10/11/2007

By JULIA SILVERMAN  / Associated Press

The way tobacco companies tell it, Oregon's constitution is a pristine document that would be badly damaged by the proposed inclusion of a tax on cigarettes, which would pay for an expansion of children's health care coverage.

R.J. Reynolds and Philip Morris have poured a record $9.1 million into fighting Measure 50, the proposed cigarette tax in Oregon, the most ever spent on a ballot initiative in the state, and much of the money has gone to drive home that point.

Now, concerns over the constitution appear to be resonating among voters, according to activists from both sides.

The constitution has been amended and re-amended hundreds of times since its inception in 1859.

"In terms of what we have already placed in the constitution, I think we are beyond a purist approach," said Lane Shetterly, a lawyer and former Republican legislator from Dallas.

Yes, the state constitution echoes the solemn guarantees of the federal charter, for freedom of religion, speech and the press.

But it also is cluttered with dictums on the "sale of liquor from individual glasses," and prohibitions on the sale of timber harvested within the state's boundaries.

There's also language on the state's power to lend credit for pollution control projects and the operation of the prison industry board, matters that other states have relegated to statute rather than enshrine in the constitution.

One outdated provision states that, "who shall agree to go out of the State to fight a duel, shall be ineligible to any office of trust."

The United States Constitution, and most state constitutions, are far briefer, more formal documents than Oregon's version, said Norman Williams, a professor of constitutional law at Willamette University in Salem.

But states like Oregon, that allow citizens to sponsor initiatives and refer them to the ballot, are far more likely to have constitutions chock-full of policy that go beyond broad guarantees of rights, Williams said.

And initiative sponsors have historically preferred to ask voters to approve their pet measures as constitutional amendments, rather than just changes to Oregon law. That way, legislators cannot undo their work.

The only way to change the constitution is to go through the cumbersome process of asking voters for their permission, whereas lawmakers can just vote, often with a simple majority, to make changes in statute.

Supporters of the tobacco tax acknowledge that the state constitution is not the ideal home for the measure. But the overall issue is important enough, they contend, to ignore that nuance.

"I think it is ugly, but I am going to vote for it, because I think there are degrees of ugliness in the world," said former Secretary of State Phil Keisling. "In a world in which you have lots of kids not getting health care, I can countenance voting for this."

The measure was referred to the ballot by Democrats in the Oregon Legislature, who hold a 31-29 majority in the House. Democrats tried to woo enough Republicans to refer the measure as a change to statute, but thanks to a quirk in Oregon law, that requires a supermajority of 36 votes in the chamber. The Republican votes never materialized, leaving Democrats to send the matter to the ballot as a constitutional change.

Keisling suggests that Oregon's 150th birthday, just over the horizon in 2009, would be the right time for a "constitutional spring-cleaning." But attempts to streamline the constitution in the past have been forcefully turned back by voters.

In 1999, Shetterly and former Republican Rep. Max Williams of Tigard sponsored a measure to require a higher number of signatures in order to place a constitutional amendment on the ballot — in effect, making it more difficult.

"Our thesis was that there is already too much clutter in the constitution, and we have things in there that were not of constitutional import," Shetterly said.

The measure was defeated by a landslide, with 85 percent of Oregonians voting against it. In recent years, ballot measures that rely on constitutional amendments have slackened off, partly because of a decision by the Oregon Supreme Court that made it illegal to amend two separate portions of the constitution with a single ballot measure.

And, Shetterly said, it's common knowledge that asking Oregonians to approve a constitutional amendment decreases the chances of passage. The other surefire way to make voters pause in their tracks, he said, is to ask them to approve a tax increase. Measure 50, of course, does both.

J.L. Wilson, a spokesman for the opponents of Measure 50, conceded that the state's constitution was pockmarked with policy.

"It may be that it has things in it that it shouldn't," Wilson said. "But that doesn't preclude having a high threshold for what you should put in there. People are simply fed up by what has come in the past."

Measure 50's supporters, who have raised $1.8 million so far, have been fighting back with their own ads. But they haven't tried to counter the constitutional argument in their TV ads.