11 months ago
Ten Oregon Republican senators may face the end of their legislative careers for a six-week legislative walkout aimed at thwarting what they see as a radical Democratic agenda on guns, abortion and transgender health care.
The lawmakers are banned from running for reelection for accumulating at least 10 unexcused absences during this year’s legislative session.
Their imminent banishment — pending the outcome of a pair of legal battles, with key court hearings this week — is due to a 2022 constitutional referendum overwhelmingly backed by voters.
It’s also arguably the most glaring example yet of how Washington’s toxic partisan culture is increasingly infecting statehouses across the country.
The renegade Republicans express few regrets.
“We were trying to defend the Constitution and Oregon law against those that essentially said, ‘We have the votes, we can do whatever we want,’” said Senate Republican Leader Tim Knopp, in an interview. “We thought it was a principle worth defending, even if it meant that we couldn't run for reelection.”
Democrats and other supporters of the referendum argue the electoral death sentence for the GOP senators is necessary to combat what’s become a routine tactic — with eight walkouts in the past five years — by the minority party to sabotage the legislative process. Democrats currently control 17 of 30 seats in the Oregon Senate.
“The people of Oregon expect legislators to show up and do their job. You can’t hold the Legislature hostage,” said Democratic Senate Majority Leader Kate Lieber, in an interview. “Most Oregonians can't walk off the job for 10 days and expect to keep their jobs.”
The 43-day legislative walkout was the longest in state history. The ensuing banishment of 10 GOP senators is the latest and most extreme evidence that the poisonous, partisan atmosphere long associated with Capitol Hill is becoming increasingly common in state capitals across the country. Like their counterparts in Congress, state lawmakers are increasingly beholden to the most hard-line elements of their parties, fearful of sparking a primary challenge if they buck party orthodoxy.
In Tennessee, the Republican-controlled House voted in April to kick out two Democratic lawmakers for defying the chamber’s rules in a protest calling for tougher gun control measures, although they were subsequently reinstated by local officials. In 2021, Texas Democratic lawmakers fled to Washington for weeks in an effort to thwart legislation that they claimed would “trample on Texans’ freedom to vote.” And in Nebraska, Republicans squelched dissent by Democrats in the officially nonpartisan unicameral Legislature during this year’s session by stacking committees and suspending the rules.
“It's changed in terms of the level of partisanship. There's no doubt about that,” said Arthur Towers, political director for the Oregon Trial Lawyers Association, of the legislative dynamics at the state capitol in Salem, where he’s been a fixture for two decades. “There was less fear of facing a primary opponent if you decide to take a moderate position on an issue. That's one of the big differences.”
The 10 banished Oregon Republican lawmakers are now looking to the courts for a reprieve. A pair of lawsuits — in federal and state courts — are challenging the ballot measure: One seeks to have it tossed out as unconstitutional, while the other merely seeks to delay the electoral punishments.
The federal lawsuit — filed by three GOP senators facing political exile and three Republican party activists — seeks to strike down the referendum, Measure 113, in its entirety. The complaint argues that prohibiting lawmakers from seeking reelection due to their legislative tactics violates their First Amendment free speech protections.
“What they’re trying to do is use extortion to prohibit freedom of speech,” said John Large, chair of the Lane County Republicans, one of the plaintiffs in the case, in an interview. “Thank God they walked out.”
The plaintiffs further argue that the determination of which absences were deemed unexcused was done arbitrarily and solely at the whim of Democratic Senate President Rob Wagner, in violation of the 14th Amendment’s guarantee of equal protection.
The defendants counter that stymieing the work of the Legislature by refusing to show up isn’t protected speech and that violations can be punished.
They further take issue with the suggestion that Wagner was somehow acting arbitrarily in determining which absences were unexcused, pointing out that many of the lawmakers banned from running for reelection missed more than 30 sessions, the vast majority of which stemmed from the walkout.
“I was doing my job on behalf of my caucus in a transparent and open manner, and that is what voters asked us to do,” Wagner said in an interview.
During a Tuesday hearing, U.S. District Court Judge Ann Aiken, who was appointed by President Bill Clinton, expressed deep skepticism about the merits of the lawsuit. She pointed out that previous court rulings have authorized punishments — even including imprisonment — for lawmakers who fail to show up for work.
“I’m not persuaded by your arguments today,” Aiken told the plaintiffs’ attorneys, stating that she would issue an order quickly.
The state lawsuit filed by five of the banned Republican senators would merely delay their electoral punishment if they prevail. It hinges on how to interpret the wording of the referendum, which states that lawmakers will be disqualified from running the “term following the election after the members’ current term is completed.”
Since legislative terms don’t end until January, the plaintiffs argue, that means they aren’t disqualified from running in the next election cycle.
“No reasonable person who is versed in the English language would read it any other way,” said John DiLorenzo Jr., of Davis Wright Tremaine, one of the plaintiffs’ attorneys handling the case. “Any ruling otherwise will give rise to all sorts of mischief.”
But attorneys for the secretary of state’s office counter in legal filings that all other information available to voters made it abundantly clear that the intent was to ban lawmakers from seeking reelection in the next election cycle.
“That is how voters understood the measure when they overwhelmingly adopted it last year,” the defendants’ response to the lawsuit argues.
The Oregon Supreme Court is slated to hear oral arguments in the case on Thursday.
Both lawsuits will need to be resolved quickly: State legislative candidates face a March 12 filing deadline.
But prior to that, lawmakers will return to Salem in the first week of February for a legislative session that’s slated to last about a month. That will test whether the partisan acrimony that came to a boil in 2023 will return.
One change that could alter the dynamics in Salem would be to lower the threshold of lawmakers needed to conduct business. Currently, the Oregon constitution requires a quorum of two thirds of lawmakers — one of just four states that mandate such a high threshold.
There have been discussions among Democrats about attempting to change that to a simple majority. But any effort by lawmakers to put a potential constitutional amendment on the ballot would require a quorum, and would likely trigger another walkout by Republicans. The other potential route would be a signature collection campaign, which is how Measure 113 qualified for the ballot.
At this point, however, Democrats seem content to wait and see whether walkouts by Republican lawmakers continue.
“Whether 113 works remains to be seen in the long term,” said Lieber, the Senate majority leader. “It clearly didn't work in this last session.”
Democrats point out that the vast majority of bills passed by the Legislature — more than 90 percent, by their accounting — enjoy significant bipartisan support. They believe there is still ample opportunity to work collaboratively on important policy issues such as combating the state’s homelessness and addiction crisis.
Wagner also points out that roughly two-thirds of lawmakers had never participated in an in-person legislative session prior to this year, due to pandemic restrictions. He’s been reaching out to Republicans in the months since the legislative session ended to try and establish better relationships.
“A lot of what makes the Legislature special is when you actually have an opportunity to meet with people, to break bread, when you go and share a tuna fish sandwich,” Wagner said. “I think Covid had a really negative impact.”
That outreach is appreciated by at least one of the Republican senators who is prohibited from running for reelection. Sen. Daniel Bonham said he’s been meeting with Wagner on a roughly monthly basis, and has even recommended a couple books for the Senate president to read: Jonathan Haidt’s “The Righteous Mind: Why Good People are Divided by Politics and Religion” and Arthur Brooks’ “Love Your Enemies: How Decent People Can Save America from the Culture of Contempt.”
“Not only did he read them, he called and said, ‘Hey, let's talk about this,’” Bonham recalled in an interview.
But, ultimately, whether those efforts to build goodwill and lessen partisan rancor will pay dividends won’t be known until at least the next legislative session. For his part, Bonham expresses no regrets for the walkout, even though it might mean the end of his legislative career.
“The feeling was that our Democratic colleagues were taking this ballot measure out for a spin, so to speak, that they were pressing a more extreme agenda because they didn't think that there were any balances or checks to keep them accountable,” he said. “You still have to deal with the fact that there's a minority party and that the process is governed by law.”
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