by Tony Miller
The Oregon State Legislature is a democratic political process that is open and easily accessible for the public to follow along or even participate in at times. The process should be transparent throughout for an open and honest way to construct good legislation for all Oregonians. That is what most people believe and that is how the process should work in order to craft good legislation for such a large variety of people but unfortunately there is still a few areas within the legislative process that are flawed and lack in transparency. The most notable opaque area is within the amendment procedure, which in the State of Oregon it is traditionally done while legislation is in the committee process. There is a very simple solution to this troubled area but before we explore the remedy to the problem a little history, procedure, and explanation for the related importance of transparency are in order.
The United States is a Constitutional Republic with democratic representation and as we get closer to the State and local levels the more democratic it becomes. One of the most striking features of contemporary politics is the almost universal popularity of democracy. There are very few people who do not praise democracy and very few who do not except the ideal of the people having the power to run their own lives, to have a voice in public policy, and the laws pertaining to them. Thomas Patterson, the author of “We the People” gives the definition and historical meaning of democracy as, “Democracy is a set of rules intended to give ordinary people a significant voice in government. The word democracy comes from the Greek words, demos, meaning “the people,” and kratis, meaning “to rule.” In simple terms, democracy is a form of government in which the people govern, either directly or through elected representatives.” (Patterson, 2009) Democracy is said to be a form of government that is constructed by and centered on the people themselves and it would only be practical to have openness, good communication, and accountability within the functions of a government of the people, for the people, and by the people. The equality of all citizens before the law is what distinguishes a free society from other societies and the voice of the people should have moral consideration given to them.
The State of Oregon was essentially conceived in 1857; leaders of the Oregon Territory gathered at the Oregon Constitutional Convention and drafted a constitution for Oregon. On November 9, 1857, Oregon voters approved its first constitution that then became effective upon statehood on February 14, 1859 and became part of the United States. The Constitution was unchanged for the remainder of the 19th century, but has been amended numerous times since 1902. The changes include the introduction of a direct legislation system, which enabled numerous popular decisions via initiative, both to the Constitution and to the Oregon Revised Statutes. (State, 2007)
The State of Oregon has a fairly unique democratic feature known as an initiative, it is also known as a popular or citizens’ initiative, and it is a means in which a petition signed by a certain minimum number of registered voters can force a public vote. The initiative may take the form of a direct initiative or an indirect initiative. In a direct initiative, a measure is put directly to a vote after being submitted by a petition. In an indirect initiative, a measure is first referred to the legislature, and then put to a popular vote only if not enacted by the legislature. The vote may be on a proposed statute, constitutional amendment, charter amendment or local ordinance, or to simply oblige the executive or legislature to consider the subject by submitting it to the order of the day. It is the form closest to direct democracy.
However, most legislation in Oregon comes from the introduction by way of either a House Bill or a Senate Bill that is presented and introduced by either one of Oregon’s 30 State Senators or from one of the 60 House Representatives. This is the most common way that legislation takes place in the Oregon State legislation. All statutes, except those initiated by the people or referred to the people by the Legislative Assembly, must be enacted through a bill. According to the Oregon State Legislator’s website, “An idea for a law can come from anyone: an individual or group of citizens; a legislator or legislative committee; an agency in the executive or judicial branch; or a lobbyist.” (State, 2007) The drafting of a bill in the Oregon State legislature can be done either directly at the request of the legislator as the founding author and originator of the idea or a legislator can have a bill that was suggested by or “at the request of” outside groups such as a constituent, lobbyist, or from an interest group as being the primary source it was derived from. If the legislator decides to sponsor the bill from an outside source they will introduce it to their respective chamber, and request that the attorneys in the Legislative Counsel’s office draft the bill in the proper legal lexicon. The bill is then presented to the Secretary of the Senate (Senate Chamber) or Chief Clerk of the House (House Chamber), who then assigns the bill a number and sends it back to the Legislative Counsel’s office to verify that it’s in proper legal form. After being verified, the bill is then sent to the State Printing Division, where it is printed and returned to Chamber for a first reading of the bill. At the time of the first reading the bill is also put up for public viewing in the OLIS system which will be elaborated on in more detail further down.
Once a bill has been introduced by its “first reading” it will have the sponsor of the bill, the author and chief sponsor being a legislator or at times multiple legislators on the top portion of the bill. The bill can also be listed “at the request of” a particular group, committee, or a person, such as the Governor printed as the Chief sponsor of the bill. A bill can also get more attention by picking up co-sponsors who have their names attached to the bill to show support for the bill before it gets sent off to Legislative Council. Moreover, co-sponsors can be added during and after committee if they find it to be a bill worth sponsoring and having their name attached to it so long as it is still in their respective chambers of either the House or the Senate. Sometimes this can also happen simply for political capital for the legislator and not from being actual support or work to the bill itself. If a bill is gaining popularity a legislator might want to put their name on it as advertising to their constituents to look as if they were a part of the legislation process on that particular bill.
According to David Mayhew, a congressional scholar, states that almost all congressional activity is driven by the desire for reelection. Mayhew describes, “members engage in three key behaviors in pursuit of reelection: advertising (simply getting their name out to the constituents), credit claiming (attaching their name to popular projects, particularly those that have local benefits), and position taking (broadcasting their popular issue stances regardless of whether legislation passes).” (Mayhew, 1974) Position taking works well in getting their name out for a particular issue to their constituents, getting legislation actually to pass into law came in at a distant fourth place to the other three activities listed above that could be a direct benefit for reelection. Another popular technique a legislator can do to acquire free media time is to sponsor a major bill or government program. (Mayer, 2008)A jump on sponsor or co-sponsor happens frequently in Salem from both sides of the isle, sometimes for a real purpose in support of the bill and other times just to have their name on a bill for a popular issue that looks good in the public’s eye.
After the bill’s first reading and the legislative process gets underway, the Senate President or the Speaker of the House refers it to a committee. The bill is also forwarded to the Legislative Fiscal Officer and Legislative Revenue Officer for determination of a fiscal and revenue impact the measure might have on the State and or its citizens. Once the bill is referred to a committee, the committee reviews the bill, and holds public hearings and work sessions. In order for the bill to go to the floor for a vote, or be reported out of committee, a committee report is signed by the committee chair and delivered back to the Chief Clerk. Any amendments to the bill are printed, and the bill is then reprinted to include the amendments and labeled as an engrossed bill, the amendment process will be elaborated on later and further down. The bill, now back in the legislative chamber it originated from, has its second reading. A second reading generally would mean the bill would be up for the third reading on the following day, which would give legislators and others whom might be following a particular bill time to look over the legislation. Second readings were an advanced warning so to speak and the third reading of a bill would also have an advanced announcement at the end of each day to be read on the following day’s floor session. When the bill receives its third reading, which is its final presentation before the actual vote takes place on the floor; this is the time legislators debate the bill, ask questions about it, and “speak to the bill” on the Senate or House floors. To pass, the bill must receive “aye” votes of a majority of members, 31 in the House and 16 in the Senate for most legislation not requiring a 3/4th majority to pass constitutionally. If a bill makes it out of committee, passes on the floor and goes to the other chamber through their committee and floor vote process in identical form, it then goes to the Governor for consideration or signing into law. (Oregon, Oregon State Legislature, 2015) This section of the bill making process is fairly open and transparent and it is easy for the average citizen to follow a particular bill and where it is during the process.
The Oregon State government has recently designed a website that is very user friendly for informational purposes on how to participate or testify to a bill. It has made following a particular bill of interest and its transformation easy to monitor even from the comfort of your own home. If one were inclined to follow a bill of interest, it is easy to track that bill and its process through the system that is called “OLIS” or the Oregon Legislative Information System, which can be found online at www.oregonlegislature.gov . This is a very open and user friendly system that is an extremely important part of democracy. It enables the citizens to stay informed and up to speed on what their legislators are doing and how they are doing it.
One area of concern that is rather opaque during the legislative process is when a bill is in committee going through the amendment procedure. Committees are the heart of Oregon’s legislative process. The committee process provides legislators the opportunity to closely study a measure more so than what would be possible in a simple floor debate. Committees may hear from many people, individual citizens, or experts in the field, who either support or oppose the measure. Most of the real “work” in the bill making process happens in committee. This is where a bill can do one of a few things: one, a bill can either get traction and be scheduled for hearings, testimonies and work sessions; or two, it could get no consideration at all; or three, it could get some minor amendments added and engrossed; and lastly, it could be completely changed from its original meaning and purpose altogether from an adopted amendment. This is called a “gut and Stuff” and in Oregon the amendment only has to be in line with the relating clause of the bill.
Once a bill has been assigned to a particular committee, it is the responsibility of the Chair to schedule a work session or a public hearing for the bill and also set an agenda. This is one of the two gray areas in the bill making process.
First, if the chair of the committee is assigned a bill that they or their affiliated party disagrees with they have the power and discretion to kill a bill right from the get go by not scheduling it on to the committee’s agenda. One reason this may occur is when the chair prioritizes other legislation over bills which they might not be interested in or just don’t like the politics of the original sponsor. Furthermore, a chair may simply refuse to hear a bill if they don’t like the idea or concept it underpins; especially if the language of that bill supports a certain segment of the economy/population that negatively effects their constituency. However, it should also be noted that not all committee chairs have some sort of diabolical plot to kill all bills from an opposing party legislator or bills they may not agree with. There are hundreds, sometimes thousands of bills introduced into the legislative session and time is not always abundant. The time mandated by Oregon’s Constitution during the odd or even legislative sessions makes prioritizing certain bills a necessity. Moreover, on the flip side of the coin, it is known to those who are very well versed in the Oregon legislative process that if certain influential people want a bill to go away, there is the unspoken rule of sending the bill on to another committee to die. There are three committee’s notoriously known as being the graveyard of bills: the Judiciary, Ways and Means, and Rules committees. Sending bills to these committees is an option for any Chairman to avoid political pressure upon a bill that the public strongly supports but fiscal priorities remain elsewhere. For example, during the 78th legislative session the Senate Bill 434 is a veteran’s bill that would aid Oregon’s most severely handicapped— one hundred percent disabled veterans. It would grant a higher property tax exemption (up to sixty thousand dollars) for these individuals who truly are in need. Furthermore, the majority of the public recognizes the need of these individuals and no one wants to vote “nay” on supporting one hundred percent disabled veterans. However, this bill has the potential to reduce the aggregate of all of Oregon’s local government’s revenue on property taxes up to four million annually. This bill has currently been shuffled into three different committees, all on the Senate side, with every committee member voting yea. This bill is now in the purgatory of the ways and means committee.
The fix to this problem is simple yet subtly complicated. If there is a bill that enough people see as being credible and warrants consideration for a hearing, like the veterans bill, people can flood the mailbox and phone lines to the Chair of the committee that the bill has been assigned. With enough pressure from the public or other legislators, the chair would most certainly want to stay out of the hot seat by accommodating the public. This would be a simple fix to the imbroglio of voting yea on the veteran’s bill and then shuffling it around. However, direct and active support by veterans groups has been nil due to a lack of coordination. Vigorous lobbying of the committee chair can reduce a bill from being involved in a game of musical chairs shifting from one committee to another and when the music stops, it is much harder to excuse the bills death upon time constraints.
The second gray area and the most concerning issue for transparency in the Oregon legislative process is the way in which amendments are introduced. According to the Oregon Legislative Glossary an amendment is stated to be, “An alteration made or proposed to be made to a measure. Measures may be amended more than once.” (Oregon, Oregon State Legislature, 2015) In an interview with Senate President Peter Courtney, he noted that there were actually three possible ways in which to get a bill amended in the Senate Chamber. The first and most common way is in the committee process, which is the way most legislators amend bills. The second, but very unlikely, possibility of amending a bill is to have a bill passed in a Minority Report. As defined in Oregon a Minority report, is “[a] committee report signed by at least two committee members who are in the minority on the issue in question on a particular bill (not necessarily in the political minority party) for the purposes of officially stating their position on the issue and seeking action from their Chamber on their proposal.” (Oregon, Oregon State Legislature, 2015) A Minority Report is a differing version of a bill that is going to be voted on during the third reading from the floor. The Minority Report is generally a version of the bill that has been altered or has amendments within the bill that were made to the satisfaction of the minority party or group within the legislature and it is rare that a minority report is ever passed on the floor. In fact, there has only been 9 bills passed as Minority Reports in the history of the Oregon State legislature. (Hillburn, 2015) The third and final method is when an amendment is adopted to a bill when a motion is made on the floor during a floor session to adopt the amendment to the bill. There has been no successful attempts in passing an amendment from the floor during a floor session. (Courtney, 2015)
As the process works right now, and the most common practice, an amendment can be brought before a committee and added to a bill without any means of the public or other legislators knowing who or where the amendment came from. There are no names or sponsors attached to an amendment nor is there any way to see who or where the amendment was submitted by or from. The lack of transparency makes it very difficult to follow the origin and intention as to why it was submitted to the bill. Someone tracking a bill from the comfort of their home or even someone who was not following every move of the bill while it was in committee would be lost in the transition as to where the amendment came from and why it was proposed. If one were an avid bill tracker, they could follow every part of the bill, who introduced it, who has co-sponsored it; they can follow the committee reports, workshops, and the public testimony on the OLIS web site in both video and transcripts of public record and a submitter of the material is shown. The amendment itself is the only section in the sequence that is anonymous and difficult to track what is happening to the legislation but more specifically where or who it came from. When asked in an interview, the Secretary of the Senate, Lori Brocker exclaimed she was surprised to find that there was not even a submission identification listed in OLIS under the amendment section. (Brocker, 2015)
The amendment process can be a very useful and practical way to make good adjustments to legislation and it has been known to make appropriate changes when needed. On the other side of the coin, it can also completely change the language of a bill and become something completely different from its original intent just as long as it is within the relating clause. This has happened in the past: a legislator introduces a bill and it gets an amendment added to it that removes the entire bill and changes it to something new under the same title or relating clause. This type of an amendment is known as a “gut and stuff” and it has left some legislators infuriated. When a “gut and stuff” amendment takes place for the worse, the original authors of the bill are not only upset that their bill has a new direction but they are also frustrated they have no idea who made the change. This leaves no clear approach to engage in an open conversation or negotiation with those who have made the anonymous change. It is almost impossible to trace back to whom actually made the change or submitted the amendment in this unaccountable modification. Furthermore, a legislator might be left with their name attached to a bill that they no longer support do to the “gut and stuff” changes made by the new amendment language and leaving them with the difficult decision of voting against a bill that still appears to be one they supported, this is dirty politics. Representative Brent Barton explained that he once wrote a bill that was amended in committee to the point that he had to vote against his own bill when it came to the floor for a vote in the House chamber. (Barton, 2015) Yuxing Zheng from the Oregonian asked a good question in this statement by saying, “Lawmakers and regular Oregonians interested in tracking an issue face a common conundrum: who exactly introduced a bill and the amendments?” (Zheng, Oregonian, 2013)
When a bill is introduced the sponsor and co-sponsors are clearly identified on the front of the bill. However, as the bill moves into committee, we enter into an anonymous amendment process. It then becomes very difficult, if not impossible, for legislators, interest groups, or the public at large to openly follow the transformation of a bill from its original version to an essentially bastardized engrossed version. This lack of transparency leads to confusion and uncertainty for all of those involved and care about accountability in this part of the bill making process. Legislation written incognito as an anonymous amendment has no place in an open and transparent democracy.
Working in an open manner to ensure the public trust and to establish a system of transparency, public participation, and collaboration will strengthen our democracy and promote efficiency and effectiveness within our government.
The transparency amendment issue, or lack of transparency issue, is becoming a hot topic as more people in Oregon become aware of the current problem. There are many people who are speaking out on this particular issue as it starts to build more regard.
Yuxing Zheng from the Oregonian also wrote in an article,
“It can be difficult, if not impossible, to discover which lawmaker was behind a despised or beloved bill when the sponsor is listed as a committee instead of a lawmaker. Amendments, which can be used to change legislation wholesale, do not list lawmakers’ names either. The lack of transparency makes it difficult for voters to learn more about proposed legislation and to track the performance of lawmakers, some legislators and political observers say. The process can even result in a lawmaker being listed as the sponsor of a bill he or she does not support.” (Zheng, Oregonian , 2013)
Dan Meek, of the Independent Party of Oregon and an attorney in election law, also signified his disdain towards the anonymous amendment process during a failed 2011 bill. Meek was quoted as saying, “It was one of these mystery bills where nobody would take responsibility for it even when it was asked at a hearing where it came from,”. He then concluded, “The effect is that the elected officials who are responsible for proposing the policies are able to avoid responsibility for them, so they can’t be held accountable at the next election.” (Zheng, Oregonian, 2013)
When asked about the amendment and committee bills Robert Taylor, former Secretary of the Senate and current Deputy Secretary of State, was quoted as saying, “Committee-sponsored bills have existed since at least the 1950, and most committee chairs allow colleagues to introduce bills in a committee’s subject area as committee bills. Sometimes, even the committee chair does not know who introduced a bill.” (Zheng, Oregonian, 2013)
It would appear that there is an undeniable need for a more transparent amendment process. The question is when will that call ever be answered? It should be noted however, that in light of the need for more transparency, when the rules were set for the opening of the 78th Legislative Assembly they took on a new rule.
The new rule was brought into place based off of a Senate bill that has been introduced by State Senator Alan Olsen for the last five years. It was a push for a more transparent amendment process for legislators and the public to follow along in the progression and enhance their ability to keep up with the transition of legislation and the amendments brought forth. The new rule adopted was a one hour notice to all amendments being introduced. The rule required a one hour public notice and posting of the amendment before the amendment could be discussed, debated, or voted on in a committee.
Before the new rule was adopted amendments could be introduced into a committee with no warning and could be voted upon and adopted without any public knowledge, debate, hearings, or oversight to the amendment. The one hour rule now gives all legislators and the public at large the ability to review the proposed amendments and to take action either for or against the suggested replacements. Now Oregonians and legislators alike will have the ability to read the posted amendment on OLIS and spread the word before any final action to the bill takes place. The rule of having a legislators name attached to an amendment was also considered when rules were being adopted for the 78th Legislative Assembly. Senate President Peter Courtney said, “The Senate had adopted the rule to include where the amendment came from but it was not adopted in the House and did not pass for this session.” (Courtney, 2015) It is a step in the right direction but it still leaves us with an amendment process consisting of anonymous authors, with unknown intentions, and the complete lack of accountability to the amendment.
“Bismarck, the great German statesman of the late nineteenth century, observed that “anyone who likes sausage or legislation should watch neither being made” because finding out the ingredients of sausage or legislation would surprise and dismay the average citizen. Bismarck was suggesting that the reality of the legislative process was almost inherently unpalatable.” (Mayer, 2008) Times have changed and people want to know what’s in the food they are eating. People also want a functioning democratic government and should have the right to know what’s in it. The transparency amendment issue is still a concern in need of being fully addressed at the Oregon State legislative assembly and Oregonians want and deserve full transparency.
Transparency in government has become a very popular issue all across the country and for a good reason. Transparency should be a cornerstone of the foundation on which to build a functional and working democracy. Without transparency we fail to have an open and honest public forum and there is no room for hidden agendas and anonymous legislation in a free democratic society.
Other sources and non-profit groups from all over have statements praising transparency and the importance of it in government, especially a democratic government. The Omidyar Network, a non-profit group, proclaims,
“People look to government institutions to work on their behalf and provide oversight on matters that significantly impact their quality of life. Government fulfills this role most effectively when its activities are open and transparent to citizens. With visibility into government actions and spending, people are more likely to participate in the political process and hold government officials accountable for their actions. When citizens engage in the issues that affect them, they can help to ensure that power and public funds are used wisely and are representative of their interests.” (Network, 2014)
Even the White House now has statements on the importance of transparency in a well-functioning democratic government. The White House website has a statement signed by the president and he has stated,
“My Administration is committed to creating an unprecedented level of openness in Government…Government should be transparent. Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset.” (Obama, 2014)
The OLIS system is a great tool in which the citizens of Oregon can become more active by participating and following the legislation making process in their government. The President of the United States agrees on public input being essential to a good government, he has also specified that, “Public engagement enhances the Government’s effectiveness and improves the quality of its decisions. Knowledge is widely dispersed in society, and public officials benefit from having access to that dispersed knowledge.” (Obama, 2014)
From the observations and research acquired, one should draw to the conclusion that by allowing the Oregon legislative amendment process to become a more transparent procedure it will open the doors of communication between the legislative body and the people they are there to represent. Transparency is a fundamental part of democracy and the citizens need to know the basics of who, what, when, where, and why within the amendment process. Both The Senate President and the Secretary of the Senate believe that a more transparent amendment process is inevitable, it is just a matter of time.
In closing, the Oregonian got it right in saying, “Oregon has no place for anonymous bills and amendments”.
Barton, R. B. (2015, may 22 ). Representative Brent Barton-D HD 40 Oregon City . (T. MIller, Interviewer)
Brocker, L. (2015, May 6). Secretary of the Senate. (T. Miller, Interviewer)
Courtney, P. (2015, May 15). Senate President. (T. Miller, Interviewer)
Hillburn, L. (2015). Office of the Legislative Counsel Publication Services Manager. (T. Miller, Interviewer)
Lori Brocker, S. o. (2015, January 12). Oregon Legislature.gov. Retrieved from Rules of the Senate: https://www.oregonlegislature.gov/secretary-of-senate/Documents/FINAL%202015-16%20Rules%20Adopted%201-12-15%20with%20Statutes%20and%20Constitution.pdf
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Zheng, Y. (2013, July). Oregonian. Retrieved from Oregonlive: http://www.oregonlive.com/politics/index.ssf/2013/07/transparency_advocates_push_or.html
Zheng, Y. (2013, July ). Oregonian . Retrieved from Oregonlive : http://www.oregonlive.com/opinion/index.ssf/2013/07/oregon_has_no_place_for_anonym.html#incart_river