Maine lawmakers worry that recordings of public hearings may be used to embarrass them – and are considering ways to stop that from happening.

By Judith Meyer, Guest Contributor

Would it be OK for Maine to copyright all audio recordings of legislative committee hearings solely to restrict the use of embarrassing exchanges?

No. And, yet, the Legislative Council’s State House Facilities Committee is discussing this very thing.

Last month, after members of the Committee voted to maintain audio recordings instead of destroying them, a decision was made to investigate the cost and process of copyrighting these records to limit their use. It would be an unprecedented move for Maine and is being considered for the wrong reason.

Which is? Protecting sitting lawmakers from adversaries who may use their audio quotes to embarrass them in the political arena. It’s not to protect the integrity of the records. It would be done only to spare lawmakers from themselves, from off-the-cuff things they may say in committee that may then be used against them for future —possibly harmful — political purposes. The Facilities Committee discussed the possibility of copyright restrictions for political use while permitting access for educational and research use.

Here’s the problem: Not all political purposes are bad. Would banning political use prevent lawmakers from using recordings to highlight their most compelling arguments? Their most thoughtful suggestions? Their best-articulated positions shared during committee hearings? It would. So, this idea of banning political use may well shield the odd stuff lawmakers say, but it would also bar use of all the good that comes from committee work.

And who decides what is educational or research use? From a media perspective, our political coverage is always intended to educate readers and viewers. So, under this very informal scenario being discussed, the media could argue educational use even when lawmakers behave badly, which means the very thing lawmakers want to protect would not be protected. So why do it? And, is it even possible?

Copyright protection is intended to protect original and creative thought from use by others. And while there is a great amount of original thought and many creative ideas presented during public hearings, not all of it comes from lawmakers. Much of it comes from members of the public who testify and who purposely intend for their testimony to be heard and consumed by the public.

Do people offering testimony really want it to be restricted from wide dissemination?

Very doubtful. And, could government claim to “own” that testimony for purposes of copyright? Absolutely not.

The most important obstacle here, and it’s a glaring one, is the clear collision between copyright and public access. Legislative committees operate in public. The public has access to hearings (which are recorded and which recordings are instantly public records) and all written testimony. That’s the law. To drop a copyright on the audio portion of this material fundamentally changes public access to those records.

The entire purpose of Maine’s Freedom of Access Act is for the public to understand the governmental process. The law doesn’t say only “good” records are public, or that the public may attend meetings only when everyone behaves.

Worse, this radical change in access is being considered outside the legislative process, without public hearing. So, while the Facilities Committee has been good enough to accept comments on this issue, it’s being done as a courtesy, not as a requirement.

If we could, for a moment, put all these issues aside, there’s still the practical irony: copyrighting can be prohibitively expensive, and copyrighting the daily work of multiple committees would be grossly expensive. So, we — the taxpayers — would be asked to foot the bill to restrict our access to public records in order to spare lawmakers from possible embarrassment caused by their own words or actions.

How is that our responsibility? It isn’t.

The Legislative Council’s Facilities Committee last considered this issue on May 23 and asked Executive Director Grant Pennoyer to research copyright cost and process for consideration at its next meeting, which is not yet scheduled. When it is, we must protest this on the basis of purpose, access, and cost. These audio recordings are unquestionably the public’s records, and we have a right to access without restriction.

Judith Meyer is executive editor of the Sun Journal, a vice president of the Maine Freedom of Information Coalition and a member of the Legislature’s Right to Know Advisory Committee.

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Citizen Initiatives…Be Careful What You Wish For

By Maggie Harling

The people have had their say and four of the five citizen initiatives on last November’s ballot passed. These four new laws are going into effect as we speak. Or, are they?MaineStateSeal

Citizen initiatives were introduced in Maine in the early 1900s as some citizens grew increasingly worried about the influence of wealthy corporations and individuals on the mechanisms of government. Citizen initiatives were seen as a way for people to have a voice when they felt the legislature was not listening to their concerns. In recent years, there has been an average of 5 or 6 referendums per two-year election cycle. Recent initiatives have given Mainers an opportunity to vote on everything from marijuana use to gun issues.

Placing an initiative on the ballot is an involved process. Most significantly, it requires proponents to collect signatures of Maine citizens. The total number of signatures is 10% of the votes cast in the most recent gubernatorial election (just over 61,000 currently). But before collecting signatures, all initiatives must be submitted to the Secretary of State (SOS) where they are reviewed.

  1. The proposition is drafted and presented to the Secretary of State.
  2. The SOS, the Attorney General, and the Revisor’s office review the proposal and its language. Sponsors may be offered feedback on their draft and given an opportunity to make changes.
  3. Then, state officials summarize the proposed law, give it a title, and prepare the official petition.
  4. The petition is then circulated to obtain the required number of signatures.
  5. Finally, the signatures on the petition are submitted to local and state election officials to verify and certify the question for the ballot.

Before the question goes to voters, the Maine Legislature has a chance to address the issue by passing the measure into law without changes, sending it directly to voters, or presenting an alternative proposal called a competing measure. If the legislature proposes a competing measure, the measure will be presented on the ballot, and voters will choose either the original proposal, the alternative, or none of the above. To prevail, the question must receive a majority vote.

Once the measure passes, it becomes enacted law without further intervention by the legislature or the governor. Although a new law has the moral force of the popular vote, it is subject to correction, amendment, or outright repeal, just like any other law, as well as to the vagaries of the budget process. If the legislature has the political courage to flout the will of the voters, it is within its power to do so. Some legislators whose districts have voted against the new law may continue to oppose or undermine it, despite the measure having won a statewide majority. This has been the case with each of the four ballot questions passed in November 2016; amendments are being considered on each one.

The Citizen Initiative process isn’t without controversy and efforts are underway in Augusta to reform it. Some legislators see the process as an end-run around their role as our representatives—favoring “direct” as opposed to “representative” democracy. Citizens and legislators alike have raised concerns about poor legal drafting, deceptive labeling, and out-of-state sponsors hiring for-profit signature gatherers. Some are concerned that it is too easy to gather sufficient signatures from a narrow geographic sector of the state and that some issues focus on narrow interests that don’t represent the diversity of Maine voters. And, by bypassing legislative deliberation of the law-making process, the issues don’t get a full examination, leaving voters to parse complex issues based only on campaign messaging.

These issues and the sheer (and growing) number of citizen initiatives have prompted legislators to discuss reform, including:

  1. Eliminate the potential influence of out-of-state and highly moneyed interests (although, at first look, measures like this may be unconstitutional).
  2. Tighten up the review process so that incomplete or erroneous clauses cannot be included in the initiative proposal.
  3. Require a higher threshold of signatures to qualify for the ballot.
  4. Require geographic distribution of the signatures across Maine by congressional district, county, or state senate district.

Supporters of the initiative process are watching this debate closely and point out that the legislature sometimes proposes and enacts imperfect laws too. And the fact remains that all of these newly initiated laws were discussed in Augusta before becoming initiatives. Legislators took no action, so citizens took matters into their own hands. The Citizen Initiative process is a form of participatory democracy and proponents argue that it’s an important safety valve for citizens to address concerns when the legislature is gridlocked or captured by corporate or partisan interests. If the legislature has work to do in the aftermath, it is no more than the due process.

Efforts to make the initiative process more difficult for proponents may have the perverse effect of putting it further out of reach for ordinary citizens and volunteers, and end up requiring more money and further professionalizing of the process. It may take the citizens out of the Citizen Initiative process.

 

 

Civil Discourse in Legislative Hearings

By Irene Lang

Those attending the Veterans and Legal Affairs Committee public hearing on LD 121, An Act To Require Photographic Identification to Vote, were witness to an event that is rarely seen in the State House and that raises important questions about the state of discourse in our state and in our country.

As the most recent entry in a long line of contentious efforts to change voting rules in the state, LD 121 would require voters to show a photo ID at the polls unless a municipal clerk could vouch for the person’s identity, and would require the Secretary of State’s office to provide non-driver identification cards to anyone who wants one, free of charge.

The Committee Chairs, anticipating a passionate debate, established ground rules for the hearing that permitted testifiers to discuss the ramifications of the bill, but prohibited them from ascribing motivations to any of the sponsors or supporters. As the hearing progressed, one of the citizens testifying used the word “racist” and mentioned Governor LePage’s name during her testimony, at which point the Chairman cautioned her to stay on topic. As the woman attempted to make her points about racial disparity in the consequences of photo ID, a verbal battle ensued. The Chair muted the speaker’s mic  as the woman insisted that she be allowed to continue, while the Chair – still on mic – insisted that she was out of order.

The Chair’s heightened sense of concern to control any passionate or offensive outburst actually led to an over-reaction, turning what could have been a teachable moment into an angst-producing counter-example. The gaveling down of this speaker, and the heated off-mic exchange, were far more “uncivil” than what likely would have emerged in the speaker’s comments. When the woman claimed her constitutional right to discuss racism, the packed overflow room erupted into applause. More than one observer could be heard saying, “Nevertheless, she persisted.”  The situation was eventually rescued, and she was eventually allowed to complete her testimony, including a discussion of the racial impact of the bill.

However, in the Chairs’ effort to quell what he feared would be an attack on the character of the bill’s sponsors or supporters, he instead tried to suppress discussion of concerns about some very serious issues. Many of those testifying in opposition to LD 121, including the League, described it as a mechanism of voter suppression, disproportionately affecting minority constituents. Clearly, it would be inappropriate to call the sponsor or supporters of a bill racist, and we would expect the Chair to caution against such accusations. But to say that a bill has the potential for racial suppression – or even to say that it is potentially racist – is not to say that its sponsor had that intent or is, himself, a racist.

At the same time, when similar bills have been litigated in other states, they have been struck down if it could be demonstrated that the supporters had partisan or voter suppression motivations. Motivation and intent are relevant.

Civil discourse must allow for free and full discussion of a bill’s impact, including strong opinions and potentially negative consequences. Regardless of the sensitivity or volatility of the topic, it is essential to allow these concerns to be voiced. Racism, in particular, is a destructive force in our world that must be confronted openly and honestly. Using the term “racist” to describe someone who espouses racist views is no less accurate for being offensive, and any offense is clearly insignificant when measured against the destructive impact of laws that result in racist outcomes. To deny the existence of racism or to turn a blind eye to racist behavior – or legislation – is to become complicit in its perpetuation.

While this type of exchange has been rare in the State House, it may become less so in our currently contentious political climate. Civil discourse takes practice. As our citizenry becomes more divided and views become more passionately held, it will be increasingly difficult to find the fine line between strong views and offensive ones. And, as voters become more vocal in their objections to government actions, they will have to find a way to say what they mean without crossing that line. If the relationship between voters and legislators becomes increasingly strained and defensive, it is incumbent upon the legislature to ensure that the rights of constituents to be heard are upheld and to make room for strong opinions on difficult subjects to be delivered in a respectful way.

 

 

 

Impact on Issues: the positions behind our advocacy work

Introducing Impact on Issues from the League of Women Voters of Maine

By Stephanie Philbrick

impact-lwv-jan-2017We believe that transparency and accountability are essential to a functioning government and we closely monitor the Maine Legislature to make sure they are conducting business in an open and accessible manner. Because of that, we hold ourselves to the same standard. Our positions and actions are public and, while we wholeheartedly stand behind our established positions, we welcome discussion about our work. Impact on Issues is one of the ways that we work to educate our members and the public about our work.

This report describes our current priorities and the positions that are the basis for our advocacy work. It’s also a ten-year retrospective of the work that we’ve done in these policy areas. Our positions align with those of the League of Women Voters of the U.S. (LWVUS) but reflect local priorities and the unique nature of Maine’s citizenry and politics. We focus on areas of specific concern in our state, with an emphasis on voting rights, elections administration, campaign finance and good government.

We also endeavor to shine a light on policy work in Augusta throughout each legislative session. We regularly report on specific bills, legislative committees, hearings, work sessions and other aspects of Maine government through this blog. This year, we’re expanding our work in this area to better track what goes on in Augusta. Look for:

  • legislative scorecards on selected bills we follow
  • Action Alerts, updates and event info on Twitter and Facebook
  • an updated version of Impact on Issues after the legislative session ends

At the foundation of our work is the belief that any and all citizens should be able to access (and understand) our government if they want to. We hope you’re inspired to make use of all that the League has to offer to stay informed. And if you’re ready to take action:

  • Join us! There are lots of ways to get involved in state and local issues through the state League and local chapters.
  • Go to a legislative hearing/work session – look for us (with our League buttons on)!
  • Call your legislators
  • Write an op-ed in your local newspaper