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Looking for Loopholes

Are Conservative Campaigns Sneaking Around Petition Laws?

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Who should be held accountable? That's the question many are asking after it was discovered that signatures for several initiative petitions were being paid for illegally. And as state elections officials continue to pore over petition sheets turned in on July 7, it's become evident that Measure 26 (M26)—the law that forbids payment per signature—is ambiguous in a number of key areas.

As the Mercury reported last week ("Democracy for Sale," Feature, July 13), at least three statewide initiative petitions were being circulated by the homeless, who were being paid per signature in violation of the law. The petitions in question were one requiring term limits for legislators, one requiring the districting of Oregon Supreme Court Justices, and one placing a state spending cap based on inflation—the so-called "Taxpayer Bill of Rights."

Unfortunately, the system of contractors and subcontractors (and sub- subcontractors) makes it difficult to tie circulators on the streets directly to the campaigns they're working for.

Election law, however, makes it very clear that the buck stops with the chief petitioners. The text of the law reads: "Chief petitioners are responsible for insuring that agents of the chief petitioner (anyone who is delegated the task of obtaining signatures on the initiative or referendum petition) do not violate" Measure 26. The question is, what constitutes being "responsible for insuring"?

"One of the intended consequences of Measure 26 is that it reestablishes chains of accountability to chief petitioners," Tim Nesbitt, one of the measure's sponsors, told the Mercury. "If it comes to their attention that someone working on their petition is breaking the law, they should be the whistleblowers. That's what I've had to do in the past."

But Tim Trickey, the owner of Democracy Direct (which circulated, among others, the term-limits petition), says chief petitioners can only be held responsible for what circulators do on the streets "within reason."

"This is the one thing I hope [the backers of M26] try to push," he says. "Go ahead and try to say that the chief petitioner is financially responsible for everything that happens on the streets."

"Do you understand what that would mean?" he continued. "No one would be a chief petitioner. It would have a chilling effect on free speech."

Further, he called Nesbitt and M26 supporters "corrupt," claiming they have partisan reasons for challenging the way conservative measures have been paid for—"they just want to shut down people like [conservative activists] Don McIntire, Bill Sizemore, and Russ Walker."

But Trickey may have other problems. Last week, an anonymous tipster faxed the Mercury a copy of a contract between Democracy Direct and a subcontractor. The terms of the contract were that Trickey would pay the subcontractor $35,000 for "approximately 40,000 valid signatures"—on the surface, at least, that equals payment per signature.

Trickey maintains that election law allows him to pay other companies on a per-signature basis, as long as the circulators on the streets aren't paid per signature. The same contract obtained by the Mercury has detailed instructions to the subcontractors that the actual circulators are not to be paid per signature.

The law itself, though, is vague—"Chief petitioners may contract with a person or entity to manage the signature gathering, and pay the person or entity for services... so long as the individuals who actually circulate the petition are not paid based on the number of signatures obtained." In other words, the law doesn't say that payment per signature is allowed between contracting companies—but it also doesn't explicitly forbid it.

Trickey added that his particular contract terms have been "adjudicated and approved by the state," but couldn't provide details of when and how that happened.

Strangely, the state agencies charged with enforcing the law also don't have a clear answer. John Lindback, the state's elections director, says he thinks payment per signature between contractors and subcontractors may be allowed, but couldn't give a definitive answer. Secretary of State spokesperson Anne Martens said she believed the opposite, that Trickey's contract would be a clear violation of M26.

"I believe that anything that pays on a per-signature basis is illegal," she said, but referred the question to the Department of Justice. A spokesperson there agreed, but then referred the question higher up—at press time, we were still awaiting a call from the attorney general.

Nesbitt, though, said that, at the very least, such practices violate the intent of the law.

"Somewhere in the process, after the signatures have been collected, they're being turned back into commodities," he said. "I'm not sure I can tell you that it explicitly violates the law, but it certainly violates the intent of it.

"This is like free-market hydraulics. If you pour enough water into a container, it's going to find a way to leak through somewhere," Nesbitt explained.

Meanwhile, state officials are sorting through each of the petitions turned in last week. Their first task: looking at the bottoms of the petition sheets, where circulators sign their names and pledge that they witnessed the signatures and weren't paid per signature. According to sources, officials have already found a number of discrepancies and have pulled many of the sheets aside for further evaluation. Most of the campaigns have turned in many more signatures than needed, as a way to buffer against invalid signatures.

But if campaigns continue using shady signature-gathering practices that lead to payment per signature, they may not have to wait for the state to penalize them— the low validity rates on the sheets could very well disqualify them. And even if he knows they're breaking the law, that's something even the secretary of state can't do.

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