How Paul Holvey hides behind Legislative Counsel attorneys (and why you shouldn't fall for it)
One of the reasons given for the recall of Rep. Paul Holvey is his refusal to advance a key workers' rights bill this session, House Bill 3183. The measure would have protected cannabis workers attempting to organize their workplaces by adding a stipulation to certain OLCC licenses.
Lately, we've heard Rep. Holvey blame Legislative Counsel (LC), the Legislature's attorneys for his reluctance to act:
"We looked at it again and came back with the same answer -- that this is pretty clearly outside of Oregon’s authority,” (Paul Holvey in OPB story, May 22 2023)
What Holvey means here is that Legislative Counsel (LC), the Legislature's attorneys, looked at the bill and decided that they didn't like it, and he was just acting on their advice. At first glance, it seems pretty reasonable to hear that someone's attorney advised against something and they decided not to do it... But the State Legislature isn't just anyone, and in this case that excuse doesn't hold water for several reasons.
Reason #1: Legislative Counsel Opinions are Just That
At the beginning of the memo to which Holvey is referring is a statement by the LC attorney explaining what the memo actually means:
“At the outset, we clarify that the preemption concerns raised in our previous opinion are to advise you that, if enacted, certain provisions of HB 3183 may be susceptible to a federal preemption challenge and to highlight the arguments that could be raised as basis for such a challenge. ... absent judicial guidance on this issue, we cannot predict with certainty how the NLRB or a court would ultimately decide.” (link to memo)
First of all, EVERY bill the Legislature passes is susceptible to legal challenges! Gun control bills, access to abortion services, taxes... any controversial matter is likely to be challenged. The question is what that challenge is likely to look like. Here, LC is clear in saying that this memo highlights "arguments that could be raised" against the measure (and they're correct... some of those arguments might be tried against this measure), but is careful to note that this is not judicial guidance and cannot predict the outcome.
It's also worth noting that had LC been asked to outline arguments in favor of HB 3183, they likely would have been able to do that as well. But since communications between legislators and Legislative Counsel are secret, we don't know what was or was not asked.
Reason #2: Other States Have Done This Just Fine
Although we can't say for certain what would happen in any particular court challenge, it is notable that House Bill 3183, or something like it, has been in effect for several years in a number of states, including California, New York, and New Jersey. So far, the types of challenges envisioned by Rep. Holvey have failed to materialize in any substantial form.
Reason #3: Holvey has Bucked LC Opinions on Anti-Worker Bills
Back in 2019, Rep. Holvey served as the "carrier" for Senate Bill 1049 (meaning he was responsible for passing it through the House Floor), which slashed working people's pensions because the State needed a few bucks. What's notable about that is LC had actually urged caution about that plan in a previous memo, but Rep. Holvey powered through anyway.
To say now that he blocked legislation because Legislative Counsel had concerns is to say that he ignores pro-worker LC Opinions and religiously adheres to anti-worker LC Opinions. That's not acceptable.
Reason #4: The Timeline Doesn't Add Up
Despite Rep. Holvey's assertion that his decisions with regard to HB 3183 were based on LC guidance simply doesn't mesh with the timeline of events. The first adverse action taken against HB 3183 was on March 29, when Holvey determined as House Business and Labor Chairman that instead of being passed out of committee to the Floor, HB 3183 would either be killed then or sent to the Rules Committee to die. But the first LC memo that Holvey received was dated April 13, over two weeks later!
Then, after that memo was made available ahead of a May 11 hearing in the House Rules Committee, UFCW Local 555 provided a response outlining why they disagreed with the LC memo. Nevertheless, at that hearing HB 3183 was declared dead by Chair Fahey.
Four days later, Legislative Counsel issued Holvey a response to UFCW's memo, but this was not made public or posted into the record... yet.
Then, the day the recall was filed against Rep. Holvey, May 22, Chair Fahey tweeted out a link to the first LC memo, and UFCW555 responded with a link to theirs at 2:23pm. At 3:53pm, the second Holvey memo appeared on the Legislative record. Five minutes after the memo was first made available, Rep. Fahey tweeted "As you are aware, we asked our attorneys to review to UFCW's thoughts on the original memo. They issued a second legal opinion in response, confirming their initial view that the bill is preempted by federal labor law" and posted a link to the memo.
It sure seems like Rep. Holvey and the Legislature are making decisions and then retroactively justifying their decision-making process with the posting and release of carefully-selected and carefully-requested memos.
Legislative Counsel is made up of public servant attorneys that work hard and do good work. They respond ably to their clients' (Legislators) requests and are able to see both sides of many issues. For Rep. Holvey to lay the blame of his decisions at their feet is not worthy of their efforts, nor is it the type of non-accountability that we should see from an elected official.
It's notable that this Holvey Recall campaign site has full links to ALL of the information discussed, even the information we disagree with. Meanwhile, Holvey and his supporters are only providing links to a carefully-selected collection of information. Read everything and make up your own mind.