The Bureaucracy is Beating Us

Those of us taking part in the Oregon Citizens Lobby have long had an issue with the Emergency Clause: “This 2015 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2015 Act takes effect on its passage.”  This clause is almost always appended to legislation, so often that it has become a source of some concern and maybe a conspiracy theory or two.
 
Oregon’s constitution stipulates that legislation may not take effect until ninety days from the end of the session at which the law was passed.  But when the Emergency Clause is used it means that the legislation goes into effect immediately.  Richard LaMountain, who served as a chief petitioner on Measure 88, wrote in the Portland Tribune earlier this year that the clause is an abuse of democracy.

He noted that the ninety days is a period in which citizens may gather signatures on petitions to refer a measure to the voters to prevent a bad law from going into effect.  The emergency clause pre-empts that grace period.

Even if a bill is good or reasonable, it seems a bit ridiculous to append an emergency clause to everything.  An example is House Bill 2938 which simply prohibits cities from requiring consent to annexation of a landowner’s property in exchange for the city providing services.  Is that really an emergency?

Rep. Mike Nearman (R – HD 23) recently sent legislation to the Legislative Counsel’s Office for the usual review and legal re-write.  When it came back to his office it had an emergency clause attached.  He called them back and said he wanted the clause removed.  The response was that it was necessary. Rep. Nearman asked to meet and here’s the recap of the conversation:

“I spoke with Dexter Johnson, the Chief Legislative Counsel.  He said that there is no policy for Legislative Counsel to add the emergency clause to any bill, although they would do it based on the fact that they thought that the bill needed to go into effect earlier.

“They can't delay the effective date of a bill because the Oregon Constitution controls the effective date for bills.  The only way to control the effective date is to declare an emergency and then the bill is effectively immediately, but they can delay it with an operative date.

“I asked about the effect of removing the ability of the people to do a referendum and he said that the people still retain their initiative rights.


“I think the problem is driven by the constitution, where the emergency clause has two effects: 1) it removes the referendum and 2) it resets the effective clock.  If you desire one effect, you MUST get the other.  I think the best solution is to fix the constitution, though I don't know if that's politically possible.”

We also discovered that the Legislative Council will sometimes add the Emergency Clause when the timing of the bill’s going into effect is critical, such as school funding bills which are often among the last bills passed during the session.  School districts need time to work out their budgets and they can’t do that until the bill actually goes into effect.

Once a bill becomes law it can still be recalled using the initiative process.  This is the argument most people use when the Emergency Clause is questioned.  The problem is in the number of signatures required for petitions recalling a law that is already in effect.  It takes far fewer signatures to place a referendum on the ballot before the law goes into effect.  Signature requirements for Oregon are 4 percent of the votes cast for the office of Governor in the most recent election for veto referendum, and 6 percent for a new state law adopted via the ballot initiative process.

Those of us who have worked on initiatives know the difficulty of getting signatures, especially with a Secretary of State only too willing to toss signatures for trivial reasons.  The bureaucracy should not be making it more difficult to reign in our government. <> <>