1913 Court Decisions Still Haunt the Oregon Initiative

By adopting the Initiative Amendment in 1902, and using it two (2) years later to establish a system to “elect” their federal senators at the polls, Oregonians found themselves at the head of a revolution as significant as the one waged in the 1700s on the opposite coast.

However, it is a story that is misunderstood and/or largely forgotten.

For instance, this Court, the Oregon Supreme Court and The Secretary have all described the affect of the Initiative Amendment as creating two (2) equal and coordinate legislative departments. This isn’t true for at least two (2) reasons:

1. The Initiative Amendment divides Oregon’s legislative branch into two (2) departments, but doesn’t require them to work together. By approving a constitutional amendment, the popular legislature can veto the work of its representative counterpart for any reason, or, for no reason at all. Moreover, through initiated amendments, the people can set the government in a new direction without consulting, or, even considering, the opinions of their elected representatives; and,

2. The representative legislature can relatively easily enact rules that burden the operation of its popular sibling. While it is theoretically possible to repeal any such burdens by petition, realistically, it is next to impossible to attract the money and/or volunteers needed to successfully petition to change or refer technical rules that most people don’t understand and/or see as significant.

The leaders of Oregon’s populist revolution of the turn of the last century – most notably William S. U’Ren – cared little about making Oregonians and their governments true partners, but crafted the initiative, referendum and recall as tools designed to allow a small group of zealots to thwart, manipulate and recast the state’s governments.

When the powers-that-were proved unable to fetter U’Ren through legitimate means, and, even though Oregon voters turned their backs on U’Ren in 1912, the 1913 Legislature packed the Oregon Supreme Court with a majority that could be trusted to cut him off at the knees.

This “solved” the immediate crisis, but so warped Oregon initiative law that future court decisions would be, by definition, political in nature. Only by returning to the Constitution itself can Oregon Courts dispose of petition cases through judicial reasoning.

And, only then, will the Secretary of State and the legislature be forced to work with the people to fix the initiative process, rather than passing statutes and administrative rules designed to make it impossible to use.

Greg Wasson researches the Oregon Revised Statutes by accessing the materials housed at the Oregon State Archives.

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