By Stephanie Philbrick & Ann Luther
Secrecy in government is something that rubs most Americans the wrong way – even if most of us assume it happens. This sentiment is all the stronger as we remember our July 4th national holiday and celebration of democracy. The Advocacy Committee of the League of Women Voters of Maine (LWVME) attends dozens of legislative committee meetings each session precisely because we want to participate in government and monitor the process of law-making. So, when we saw legislative committees repeatedly going into closed-door sessions during public meetings we were concerned. Maine’s Freedom of Access Act (FOA) defines a public proceeding as, “the transaction of any functions affecting any or all citizens of the State” by the Maine Legislature and its committees and subcommittees…” We question the practice of “corner causes” or closed-door meetings in legislative work sessions because, as Helen Hanlon wrote in her letter to the Kennebec Journal (June 26), “Whether legal or not, the practice is a breach of integrity in our legislative process and undermines transparency in government.”
Closed door discussions are technically allowed by the FOA: “Subject to certain procedural conditions, [committees are allowed] to hold closed “executive sessions” on specified subjects after a public recorded vote of 3/5 of the members present and voting.” While there are undoubtedly times when this practice is appropriate, strictly speaking, this is not the procedure that legislative committees use when calling for a “corner caucus.” No vote is recorded, and the session is not an executive session of the committee as a whole. Rather, the committees divide into two groups along party lines for secret conferences among themselves, and the practice is routine.
What seems to be occurring most often is that, during a public meeting, parties decide to caucus or meet separately to discuss how to proceed. Lisa Pistner, Chief Deputy Attorney General for the State of Maine, recently responded to our questions about closed-door meetings during Legislative Committee meetings: “We have advised that there is no court decision on the subject and that the actual circumstances would be relevant, but that political parties are not governmental entities covered by the Freedom of Access Act.” In 2010 she wrote to Senate Chair Lawrence Bliss on the issue and called party-only caucuses during meetings an issue of “statutory interpretation.” So, it seems that the practice may not break any laws – though this hasn’t been tested in court. Regardless, private meetings were overused this session and certainly go against anyone’s view of government transparency.
The increasing prevalence of closed meetings is bad enough when they form a key off-mic part of the deliberations at public work sessions and when they are immediately followed by committee voting. It is even more troubling when the closed-door meetings generate legislation that is sent directly to the floor without further public comment in committee. This is a double-whammy to the public’s right to know and weigh in on legislation. Yet that also happened this session.
To gain a better understanding of what Maine’s FOA means in this context, we turned to LWVME board member, John Brautigam, for this perspective:
First, the FOA laws are supposed to be “liberally construed and applied to promote their underlying purposes and policies as contained in the declaration of legislative intent.” 1 MRSA 401. So the law is supposed to be interpreted as strongly as possible to protect the right of the public to access.
On the other hand, the law only applies (in this context) to the legislature, its committees and subcommittees. 1 MRSA 402(2)(A). This has been interpreted to mean that smaller groups of legislators speaking to each other informally are not covered by the law. Only the full legislature, the full committee, and full subcommittees are subject to the law. (Individual legislators are also exempt, although some of them assert that they are covered by the law.)
Some people have argued that when a handful of members of a Standing Committee get together to discuss business of the Committee they should be considered a “subcommittee.” The legal interpretation that prevails in Augusta, however, is different. A subset of the Standing Committee is not considered a subcommittee unless it is specifically established by the Committee and charged with doing some specific work. Otherwise there is no “subcommittee” within the meaning of the FOA requirements. (The key here is not the name of the group that is meeting, but whether it has been formally established, as opposed to existing on an ad hoc basis.)
One could bring a lawsuit asking a court to rule on whether the closed, small-group gatherings of legislators should be considered “subcommittees” or otherwise should be covered by the FOA law. It would not be a frivolous case. But this is so close to the legislature’s own self-governance that where there is uncertainty, most courts would probably defer to the legislature’s interpretation of its own laws.
Legislation to clarify the law would be helpful, and even if not enacted it would send a helpful reminder of the core principles of FOA.
In a long, surreal legislative session that has ended in a circus of vetoes, accusations, and feuds, closed-door meetings might seem like a small issue. However, these issues of ethics and transparency are often overlooked and allowed to slide, and when that happens, we all lose. Our access to government and ability to participate is integral to democracy and all the more important in contentious times. We hope that legislative leadership can be persuaded to interpret our FOA laws so broadly as to end the practice of corner caucuses, but if our current law is inadequate to the task, perhaps that law needs to be refreshed.