Oregon Senate Standoff Continues: Could A Few Words Make A Difference?

Republican senators refused to show up for work at the Oregon Legislature for a second day Friday, and their standoff with Democrats seemed to have no end in sight.

The sticking point is a massive policy that could impact every Oregonian and dictate how Oregon fights climate change for decades to come — but it also might come down to a few words that control voters' say on the matter.

Senate Minority Leader Herman Baertschiger Jr., R-Grants Pass, said early Friday morning he hadn't spoken at all with the Democrats who lead the Senate since before the boycott began and that talks with Democratic Gov. Kate Brown had been unproductive.

“At this point she is not ready to negotiate, whatever that means,” Baertschiger said. “And she’s willing to be in session all summer.”

Brown’s office spent much of Wednesday trying to broker a compromise over the bill before Republicans left town, and Baertschiger held open the possibility of continued talks Friday. It was not clear whether they had occurred.

Part of the stalemate, it seems, is how little Republicans and Democrats have left to fight over. Democrats have passed a raft of big policies this session — from statewide rent controls to a $1 billion a year business tax for schools — over GOP objections.

Now, House Bill 2020 is the main event.

The highly contentious legislation would institute a sweeping cap-and-trade program in Oregon, setting a ceiling on the state's greenhouse gas emissions and charging polluters for what they emit.

Republicans walked out, they said, after major changes they'd proposed to the policy weren't accepted. But Democrats have already made a host of concessions — from reduced regulations on gas utilities to fuel rebates — to address concerns that the bill would unduly burden businesses and low-income Oregonians. They don't appear ready to give more.

“We are not going to be rewarding bad behavior,” said Sen. Michael Dembrow, D-Portland, who played a major role in crafting the cap-and-trade policy. “And this is bad behavior.”

Baertschiger says there’s a simpler way to bring the boycott to an end: Let voters decide.

“Why don’t we just make it a referral and put it on the ballot?” he said. “That would do it.”

The argument has been a common refrain among Republicans in recent weeks. HB 2020 contains an emergency clause, which ensures that it would take effect once signed by the governor. Otherwise, the law wouldn't kick in until 91 days after the legislative session adjourns. (The actual cap-and-trade system wouldn’t roll out until 2021.)

The emergency clause also makes fighting the policy tougher for opponents. It means they can’t use the state’s referendum process to refer the cap-and-trade law to voters in the November 2020 election, though they’d still have another, more difficult option open to them. Republicans have railed against this fact.

"What is the emergency on this bill?" asked Rep. Duane Stark, R-Grants Pass, in a marathon six-hour debate before the House passed cap and trade Monday. "This bill lays out goals for 31 years. Ninety-one days isn't going to really hurt. I personally can think of no other purpose than keeping the voters from being able to weigh in."

Related: What Oregon's Cap-And-Trade Legislation Can’t Buy

Sen. Fred Girod, R-Stayton, has called Democrats' refusal to remove the clause a "total violation" of an agreement Republicans and Democrats reached in May. In exchange for returning to the Capitol from a separate walkout over the business tax for schools, Republicans say they got assurances their input on HB 2020 would be taken seriously. (Democrats also agreed to kill bills tightening state vaccine laws and gun regulations as part of negotiations to end that walkout.)

“The reason for the emergency clause is to keep the public from voting on it,” Girod said.

Contrary to that rhetoric, the emergency clause doesn't preempt voters from weighing in — it just makes things harder. Under state law, opponents could still seek to upend the law via an initiative petition asking voters to throw it out. That would allow opponents to craft the text of their initiative, but would require them to collect more than 35,000 additional valid signatures compared to the referendum process.

“It’s trivial in this case,” Dembrow said. “They will have no problem getting those signatures.”

In fact, Dembrow and other backers of cap and trade have long expected the policy would go before voters via an initiative petition. They think it has a good shot.

“We know that the voters want us to be creating this program,” Dembrow said. “Every legislator that was in a contested race in 2018 ran on this issue. The governor ran on this issue. We picked up seats in both chambers in part over this issue.”

HB 2020 supporters strongly oppose referring the bill for a central reason: It would freeze forward momentum.

Under the rules of a referral, the law would not go into effect until opponents either failed to collect enough valid signatures or voters had their say. That could push back any action on the bill to the next general election in November 2020.

“That would definitely make it impossible for us to get the necessary rule-making done to comply with the 2021 start date,” Dembrow said.

The cap-and-trade law also could generate at least three challenges in court — decisions that will decide if the bill passed the Legislature legally and how money raised from the program must be spent. Under the language of the bill, those challenges would go directly to the state Supreme Court, but would still take time to litigate.

“We need this expedited review completed and the questions answered before the program goes into effect,” Dembrow said. “We don’t want to begin auctioning allowances while there are questions hanging over the program, as occurred in California.”

But lawmakers have another option. They could remove the emergency clause, and pass a bill requiring any vote on cap and trade to take place before November 2020. That’s the approach legislative leaders have taken with the new business tax passed this session. If opponents force the tax to the ballot, an election will occur next January, and lawmakers would be able to write ballot language for the measure.

Democrats say that also shouldn’t happen. Dembrow said opponents can get to the same end point via initiative petition without halting progress on the cap-and-trade program.

“I don’t understand why we would have to use the referendum as opposed to the initiative,” he said. “There’s just no logic. They are pursuing a narrative that voters are being shut out of the process, which we all know is a false notion.”

That’s not an argument that appears likely to coax Republicans back to work. Baertschiger, who would not say where he was Friday morning, said repeatedly that his caucus would relent if HB 2020 were tweaked to allow a vote by Oregonians.

“We’d love to do policy change, but if they’re not interested in any amendments, fine,” he said. “Let’s let the people have their voice.”

Related: Gov. Kate Brown Prepares For Special Legislative Session, Republicans Threaten Walk Out

If an agreement can't be reached, the Legislature might adjourn on the required date of June 30 without passing a complete budget and some other high-profile bills. Gov. Brown has vowed to call a special session if necessary. That would allow them to finish basic work required of lawmakers, but could mean the death of a number of other high-profile Democratic priorities, including bills to increase density within many Oregon cities, paid family medical leave, tighter campaign finance limits and allowing people without proof of U.S. citizenship to get driver's licenses.

In the Capitol Friday, staffers and lawmakers all agreed that the standoff appeared mired in place. Senate Democrats took to the floor in the morning to gavel in session, then recessed. Senate leaders plan to repeat the exercise on Sunday, though there’s no reason to think Republicans will walk through the door.

Meanwhile, speculation over Republicans' whereabouts continued. CNN reported lawmakers could be holed up in Idaho, quoting Peggy Boquist, wife of Sen. Brian Boquist, R-Dallas. Speculation in the Capitol also placed lawmakers in Montana, Washington and Idaho.

The Idaho talk was bolstered in part by militia members, who claimed they’d been assisting the wayward Republicans.

Eric Parker, with the militia group Real Three Percenters of Idaho, told OPB his organization stands ready to offer any help Republicans might need. He said he has been in contact with some Senate Republicans and that some are in Idaho.

“The way we see it is that they have the right to protest without being threatened … without being intimidated,” Parker said. “To us, it’s not about the cap and trade, climate change, the climate-change denying. It’s not about red or blue.”

The militia group was involved in Malheur National Wildlife Refuge takeover in 2016. Members of the Oregon chapter have also offered to provide security for the Republicans.

A spokeswoman for the Senate Republicans said they are not accepting help from militia groups.

Tim Marsano, with the Idaho State Police, said the department is not involved in the search for any Oregon lawmakers.

“We have no reason to suspect they have broken any Idaho laws,” he said.

The Senate will reconvene Sunday; Senate President Peter Courtney initially planned to meet again Saturday, but canceled that session in the face of plans by GOP activists, and potentially some militia members, to rally Saturday in support of the absent Republican senators.

The Associated Press reported Friday evening that a spokeswoman for Courtney said that the "Oregon State Police has recommended that the Capitol be closed tomorrow due to a possible militia threat."

OPB reporter Lauren Dake contributed to this report.