By Greg Wasson / For The Register-Guard /
Oregon’s 1859 Constitution gave state lawmakers exclusive power to propose constitutional amendments, the unassailable authority to impose obnoxious statutes, and the right, at will, to amend any local charter or veto any local law. In addition — per the federal Constitution — the Legislature, not the voters, decided who would represent Oregon in the U.S. Senate.
Over the next 50 years, Oregonians wrested those powers from the Legislature and took them into their own hands. But now those powers are slipping away.
In 1902, Oregon voters approved the statewide initiative by a ratio of 11 to 1. In 1906, voters approved an initiated constitutional amendment creating the local initiative and approved the Home Rule Amendment. In 1907 — again, using the initiative — Oregonians became the first voters in the union to select their U.S. senators at the polls.
This demise of the appointed Senate deserves further comment. From 1872 to 1913, 220 state party platforms and 19 national party platforms called for direct election of U.S. senators. The U.S. House voted five times to send the desired amendment to the states. But the U.S. Senate never concurred, and, warned Oregon Gov. T. T. Geer in 1901, “for obvious reasons probably never will.”
Rather than just accept that, though, a precursor of the People’s Power League initiated an imaginative end-run on the federal Constitution — and the back-room politics of Salem — that allowed Oregonians to “elect” their federal senators in 1907.
It’s safe to assume that an appointed U.S. Senate will not soon make a comeback. But unless things change drastically, a meaningful local initiative in Oregon won’t be seen much of this century.
Consider the plight of the Support Local Food Rights organization of Lane County. In 2013, the group drafted a proposed initiative to — among other things — defy state law and, in the spirit of local control, ban genetically modified organisms in Lane County.
However, Lane County Clerk Cheryl Betschart decided that the group proposed numerous reforms in a single initiative — a violation of the Oregon Constitution. Betschart, therefore, refused to certify the proposal, a decision upheld by Lane County Circuit Judge Charles D. Carlson.
Even if Betschart and Carlson are right in concluding that the proposed initiative would be unconstitutional if adopted, so what? Passing certified petitions is more than a way to make official law. It’s a way to make official noise.
After months of court action and negotiation between the would-be petitioners, the clerk and the court — plus the GMO industry, represented by big-city flannel-mouths — the situation remains the same. The local food initiative remains uncertified, and the Lane County food activists have lost months of time that could have been spent circulating among the voters, forming alliances, attracting financial support and focusing the public’s attention on the perceived problem.
For decades, stopping a petition campaign in this way would have violated Oregon law. A 1986 Oregon Supreme Court decision changed all that, and allowed — indeed, required — elections officials to conduct this kind of pre-election review.
A strong argument can be made that a subsequent decision by the U.S. Supreme Court — Meyer vs. Grant — voids the 1986 Oregon mistake. In Meyer, the federal court held that a Colorado statute making it illegal to pay petition peddlers violated the First Amendment. Petitioning the government is protected political speech, reasoned the court, and not allowing organizers to hire people to gather signatures makes it less likely that an initiative will make the ballot and become a center of discussion.
It’s well-established, the court added, that one of the main reasons for the First Amendment — made applicable to the states by the 14th Amendment — is to ensure free discussion of the need for political change.
A similar situation has arisen in Salem. Last June, I submitted paperwork to circulate an initiative renaming Salem’s Riverfront Park after William S. U’Ren, the Oregon City attorney identified with borrowing the initiative from the Swiss in 1902. The local elections official — in my case the city recorder — declined to certify the petition, citing a city policy that says only the City Council can rename parks. I appealed the decision to the local Circuit Court with no more luck that the folks in Lane County.
Stripped of their legal trappings, both these cases go right to the heart of constitutional government. Local bureaucrats — some wearing black robes and swinging gavels — have assumed life-or-death control of rights to political discussion and self-government found in the state and federal constitutions.
It’s not supposed to work that way. As soon as I get the final order in my case, I plan to walk down the street and petition the Oregon Supreme Court for relief.
Greg Wasson ([email protected]) of Salem is a long-time petition rights activist.