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Members of the Legislature's Joint Emergency Board today exchanged conflicting legal opinions and strong views on the legality of a new $62 million allocation of federal CARES Act money to the Oregon Cares Fund, which is entirely dedicated to "Black relief and resiliency."
Lawmakers met remotely to continue the allocation of more than $1.6 billion in federal relief funding. The Cares Fund generated the most heat of any of the topics the 20-member board tackled today in a Zoom meeting.
After a brief discussion of how the fund would work—it would provide cash relief to families and small businesses by the end of this fiscal year, through grants administered by two nonprofits, the Black United Fund and the Contingent—the sparring began, along partisan lines.
"I'd be the first to say the Black community has not been treated fairly," said Senate Minority Leader Fred Girod (R-Stayton). "But we have a legal opinion that says this [Cares Fund] is illegal."
Girod was referring to a July 13 opinion by the Legislative Counsel's Office that raised concerns whether earmarking funds for one race without specific data justifying the expenditure would be legal.
"We think the program may potentially, but would not necessarily, violate the equal protection clause of the United States Constitution and the privileges and immunities clause of the Oregon Constitution," wrote deputy legislative counsel David Fan-Yeng in the opinion.
"We are not aware of any evidentiary findings by the Legislature or the Emergency Board in support of the [Cares Fund]," Fan-Yeng continued. "Without any such findings, the program would almost certainly be unconstitutional under the Fourteenth Amendment."
State Sen. Lynn Findley (R-Vale) noted his district covers more than a third of the state and includes two large Native American reservations and a significant Latinx population. "They are completely left out of this measure," Findley said.
The two Black senators on the committee pushed back. Sen. Lew Frederick (D-Portland) said lawmakers repeatedly come up with reasons not to help Black Oregonians. Frederick noted that Black Oregonians have disproportionately suffered the health, employment and economic consequences of COVID-19.
"We cannot wait," Frederick said. "We must do something now."
Sen. James Manning (D-Eugene) said lawmakers have allocated money to rural agricultural interests without pushback from Republicans and added he was "disappointed" that his GOP colleagues characterized the Cares Fund as "unconstitutional."
As the discussion heated up, Senate President Peter Courtney (D-Salem) played the role of peacemaker. "I would ask you not to compare the relative injustices groups have suffered," Courtney said.
His co-presiding officer, House Speaker Tina Kotek (D-Portland), pointed to a countervailing legal opinion by the Schwabe Williamson & Wyatt firm.
"Although the Oregon Cares Fund would constitute a race-conscious program and, should it be challenged, litigation always poses risks, the State will have persuasive arguments, applying existing precedent, that the Oregon Cares Fund is legal," the opinion said.
"The Legislative Counsel's opinion is one data point we should consider," Kotek said. "But saying it could be unconstitutional does not make it unconstitutional."
A number of Democratic lawmakers spoke in favor of the appropriation, and the measure passed on a split vote, with Rep. Greg Smith (R-Heppner), Findley, Girod and Sen. Bill Hansell (R-Athena) voting against it.