As AWOL GOP Senators Consider Challenging New Attendance Law, Legal Memo Says They Have No Case

As a walkout by Oregon Senate Republicans nears the end of its second week and butts up against the allowed maximum of 10 unexcused absences for some members, progressive groups have sought a legal opinion on whether a potential court challenge to that absence cap might succeed.

The short answer in the memo WW obtained: It’s unlikely.

“It is our conclusion that Measure 113 on its face does not violate the First Amendment rights of free speech and protest, nor the right to run for elective office,” wrote Misha Isaak and Whitney Brown, lawyers at the Stoel Rives firm, in a May 11 memo. “Accordingly, it is likely to survive constitutional challenge.” (Isaak was counsel to former Gov. Kate Brown before returning to private practice.)

After a series of GOP walkouts in recent years, progressive groups in 2022 put Measure 113 on the ballot. The measure was designed to eliminate walkouts by capping the number of unexcused absences lawmakers could accrue at 10. If they exceed that number, the measure bars them from running for reelection. (Democrats have also walked out, but not since 2001. KGW has compiled a useful history of past walkouts.)

Although voters overwhelmingly approved it (by 68% to 32%), Measure 113 did not squarely address the underlying vulnerability in Oregon’s legislative procedures. That weakness: a requirement that two-thirds of the members of a chamber must be present to constitute a quorum and to hold floor votes. Without a quorum, bills cannot move, so walkouts are an effective way of stopping anything from happening. (Senate Democrats hold 17 seats, leaving them three short of a quorum.)

Oregon is an outlier: In 45 states, only a simple majority of lawmakers must be present for a quorum. If that were the case here, walkouts would only work in very rare cases in which the parties have equal numbers of members in a chamber.

In recent days, some Republicans have mused about challenging the constitutionality of Measure 113. The Stoel Rives memo, prepared for Basic Rights Oregon, the ACLU of Oregon, and Planned Parenthood Advocates of Oregon, anticipates two possible arguments: that Measure 113 violates lawmakers’ constitutional rights to free speech and to protest, and that by banning those with more than 10 unexcused absences from seeking reelection, the measure violates their constitutional right to run for office.

The legal memo says the first argument is a nonstarter. “The Oregon Constitution, like the constitutions of at least 40 other states, allows the Legislature to ‘compel’ the ‘attendance’ of absent members,” the memo says. “Measure 113, in other words, is simply a less intrusive manner of compelling attendance than arrest or imprisonment, which courts, including the U.S. Supreme Court, have said is permitted.”

As for the argument that the 10-strikes law violates the right to run for office, the Stoel Rives lawyers found that equally unpersuasive. Quoting various U.S. Supreme Court decisions, the lawyers note that the court has ruled that “states retain the power to regulate their own elections,” and “states may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.”

The lawyers also note that states already apply various elections rules limiting “the right to run for office, including age requirements, residency requirements, and term limits—i.e., ‘neutral candidacy qualification[s]…which the state certainly has the right to impose.’”

Senate President Rob Wagner (D-Lake Oswego) canceled a scheduled May 12 floor session, giving his absent Republican colleagues a one-day pass as he and leaders from the House and each of the four caucuses negotiate in private Republicans’ return to a session that is supposed to be in the home stretch.

A spokesperson for the Senate Republicans did not immediately respond to a request for comment.