Walkout problem needs a constitutional solution

It’s time to acknowledge, after watching this year’s Oregon legislative session, that Plan B didn’t work, and Oregon needs to try Plan A.

Both plans concern the same problem: Just over a third of the state’s legislators in the House or Senate can prevent that chamber from assembling a quorum, without which it can conduct no business. 

In recent years, and at present, the minority keeping the state from doing its job has been Republican. Further in the past, that has been, and possibly at some point in the future could be, Democrats. Either way, there now is no reason to believe that any discontented group amounting to slightly more than a third of the seats of either legislative chamber has any incentive to allow the state’s business to be conducted if it wants to block a proposal it opposes. 

This happens because Article 4, Section 12 of the Oregon constitution says, “Two thirds of each house shall constitute a quorum to do business, but a smaller number may meet; adjourn from day to day, and compel the attendance of absent members.” 

That part about compelling hasn’t worked very well. 

The current setup is a recipe for destruction of a third of Oregon’s state government, since one party or the other will always be in the minority. The quorum-denying tactic now is being used so regularly – over simple differences of policy or philosophy – that it is eroding the ability of the state to operate. 

An overwhelming majority of Oregon’s voters appear to see it that way. Last November, after a string of quorum-killing walkouts in recent years, a group of petitioners offered Measure 113 in an effort to end the practice. It amends the state constitution so that any legislator who racks up 10 or more unexcused absences in a session is disqualified from serving in the Legislature in the following term. The measure got approval from 68.3% of the voters. 

Probably most of those voters, and apparently most political watchers around the state, thought the penalty would be strong enough to end the walkouts. It wasn’t, as Oregonians now know: 10 senators (nine Republicans and one independent) have stayed away more than 10 working days, without excuse, thereby triggering last year’s penalty against them, barring them from serving as a legislator after their current term. 

That done, there’s no more penalty to impose. The striking legislators say they are unbowed and will allow no work this session (including on bills they themselves support) except for the state budget, and no path if the Democrats insist on maintaining certain bills, including House Bill 2002 on abortion rights and gender-affirming care, as they are now. 

That so many Republicans (and one aligned Independent) proved so willing to give up their seats was widely unexpected and also remarkable. It provides the clear evidence that Measure 113 has failed.

The good news is that, all along, it was Plan B. Time has come now to take another crack at Plan A.

The right way to approach the two-thirds quorum problem from the beginning would have involved a constitutional amendment, but more directly: Change the two third requirement in the constitution section quoted above, to a simple majority (50% plus one). That would allow just over half of either chamber to conduct business. 

It’s easy to understand, clear and would solve the problem.

It’s also been discussed before, at length. 

In 2019, amid another walkout, then-state Senator Ginny Burdick said she would promote a proposed constitutional amendment to set the Legislature’s quorums – for each body – at a simple majority for each chamber (16 members of the Senate or 31 members of the House). Just such a resolution to amend the constitution with a popular vote was introduced early in 2020 and progressed through a public hearing and work session. Then steam seemed to run out of the effort, and it died in committee without reaching the Senate floor. 

Another bill is now being proposed by Reps. Khanh Pham of Portland and David Gomberg of Otis.

The idea is not radical. Oregon currently is an outlier when it comes to the quorum numbers. Among the 50 states, only four states – Oregon, Indiana, Tennessee and Texas – mandate two thirds. (Is it coincidental that all four have experienced troubled legislative sessions this year?)

The Oregon Legislature this year probably won’t be able to act to place a constitutional amendment on the ballot, but the same forces that developed the petition campaign for Measure 113 last year, and pushed through its approval, probably could. Or someone else could step forward.

Either way, if Oregonians expect to have their ballot-expressed will carried out at the statehouse, the next step is obvious.