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Warning signals

The political signage telling you everything you needed to know about the McMinnville School District election this season came in the form of multiple yard and field signs, clearly expensive and featuring soft pastel designs with attractive candidate portraits – all visibly from the same sources.

And the signs were only the most obvious part of a heavily funded school campaign different from those in McMinnville’s past, with a lot of campaign money poured into a de facto slate of conservative? candidates aiming at a takeover of the McMinnville school board.

Observers in western Yamhill County watched this closely, some with alarm, because they’ve already seen a similar kind of takeover in the neighboring Newberg School District. Voters may have been watching Newberg, too, and not just in McMinnville. What has happened in Newberg over the last couple of years may have affected some of the school board results in Hillsboro, North Clackamas and other communities where conservatives appeared to have lost?

That unusual ripple effect would at first seem unlikely, except that for many months the Newberg story has bounced around the state and even the nation.

Two years ago, control of the Newberg board shifted from a centrism board to an activist conservative slate of trustees, running as supportive of parental rights. It quickly fired its superintendent Joe Morelock (who was as quickly tapped as superintendent in the Woodburn School District and then this year on May 8 to lead the Willamette Education Service District).

His firing was without cause, coming after he refused to issue directives he said were illegal. The board’s choice for a replacement was on paid leave pending investigation – into what hasn’t been made public – at the Jewell school district, where he landed after a forced resignation at Beaverton in 2018 “after retweeting an offensive remark about undocumented immigrants.”

The board drew a lawsuit from the Newberg Education Association after a decision banning all political signage, one among many controversial actions. In the last year, the district has seen a heavy exodus of administrators, teachers and students, which has cost the district state funding.

Recall attempts were tried in early 2022 against the board chair and vice chair, but those fell short, after the board members benefitted from well-funded anti-recall campaigns.

Much of this and more has been reflected in news stories across Oregon and far beyond.

At McMinnville this month, four school board seats were up for election, sought by two veteran centrist incumbents seeking reelection, who were joined by two allied newcomers. They faced a slate of candidates –  whose faces were on those expensive signs– backed by many of the same people and organizations who have supported the board in Newberg.

Those challengers appeared poised to take the district in the same direction.

In a May 8 article, the McMinnville News Register showed how local races for school districts, and some other local governments, that normally attract little campaign money are becoming dominated by a few large contributors, notably the George family of Newberg. The article said that family alone has spent more than $35,000 on the May elections in Yamhill County, a highly unusual amount for those contests.

That support has led some local observers to wonder whether a Newberg-style activist slate might prevail in McMinnville. It didn’t. When the votes were counted, the two incumbents won in landslides, and their allies won decisively. The Newberg style didn’t sell in McMinnville.

This isn’t the story of just one county, however.

Three school board candidates in Canby who ran as parental right proponents and who supported book banning efforts there lost decisively. In the North Clackamas School District, a slate backed by Basic Right Oregon, which advocates for LGBTQ+ rights, easily prevailed over more conservative opponents. Wilsonville expanded its board’s left of center majority. Hillsboro saw social conservative groups, including Communities for Sensible Schools and Oregon Right to Life, raise more than $80,000 this year for local races, fall short too.

The most striking result of election night, though, was back in Newberg. Five board seats were up for election, three held by conservative activist incumbents and two open seats sought by allies of theirs; as of late Wednesday, all five were losing their bids to moderate challengers, who were backed by the group Oregon CARES, which had support from the Oregon Education Association. The board will shift effective control.

Every election is different, each campaign has its own logic, and some of these races may be reverberations of some national political trends or in a few cases individual campaigns. And among the school board races statewide there were some right-leaning exceptions – Crook County School District being one of the clearest.

But the Newberg case overall, and some of its counterparts in other places, seems to have generated lessons absorbed by voters across the region.


An election afterthought

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 campaign for open primaries

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.


Treading a careful path

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.


A plan for industrial land

This year marks a half-century since Oregon Gov. Tom McCall signed into law Senate Bill 100 requiring comprehensive planning, which warned “uncoordinated use of lands in this state threaten the orderly development, the environment of this state and the health, safety, order, convenience, prosperity and welfare of the people of this state.”

Back then, the concern was about urban sprawl and haphazard development that would scar the state and disrupt traditional farm and timber economies, and make Oregon a less livable and manageable place. Addressing the Legislature, McCall blasted “sagebrush subdivisions, coastal condomania, and the ravenous rampages of suburbia.” In many ways that law (and others passed over the years) did its job and continues to do so.

Oregon is a big state, geographically the ninth-largest in the country, but the uses available for much of it are sharply limited. Time and circumstances have moved on, and legislators now would be well advised to pay attention to other problems as well in the state’s land-use picture. One, which was the subject of plenty of discussion during last year’s political campaigns, was the need for more space for residential housing, of which there’s a dire lack.

Another problem, and another lack, would have been counter-intuitive back in 1973: The lack of land available for industrial and manufacturing purposes. And if the goal of Oregon’s land-use planning is to address the full range of needs, use of land for industry and manufacturing is going to have to be addressed more effectively than it has been.

A new survey of Oregon communities, from the Oregon Business Council, the Oregon Economic Development Association and the League of Oregon Cities brings that into relief.

(A disclosure: My wife is the mayor of Carlton, which did participate in the survey but did not report any losses of economic opportunity due to lack of industry-ready property.)

The immediate trigger for it was concerns about making land available for the semiconductor industry, but the implications are far broader. The survey pulled responses from 66 Oregon communities ranging in size from Salem to Shaniko. (A few are not incorporated cities.) The survey said “57.5% indicated they have missed opportunities due to a lack of development ready industrial land.”

Those “missed opportunity” cities included Albany, Bend, Coburg, Eugene, Forest Grove, Grants Pass, Gresham, Happy Valley, Hermiston, Independence, Lebanon, McMinnville, Sherwood, Sisters, St. Helens, The Dalles, Tualatin and Wilsonville.

There is a subtlety here: It’s not just the raw amount of land, it’s also the evolution of infrastructure on the land. The communities said they had 9,746 acres of land zoned for industrial uses, but only about a fifth of that is ready for development: Much of it lacks utility access or road or other transport access and some are designated as polluted brownfields.

That theoretically available acreage is not evenly distributed. The Port of Tillamook Bay alone accounted for 1,100 acres, and the cities of Albany, Bend, Happy Valley, Lebanon, Ontario and Redmond almost half of the rest. The numbers are small in many communities, like Gresham (70), Lincoln City (12)  and Lake Oswego (just one), and none at all in some (King City, Durham, Ukiah).

If there’s some incentive to apply a gas pedal to changing elements of the landuse regime, there’s also pressure to brake.

Speaking at the statehouse earlier this year, Metro Council President Lynn Peterson, for one, said that her agency would be opposed to any drastic changes in land-use laws and to breaking any past promises to farmers and environmental interests. And, she said, “the biggest barrier … to new industrial development in our region is not land supply, but whether the land is actually ready for development.”

That does suggest several elements need to be brought into play, including upgrades to infrastructure which many Oregon communities struggle with more broadly.

But absolute acreage matters too, especially when the amounts are small.

Metro has proven willing to be somewhat flexible. On Feb. 2, the Metro Council decided, for example, to okay a Tigard city urban growth boundary change to allow for new housing in the area, part of a larger effort to encourage more affordable housing.

A general strategic plan to open and prepare reasonable amounts of land for commercial and industrial uses could keep Oregon’s economy in balance. It would not try to dictate specific answers for each community, but might offer more flexibility for cities and other jurisdictions as they try to cope with the growth and development Oregon laws and plans already, even if loosely, do project for the coming decades.

Records are open, law is complicated

If you want people to recycle, make it as easy as possible.

The same should be true of Oregon’s open records law, but it isn’t. With this being Sunshine Week, which focuses on easier access to public records, it’s important to remember that accessing public documents in Oregon gets more complicated all the time.

The state Department of Justice outlines the purpose of state’s open records laws clearly, saying they “promote democracy and transparency. Oregonians have a right to know how their government works and spends money.”

Changes in state law have brought some improvements in recent years. In 2019, penalties were set in statute for state agencies that drag their feet or fail to respond to requests. (Changes in rules governing excessive fee charges have been harder to come by so far.) The year before that, the Legislature created the Office of the Public Records Advocate, which among other things is tasked with providing help with public records requests. The office is staffed by two attorneys.

The office has had issues, however. Legislative testimony this year noted that the first public records advocate “resigned in part due to perceived political interference in the operations of the office.” It wasn’t until 2021 that the office was given more independence. A bill this year (Senate Bill 510) finally sets up a proper budgeting process for the office. (Specifically, the bill’s formal description says it would direct the office “to estimate biennial costs to carry out duties of advocate and to allocate and assess cost among public bodies of state government; represents vital last step to establish office as independent state agency.”)

The fact that Oregon needs a public records advocate office – and it does – is one indicator that the state’s public records law isn’t working as smoothly as it should.

There are a number of public records-related legislative measures under consideration this year.

Aside from Senate Bill 510, about 30 propose changes to state records laws. Some of them would help record seekers. Senate Bill 160 would cut records fees by 40% if the request is in the public interest. Another – Senate Bill 417 – clarifies what elements can be built into search and copying fees.

As public records go increasingly digital, House Bill 2136 might prove to be one of the most helpful. It would restrict a public body from imposing a fee for a record in electronic form provided the requester agrees to accept the documents in electronic form and the agency doesn’t have to dig into its archives. The fee exclusion also would not apply if staff had to retrieve the record and prepare it for disclosure, presumably when redactions are required for privacy. And there are at least three pieces of legislation that would call for studies of public records by the secretary of state and the Public Records Advisory Council.

Many of the other proposals, however, include new limitations on what records could be released. Some of these involve personal information for such groups as state employees or retirees and people who use various services. Some involve services that don’t yet exist, such as the Oregon Health Authority’s prospective pregnancy resources hotline (information about callers would be exempt from disclosure).

Some, such as the hotline exemption, are unlikely to be controversial. Others, such as HB 3073 involving information about candidates for public office, could cause closer examination.

All of that is only part of what’s involved in just this year’s law changes on the public records front. The overall records picture, changing with new legislation every year, makes for an ever more complex legal mosaic few citizens can easily track.

As the Legislature considers authorizing new studies on public records, the subject of simplifying the law on access to them would be a logical subject of discussion.


When facts change

Sometimes the job of legislating involves weighing not just one interest or two but a whole group of them, all competing against each other - even when the core issue seems simple.

For example, Senate Bill 554.

The background is that technology used in criminal forensics has been changing dramatically (think, for example, of advances in DNA identification) in the last few decades, and in a significant number of cases has resulted in the exoneration of people convicted of crimes up to and including murder. No argument has surfaced against the idea of clearing the records of people who actually did not do the crime for which they were convicted.

Oregon legislators haven’t been inactive in this area. The legislature updated in 2019 the law regarding DNA evidence, and in 2021 expanded the law allowing for reconsideration of convictions (in cases where a DA and the defendant are in agreement). Despite the limitations, Oregon as of last month had 500 active post-conviction relief cases.

Still, Oregon law, like that in most states, hasn’t fully kept up with changes in technology, and 554 is an attempt to do that. It adds a specific legal procedure (a new pathway for “post-conviction relief”) in which a convict can challenge the evidence used in their case if advances in science since the conviction throw a new light on it, maybe reversing the story it seemed to tell.

The new measure carries the positive of moving toward justice (even if belated). Developed through the Forensic Justice Project and Innocence Project, its legislative sponsors are thoroughly bipartisan, including both the Democratic chair and Republican vice-chair of the Senate Committee on Judiciary.

At the committee’s hearing on February 6, most of the testimony ran in favor, and was plenty compelling.

Oregon wouldn’t be the first state to try this approach. Texas - usually never shy about throwing the book at the accused - passed a similar measure in 2013, and reports from there have sounded positive. To those concerned about a wave of inmate lawsuits, Texans can cite just 25 petitions for relief under the new law. Other states including California have reported similar results.

The Innocence Project pointed out a variety of types of forensic evidence which used in improper ways - as, it suggested, often has been the case - could yield the wrong conclusion, such as bullet lead analysis and microscopic hair review. It said the National Fire Protection Association has concluded that “many of the physical artifacts previously thought to occur only in intentional fires—such as ‘alligatoring’ of wood, crazed glass, and sagged furniture springs—could actually occur in accidental fires” - and such revised opinions were not widely adopted until many years after the conclusions were reached.

The strongest opposition to the new bill, as you might expect, comes from the Oregon District Attorneys Association. Oregon already has, it said, a “Post-Conviction Hearing Act, which generally only allows for relief when a defendant’s conviction was the result of a constitutional violation or entered by a court lacking jurisdiction to do so. SB 554 would require relitigating convictions when no constitutional violation is even alleged.” That suggests part of the problem its advocates want addressed: Correctives are often available only when constitutional or procedural issues but not the actual facts and evidence are a basis for revisiting the conviction. The DAs did not argue that some path to addressing evidence change shouldn’t be developed, but cautioned about the specifics in this bill.

The bar for filing under the law would be low; a convict wouldn’t even have to assert he or she actually is innocent, and when the convict actually pleaded guilty. The counter, of course, is the guilty pleas sometimes come after plea bargaining when a reluctant accused person formally admits to guilt as the best roll of the dice.

There are other, simpler arguments harder to swiftly rebut.

Such as those of limitless consequences. There’s no deadline in the bill for filing for relief (other than that you’re still alive). There is no financial cost cap on re-examining the science involved, nor a super-clear definition of what scientific changes may be allowable under the statute. And for any number of crimes, there may be no final closure: A murder committed 30 years ago, and for which a person was convicted, might still be in effect an open case. Victims or the people around them may have some concern with the idea that there may never be closure.

And the question of an open checkbook. Advocates argued that, “Our rights should not have a price tag,” but still: Any trial lawyer can tell you that obtaining expert testimony or research can be highly expensive. How expensive it might be and who would pay for it are questions left open in the legislation.

Getting to the right and wrong of legislation intended simply to apply truth and facts should not seem to be so complex. But there are times legislators are better off with time to ponder the appropriate line of justice, maybe over a span of several months rather than weeks.

This column originally appeared in the Oregon Capital Chronicle.


Answers for Oregon’s water troubles

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.


Time for finance reform, finally?

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.”