The Oregon Senate Again Kills Another Necessary Measure

Like the “National Popular Vote” bill aimed at reforming the slavery-based Electoral College, the Oregon Senate again this year inexplicably killed another necessary reform measure that the House passed, this one a joint resolution that had overwhelming support in the lower chamber (51 – 6, with 3 absent).

The measure proposed (HJR 10) was not perfect, but expecting perfection in a procedure that few expect will be used much, if at all, is expecting the Legislature to spend a lot of time on a fool’s errand. Thus, the Oregon Progressive Party’s criticism is fair, but should have been used to improve the bill, not to justify the Senate’s stealth strangulation of it:

The Oregon Progressive Party (OPP) opposes this resolution, which would send to voters an amendment to the Oregon Constitution to authorize the Legislature to impeach and remove any statewide elected official.

While lodging an impeachment and removal authority in the Oregon Legislature would have value, HJR 10 is written to allow impeachment and removal for merely “neglect of duty” or “malfeasance in office.” Those are very vague offenses. Note that the U.S. Constitution allows impeachment only for “Treason, Bribery, or other high Crimes and Misdemeanors.” The California Constitution requires “misconduct in office,” which is somewhat less vague than the HJR 10 proposal.

So the OPP opposes HJR 10 as written and suggests that the crimes authorizing impeachment and removal be more specifically defined.

The Independent Party of Oregon, for now Oregon’s “third major party,” offered similar faint praise coupled with a call for greater specificity in the House hearing:

I offer this testimony on behalf of the Independent Party of Oregon and its 119,000 member statewide. IPO favors the underlying concept of House Joint Resolution 10, which would amend the Oregon Constitution to allow the Oregon legislature to impeach any statewide elected official.

Our party sees this type of reform as necessary to ensuring greater accountability of statewide officeholders.

Although Oregon was among the first states to adopt provisions allowing for public recall of officeholders in 1908, that process has never been used to recall a statewide official. We believe the recall is essentially unusable today without a massive amount of funding due to the sheer number of signatures needed and the many restrictions that have been placed on the Initiative Referendum and Recall by the legislature in recent years.

However, although the party supports granting the legislature additional authority to hold statewide officeholders accountable, we also note that such powers are often abused by state and federal legislatures. We therefore recommend that any impeachment authority granted to the legislature come with a clear legal framework for what constitutes an impeachable offence that is narrower than what is provided in this bill. Perhaps by enumerating specific categories of offense similar to what we see in other states. For example, we note that Georgia has a relatively high bar to trigger recall that might be worth considering.

‘Act of malfeasance or misconduct while in office; violation of oath of office; failure to perform duties prescribed by law; willfully misused, converted, or misappropriated, without authority, public property or public funds entrusted to or associated with the elective office to which the official has been elected or appointed. Discretionary performance of a lawful act or a prescribed duty shall not constitute a ground for recall of an elected public official. (Ga. Code §21-4-3(7) and 21-4-4(c)) (http://www.ncsl.org/research/elections-and-campaigns/recall-of-state-officials.aspx)

We encourage the carrier to amend the legislation and the committee consider moving the bill to the floor once the scope of the bill is narrowed to minimize the risk of partisan abuse.

The proper course of action would have been for the Senate to pass its own version of the bill, improved to address these criticisms, and send it back to the House and then on to the voters.

79th OREGON LEGISLATIVE ASSEMBLY– 2017 Regular Session

House Joint Resolution 10

SUMMARY

The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject to consideration by the Legislative Assembly. It is an editor’s brief statement of the essential features of the measure as introduced.

Proposes amendment to Oregon Constitution to vest power of impeachment of statewide elected Executive Branch officials in House of Representatives and power to try impeachments in Senate. Requires three-fifths majority vote of House of Representatives to deliver impeachment resolution to Senate and two-thirds majority vote of Senate for conviction. Limits judgment to removal from office and disqualification from holding other public office.

Refers proposed amendment to people for approval or rejection at next regular general election held throughout this state.

JOINT RESOLUTION

Be It Resolved by the Legislative Assembly of the State of Oregon:

PARAGRAPH 1. The Constitution of the State of Oregon is amended by creating a new section 34 to be added to and made a part of Article IV, such section to read:

SECTION 34. (1) The House of Representatives shall have the power of impeachment of statewide elected officials of the Executive Branch for malfeasance in office, corruption, neglect of duty or other high crime or misdemeanor. The House of Representatives may deliver a resolution of impeachment to the Senate only upon the concurrence of at least three-fifths of all Representatives.

(2) The Senate shall have the power to try any impeachment received from the House of Representatives. When sitting for the purpose of trying an impeachment, Senators shall swear or affirm to do justice according to law and evidence. A person may not be convicted under this section without the concurrence of at least two-thirds of all Senators.

(3) Judgment shall extend only to removal from office and disqualification from holding any other public office in this state. Any person convicted or acquitted under this section remains subject to any criminal prosecution or civil liability according to law.

PARAGRAPH 2. The amendment proposed by this resolution shall be submitted to the people for their approval or rejection at the next regular general election held throughout this state.

The legislative analysis of this measure shows that it is as clear as can be, without any hidden issues:

79th Oregon Legislative Assembly – 2017 Regular Session

 

HJR 10      STAFF MEASURE SUMMARY                        Carrier: Rep. Hack

House Committee On Rules

Action Date:      05/18/17

Action:      Be Adopted.

Vote:      8-1-0-0

Yeas:      8 – Barreto, Hack, Holvey, Kennemer, McLane, Nosse, Rayfield, Williamson

Nays:       1 – Smith Warner

Fiscal:      Fiscal impact issued

Revenue:      No revenue impact

WHAT THE MEASURE DOES:

Proposes amendment to Oregon Constitution to vest power of impeachment of statewide elected Executive Branch officials in House of Representatives and power to try impeachment in Senate. Requires three-fifths majority vote of House of Representatives to deliver impeachment resolution to Senate and two-thirds majority vote of Senate to convict. Limits judgment to removal from office and disqualification from holding other public office. Refers proposed amendment to people for approval or rejection at next regular general election.

ISSUES DISCUSSED:

  • Reasons Oregon lacks impeachment provisions
  • Examples of impeachable conduct
  • Infrequency of utilization
  • Requirement for Senate to conduct trial on articles of impeachment
  • Potential for political exploitation of impeachment process
  • Modernization of language including “high crimes” and “malfeasance”

EFFECT OF AMENDMENT:

No amendment.

BACKGROUND:

Impeachment is a process that provides legislatures with oversight of official government conduct and the means to remove executive or judicial public officers. The impeachment process has two stages, and the responsibility for each stage is usually separate. The first stage is the development of a formal accusation or statement of charges, typically by the house chamber of a legislature. During this stage, accusations are heard and investigated, and if the body believes misconduct has occurred, the charges—or articles of impeachment—are developed and voted on. If the requisite number of affirmative votes is reached, the articles are forwarded to the other chamber, usually a senate body, responsible for the second stage: formal consideration of the charges. This stage often resembles a trial: both sides may call witnesses and present evidence, and when arguments are complete, the body must vote whether or not the charged individual is guilty. A supermajority is typically required to convict. Impeachment is relatively rare and usually reserved for extreme cases.

Impeachment and removal of governors has happened occasionally throughout the history of the United States, usually for corruption. A total of at least eleven state governors have faced an impeachment trial, but in many cases individuals will resign before the proceedings begin or conclude. Currently, the Oregon Constitution does not provide for impeachment but does provide for recall in Article II, section 18.

House Joint Resolution 10 proposes amendment of the Oregon Constitution to provide a process for impeachment and refers it to the voters for consideration at the next regular general election. It would authorize the Oregon House of Representatives to bring articles of impeachment against statewide elected officials in the executive department and authorize the Oregon Senate to try such persons. A two-thirds majority vote in Senate chamber would be required to conclude the process with conviction. In the event of conviction, judgment would be limited to removal from current office and disqualification from holding other public office.