By Patrick B. McGuigan

Published: 12-Jul-2010

Congressional candidate Mike Thompson of Oklahoma City and a legislative “watchdog” are criticizing ballot “gist” language developed by Attorney General Drew Edmondson to summarize State Question 756.

Legislators referred the constitutional amendment to November’s ballot for a popular verdict. Advocates say it will protect health care options, but they have responded angrily to steps by Edmondson, a Democratic candidate for governor, which they believe may hurt the measure’s chances.

Rep. Thompson, a Republican candidate for the Fifth Congressional District seat, blistered Edmondson’s summary. He told CapitolBeatOK Edmondson had inserted “inaccurate and highly partisan language into the wording of State Question 756.”

Thompson, who wrote S.J.R. 59 placing the health care “opt out” issue before the electorate, said, “Instead of allowing Oklahomans to vote and decide for themselves if they want to be protected from ObamaCare, Drew Edmondson has inserted his own, factually incorrect opinion on the ballot.”

Thompson called on Edmondson “to remove his language from the state question and correctly use the language passed by the House and Senate with overwhelming majorities.”

Controversy is not limited solely to the particular provisions of S.Q. 756. Oklahomans for Responsible Government (OFRG) say the new controversy casts negative light on Edmondson’s use of the power of his office to put ballot measures in a negative light. In a blog circulated today (Monday, July 12), OFRG pointed out that legislators had approved, by combined votes of 123-18, the following ballot language:

“This measure adds a new section of law to the State Constitution. It adds Section 37 to Article 2. It prohibits making a person use a health care system. It prohibits making an employer use a health care system. It prohibits making a health care provider provide treatment in a health care system. It allows a person to pay for treatment directly. It allows an employer to pay for treatment directly. It allows a health care provider to accept payment for treatment directly. It allows the purchase of health insurance in private health care systems. It allows the sale of health insurance in private health care systems.”

ORFG says that language is “easy to comprehend” and not confusing, meeting the requirement for language understandable to those with 8th grade educational attainment.

Attorney General Edmondson’s “gist” summary reads as follows: “This measure adds a new section of law to the State Constitution. It adds Section 37 to Article 2. It defines ‘health care system.’ It prohibits making a person participate in a health care system. It prohibits making an employer participate in a health care system. It prohibits making a health care provider provide treatment in a health care system. It allows persons and employees to pay for treatment directly. It allows a health care provider to accept payment for treatment directly. It allows the purchase of health care insurance in private health care systems. It allows the sale of health insurance in private health care systems.

“The measure’s effect is limited. It would not affect any law or rule in effect as of January 1, 2010.

“Nor could the measure affect or negate all federal laws or rules. The United States Constitution has a Supremacy Clause. That clause makes federal law the supreme law of the land. Under that clause Congress has the power to preempt state law. When Congress intends to preempt state law, federal law controls. When Congress intends it, constitutionally enacted federal law would preempt some or all of the proposed measure.”

Although Edmondson’s summary will likely appear on the November ballot, some critics point to a prior Edmondson decision to revise “gist” language.

In a blog posting, OFRG asserts, “Seems like the AG is injecting bias into the gist statement by bringing up the Supremacy Clause.  For instance, he did not bring up the 10th Amendment which states that powers not given to the Federal government by the Constitution are given to the States.  That’s just as valid of a point.”

Rep. Thompson made a similar point in response to CapitolBeatOK, saying, “By inaccurately representing the Supremacy Clause in the Constitution and ignoring the 10th amendment, Drew Edmondson has shown nothing but contempt for the will of the voters to be protected from Washington’s power grabs.”

OFRG underscored a related controversy from this year’s legislative session, surrounding Governor Brad Henry’s veto of Senate Bill 2008. That law “would have required that the language on legislative initiatives be approved by the Attorney General’s office before the legislature voted whether to place it on the ballot.”

When he vetoed S.B. 2008, Gov. Henry said the current system in which the attorney general prepares the ballot “gist” language is the best way to assure neutrality in presentation of ballot issues. In a comment sent to CapitolBeatOK in April, Henry said, “Voters rely on the ballot title to make their decisions and there should be no hint or appearance of bias in its construction.”

The unedited text of Gov. Henry’s veto statement of S.B. 2008 follows: “To ensure that voters have the best possible information to make a decision, it is critical to have a (clear, concise) and well-written, inclusive and unbiased ballot title in the consideration of a state question.  At a time when the Oklahoma Legislature is submitting more and more questions to voters for their decisions, the ballot title has become even more important. 

“For many years, an entity independent of the legislative process, the attorney general’s office, has effectively and efficiently performed the task of writing ballot titles without the concern or appearance of bias for or against any particular question. By essentially transferring this authority to the legislative leadership, Senate Bill 2008 removes the independent arbiter from this process and allows lawmakers who have already cast a ballot for or against a particular proposal to craft the ballot language that will ultimately help voters decide its fate. This change will undoubtedly lead to the appearance of and possible charges of bias in the ballot title process. Because the current system is functioning appropriately, there is no reason to change it.”

OFRG said at the time Henry was “dead wrong” in contending the attorney general’s office has not shown bias in development of “gist” language.

Making its case against Henry’s veto, Brian Downs, Executive Director of Oklahomans for Responsible Government, commented, “You only have to look at how Attorney General Drew Edmondson changed the wording of the statewide term limits ballot title to see that is not true.”

In 2009, Edmondson inserted a sentence in the ballot title of what became State Question 747 that said, “It limits the ability of voters to re-elect statewide elected officers.”  Outcry from OFRG and legislative leaders led to Edmondson revising the language slightly, to read, “It limits the ability of voters to re-elect statewide elected officers by limiting how many years those officers can serve.”

Downs said after Henry’s veto of S.B. 2008, “It only makes sense that there are checks and balances in the process. Otherwise an Attorney General with an agenda against a certain issue can re-word a ballot title to go against what lawmakers want and confuse voters.”

OFRG says the new ballot language controversy “is just another example of why Senate Bill 2008 is needed. The 88 House members and 30 Senators who voted for S.J.R. 59 did not approve the language voters will see. The citizens of Oklahoma could not make comments to their elected officials about the final language as the resolution went through the process because that language didn’t exist.

“The current system leaves one person in charge of the gist statements that voters will see and little or no recourse if the language is changed beyond what those proposing the measure intended.  It needs far more transparency and a new version of SB 2008 would be a big step in the right direction.”

Republicans have frequently criticized Edmondson for declining to take steps to prevent the new federal health care law from limiting the health insurance options available to Oklahomans.