We ask Governor Kitzhaber to veto SB 154, the bill to criminalize the initiative process in Oregon.

SB 154 transforms any violation--however minor--of any election law or rule by an initiative, referendum, or recall campaign that pays circulators into the felony of false swearing under ORS 260.715(1) with penalties per violation of $125,000 and/or 5 years in prison.

Be sure to read the full story here.

Dear Governor Kitzhaber:

The undersigned request that you veto SB 154, because it would criminalize the initiative process by imposing felony liability on organizers of signature drives, if anyone working on the drive violates any election law or rule, however minor.

The Independent Party of Oregon, the Oregon Progressive Party, and the signers of this letter believe that SB 154 is the most extreme anti-initiative bill under consideration by the Oregon Legislature over the past two decades.

It passed the Senate (16-14) and House (35-23) on pure party lines, except for one Republican voting for it in the House.

Section 1 of SB 154 (p. 3, lines 18-30 of the bill) transforms any violation--however minor--of any election law or rule by an initiative, referendum, or recall campaign that pays circulators into the felony of false swearing under ORS 260.715(1) with penalties per violation of $125,000 and/or 5 years in prison.

It requires the individuals responsible for any organization that pays circulators to swear that "the entity operates in compliance with the law" and that the individuals are aware of, have read and understand "Oregon law applicable to the gathering of signatures on state initiative, referendum, and recall petitions." Any subsequent violation of Oregon election statutes or rules pertaining to signature gathering by anyone associated with the paid signature drive is thus converted into the Class C felony of false swearing by those individuals.

Note that this applies not only to companies that are paid to collect signatures but also to political committees that pay circulators.

Each individual must submit a sworn statement:

"(A) Acknowledging that the individual has read and understands Oregon law applicable to the gathering of signatures on state initiative, referendum and recall petitions and prospective petitions for state measures to be initiated, as the law is summarized in the training program established by the secretary; and

(B) Affirming that the organization or entity operates in compliance with the law."

No one at any hearing on this bill has denied that it converts minor election law violations into Class C felonies. Inevitably, some paid circulators or others working on every paid signature drive will make mistakes that technically violate election statutes or
rules. When turning in over 30,000 signature sheets on a state initiative, such mistakes are bound to happen . . . and do. Such a mistake should not allow the Government to charge the managers of the effort with felonies.

At the House Rules Committee on June 26, a young attorney from Legislative Counsel, without benefit of research or citations, orally remarked that an individual would have to know that the employee was violating the law in order to be liable for the felony penalties. But SB 154 itself expressly charges the individual with full knowledge of Oregon election law, because it requires her to swear that she "understands Oregon law applicable to the gathering of signatures."

The notion that someone charged with felonies can later call up a tape of this remark and thus avoid the charges is absurd. Courts look at the words of the law, not undocumented remarks of an employee of Legislative Counsel whose statement is flatly
contradicted by the words in the bill. Yet, that appears to be the rationale of those who moved SB 154 to the floor.

On the House floor, Rep. Garrett stated that he had an opinion of Legislative Counsel about the liability created by SB 154. This opinion was apparently written the same day as the floor vote and was not distributed to members or the public. I later obtained a copy of the opinion, which simply denies that the words of the statute mean what they say. As you know, Oregon courts interpret statutes according to their words, and reference to legislative history is very rare.

If this is a good idea for individuals and organizations pursuing ballot measures, then surely it would be good idea for candidates. Imagine if the Attorney General or any county District Attorney could slap felony charges on any candidate whose campaign in any way violates any election law or rule, however minor? You could be charged with a felony for making an ORESTAR campaign finance filing a day late.

There is nothing remotely similar in the laws of Oregon or any other state. Under current law, chief petitioners are deemed responsible for violations of a few laws and rules by paid circulators, but that excludes all criminal liability. And chief petitioners have "safe harbor" by reporting any violations they know about. SB 154 imposes felony liability and has no safe harbor.

SB 154 is extreme criminalization of direct democracy. It will most certainly spawn litigation challenging its validity under the Oregon Constitution and U.S. Constitution.

Daniel Meek

Co-Chair, Independent Party of Oregon

Additional Signers in Alphabetical Order