Monday, November 10, 2003
Here is an open letter sent today by Greg Wasson to the Chief Justice of the Oregon Supreme Court. Mr. Wasson is concerned about the Oregon Secretary of State's asserted power to deny Oregon citizens the right to circulate a petition to qualify a ballot measure. But aside from that, his letter provides some interesting history and perspective on how far we have come to improve democracy in America. At our founding, we did not elect the U.S. Senate (it was appointed by state legislatures) nor did we elect the U.S. President (the electoral college still does this). Oregon paved they way for the direct election of U.S. Senators by holding straw polls and then expecting their state legislature to appoint the Senate candidate who won the straw poll. This letter talks about some of that history. Eventually, Oregonians improved this by passing a state ballot question that instructed their state legislators to appoint the winner of the popular vote for U.S. Senate, and then notified voters with ballot notation in their re-election campaigns whether or not the state representatives complied with those instructions. That was the so-called "end run" referred to in the letter below. The modern reform movement may need some out-of-the-box thinking such as this if we are to make progress.
November 10, 2003
Wallace P. Carson, Chief Justice
Oregon Supreme Court
Supreme Court Bldg.
Salem, OR 97301
Re: The Travesty that is Oregon Initiative Law
Simply put: For much of the last century, a constitutional fraud of breath-taking proportions has been worked on the Free People of Oregon.
It is to be remembered that the government drafted in Philadelphia barely deserved the label "popular." The Electoral College, not the people, selected the President. The various state legislatures appointed the federal senate. And, these two semi-aristocratic institutions, insulated from the citizens, as it were, decided who would sit on the federal bench.
The first formal attempts to replace the appointed U.S. Senate predate the Civil War. A decade or two after that conflict, however, the movement really began to heat up.
State electorate after state electorate approved the idea of direct election at non-binding referenda. Legislature after legislature petitioned Congress for the necessary amendment. At least ten (10) states, including Oregon, called for a constitutional convention.
By the turn-of-last-century, the elected U. S. House had nearly-unanimously approved the idea of direct election five (5) times. Each time, the appointed U.S. Senate refused to even debate the notion.
Such was to be expected.
The U.S. Senate formed the ultimate among the public auctions that passed for American governments as the 19th Century became the 20th. The common, even prevalent, practice of political bribery combined with the immense federal wealth to transform the Free-Marketplace of Ideas into the Convenience-Store of Accumulation.
Eastern corporations toured the country buying senatorships for local scoundrels they could trust to vote correctly back in Washington. This they did by financing local legislative candidates, who, after pledging to support the "proper" senatorial aspirant received sufficient money for the graft, ballot stuffing and intimidation essential to the successful late 1800s campaign.
Once the lawmakers gathered in Salem, the second round of the auction commenced, with federal senatorships being purchased as openly as hogs at market. People would run for office just so they would have a vote to sell.
Not only did these corrupt legislatures auction off U.S. Senatorships, they also offered, for the right price, legislative changes in local law. Accordingly, federal, state, and, local politicians all found themselves in bed with the same corporate whores.
The more radical elements of the People's Power League dedicated themselves to destroying this unholy triumvirate, the natural result of the Father's mistrust of the masses.
The 1899 Legislature approved the Initiative Amendment, the 1901 Legislature did likewise (in those days, two successive sessions of the legislature had to approve an amendment before it went on the ballot), and, in 1902 the Free People of Oregon approved the amendment by a vote of eleven (11) to one (1).
The 1901 Legislature also approved the "Mays Act," whereby a straw ballot would be held so the people could express their choice for U.S. Senator, with the "election" to be canvassed immediately before the 1903 Legislature appointed Oregon's next senator.
A rousing show of support for popular government. But, alas, a show is all it was.
The 1902 straw ballot called for in the Mays Act occurred, but, when the 1903 Legislature gathered to appoint the next senator, the man favored by 37 % of the "electorate" received but scant support. After significant haggling, the legislators eventually elevated to the U.S. Senate a candidate who received, at most, 2 votes in the much-vaunted "election."
The People's Power League responded by initiating an imaginary end-run on the federal constitution -- and, the back room politics of Salem -- that allowed Oregonians to "elect" their federal senators in 1907.
With one state choosing its senators at the ballot box, the old appointment system had no chance elsewhere. In 1913, the 17th Amendment spread direct election nation-wide.
Back in Oregon, the People's Power League remade state government.
In addition to gaining control of the legislature through the I & R, the League initiated the recall -- giving the people the power to recall errant administrators -- and, a subsequent rewrite of the Judicial System theoretically made the Oregon Supreme Court more responsive to the citizens.
About 1910, though, it became apparent that the real goal of those leading the populist charge lay beyond simply making state government more democratic. Rather, people like Oregon City lawyer William S. U'Ren wanted to radically change the seating arrangements on the gravy train.
Remembering that every action has an equal and opposite reaction, it's easy to imagine the ferocity of the powers-that-were. When Oregonians proved unwilling to agree to legal limits on their new powers, the establishment resorted to extra-legal limits.
In 1912, the U.S. Supreme Court refused to take jurisdiction of two (2) initiative cases originating in Oregon. This made state supreme courts the true courts-of-last-resort as concerns most initiative questions. The 1913 Legislature responded by packing the Oregon Supreme Court with a majority that could be trusted to cut U'Ren off at the knees.
This biased tribunal performed as anticipated, issuing a series of politically-motivated, results-driven decisions that defy harmonization.
In the late 1920s, the Oregon Supreme Court returned to the people and their Constitution, only to abandon them a second time during the Great Depression. Oregon's High Court returned to the light and the way a second time after WW II, but, has deserted the people again.
Consider the 1968 Amendment of Article IV, section 1, and, your Court's subsequent interpretation of the amended language, most notably, OEA v. Roberts, which gave the Secretary of State -- a mere ministerial office -- the power to subject petitions to pre-election review.
As argued conclusively in the enclosed memorandum, OEA, if not wrong the day it was published, cannot survive the tools of constitutional-interpretation your Court has developed in the intervening years.
The facts underlying the enclosed memorandum are simple:
1. Three (3) members of Oregon's Popular Legislature sought permission from the Secretary of State to circulate a proposed law, such proposal designated "Proposed Initiative # 35."
2. The Secretary, on advice of the Attorney General, refused to certify the proposed initiative for circulation.
I've also enclosed a 2-page abridged digest that suggests that whether aggrieved petitioners got justice from your Court over the last century depended on who happened to be sitting on the bench -- hardly becoming of a commonwealth that prides itself on having a "government of laws, and, not people."
And, that has become the new focus of my obsession. This debate isn't over whether Oregon should have a nearly-unfettered petition process -- she obviously does -- but whether ours is to be a government that respects the Constitution.
I am mindful that W.S. U'Ren, and, many of those close to him cared, not so much about ensuring Direct Democracy, but about advancing a radical tax scheme they knew they could never get by the Legislative Assembly.
Accordingly, U'Ren and his fellows designed a system where the people could harass and veto the legislature for any reason, or, for no reason at all.
Perhaps, it's time to revisit and redesign that system. But, unless the government reads the Constitution the way it is written -- not the way it, the government, wishes it were -- there really is no system to revisit.
Since I obviously won't be the attorney of record when, and, if, this matter comes before you, I send along this information for your consideration.