2008 SOS Candidate Challange: Fix the Initiative

By Greg Wasson,

It is common to lament the big, often out-of-state “abuse” of the initiative process by hearkening back to the days when Oregon initiatives were pure expressions of home-grown populist yearnings, uncontaminated by inter-state commerce.

Problem is, those days existed only briefly, if ever.

Less than a decade after the initiative’s creation, the man most identified with the (r)evolution, Oregon City lawyer William Simon U’Ren, found himself on the sweet end of a substantial cash transfer originating in Philadelphia.
But, I get ahead of myself.

As the 19th Century became the 20th, U’Ren used the position of Secretary of the various incarnations of the People’s Power League to help create the tools that would allow his dedicated group of reformers to thrust their definition of the “public will” into state government, at every level, and, theoretically, in every department:

For U’Ren, though, all this populism was not an end, but a means to an end.

His real goal was adoption of the Single Tax – a confiscatory land tax that smelled of socialism and sought to put land speculators, the defense contractors of their day, out of business.

During his days as a Colorado newspaper editor, U’Ren became a devoted disciple of the Single Tax after reading Henry George’s Progress and Poverty.

U’Ren’s Philadelphia benefactor – the wealthy soap merchant Joseph Fels – declared the issue a moral, rather than political question. Fels called land monopoly a “God-denying crime,” and, considered “the divorcement of men from the soil the main source of poverty.”

Oregon and Missouri became the two main battle fronts in the national effort to restore the lost birth-right.

For the 1910 election, the Oregon Single Taxers adopted a gradual approach.

Some counties, like Clackamas, seemed more receptive to U’Ren’s gospel of social redistribution. The plan was to first remove the requirement that taxes be uniform across the state.

With the legislature no longer in control of Oregon’s tax policy, the single taxers could limit their campaign to counties “where success seemed possible,” with the notion that as this county, then that, joined U’Ren on his march to the promised land, “other counties would be forced to fall in line.”

The amendment allowing each county to set its own tax policy passed by 2000 votes.

Later that month, U’Ren triumphantly told the Single Tax Conference (Fels Fund) held in New York:

“We have cleared the way for a straight single tax fight in Oregon.

“All the work we have done for direct legislation has been done with the single tax in view, but we have not talked single tax because it was not the question before the house.”

In the end, though, the people weren’t buying what U’Ren was selling. Indeed, his out-of-state connections tarnished his halo, and, in 1912, the voters reversed themselves on the “county-option” plan.

But, the powers-that-were wanted to make sure that the stake stayed driven, and, turned to the state supreme court to ensure sure that U’Ren didn’t rise from the dead.

When ground was broken for the free-standing Supreme Court Temple around 1911, the architects clearly planned for a 5-member Supreme Tribunal, two (2) justices having been added in 1909.

Before the building was completed, though, the 1913 Legislature increased the size of the Court from five (5) to seven (7), and, added an emergency clause so the legislation couldn’t be referred.

The cynic might argue that this was nothing more than an ultimately-successful attempt to pack the Oregon Supreme Court with a majority that could be trusted to prevent U’Ren’s resurrection.

The newly expanded Court quickly issued a series of results-driven, politically-motivated initiative decisions that defy harmonization. Chief among them are two (2) opinions published in the summer of 1913.

Read together, those two cases – Libby v. Olcott and Equi v. Olcott – stand for the proposition that petitions favoring the government class, signed by five (5) percent of the voters, can order a special election, but, petitions attacking the power structure, signed by eight (8) percent of the voters, cannot.

Which would all be of just historical interest, except that, as concerns the initiative, with a few modest exceptions, Oregon’s government has never returned to the Constitution.

For instance, Oregon’s Constitution places a ninety (90) day limit on the life of referendum petitions, yet, is silent as to how long sponsors have to gather sufficient signatures on an initiative petition.

The people who wrote the initiative and referendum clause obviously knew how to construct time limits when they so desired.

The standard rule of construction in such situations: one mentioned, all others excluded.

In the early 1960s, however, the Oregon Attorney General ignored this well-established constitutional maxim and constructed, out of whole cloth, a 2-year limit on the life of initiative petitions.

The Secretary of State said, “Sounds good to me,” and, we now have the absurd situation where a mere administrative rule places limits on a constitutional power not found in the Constitution itself.

Or, what about the ability to submit initiative proposals to the voters?

The Oregon Constitution declares that initiative petitions are to be voted upon at “regular, general elections.”

Yet the Secretary of State has adopted an administrative rule confining initiative elections to the “regular biennial general election” (note the singular) held every-other November.

Again, the Secretary of State amending the Constitution by administrative rule.

In 2007, the Oregon Secretary of State joined forces with the legislature to carry this unconstitutional nonsense to a new level.

Oregon Constitution, Article IV, section 1(2)a, provides that the initiative power is to operate “independently” of the Legislative Assembly.

Yet, the 2007 Legislature enacted HB 2082, requiring certain petitioners – read, those paid by Bill Sizemore or Kevin Mannix – to register with the government and prove themselves worthy, before they can petition the government for redress of their grievances.

That deserves another mention:

Under HB 2082, certain citizens have to register with the government before protesting what the government is doing.

I can almost hear the apologists for this egregious legislative overreaching whining about well-financed special interests using the initiative process to cripple the government.

What do you expect?

U’Ren and the others designed the initiative system to allow a small group of people to take over state government. (See, the beginning of this column). It’s a tribute to U’Ren’s cleverness that some 100 years later, the populist tools are still having their desired effect.

If there is a problem with the initiative, it is with its very design. Until the needed structural changes are made, worrying about how signatures are collected makes about as much sense, they would say on the farm, as urinating up a rope.

Sen. Brown led the 2007 Senate Committee that crafted HB 2082; Sen. Avakian served on the committee and favored the proposal; and, both Sen. Metzger and Sen. Walker supported the notion on the floor.

So, none of these candidates for Secretary of State will get my vote unless they show me that they can look beyond the short-term political fight of the Unions v. Sizemore et al. and craft a plan that will deal with the initiative “crisis,” while restoring the rule of law.

Greg Wasson has spent 10 years researching the history of the evolution of popular rule in America. He operates a research service based at the Oregon State Archives. He specializes in researching the Oregon Revised Statutes, as enacted and changed by the Oregon Legislature.

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Greg Wasson has spent 10 years researching the history of the evolution of popular rule in America. He operates a research service based at the Oregon State Archives. He specializes in researching the Oregon Revised Statutes, as enacted and changed by the Oregon Legislature.

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