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Democrat opposing 'emergency clause' use on bills

SALEM — Oregon conservatives long have railed against Democratic lawmakers’ use of “emergency clauses” on legislation, which allow bills to go into effect immediately and prevent opponents from trying to refer them to voters.

In recent years, the majority party in Salem, these critics claim, has used unnecessary emergency clauses to shield controversial legislation such as an expansion of background checks on people buying guns, a minimum wage increase, and the emissions-controlling “clean fuels” program from Oregon voters.

Without an emergency clause, a bill usually takes effect 90 days after the session adjourns. That delay allows opponents to begin immediately gathering the required signatures to start the process of challenging it.

 This year, however, it’s a moderate House Democrat who is spearheading one effort to change how emergency clauses work.

 Rep. David Gomberg, a central coast Democrat, has proposed a constitutional amendment, HJR 19, that would require each bill with an emergency clause to contain a written explanation of the “factual circumstances” requiring its early implementation.

 If opponents didn’t buy that explanation, they could challenge it in court. There, a judge would determine whether the stated reason was “fundamentally truthful or accurate” and potentially could void the emergency clause.

 Emergency clauses were designed only for new laws necessary for “immediate preservation of the public peace, health and safety,” in Oregon’s Constitution. But Gomberg said he’s found, since he arrived in 2013, that’s not how the Legislature uses them.

 Just this year, for example, an emergency clause was tacked on to a bill declaring the third Saturday in March “Cherry Blossom Day” in Salem, so that the celebration can occur this year, he said. And Gomberg’s own bill allowing outside entities to restore abandoned cemeteries was drafted with an emergency clause by the Office of Legislative Counsel, even though he hadn’t requested one.

 “I’m troubled by emergency clauses and their proliferation,” Gomberg said. “It’s a good governance thing.”

 Their overuse “diminishes the Legislature’s credibility,” he added. “It’s a recipe for rancor.” 

Contesting a bill that lawmakers have passed but that, lacking an emergency clause, has not yet taken effect, is done via the state’s ballot referral process of signature gathering. Trying to repeal a law that already has taken effect is much more complex and must be done via a ballot initiative, with greater signature-gathering and other requirements.

Rep. Bill Post, a Keizer Republican who signed on to HJR 19, said he’s grateful that concerns about emergency clauses aren’t just being raised by Republicans anymore.

If backers of controversial measures are confident it’s what the voters want, they shouldn’t be afraid of a potential referral, Post said.

“Isn’t that the ultimate voice of the people?” he said.

But supporters of the current system — which has been in place for a century — argue that having laws take effect quickly often is necessary for practical and administrative reasons. The true need for an emergency clause often is a subjective question, they say, which is why Oregon’s courts historically have declined to overrule the Legislature.

House Democratic Leader Jennifer Williamson of Portland heads the rules committee to which HJR 19 was referred. She declined to comment on the bill last week. Her spokesman said she hadn’t yet had a chance to discuss it with Gomberg.

Both Republican and Democratic lawmakers in Oregon use emergency clauses with great frequency, on issues big and small. In the 2015 session, for example, about half of the bills passed into law went into effect immediately thanks to emergency clauses.

That includes the only bill that Post has shepherded successfully through the Legislature as a minority member: a law easing restrictions on eating food in cigar stores. “I contradicted myself, I admit it,” Post said. “But it made it easier for the store owners.” 

Dexter Johnson, who leads the Office of Legislative Counsel, said emergency clauses typically are included in a bill if the lawmaker requests it.

But legislative lawyers do independently choose to add emergency clauses to bills, at times, for a variety of technical or legal reasons, Johnson said. “Lawmakers can tell us to take it out,” Johnson said. “And we’ll explain why we think it’s necessary.”

The controversy surrounding emergency clauses still is a fairly esoteric one, which may make it more likely that the status quo will be maintained. “I think it’s inside baseball,” Gomberg said. “I don’t know that this bill is going anywhere. But it’s a conversation worth having.”