCH FORMULA FOR READABILITY
We next consider petitioner Deras’s contention that the certified ballot title fails to comply with the ORS 250.039 test of readability.
Under the Flesch formula, a ballot title must achieve a “reading ease” score of not less than 60, unless this court can affirmatively find no ballot title could both achieve that score and, at the same time, meet “the needs of impartiality, conciseness and accuracy.” OAR 165-14-045(2). The goal of the readability test is plain and easily understood language. Application of the Flesch Formula to the Attorney General’s certified ballot title here results in a reading ease score of 22. That means the language is “difficult to very-difficult” to read and understand.
See
n 11,
supra.
During oral argument, respondent conceded with admirable candor that the certified ballot title “flunks” the Flesch test.
With the foregoing in mind and in order to improve the certified ballot title’s overall “readability,” we modify the Attorney General’s statement to read:
“SUMMARY:
This measure would amend the state constitution. It would allow the voters and the state legislature to pass laws that place limits on campaign contributions. It would exempt such laws from sections 8 and 26 of the state Bill of Rights. Those sections forbid laws that restrict the rights of the people to speak, write, and print freely; to assemble; and to have access to the state legislature and its members. The state Supreme Court has said that these sections ban limits on campaign contributions.”
Application of the Flesch Formula to the modified ballot title results in a reading ease score of 60.
In summary, we certify the following ballot title to the Secretary of State:
“EXEMPTS CAMPAIGN FINANCE LAWS FROM CONSTITUTION’S FREE EXPRESSION, ASSEMBLY GUARANTEES
“QUESTION:
Shall election campaign finance laws be exempt from the state constitution’s guarantees of free speech, assembly, and access to legislators?
“SUMMARY:
This measure would amend the state constitution. It would allow the voters and the state legislature to pass laws that place limits on campaign contributions. It would exempt such laws from sections 8 and 26 of the state Bill of Rights. Those sections forbid laws that restrict the
rights of the people to speak, write, and print freely; to assemble; and to have access to the state legislature and its members. The state Supreme Court has said that these sections ban limits on campaign contributions.”
Ballot title certified as modified.