State Sen. Cedric Hayden, R-Fall Creek, is among Republican lawmakers boycotting the legislative session. Hayden has said he could sue the Legislature over unexcused absences that threaten his political career.
Kristyna Wentz-Graff / OPB
Senate Republicans boycotting this legislative session plan to rescue their political careers with a lawsuit.
But first, they might need you to spot them some cash.
GOP lawmakers learned this week they can’t use money donated to a new political action committee to raise funding for lawyers.
That committee, Oregon’s 13 Constitutional Defense Fund, has reported raising more than $5,700 since it was created on May 10 to attract money from supporters of the ongoing walkout. Senators are even offering “Oregon’s 13″-branded T-shirts, beer koozies and coffee mugs to gin up interest.
But the money is ineligible to pay for attorneys to represent the 13 lawmakers the PAC’s name refers to —12 Republicans and one Independent who are refusing to show up on the Senate floor to block Democratic bills on abortion, transgender care and gun safety. So Oregon’s 13 might be headed to a crowdfunding campaign.
“It has to be their GoFundMe, their own personal way of funding their legal challenge,” Bryan Iverson, director of the PAC, said Wednesday. “What we can do is help promote that.”
Since walking out on May 3, 10 lawmakers have accrued 10 unexcused absences from the Senate. That triggers Measure 113, a 2022 ballot measure that disqualifies them from running for reelection. At least two senators have indicated they hope to file lawsuits challenging that penalty.
Iverson said earlier this month lawmakers hoped to use PAC money to fund the challenge, but he’s since learned that wouldn’t be legal. Instead, any senator looking to challenge Measure 113 might have to begin their own fundraising effort — and limit donations to $50 per person to avoid running afoul of state ethics laws. That’s a more arduous task than raising money via the state’s campaign finance system, which sets no limits on contributions.
Money from the new PAC can be used on ads and other communications that steer people who support the Republican walkout to any crowdfunding campaigns that pop up, Iverson said.
Republicans have insisted since the outset of this year’s session that they believe Measure 113, which amended the state’s constitution, is vulnerable to a legal challenge in federal court.
Exactly what they will argue has been less clear.
“It is unconstitutional,” Sen. Daniel Bonham, R-The Dalles, said in a newsletter to constituents on Thursday, arguing the measure “violates our First Amendment rights and [the rights] of those who would elect us.”
An analysis written by attorneys for Basic Rights Oregon, the ACLU of Oregon and Planned Parenthood Advocates of Oregon — all opponents of the walkout — suggested two avenues of attacking Measure 113 on First Amendment grounds are unlikely to proceed, Willamette Week reported.
But the GOP says the law is patently unfair, not least because, under current Senate rules, Senate President Rob Wagner, D-Lake Oswego, has sole discretion over which absences are deemed excused and which are not.
Wagner enraged some GOP lawmakers when, at the beginning of the walkout, he chose to take a hard line on legislative attendance — even rescinding some excused absences he’d earlier granted. Sen. Bill Hansell, R-Athena, told OPB he was in San Diego for his granddaughter’s college graduation earlier this month when he learned that he no longer had Wagner’s blessing to be away from Salem.
“I think we’re going to challenge the ruling on Rob [Wagner] being the only person who gets to be the judge, jury and executioner on whether or not you’re excused,” Iverson said. “We have no way to appeal it.”
One pressing question is when lawmakers who have triggered Measure 113 by accumulating 10 absences might have “standing,” meaning they are able to show they have been negatively impacted by Measure 113 and so can serve as a plaintiff in a court case. That could happen in September if they try to file for reelection but are deemed ineligible, legislative staffers say.
Mike McLane, a former House Republican leader who is now an attorney representing Senate Republicans, declined to discuss legal strategies under consideration.
GOP lawmakers have circulated a theory in recent weeks that the public sector labor unions that drafted and supported Measure 113 made an error that could work in Republicans’ favor.
The measure says that lawmakers who receive 10 unexcused absences can’t hold office “for the term following the election after the member’s current term is completed.” Since elections in Oregon are held before lawmakers’ terms are completed, not after, Republicans believe the measure might actually give them the ability to serve an extra term before being disqualified.
Take for example Sen. Art Robinson, R-Cave Junction. Robinson has accrued more than 10 absences this session. His term expires in January of 2025, but, if he seeks reelection, that election would be held in November 2024. The election after his term is completed would occur in 2028.
“Words matter, and it’s not entirely clear when Measure 113 would kick in,” Bonham wrote to constituents.
Iverson said Wednesday he has asked elections officials for clarity.
Margaret Olney, an attorney who represented Measure 113′s chief petitioners, said Thursday she doesn’t believe the GOP argument will fly.
“In any challenge, the task for the court will be to interpret the Oregon Constitution consistent with legislative intent,” Olney said in an email. “For ballot measures, that legislative intent is the ballot title and explanatory statement. And that language could not be clearer. Legislators who walk off the job are disqualified from holding office the following term.”
The Oregon secretary of state’s office has asked the Department of Justice for clarity on how to interpret the measure, spokesman Ben Morris said. If the DOJ does wind up agreeing with the Republican reading of the measure, it would be a reversal. A ballot summary the agency crafted last year told voters a “yes” vote would ensure truant lawmakers can’t hold their seat for “the term following the end of the legislator’s current term.” Willamette Week first reported elections officials were looking into the matter.
At least one Republican senator is seriously weighing a lawsuit on a matter related to Measure 113.
Sen. Cedric Hayden, R-Fall Creek, recently sought advice from the Oregon Government Ethics Commission about how he can raise money to sue. Hayden attends church and cares for his children on the weekends, and has already argued in complaints filed with legislative officials and the state’s Bureau of Labor and Industries that Wagner’s refusal to excuse him on weekend days amounts to discrimination and unequal treatment.
“I seek to file a federal lawsuit against the Oregon Legislature,” Hayden wrote in a May 15 request for advice. “I would like to be able to solicit funds from supporters to defray what will likely be expensive litigation …”
Ron Bersin, the director of the ethics commission, responded that Hayden would be legally allowed to set up a fund for his lawsuit, as long as he made sure he did not accept more than $50 from any single person. Hayden would also be allowed to accept an unlimited amount from a family member, though that person could not solicit funds for Hayden that totaled more than $50 a person.
“Assuming you complied with these provisions, you could spend the gifts on your legal expenses,” Bersin wrote in the May 22 response.
Hayden said Thursday that he’s investigating what a lawsuit might look like, but that it wasn’t a foregone conclusion. He won’t sue if he receives a “resolution that is satisfactory” from one of his other two complaints, he said. Hayden declined to say what such a resolution might look like.
“I am being very meticulous about going through the process,” Hayden said. " The process I’m going through is trying to address the concerns at the lowest level possible.”