by Sen. Doug Whitsett
The ability of American citizens to petition their government to redress grievances is enshrined in our nation’s founding documents. The right to refer measures passed by the Oregon Legislative Assembly for the voters to decide is also established in our state Constitution.
Article IV, Section 28 of the Oregon Constitution states that no law will be enacted that takes effect before the 91st day after the end of the legislative session, unless an emergency is declared. Bills for raising revenue are prohibited from having an emergency clause.
Additionally, Article IV, Section 1 (3) (a) states any law may be referred to the people for a vote that does not become effective until after the 91st day following the end of the legislative session. That time frame was deliberately designed to provide enough time for citizens to gather the signatures required to refer the law for a vote.
An outstanding example of the referral process occurred in Oregon’s November 2014 general election. Legislators had enacted Senate Bill 833 during the 2013 regular session. The law ordered the Department of Transportation to issue, renew or replace a driver card without requiring a person to provide proof of legal presence in the United States.
That bill passed through the Oregon House and Senate with bipartisan support after multiple contentious debates in committee and on the floors of both chambers. I voted no on the bill for a variety of reasons. It was signed into law by then-Governor John Kitzhaber. Fortunately, the bill did not have an emergency clause.
Citizens were outraged at its passage. They organized and gathered sufficient signatures to refer the matter for the people to decide on the November ballot, in the form of Ballot Measure 88.
Then-Governor Kitzhaber, a coalition of dozens of various organizations and the editorial boards of newspapers throughout the state campaigned to convince the voters to repass the law. Over half a million dollars was spent on the campaign to defeat the referral. Contributions came from powerful union groups such as SEIU and UFCW.
In spite of being outspent more than six-to-one, the majority of voters who wanted the law nullified prevailed. Voters overwhelmingly rejected the law by an almost two-to-one landslide vote. The direct democracy feature of the referral system functioned as it was intended, expunging SB 833 from Oregon law.
An emergency clause attached to a bill makes the law become effective immediately upon the signature of the Governor. The clause makes the bill effective before the 91st day; thereby, effectively prohibiting its referral to the people.
Throughout my three terms of service in the Oregon Senate, I’ve written extensively about the legislative abuse of the emergency clause. It has long been my contention that emergency clauses are routinely attached to bills where no justifiable emergency exists. They are added to the bills for the express purpose of preventing their referral to the voters to decide.
For the past several legislative sessions, as many as two-thirds of all the bills introduced have had emergency clauses attached. It even appears that Legislative Counsel may automatically attach an emergency clause when drafting a bill unless specifically requested to leave it off.
I introduced bills in the 2013 and 2015 regular legislative sessions to try and to end this flagrant abuse. Both were thwarted by the majority party leadership. To my knowledge, no bill intended to make it more difficult to attach an emergency clause to any proposed legislation has even been allowed the courtesy of a public hearing.
The 2015 and 2016 legislative sessions saw multiple instances of controversial bills with emergency clauses attached. Most had no expressed purpose other than preventing Oregon voters from exercising their constitutional rights to refer the new laws.
During the 2015 legislative session, several of the most contentious bills passed in recent memory had emergency clauses attached. They included such laws as the Low Carbon Fuel Standard, heavily supported by out-of-state billionaire Tom Steyer, and the firearm background check bill, insisted upon by groups funded by billionaire and former New York Mayor Michael Bloomberg. A divisive anti-business bill mandating government regulated retirement plans for private sector employees also had an emergency clause attached, even though it hasn’t taken effect more than a year later.
Some of the worst bills passed in the 2016 short session also bore emergency clauses. They include the job-busting minimum wage increase that creates mandated three-tiered minimum wages based on geographical location and the so-called “Coal to Clean” bill, which will drive up the costs of electricity for businesses and residents while doing nothing to reduce the state’s share of global greenhouse gas emissions.
My office received numerous e-mails and phone calls from constituents registering alarm about all of these bills. Their expressed concerns were both for the substance of the bills and for the emergency clauses prohibiting their referral. I’m confident that the required number of signatures could have been gathered to challenge several of these bills. However, the legislative majority denied voters that choice through the use of the emergency clause.
Fortunately, legislators are not alone in recognizing the frequent and blatant efforts to prohibit citizens from exercising their Constitutional rights to refer legislation for the people to decide. Oregon citizens have taken it upon themselves to force the issue at the ballot box.
Petitions are being circulated for Initiative Petition 49, which would amend Article IV, Section 28 of the Oregon Constitution to end emergency clause abuse. If enacted, the Oregon Constitution will require a two-thirds vote of the members of both the House and the Senate to affix an emergency clause to a bill. Passage of IP 49 would serve to prohibit any act from taking effect until 90 days from the end of the legislative session, except in case of an actual emergency being declared by supermajorities of both chambers.
IP 49 specifically exempts bills that are passed in direct response to the declaration of a catastrophic disaster by the governor, within an emergency session operating under article X-A of the state Constitution and bills limited to reducing appropriations in order to balance the state budget during a revenue shortfall.
It also does not apply to budget bills that are limited to funding “current and ordinary expenses,” with certain exceptions. Those important exceptions that are not “current and ordinary expenses” include expenditures for activities or programs of agencies that were not funded in the prior biennial budget, increases to agency budgets in excess of 12 percent above the prior biennium and bills appropriating funds for capital expenditure projects that include an authorization for debt financing that will not be fully repaid in two years. Voters certainly should retain the right to weigh in and vote on these important exceptions.
However, time is running out. Approximately 117,578 valid signatures will be required for IP 49 to appear on this November’s general election ballots. Organizers have given themselves a deadline of June 29 to gather the signatures in order to have them turned in to the Secretary of State’s Office for validation on July 8.
For more information about the measure, or to print and sign a petition, go to http://nofakeemergencies.com/.
Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls