Posts published in “Oregon column”

Our courts tend to be afterthoughts in our politics and elections, barely considered compared to the higher-profile elected legislators.

Many voters in Oregon pick up their ballots and voter guides at election time, marching through their votes for offices like president, governor, senator and representative, but pause when they hit judges and justices up for election.

Many are unopposed: Should they simply check the box? If they’re opposed: Who to vote for? The campaigns are usually low-key and often the candidates say little that would help voters choose between their options.

But those options do matter, nationally and notably in Oregon, and the evidence is all over the headlines.

The most significant election of the year nationally may have been last month’s state Supreme Court contest in Wisconsin, unusual in the attention it has gotten, the money spent on it and the political impact it may have. But its political contours – a technically nonpartisan race between candidates openly supported by Democratic against Republican interests – are clear.

In Texas, a single federal judge, Matthew Kacsmaryk, has claimed the authority to pull a drug from use nationwide, which inserts him into the center of national politics while that claim is heavily disputed. Oregonians can find the impact of local judges closer to home.

Last year, on a close vote (50.6% approval), Oregon’s voters passed Measure 114, which provides for limits on gun sales, ownership and transfers and related activities. It was challenged swiftly in federal court in Portland, where the Oregon Firearms Federation and Sherman County Sheriff Brad Lohrey sued, arguing the measure violated the Second Amendment to the federal Constitution. On Feb. 20, a federal judge gave the measure a legal go-ahead with some delay so some provisions could be properly carried out.

The measure’s critics have not stopped there, however. Long before the federal judge ruled, on Dec. 2, the Gun Owners of America, the Gun Owners Foundation, Gliff Asmussen, and Joseph Arnold went to state court. They did not file in Portland or in Salem but in the state’s 24th judicial district, which covers Harney and Grant counties and has one elected judge, Robert S. Raschio. Three hours after the federal court ruling cleared a path for the measure, Raschio blocked it – statewide – at his court in Burns.

You didn’t have to read too carefully between the lines of the decision to find an attitude more attuned to Burns than to Portland. Raschio wrote in his Jan. 2 decision, “The court finds that there is less than a one in 1,000,000 chance of a person being a fatality in a mass shooting in Oregon. And even less with an offender who is using large capacity magazines.”

State attorneys have asked the state Supreme Court to intervene, but it has declined, so far. The measure has sat in the Burns courthouse for several months.

The latest effort to overcome the judicial blockade has been a measure in the Oregon Legislature, Senate Bill 348, now working its way through the Senate, which seeks to implement (with some adjustments) the terms of Measure 114. It also includes a striking additional provision: A requirement that any legal challenges to it would have to be run through courts at Marion County in Salem. (This isn’t the first time such a provision has been added to legislation.)

All of this should put to rest the mythology that judges simply and dispassionately apply the law to whatever is brought before them. In the case of Measure 114, one group of plaintiffs, dissatisfied with the results from one court, shopped the case around to another. Another interest, dissatisfied there, determined that the case must go to a third venue.

Courts are powerful. In Oregon appellate court decisions – properly decided or not – effectively have set state policy on issues from public employee retirements to campaign finance to the limits of free speech. And as the recent decisions from Harney County demonstrate, the Supreme Court isn’t the only one that matters.

But we know little about the judges or where they’re coming from. Rachio’s opinion seems to have adopted a number of broad arguments and language from gun rights advocates (somewhat like the federal judge in Amarillo, Texas, seems to have done in the case of the abortion pill). That suggests background steeped in particular social patterns of thought found outside of legal case books; possibly you could find something similar –  though from a different perspective) in the case of judges based in Portland or Eugene.

This may be inevitable; whatever professional training we may have, we all bring some of our own social and experiential baggage to what we do.

But in the case of judges, it may mean we need to take a closer look – and inquire more closely when appointed or elected – so that we know what we’re getting. Because that will vary.

 

The 2024 campaign has begun for at least one item that may be on next year’s general election ballot: a constitutional amendment that would change the state’s primary election of 2026.

I saw the early shot in this campaign in my email in-box, in a missive from the group All Oregon Votes. The “Big endorsements for All Oregon Votes!” were significant enough to draw attention, including former legislator and gubernatorial candidate Betsy Johnson and the group Veterans for Political Innovation. Johnson’s comment was, “Damn near half the state’s voters are independents. They ought to have an equal voice in our democracy.”

The campaign’s web page leads with an arresting statistic. In last year’s primary election, the top two candidates for governor, Democrat Tina Kotek, now in the office, and Republican Christine Drazan, together won votes from just 12.3% of all the registered voters in the state. Of course, other competitors in the party primary won several percentage points more, but only about 30% of the voters were even involved in selecting those two nominees. Most registered voters were on the outside looking in as either non-aligned or members of other parties.

In many ways, Oregon,  with its almost automatic voter registration and its vote by mail system,  has some of the most open voting processes in the country. It is in the minority of states, however, that allow only Democrats to vote in Democratic primary elections and Republicans to vote in Republican primaries.

The proposed Petition 2024-16 would apply to all state and federal offices except president and vice president, and would allow all candidates to appear on the ballot “regardless of whether the candidate is or is not affiliated with a political party.” It would also and allow all voters – whether or not members of a party – to choose any single candidate for each office. That could mean, for example, voting in the primary for a Republican nominee for the U.S. House, for a Democratic nominee for governor and a non-aligned candidate for the Legislature.

It’s not an unprecedented approach. Washington state operated under a somewhat similar system that allowed for each major party (with a candidate appearing in the primary) to be represented on the November ballot by its top primary vote-getter. That system was ended by a U.S. Supreme Court decision.

This cycle isn’t the first time the idea of changing this has come up. A similar proposal was offered in 2021 for the next election, but it came up short and never reached the ballot. Oregon for decades has had closed primaries, and neither major party has made any move toward changing that.

Might voters approve the idea next year?

The Betsy Johnson endorsement, along with some significant group endorsements early on – the deadline for submitting enough petition signatures isn’t until next summer – gives it a decent chance. Neither major party has expressed any interest in opening their primaries.

If they did, they might see some improvement with what has become a persistent problem for both: the need to appeal to the philosophical edges of their parties and away from the centers. Johnson’s gubenatorial campaign last year directly addressed that point, and although she wound up in a distant third place, the point about a lack of appeals to the center did hit home for quite a few voters.

Oregon also is one of the states with the largest portion of voters not a member of either party, and that portion is growing. All Oregon Votes points out that while just over a third of voters register as Democrats, and just under a quarter as Republicans, 41.7% register as something else – and so have no involvement in the critical phase of selecting party nominees. And that percentage has been growing.

Several states have seen significant debates over this. Idaho for decades allowed all voters in a primary election to choose any party’s ballot (but just one) for voting. In 2010 the state Republican Party decided to limit voting in its primary to people registered as Republican, and a federal court decision the next year held the party could impose the requirement. That rule has been the subject of contention since, even as a number of Republican activists have loudly complained about Democrats and non-aligned voters registering as Republicans to influence its primary results. (Analyses of votes have suggested those crossovers exist but their numbers are small.)

Those debates implicate the question of what a major political party is, whether simply private aggregations of voters or semi-public, though technically private, organizations that effectively control the channels of representative democracy. It may also raise the issue of how well the two major parties are representing the mass of Oregon voters.

If All Oregon Votes and its allies push their case more firmly this election cycle than in the last, the opportunity could align for a decision on that.

 

In 2022, Oregon’s 5th Congressional District race was the least predictable major contest in the state, and now it looks much the same for 2024.

Both the national Cook Political Report and the Sabato Crystal Ball already label it a toss up – a rarity for a contest in which an incumbent is expected to run for re-election.

It’s a fair call. This is a seat in an area long represented for the most part in Congress by Democrats, now held by a narrowly-elected Republican, Lori Chavez-DeRemer. Democrats are prowling the contest hungrily, and the contest should be expected to be fierce.

The earliest indicators of what to watch for involve how the been positioned herself well for the upcoming contest. That doesn’t mean – as many people are quick to assume – that everything she’s done was undertaken for that reason. But the effects of most of what she has done have made her position more, rather than less, defensible.

Members of Congress have two areas of conflict to deal with: from within their party, and from without. Chavez-DeRemer has seen examples of in-party risks close at hand as recently as 2022: A Democratic representative, Kurt Schrader, was defeated in his party’s primary in her district; and a Republican incumbent from a district only a few miles north (Jaime Herrera Beutler, in Washington’s 3rd) lost her primary there.

The first test this year for Chavez-DeRemer came in the selection of a House speaker. She stuck with the party’s leadership and now-Speaker Kevin McCarthy, likely the sensible move for the longer term, though some activists in her party might have preferred otherwise.

Her initial speech on the House floor was short but carefully curated to include Republican campaign talking points likely to win support among her troops back home in its blue-state critique: “We need to get our economy back on track, secure the border, support safe immigration and reduce homelessness and drug overdoses. A report from the National Drug Helpline ranked Oregon worst in the nation for drug problems.

“Oregon is number one in drug use, and number 50 in drug treatment,” she said. “I frequently hear from moms and families who are begging their leaders to please pay attention to this fentanyl crisis. The drug cartels have insisted on taking our children from us.”

That opening speech, while not overtly partisan, has been an outlier, overall, she has been no simple purveyor of partisan red meat. Rather, she seems to have borne in mind the need to appeal as well to independents and Democrats in a district that leans slightly away from her party.

She has appeared and worked with other members of the Oregon delegation, notably Democrats.

She tweeted a picture with 1st District Democrat Suzanne Bonamici, saying (even offering a positive note about the Biden administration in the process), “This morning I attended the president’s announcement nominating Julie Su for Labor Secretary alongside @RepBonamici. If confirmed, I’m hopeful that we can work together to help workers succeed.”

Chavez-DeRemer is a member of the House Agriculture Committee, alongside fellow Oregon newcomer – and Democrat – Andrea Salinas. (The national prognosticators figure Salinas’sDistrict 6 as learning Democratic.) They jointly issued a statement about the upcoming Farm Bill activities, asking for Oregon feedback on the subject.

“Agricultural production is the heartbeat of Oregon’s rural economy, and we look forward to working hand-in-hand with our producers and hardworking families to craft a beneficial and effective Farm Bill that will set Oregonians up for success over the next five years,” they said, striking a bipartisan chord.

She also has moved in a bipartisan way on other subjects, such as on a bill concerning student loans with sponsors across the aisle. (If you get the impression she seems a little more than average visible as a House member, you’re probably right.)

There’s also her response – actually, two responses – to President Joe Biden’s State of the Union speech.

Her first statement on Feb. 7 called it a “mixed bag,” with some praise interwoven with criticism of national problems.

Her second, two days later, took a different approach and was more affirmative: ““Despite the partisan bickering that often dominates headlines, it’s important for us to remember –especially after the State of the Union – that we as Americans have much more in common that unites us than divides us. Oregonians have an optimistic spirit. And on my first day in office, it was with that spirit in mind that I committed to rising above the partisan bickering and typical D.C. gridlock – promising to work with anyone who’s interested in delivering results that benefit Oregonians and all Americans. I agree that we can work together to expand American-made products, improve our nation’s infrastructure, counter China, tackle the fentanyl crisis and ensure veterans receive the care they deserve.”

Not everything is under her control. The caucus running the U.S. House has been and likely will be prone to controversy and unforced errors, and Chavez-DeRemer will be held to account  for the fact that her control of the seat helps give the Republican Party control of the chamber.

She also can’t control what the Democrats do, which likely will include a strong campaign.

But so far, she’s handled smartly what she can control.

This column originally appeared in the Oregon Capital Chronicle.

 

The Jan. 25 report on Oregon’s water shortage, released by the Secretary of State’s office, prominently included a cautionary quote from the legendary western explorer John Wesley Powell, delivered in 1893 as the regional approach to water management started to take form:

“I tell you gentlemen you are piling up a heritage of conflict and litigation over water rights, for there is not enough water to supply the land.”

He spoke as though that were a bad thing. Experience across the West shows that it might point to a useful direction for Oregon.

The report, “State Leadership Must Take Action to Protect Water Security for All Oregonians,”  points out that despite the national myth that Oregon is water-drenched, most of the state is arid, and even many of the wetter areas – including much of the Willamette Valley – have seen below-average water supplies in recent years. Travelers near the Willamette can see many farms using irrigation more intensively than they once did.

The problems are accumulating: “Many communities are not fully integrated into water decisions and often not even aware there is a problem.” the report stated. “The Oregon Integrated Water Resources Strategy is not clearly connected to state and regional planning efforts and does not have clear implementation pathways. Oregon’s state leadership and agencies do not necessarily share water security priorities. Agencies have distinct areas of focus and limited resources and capacity that limit the ability to engage broadly with communities or work across agency lines. Oregon water data is disaggregated, sometimes incomplete, and not set up to support regional governance needs. … State water regulatory agencies have broad discretion but face external pressures that may hinder them from fully using this discretion to benefit the public.”

Oregon has worked on water planning for half a century, but its basic approach is top-down prescriptive: an attempt to set statewide or basinwide policies intended to address water needs.

The 11 recommendations in the new report, for example, call for “sustain(ing) legislative commitment” and “connect(ing) a regional planning system with an integrated state water plan” and setting up new planning and improving communications, in both government and with the public, on water issues.

An Oregon water framework would include statewide priorities, a statewide water plan, a coordination body, regional and local water plans, and additional regional and local “planning bodies” – a highly complex system that might have a hard time with effective coordination and with clarity.

However helpful these ideas are, they are incomplete. No other western state – and every state from the Great Plains west has significant water challenges – has succeeded in managing water this way. Nearly all emphasize another approach, one already built into Oregon’s water system: administration through the prior appropriations doctrine.

An example (possibly the most successful in the country) can be found next door in Idaho.

Idaho’s available water resources are, in most regions, weaker than Oregon’s, and it has sometimes struggled to deliver water as needed. For decades, the state tensely balanced water demands for its agricultural and hydropower systems (and in smaller amounts for other uses), an arrangement that blew up in 1982 with a state court decision giving primacy to water use by an electric utility. A series of negotiations followed, and the settlement that emerged included an adjudication of all of Idaho’s water in the Snake River system. That covered close to 90% of all the water in Idaho, and the court case that resulted was the largest of its type in the nation’s history.

It was also highly successful. The 28-year adjudication – done at what amounted to light speed in the world of water adjudications – took account of every person and organization seeking to use water in the system, and rationalized who was able to receive what. The court (and administratively, the state Department of Water Resources) bases case-by-case decisions on state law and court precedent, with some leeway to account for specific local conditions and needs. A state water resources board sets overall policy.

Oregon has in place the basis for taking a similar approach. Like other western states, Oregon allows users to obtain water rights under the “prior appropriation” system, in which senior users (“first in time, first in right”) have priority as long as they use the water beneficially. Policy decisions are made based in part on what is considered a beneficial use, and who can claim it, followed by negotiations among the people affected. In some places, fish and wildlife can obtain what amounts to water rights under a trust system, as can recreational and other users.

In limited ways, Oregon already does some of this. A major water adjudication is underway in the Klamath River basin, and much of the rest of the state has been adjudicated at various times. But the results have never been well integrated and have not been developed statewide, a key element to successful state water management.

Oregon can’t, through legislation or regulation, create more water. But it can more clearly articulate how its water should be used. The new advisory report, coupled with case studies from around the regional neighborhood, can show how.

This article originally was published in the Oregon Capital Chronicle.

 

If Oregon legislators wind up their session this year without substantially addressing limits on campaign contributions, there will be no publicly acceptable excuses – not even that of their own self-interest.

It’s not only the legislators who have pledged to move on the issue, but also the formerly most-influential legislator and now governor Tina Kotek. Last year she campaigned on finance reform, and while accepting large contributions, she added, “if I have any say this will be the last governor’s race where we have no limits.”

That last comment was a reference to a weird distinction in Oregon’s overall election climate: It is one of just four states (Virginia, Nebraska and Utah are the others) that places no limits on personal or organizational contributions to campaigns. (Yes, Idaho, Texas, Arizona and Mississippi among others have such limits while Oregon doesn’t.)

The consequences of that became chillingly clear last year, as in race after race massive dumps of money swamped the environment.

The biggest single chunk of funding came from cryptocurrency billionaire (mega-rich no longer since his business collapse) Sam Bankman-Fried, contributor of more than $10 million in support of the locally unknown Democrat Carrick Flynn, who proceeded to lose his primary election. Many other races were lost last year by heavily funded candidates, but one congressional seat may have been flipped by it – Oregon’s 5th, where funding in support of new Republican Representative Lori Chavez-Deremer was more than twice that of her Democratic opponent.

Those congressional races are mostly under the reach of federal, not state, law. But massive amounts of money hit in numerous Oregon state races, too. Famously, Nike co-founder Phil Knight poured millions in the gubernatorial campaigns of first, non-aligned Betsy Johnson, and then Republican Christine Drazan; His funding and that of a few other large contributors overwhelmed smaller donors.

That happened in a string of legislative races. The most striking example may have been that of Democratic Senator Jeff Golden of Ashland, who raised a more-than-respectable treasury last year – almost a quarter million dollars – but still was outspent more than four to one by Republican Randy Sparacino. The effective difference between the two was a little smaller, however, because Democratic support groups also spent on Golden’s behalf. A critic of that kind of financing, he said after the election that “I could not get, no matter what I did, the upstate folks to stop spending money on the race.” Golden won, narrowly.

For campaign finance reformers, Oregon has been an exercise in frustration for decades, ever since the Oregon Supreme Court in 1997 said the state constitution’s free speech provisions barred campaign contributions limits. (That ruling threw out a 1994 attempt at campaign funding limitation. But in 2020, the court upheld a Multnomah County attempt at finance regulation.

More critically, in 2020 voters massively backed (the yes vote was 78.3%) Measure 107 to amend the state constitution specifically allowing campaign finance regulation – but it still needed legislation to make the amendment active. Business and labor groups, both heavy backers of Oregon candidates, opposed the amendment and some fought it at the Legislature. Oregonians hoping for action in the last legislative term were disappointed with the failure of substantial movement at the statehouse.

In 2022, reform groups including the Honest Elections Oregon and the Oregon League of Women Voters proposed three initiatives aimed at limiting campaign contributions. They were frustrated when a decision by Secretary of State Shemia Fagan said the proposals ran afoul of legal requirements (dating from a 2004 court ruling) on the text that had to be included. When the Oregon Supreme Court upheld the decision, the measures were blocked from the ballot last year.

Since then, Fagan (as well as Kotek) has called for campaign finance reform as part of her legislative package.

Honest Elections spokesman Jason Kafoury said that “overwhelmingly, the citizens of this state want limits on big money dominating their politics, and as the governor’s race shows, six- and seven-figure checks are going to continue to overshadow everyday voices until we get real campaign finance reform in Oregon.”

The same forces that blocked finance legislation in the last legislative term may try again, but they’re losing key avenues of support.

There’s no constitutional bar, and clear legislation, with widespread support, has been drafted. And the idea – conceptually at least – has solid support from the state’s leadership.

Simply, legislators who return home having failed once again to pass will have little way of explaining why other than to helplessly say, “money talks.”