The Oregon Business Association issued a statement today
that was completely and totally wrong. It accused the Legislature of doing
something it is not doing, and of creating confusion it is not creating. In fact, the Legislature is trying to clear
up exactly the kind of confusion that it seems OBA suffers from. (And no, I'm not being sarcastic - I think our friends at OBA were genuinely confused.)
The OBA knows (or should know) the difference between
referrals and referenda. A referral is
when the Legislature asks the voters to approve an idea. A referendum is when
the Legislature passes a bill, but some people want to stop it, so they gather
the signatures to send the idea to the ballot.
Historically, but very confusingly, the ballot titles for
referrals and referenda have failed to clarify the difference between the two. When the Legislature asks the voters to
approve something, you need to vote ‘yes’ to say you agree with the
Legislature. That makes sense. But what about when opponents of a bill get it to the
ballot, when they’re the ones asking
for the voters to do something, asking them to overturn what the Legislature did? Well, you're supposed to vote 'no' if you AGREE with the people who put the measure on the ballot. You need
to vote ‘yes’ to say that you disagree
with the idea of overturning what the Legislature did. Confused yet?
A press release that Russ Walker of Freedomworks issued in
2003, when Walker gathered the signatures to refer a tax increase, highlights
the problem. It read as follows:
MEASURE 30 WILL ASK VOTERS TO REPEAL TAX INCREASES.
NEWS RELEASE: December 03, 2003
FOR IMMEDIATE RELEASE
CONTACT: Russ Walker - (503) 709-8864
(Salem, OR) -- The Secretary of State's office today
certified the referendum to repeal the legislature's tax increases as Ballot
Measure 30.
That’s the way Walker thought of Measure 30 – as a measure
to repeal the tax increase. That’s the
way people talk about referenda. But
when people look at the ballot, they don’t see anything like “repeals tax
increase.” In fact, bizarrely, in 2003-04 Russ Walker wanted people to vote NO on what he himself described as "the referendum to repeal the Legislature's tax increase." The ballot title for any referendum is
completely inconsistent with almost any pre-election discussion people will have heard
about the issue.
House Bill 2414 would eliminate that confusion. It would draw a sharp line between the case
where the Legislature is asking voters to agree with it, and the case where
opponents are trying to overturn what the Legislature did. When there is a
referendum, under HB 2414, voters who agree with the referendum sponsors would
vote ‘yes.’ And the Caption would make
it all very clear: It would say “Overturns Legislation.” So it would be very
clear to voters: If you want to overturn what the Legislature did, vote yes –
‘yes, I want to stop those scurvy dogs in the Legislature.’
Now, where does the OBA come in? The OBA issued a statement today accusing the
Legislature of trying to “change the meaning of a yes vote on legislative
referrals.” Which is totally false. HB
2414 changes nothing with respect to legislative
referrals. It changes the ballot titles for referenda proposed by opponents of legislative bills.
OBA has unwittingly made the case for HB 2414. Darned right,
this stuff is confusing.
Meanwhile, of course, Freedomworks, the NW Republican blog
folks, and others who are afraid that a clear ballot title will make it harder
for them to overturn progressive tax legislation are trying to stop HB 2414.
They want the confusion that the historical practice creates. Please contact your legislator and tell them
to reject Freedomworks and support ballot clarity.
Let’s clear things up – by passing HB 2414.
6:10 p.m.
Jun 25, '09
I agree, Steve.
There's another way to look at this. Typically, when someone collects a bunch of signatures to put a measure on the ballot, the YES vote is a vote to change the law, while the NO vote is a vote keep the law.
But when it comes to a referendum, the YES vote is a vote to keep the law, while the NO vote is a vote to change the law.
It makes more sense to consistently make YES an affirmative vote to do something different and a NO vote to keep things the same.
....
Which leads to one of my long-time hobby horses. I don't think we should have YES and NO votes for ballot measures at all. I think every ballot measure vote should instead feature a choice between Option A and Option B - each of which would be described in affirmative terms. "If Option A wins, here's what the law would be. If Option B wins, here's what the law would be."
That would eliminate any Yes/No bias, and prevent confusion that arises with voters who try to read the ballot measure text and get confused about the difference between bold text (new), italic text (deleted), and plain text (no change).
6:16 p.m.
Jun 25, '09
Well put Steve, I completely agree with you.
As Kari notes, it seems like this is a case where trying to keep voting simple (ie limiting measures to yes/no votes) might be more harmful than helpful. But at least this bill makes more sense than the status quo.
Jun 25, '09
Thanks, Steve.
Amazing to see the length folks will go to stir up confusion around a measure which eliminates confusion. Orwellian. Glad to have your help cutting through the crap.
Jun 25, '09
It was bad enough when OBA opposed increasing the $10 minimum corporate income tax. Now they're aligning themselves with Freedomworks and opposing a simple effort to make elections less confusing for voters? That's lower than low.
6:47 p.m.
Jun 25, '09
There is confusion either way, so I like Kari's option.
When there is confusion, I think voters lean a little to "no." So, isn't some of this just political jocking to get ballot position to take advantage of a "no" vote.
7:20 p.m.
Jun 25, '09
I vote for yes on Kari's proposal.
Jun 25, '09
Steve Novick is as wrong as the Legislative committee that is pushing this subterfuge.
If this idea is so right, why was it stuffed into a bill late at night, with no public testimony? Honest legislators don't operate that way.
The voters don't care who is proposes a measure. Either way -- initiative or referendum -- they are asked to pass judgment on the proposed law or constitutional amendment. They vote "Yes" if they agree it should be law; they vote "No" if they believe it should not become law.
That current law is consistent. If it was confusing, Oregon voters would have risen up against it long ago.
HB 2414 is unwarranted confusion. Thieves in the night, I think, hope to confuse voters if the 2009 tax increases are referred.
Jun 25, '09
Kari,
Your idea is superb. What's been the response to the legislators that you've told about it?
Jun 25, '09
Man, it has been a weird day. Even I agree with Kari
Jun 25, '09
"That’s the way Walker thought of Measure 30 – as a measure to repeal the tax increase. That’s the way people talk about referenda. But when people look at the ballot, they don’t see anything like “repeals tax increase.” In fact, bizarrely, in 2003-04 Russ Walker wanted people to vote NO on what he himself described as "the referendum to repeal the Legislature's tax increase." The ballot title for any referendum is completely inconsistent with almost any pre-election discussion people will have heard about the issue. "
Thank you Steve for making the point some of us have made for a long time. Even activists talked about voting with the legislators and against Freedomworks, but had to check once in awhile to see which side wanted yes and which side wanted no. It was not crystal clear!
Measure 30 was a low turnout winter election. Not every voter even knows the difference between a referral and a referendum---try explaining that to one of your non-political friends!
Ways and Means full committee couldn't meet until the capitol construction subcommittee finished, so yes, it was 10pm when they broke up. Would it be better to prohibit evening sessions because everything should be done during business hours?
I am agnostic on whether Walker will be able to gather the signatures. There are very busy people who may just ignore any petitioners they see--working parents, for instance.
There are people who are barely hanging on financially. Are they going to be gung ho to prevent increases on people and corporations more well off than they are? Why?
Are all those not registered with major parties really anti-taxers just because Russ Walker says so? Or could they be of the "go out in the real world and look for a real job in the real world like the rest of us" persuasion?
And does Russ Walker really believe that everyone who signed the Measure 30 petitions liked how all that turned out? Or that everyone who registered to vote since Measure 30, esp. young people, is gung ho to sign a Russ Walker petition?
Jun 25, '09
Repeal the tax increase(s): YES! (Hell Yes!)
Simple enough for y'all?
8:55 p.m.
Jun 25, '09
Steve: I am disappointed that you would try to pretend that such an obviously cynical and dishonest move was legitimately intended to solve a real problem.
If this were really a legitimate problem, there would be no need for the legislature to fly the "solution" into an end-of-session bill with no hearings or debate.
And you explanation of the difference between what voters are asked on referendums vs. referrals is disingenuous as well. There is no difference at all.
In a referral, the legislature asks the people if they want to approve a law they have devised.
In a referendum, the legislature devises a law, and enough signatures are gathered so that the people are asked if they want to approve the law the legislature has devised.
It is the exact same question. They have been treated the same for ballot purposes for 100 years. So just now, when then Democrats forced through two tax increases they are scared to death the people will reject, all of a sudden now there is a huge problem with confusion as to what question the voters are voting on?
That's BS and you know it. What disappoints me is that you, a guy who I respect and think is honest about what you think, would actually try to pass off your arguments as something you truly believe.
I don't buy it for a second.
Jun 25, '09
Of course this is all about the threat of a referendum, but that's no reason not to make that choice clear for voters.
A referendum really is about whether you want to overturn what the legislature did or not, whereas a referral is when the legislature asks you what you think of a proposal.
I know people get confused (especially when there is a well-funded effort to be confusing), but this does seem better than trying to explain to voters the difference between referral vs. referrendum blah blah blah.
Seems like the anti-tax trolls are burning up against this idea, so it must be worth doing.
Jun 25, '09
What complete crap Steve. You are a lawyer with the experience reading Oregon's Constitution and yet you can just spout this self-serving drivel?
It is a matter of clear constitutional law in Oregon that an act passed by the legislature loses its status as "law" and effectively reverts to a bill until approved by voters.
See: Portland Pendleton Motor Transp. Co. v. Heltzel 197 Or. 644 at Or. (1953)
"When a referendum is invoked, the act of the legislature then becomes merely a measure to be voted on by the people, and, if the people vote in the affirmative, the measure becomes an act; if they vote in the negative, the measure fails."
Jun 25, '09
Meanwhile, on a quite-related topic, here's the best idea in some time:
Jun 26, '09
It's a much needed fix. Thanks for spelling it out, Steve. Ironically, OBA shared the frustration of the confusing language as the only business organization working to uphold the legislature's difficult tax vote in 2003-- Measure 30.
Jun 26, '09
These referenda worked too well when a NO vote meant NO on new taxes.
So comes long the Oregon Legislature looking for an under-handed way to defeat a tax referendum. This is pretty smarmy and a solution for a problem that doesn't exist.
You are arguing about whether people want a referendum or whether they don't want tax and just obufuscate the issue. Let the voters decide if the want to say NO to new taxes in the simplest and most direct way.
Jun 26, '09
Great arguments, but fact is, I've been voting for many years and not had a problem of understanding the intent of my vote. Is this truly a problem that demands legislative attention in the middle of a deep recession? Why not pay more individual legislator attention now to controlling the cost of the new Columbia river bridge?
Jun 26, '09
What confusion? The existing referendum procedures are perfectly clear. I am outraged at the eleventh hour action by the House
8:38 a.m.
Jun 26, '09
Didn't somebody from the OBA come on here during the initial House fight and tout the organization as the only progressive Oregon business group?
IT's pretty hard to tell here......
Jun 26, '09
That 11th hour thing is such a smokescreen. It's the end of session, which is when this kind of elections/procedural stuff moves. This proposal has been on the table as part of a house bill since March. The business community has known about it, it's just that back then they thought they would be supporting a wimpy corporate minimum package instead of opposing a just barely moderate one. So now they are doing everything they can to stop it from passing.
10:20 a.m.
Jun 26, '09
Yes, we have no bananas.
So apparently Oregon voters twice TRIED to raise their taxes in recent years when they mistakenly thought that voting "yes" meant they didn't want higher taxes and "no" meant they really did want higher taxes.
Now the legislature will help by making clear that "yes" means you're against the new law and "no" means yes, you do want the new law to go into effect.
I'm sure if this does get referred, voters will be very appreciative of the legislature's clarifying this and there won't be any anger or resentment directed toward the legislature over this.
I sure wish I'd gone to Harvard. I'm sure this would be so much clearer if I had.
Jun 26, '09
Dissapointing argument from you, Steve. I generally support you because of your straight talk; this is political gamesmanship, pure and simple. The fact is that both referral and referenda ask the voters to affirm what the legislature has done. The only difference is that with referral, the legislature does it themselves, and with referenda, the people do it themselves. To argue that a yes vote on a referral should be different than a yes vote on a referendum just because of who put it on the ballot is ADDING confusion. While I understand your argument, it's pedantic at best, purposeful obfuscation at worst.
The process matters as well. If this was an important electoral reform, supporters should have held hearings, allowed testimony, and considered opposition arguments. To do this now, as they did, just illustrates the real reason behind it.
Finally, even if you're academically right, you've already lost the argument. Today's editorial seals the deal. This change, at this time, in this way, smells bad. It will do more harm than good, and may push a small group to oppose the tax increases (in the new system, vote in favor of the referendum) who otherwise would have supported the taxes (or in your parlance, voted against the referendum).
Best thing to do now is just let it drop. Bring it back next session if it's important. And do it right.
Jun 26, '09
What is wrong with you people? Clears up confusion? The people are capable of understanding what a ballot SAYS, what they are NOT capable of getting and remembering is that IN GENERAL a referendum yes vote will always mean no and vice versa thanks to this bill REGARDLESS OF WHAT THE BALLOT SAYS!
What part of this do you not understand?
"A measure referred to the people by referendum petition may not be adopted unless it receives an affirmative majority of the total votes cast on the measure rejecting the measure. For purposes of this subsection, a measure is considered adopted if it is rejected by the people."
Do you people READ THE ACTUAL BILL before jumping in like lemmings over a cliff for the "blueoregon" crowd that's trying to pull the wool over your eyes?
Just stupid.
3:26 p.m.
Jun 26, '09
In all this confusion, one good organization is getting a bad rap. The OBA has proven to be what we have always needed in Oregon- a progressive business organization. (Disclosure: my son-in-law Nik Blosser was one of the founders, and I am a member). The OBA did support increasing the $10 corporation tax. Their staff has been engaged here in Salem attempting to strike a balance between the existing law and a tax structure that would harm businesses during a recession. They have successfully supported environmental legislation, gay rights legislation, helped get the corporate kicker diverted into the rainy day fund, etc. Personally, I do not endorse every position they take, but they do offer a voice for those in the business community but who see a broader vision for the state than their own companies' bottom lines.
4:39 p.m.
Jun 26, '09
11th Hour says: "This proposal has been on the table as part of a house bill since March."
Which bill are you referring to? It was certainly not part of HB 2414 until yesterday.
4:48 p.m.
Jun 26, '09
Jack Roberts... Care to argue with my characterization above?
To recap:
Typically, when someone collects a bunch of signatures to put a measure on the ballot, the YES vote is a vote to change the law, while the NO vote is a vote keep the law.
But when it comes to a referendum, the YES vote is a vote to keep the law, while the NO vote is a vote to change the law.
Why should a vote to change the law be YES in all cases except on referenda, when a vote to change the law is NO?
4:59 p.m.
Jun 26, '09
I like the way Kari just phrased this. And Jack, the voters did two different things in 2003 and 2004. In 2003 they rejected something the Legislature asked them to approve. In 2004 the Legislature had just passed the tax and Russ Walker gathered the signatures to refer it. The ballot title looked the same both times. I think it's important to tell people the difference - when the Legislature is asking them to do something, and when somebody else is trying to throw a wrench into the Legislature's monkey.
5:42 p.m.
Jun 26, '09
Kari says, "But when it comes to a referendum, the YES vote is a vote to keep the law, while the NO vote is a vote to change the law."
That is legally wrong. Under the Oregon Constitution, a statute against which has been filed the required number of signatures is void and never takes effect, unless and until it is enacted by the voters in the referendum. Thus, in a referendum, a YES vote is to enact the law, while a NO vote is to keep the status quo. A YES vote most certainly does not "keep the law," because the "law" has already been nullified by the filing of the signatures. At the time of the vote, there is no such "law" to keep.
5:54 p.m.
Jun 26, '09
Or think about it this way: What if the referendum vote ends in a tie? A tie vote does not change the status quo. What, then, is the result of a tie vote in a referendum? The statute passed by the Legislature remains void.
6:21 p.m.
Jun 26, '09
Kari, I believe that your recap is flawed.
A legislative matter that is currently before the People -- whether it is a referral by the legislature, or a public referendum -- is a bill, not a law.
A public referendum allows the people to decide whether or not to ratify a bill before it is enacted into law.
"Yes, I support this bill" or "No, I do not support this bill."
You will note that bills that have an emergency clause are not subject to a referendum. They become law once the governor signs them, and laws are not are subject to a referendum.
In any case, the point may be moot. Richard Devlin pulled HB 2414 back to ways and means today.
6:23 p.m.
Jun 26, '09
In other words, Dan, for initiatives, the people ARE the legislature - or, if you will, a fourth branch of government. But for referenda, the legislature is a third chamber of the legislative branch.
Yeah, very confusing.
I think this yes/no confusion should be fixed - perhaps not in this last minute and single-bill context... but for all time.
6:30 p.m.
Jun 26, '09
Kari and Steve, stop trying to turn nonsense into sense.
Steve, in only the most hypertechnical sense did the voters do different things in 2003 and 2004. Both times the legislature tried to raise taxes. One time the legislature referred the tax to the voters, the other times the voters stepped in and demanded a vote.
And as for Kari's argument that in the first cast the legislature is asking voters to pass the measure for them and in the second the voter's are in effect repealing alaw passed by the legislature is factually wrong, as Dan Meek points out above.
A law passed by the legislature but referred by the voters is NOT the law until the referendum is passed. That is why revenue bills cannot have an emergency clause, because the framers of the initiative and referendum didn't want a new tax to take effect until voters had a chance to intervene and KEEP in from BECOMING law, not reversing a law already in effect.
In each case, the law cannot take effect without the concurrence of the voters; that is, by voting "YES" we want it to become law.
So your arguments are technically wrong as well as too clever (and devious) by half.
Jun 26, '09
Jack, where were you on Measure 30? Were you one of those saying "If you believe X, vote yes. If you believe Y, vote no"? Did you campaign for either side? Or were you just a spectator?
Regardless of whether 2414 passes or dies, I believe there is more of such public education needed.
There are voters who are far too busy to ever read blogs (working parents of young children, people whose work week can be more than 40 hours, people working multiple jobs, for example) who do want to do their civic duty and vote.
But Jack, if you or anyone here thinks Measures 28 and 30 were clear cut easy decisions for all voters, you need to get out more.
Tim Knopp made the statement after the Measure 28 election that "everyone who voted no on 28 did so for the same reason, and it was an easy decision for all of them". This came as a surprise to a friend who anguished over the vote, voted no, and worried he had voted the same way.
A friend of mine who was active politically from teen years until middle age finally dropped all political activity cold turkey due to burnout. "5% of the population lives and breathes politics and thinks they decide elections. But in truth, it is the other 95% of the voters who decide elections!" she said.
Argue all you want, but whether 2414 lives or dies, any campaign anyone here is involved with will be decided by those 95%---the folks who probably couldn't tell you what Measure 28 and 30 were. If you stopped these folks at the end of a long and hectic day and asked them to tell you the difference between legislative referral and referendum, the polite ones would probably say they didn't know. But many would likely say some version of "go away and quit bothering me".
And whatever happens to 2414, if such folks refuse to sign petitions, if Russ Walker can't find enough paid petitioners or volunteers, if the campaign is not serious about validity rate and it turns out that only, say, 60% of the signatures are valid, there might not be a referendum to vote on anyway.
These are data-driven decisions. If there are not enough valid signatures turned in by the end of Sept. or whatever the 90 day deadline is, it won't matter whether some people in a late night hearing inserted controversial text into a bill or not.
4:14 a.m.
Jun 27, '09
Kari, do you really find this confusing? It is very simple.
In all cases (initiative and referendum and referral), the people are the Legislature. In all cases, the people vote yes to change the status quo or vote no to retain the status quo. Thus, where is the confusion?
The alleged confusion arises because some claim not to understand what constitutes the "status quo" in the case of a referendum, which I have explained above. I will join you in an educational campaign to explain that a bill passed by the Legislature is nullified by the submittal of the constitutionally-mandated number of valid signatures on a referendum. So a yes vote always means "change the status quo."
But do not think that the people are therefore all powerful. The Legislature can prevent a referendum on any bill, except a tax bill, merely by inserting an emergency clause, whether or not there is any objective emergency.
The Legislature now typically attaches emergency clauses to a large number of bills.
Jun 27, '09
This has been a revealing discussion. We are all very used to seeing Kari shill for whatever the D's are doing, polishing turds and telling us they are golden nuggets.
But rarely do we see Steve Novick lower his stature to Kari's level.
Not your best moment, Steve. Often you appear intellectually honest. Not now. Very revealing.
7:59 a.m.
Jun 27, '09
Dan, I don't find it confusing at all. But that's because I've been studying the initiative system for 15 years. (Did my senior thesis in college on Oregon's system.)
But that doesn't mean I can't appreciate how confusing it us for voters when sometimes you overrule the Lege by voting yes (on an initiative) and sometimes by voting no ( on a referndum).
The constitutional theory makes plenty of sense. But most voters aren't schooled in the details of Oregon's constitution -- they just want to express their agreement or disagreement with the Legislature.
Jun 27, '09
This sure looks like a Trojan Horse to Democratic gutting of the referendum and referral process that has served the state for 100 years. Hello, Fascism!
10:26 p.m.
Jun 27, '09
Kari,
Your formulation, "Typically, when someone collects a bunch of signatures to put a measure on the ballot, the YES vote is a vote to change the law, while the NO vote is a vote keep the law," appears to refer to initiative petitions as the "typical" way of putting a measure on a ballot.
You then go on in effect to compare initiatives to referenda.
That is an entirely different argument from the one Steve Novick is making, comparing referrals and referenda.
I think the Republican (and (L)(l)ibertarian?) interveners on this column, plus their Democratic and left-progressive supporters, are in this case in no sense trolls, but are making cogent arguments that I find more persuasive than Steve's.
Your proposed alternative has the merit of creating a consistent voting system that would apply to all three kinds of popular legislation -- but that is not what is in HB 2414.
This reminds me of Kate Brown's wrongheaded bill of a couple of years ago to impede democracy by creating a stupid technicality regarding access of non-affiliated and small party candidates to the ballot.
If this isn't a cynical charade, it's people who have gotten too close to an issue and blown it way out of proportion.
Is there any evidence at all that there has been an election result in which the supposed problem identified here has led to a result that did not reflect the will of the majority of those voting, or even a near miss? Unless there is such evidence, there is no problem that requires a solution.
7:22 p.m.
Jun 28, '09
Kari says, "But that doesn't mean I can't appreciate how confusing it us for voters when sometimes you overrule the Lege by voting yes (on an initiative) and sometimes by voting no ( on a referndum)."
Again, that is incorrect. First, a "no" vote on a referendum does not overrule the Legislature. At the time of the vote, the bill passed by the Legislature has already been entirely nullified by the filing of sufficient signatures on the referendum petition. What overrules the Legislature in a referendum is the signatures, not the votes. The vote decides whether the Legislature's bill is resurrected, not whether it is overruled.
Second, an initiative does not "overrule the Lege." Instead, an initiative is when the voters enact laws independently of the Legislature The Oregon Constitution, Article IV, Section 1(2)(a)states:
Initiatives can make proposals that have never even been addressed by the Legislature at all, such as Bill Sizemore's measure to allow some home improvements without a building permit.
11:46 p.m.
Jun 30, '09
No one seems to have noticed the other unprecedented feature of HB 2414. Its final version has a committee of the Legislature (with 4 Ds and Rs on the committee) writing the ballot title and the explanatory statement for all referenda involving the tax bills.
I do not know of an instance when the Legislature has taken the authority to write the ballot title and explanatory statement for a <u>referendum</u>.
In the 2007 session, the Legislature wrote the ballot titles and explanatory statements for 7 (as I recall) referrals. All of them passed, most overwhelmingly, except the tobacco tax, which was defeated by the expenditure of over $16 million by the industry. The Legislature did not even follow the ordinary rules for ballot title, such as the word limits.
Is it fair for a proponent of a measure to write the ballot title and explanatory statement? Is such a statement likely to be unbiased?
HB 2414 does not abrogate Oregon Supreme Court review of the ballot titles (as did the Legislature for its 7 referrals in the 2007 session). But the the Court's practice is to remand a ballot title only if it is demonstrably misleading or materially inaccurate. I think all ballot title practitioners would agree that a wide range of ballot title for the same measure (ranging from very favorable to very unfavorable) would nevertheless survive Court review. Thus, who writes the ballot title is of supreme importance.
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