Truth And Consequences

[October 10th, 2007]

While voters sort through competing claims over Measure 49, they might also consider the extraordinary lengths to which proponents went to secure a favorable ballot title for the land-use question in the upcoming ballot.

At issue before ballots get mailed Oct. 19 is the proposed fix for Measure 37, the law passed by state voters in 2004 to provide compensation for property owners who alleged losses from land-use regulations enacted after they acquired their property.

After Oregonians filed 7,500-plus Measure 37 claims seeking more than $12 billion, the 2007 Legislature made fixing the measure a top priority.

Legislative leaders appointed lawmakers from both parties to a 10-member “Land-use Fairness Committee,” which held numerous meetings leading up to the Legislature referring the measure to voters in late June. But Tim Nesbitt, deputy chief of staff to Gov. Ted Kulongoski, wrote in an affidavit submitted Sept. 20 that “it became evident as early as January 2007, that any changes to Measure 37 were likely to require the passage of a ballot measure by the voters.”

The affidavit resulted from a lawsuit in U.S. Circuit Court in Eugene by Measure 49 opponents, led by the property-rights group Oregonians in Action, to derail the measure. OIA president Dave Hunnicutt argues that the ballot title and measure summary that the Legislature referred are unfairly favorable to proponents.

“They’ve guaranteed themselves a victory by manipulating a process that is supposed to be neutral and fair,” Hunnicutt says.

Nesbitt strongly defends the process, saying “the result is fair and accurate.”

OIA’s lawsuit failed. But documents the group obtained reveal how Nesbitt orchestrated a strategy to get Measure 49’s backers the ballot title they wanted.

“Beginning in late December 2006, I represented the Governor’s Office in meetings with legislators and other public officials regarding citizen complaints about, and possible changes to, Measure 37,” Nesbitt wrote in his affidavit. “Beginning in January 2007, I, on my own time, represented the Governor’s Opportunity PAC in securing polls and consulting services related to changes to Measure 37.”

That dual role would eventually lead to Nesbitt having to produce his emails under Oregon’s Public Records law. By Jan. 23, those emails show, Nesbitt had joined forces with Bob Stacey, the director of 1000 Friends of Oregon, Stacey wanted to make sure any prospective ballot title would reflect proponents’ views, rather than neutrality.

“This is exactly what I’ve hoped would happen: you pick the best people to draft the title for the measure the legislature refers out and don’t leave it to chance or Legislative Counsel,” Stacey wrote to Nesbitt on Jan. 23.

Ballot-measure campaign veterans say the ballot title is key because voters often distrust both sides and rely instead on ballot titles and explanatory statements.

Typically, those titles and statements are prepared by the attorney general’s office and vetted by both sides. Any party can comment on the result and can appeal to the state Supreme Court. That process is supposed to result in “ neutral” language according to elections law.

“The ballot title is very important,” says public-interest lawyer Dan Meek, who has a long history in the initiative trade. “The right title can move election results 20 percentage points.”

The Legislature, however, can bypass the standard language-vetting process when it refers measures to voters.

Emails show Nesbitt and Stacey began lining up a team to poll and run focus groups on ballot language in January. Their crew included local pollster Lisa Grove; political consultant Steve Novick, now a candidate in May’s Democratic primary for U.S. Senate; and lawyer Margaret Olney.

The group tested ballot language in March and April to determine which words would have the greatest chance of overturning Measure 37. Nesbitt says the focus groups and polling provided information about exactly how voters felt about Measure 37 and how they would like to see it fixed.

Proponents also discussed other strategies such as deliberately making the ballot summary so long that county elections officers would leave it out of the Voters’ Pamphlet, leaving voters with only the carefully chosen ballot title to consider.

“I don’t see huge advantages to the words added to the summary to expand it,” Measure 49 campaign strategist Liz Kaufman wrote in a June 6 email to Nesbitt and Stacey. “I realize that was done in order to try to make it so long that counties won’t print it, but it doesn’t seem to add much value through it’s [sic] actual meaning.” (Proponents ultimately shaved the summary down to 125 words).

They also debated how neutral the measure’s explanatory statement should be. In a June 6 email to Land Use Conservation and Development Commission director Lane Shetterly, Rep. Greg Macpherson (D-Lake Oswego) and Sen. Floyd Prozanski (D-Eugene), Nesbitt wrote, “We should decide if you want to bypass the process for an Explanatory Statement Committee and draft our own Explanatory Statement as well. I would argue against doing anything differently with the Explanatory Statement process, since that is explicitly provided for both initiatives and referrals and allows for input from both proponents and opponents.”

Ultimately, legislators ignored Nesbitt’s advice. On June 25, the same day they referred Measure 49 to voters, lawmakers passed House Bill 2640 sending a pre-selected ballot title, summary and fiscal impact statement directly to the voters. HB 2640 passed the Democratically controlled Legislature on a party line vote.

Macpherson, who led the Legislature’s revisit of Measure 37 and is now a candidate for Attorney General, defends the process.

“I think the Legislature acted responsibly and that our language accurately and fairly reflects the substance of the measure,” he says. “My understanding is that this process [direct referral] is one that has been followed before.”

Ted Reutlinger, chief deputy legislative counsel, says the Legislature has drafted its own ballot title only five times when it’s referred measures in the past 12 years.

One of those referrals, in 1995, incurred the wrath of Gov. John Kitzhaber. He vetoed it, writing on July 21, 1995, that “I think it is important to preserve the right of Oregonians who may disagree with the Legislature to challenge the proposed ballot title in court.... It is never appropriate to avoid the appeals procedure in an effort to thwart court scrutiny and bypass citizens who may have an alternate point of view on the objectivity of the proposed ballot title.”