Emergency Golden Rule Violations

Initiative to stop abuse of “emergency” legislation in Salem a problematic response to a real problem

PictureWilliam U’ren, Father of “The Oregon System” of initiatives, referenda, and recalls

Most legislation is relatively self-contained, in that the bills don’t affect the distribution of power within the legislative body itself. The bill passes or fails, and the project or program is started or stopped accordingly or a new crime is added to the books or taken off the books, and life goes on.

Some bills seem to be relatively self-contained but carry within them, more or less subtly, aspects that alter the power relationships in the Capital. It is not lost on legislators that entirely new programs create entirely constituencies for legislated benefits, which can have the result of strengthening or weakening political parties unequally.

These bills tend to be hotly contested in a way that seems all out of proportion to the casual observer who fails to note the more subtle effects. The so-called “Clean Fuels” program in Oregon is a perfect example. Considered narrowly, the bill does nothing to alter they power dynamics in Salem and is hardly worth even a tiny fraction of the partisan hostility is has spawned in Salem.

However, the sparring over this program has been intense and pervasive, for good reason. Indeed, while the program will do little or nothing to benefit Oregonians from the perspective of avoiding or mitigating climate disruption — and it may even harm Oregon’s ability to get serious about tackling the climate chaos that we are already getting a taste of — the bill makes a serious change to the existing power relationships in Salem by creating a river of money that escapes the misbegotten 1942 Constitutional amendment (when the state gas tax was just a nickel) that dedicated all motor fuel taxes to highway purposes.

The “clean fuels” tax evades the Constitutional kidnapping by calculating the tax of various fuels based on their carbon intensity (how much climate-altering greenhouse gas each fuel causes to be emitted per unit of fuel) — so, presto, it’s not a fuel tax, and therefore it isn’t fed to the Oregon Department of Transportation (the pseudonym that the 1913 Oregon Highway Department adopted in 1969, the same year Nixon was inaugurated after claiming to have a secret plan to end the Vietnam War).

Breaking the Highway Department’s stranglehold on funds generated by driving will have enormous effect on the power of legislators, both urban and rural, all across Oregon. Rural legislators have a visceral, instinctive realization that their districts depend on funds generated in the more densely populated areas, and that a vital component that causes the funds to flow away from the voters who generate them is the Constitutional prohibition on doing anything else with them. Nearly all the heated rhetoric about the Clean Fuels program is thus entirely beside the point. From an environmental standpoint, the program is less than nothing, or worse than nothing depending on how bitterly the partisan battles get over it. The battle is all about the power of urban vs rural legislators.

One echo of the battle over the program is a renewed appreciation for how the Democrats in the Legislature have learned to adroitly use “emergency” clauses to get laws into effect without the usual Constitutional requirement that laws don’t take effect until at least 90 days after final passage and signature by the Governor (Oregon Constitution, Art. VI, Sect. 28).

Section 28. When Act takes effect. No act shall take effect, until ninety days from the end of the session at which the same shall have been passed, except in case of emergency; which emergency shall be declared in the preamble, or in the body of the law.

As a result of the Democrats’ increasing use of this bit of legislative artifice — strewing “emergency” clauses about like confetti and changing the meaning of emergency to “we really don’t want to see a referendum on this” — the Republicans in Salem, mired in the minority and having been unable to elect a single statewide official for more than a decade, are deprived of one of the few tools at their disposal, the threat of a referendum. A referendum is, by definition, a plebescite (vote of the people) on an important proposal. When the “Oregon System” of initiatives and referenda (along with recall of elected officials) was formed, the idea of using an emergency clause to avoid the plebiscite was unheard of.

Thus, now that it is routine for even bills with very little inherent urgency, much less emergency, to get an “emergency” designation, the reaction is predictable — an effort to make it harder to abuse the emergency designation. 

Which is an example of the most-hotly contested kinds of proposals of all: Constitutional amendments that are solely about changing the balance of power in Salem. The latest example is proposed initiative 2018-04 (below, new text in bold) which aims to make use of phony “emergency” designations very difficult by requiring a two-thirds majority in each house.

 The People of Oregon amend Article IV, Section 28 of the Oregon Constitution as follows:
(1) No act shall take effect, until ninety days from the end of the session at which the same shall have been passed, except in case of emergency; which emergency shall be declared in the preamble, or in the body of the law.
(2)(a) Two-thirds of the members of each House shall be necessary to pass a bill declaring an emergency.
(b) Paragraph (a) of this subsection does not apply to:

  1. Bills passed in direct response to a “catastrophic disaster” declared by the Governor within an emergency legislative session operating under Article X-A of this Constitution.
  2. Bills limited to the biennial appropriation of funding for current and ordinary expenses of state government or Oregon’s K-12 public school system in a regular legislative session under Article IV, Section O(1)(a). “Current and ordinary expenses” shall not include:
  1. Expenditures for activities or programs of agencies, institutions, organizations that were not funded in the prior biennial budget;
  2. Biennial budget increases to agencies, institutions or organizations in excess of 12% above the prior biennium; or
  3. Any bills appropriating funds for capital expenditure projects that include an authorization for debt financing that will not be fully repaid in two years.

(C) Bills limited to reducing appropriations in order to balance the state budget during a revenue shortfall.

If 2018-04 reaches the required number of signatures (117,578) and then prevails in 2018, the result will be to greatly increase the power of legislative minorities to extract concessions from legislative majorities. In this post-Citizen’s United era of unlimited corporate power and influence, it is a lot easier to hire signature gatherer firms and get a bill referred to the voters in a referendum than it is to persuade your legislative colleagues to change their minds.

Couple this idea with the proposed “Grassroots Petitioning Initiative” (2018-02) that has already been proposed and it’s possible to imagine a ballot with dozens of referenda every general election.

So this initiative will bear careful watching. It will not be an easy sell to persuade voters to alter the Constitution to solve a problem that few are even aware of, particularly when the likely outcome is even more partisan gridlock resulting from more power to legislative minorities.

But Democrats would do well to remember that the world turns, and their legislative majorities of the recent past can just as easily become legislative minorities in the future. The abuse of the “emergency” designation on routine bills is a significant problem that increases political polarization and dissipates social capital by letting legislative majorities escape the tether that Oregonians fashioned to restrain them somewhat.

The most widespread wisdom in the world is that you should treat others as you would want them to treat you if your situations were reversed. By using emergency clauses as shortcuts around the need for legislative compromise, the Democratic majority in Salem is doing the exact opposite. When their turn in the minority returns, they will regret it.