Sen. Linthicum v. Sen. Wagner

A legal challenge to last year’s Ballot Measure 113 lost in court this week. That was the referendum to deny members of the Oregon legislature that walk out from running for reelection.

The new law still stands. The plaintiffs, Republicans that denied quorum to the 2023 legislative session, sued on the grounds that they have a First Amendment right to run for office, that it’s an act of free speech. Judge Ann Aiken ruled that the First Amendment does not give someone a constitutional right to run for office.

I agree with the ruling. The decision on whether to use one’s presence on the legislative floor to block the passage of legislation is an official act of legislative power. Such things are not protected as personal rights. For example, in Nevada Commission on Ethics v. Carrigan (2011) the Supreme Court ruled against such notions in an opinion that stated: “a legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal,” and “[t]he legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”

That doesn’t mean it was wrong to deny quorum last year. It just means that those who did so need to face the legal consequences. I support their actions and their legal peril only makes them more heroic. It just doesn’t make them victims of a constitutional violation. Also, the quorum requirement of two-thirds in the Oregon Constitution’s Article IV still stands. It just comes with some consequences that in effect can simply behave like a term limit to a minority party. Some bills are so bad, that they are worth not being allowed to run for reelection.

Eric Shierman lives in Salem and is the author of We were winning when I was there.