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.

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

 

 

Opinion: Maine has lost its long time commitment to open government

By Mal Leary, Guest Contributor to LWVME blog

When I was growing up, my dad would take me to the annual town meeting where the long tradition of New England open government was on display. Every expenditure of the town was voted on and the town books, the physical ledgers of expenditures, were on a table for townspeople to examine. And they did.

Everyone who was a resident of the town could comment and ask questions, and sometimes it seemed they all did as the day wore on. They participated. Some ran for office, often reluctantly saying somebody has to do it. Most simply showed up and voted for selectmen and participated in the town meeting.

As towns have grown and government at all levels has gotten more complex, there is less direct democracy and more representative democracy. Town Councils have replaced town meetings in many places, and cities have developed more and more services that require more and more employees and a more complex bureaucracy removed from the voters.

The state legislature used to meet once every two years and special sessions were rare because of the difficulty of getting lawmakers to Augusta. Concerned about the loss of transparency with more and more bureaucracy, lawmakers passed Maine’s first open meetings and public records law in 1959.

It stated all records were public and open for inspection and copying, unless the legislature had passed a specific exemption. Those first exemptions were the obvious ones like ongoing criminal investigations. But they have grown to hundreds of exemptions over the years.

All representative government meetings, from selectmen meetings to state lawmakers committees, were also declared open for any in the public to attend. Some specific exemptions were added such as the ability to consult the town attorney on a legal matter or one concerning personnel. But no action could be taken by any board, commission or legislative committee in a closed session.

In recent years the legacy of open government has been eroded. Sometimes it is difficult, even painful, to discuss issues in public. It’s often easier to discuss something on the phone or by email or text, than in front of the public. Particularly if the issue is controversial.

As Ed Muskie once told me, no one asks you to run for public office. It’s something you decide to do and you should be ready to conduct yourself in public. He was a key supporter and author of some of the provisions in the 1974 federal Freedom of Information Act that updated and expanded the original 1966 law that we celebrate this year, fifty years after it was enacted.

In the last few years, we have seen an erosion of the law in Maine.  Last year, worried they were running out of time to get the state budget passed by the start of the new budget year, legislative leaders met privately to craft a budget that would get the needed votes. It was hard. Very hard, but in the end they reached an agreement and rushed the budget to the floor for a vote.

Only they knew all the details in the hundreds of pages, lawmakers had only hours to study the budget and the public had even less time. They made a travesty of the law and their own rules and the budget was passed, and as a reporter I remember finding out about sections and the impact they would have only weeks after the budget was law.

I had served on the legislature’s Right to Know Advisory Committee since it was created in 2005, and decided to resign in protest of the flagrant disregard of the law. The committee has done a lot of good work reviewing proposed exceptions and stopping some bad laws before they were passed. It also has reviewed existing laws and in many cases recommended improvements that were adopted by the legislature.

Recently it was the Executive branch that flagrantly violated the law. Gov. Paul LePage met with members of a statutorily created commission to study education in Maine.  They met at the Blaine House for the first meeting and members of the public and reporters were turned away at the gate.

The meeting was illegal, but there is no easy enforcement mechanism in Maine law. An individual must go to court and get an injunction to stop a meeting. Yes, we have a Public Access Ombudsman in the Attorney General’s office, but they are not independent and do not have the authority to go to court without the Attorney General’s approval. The ombudsman can issue only advisory opinions.

It is not that way in all states. In Connecticut, since 1975, they have had the Connecticut Freedom of Information Commission that has the authority to investigate and fine agencies and individuals that violate the law and can go to court to seek further action against violators.

Other states are looking at developing a simple process to appeal records or meeting decisions with an administrative process far less expensive than the courts.

Since its creation in 2000, the Maine Freedom of Information Coalition has worked to educate lawmakers, and the public, about open meetings and access to public records. It has had some success, like the requirement all elected officials take an online course about the law. Clearly some either take the course and forget what they learned, or they ignore the law.

We need a stronger law, with penalties for those that willfully violate the law. It will take a lot of work, but advocates for open government need to take up the cause.

 

Mal Leary is Vice President of the Maine Freedom of Information Coalition and is currently serving as President of the National Freedom of Information Coalition. 

Report from the Statehouse: SLG Committee May 4

By Polly Ward

On Monday, there were 2 bills scheduled for public hearing at 1:00 pm to be followed by a work session at 1:30.

 

LD 857 (An Act to Prohibit Public Endorsement of Candidates for Office by County Employees and Elected Officials)

The bill as drafted was apparently much broader than the sponsor intended – and the result would prohibit all elected county officers, officials and employees from engaging in political activity. The sponsor’s initial concern was about the potential for partiality by elected county sheriffs when enforcing laws in situations with a person who supported a different candidate. No one other than the sponsor spoke in support of the bill, representatives from the Maine Municipal Association and the Maine County Commissioners Association spoke against. The sponsor will rework the bill to call for a Code of Conduct for elected county officials and bring an amended version back to work session at a later date.

LD 1354 (An Act to Improve the Administrative Procedures Act)

This is the Governor’s bill to change the role of the Attorney General in the rule-making process, along with other changes. In support of the bill were:

  • the Maine Association of Realtors backing the change in the “taking provision” of the APA. (Taking refers to the taking of private property. Currently the APA requires the Attorney General to sign off on any rule that can be reasonably expected to result in the taking of private property. The change in the bill would remove the Attorney General from the process and leave it to the agency issuing the rule to determine if the rule might result in the taking of private property);
  • the Governor’s Chief Legal Counsel supporting the changes to the Attorney General’s role in the rule-making process;
  • Commissioner Aho of DEP on the ability to transmit substantive rules to the Legislature electronically rather than by paper copy and a change that would remove the requirement for rule-making when there is a change in a code, rule or law that is incorporated by reference in the state agency rule. (An example would be the plumbing code)
  • The Chief Counsel for DHHS spoke in support of the sections that Commissioner Aho mentioned.

There were a number of agencies and organizations that spoke in opposition to LD 1354, most of the opposition centered on the change in the role of the Attorney General. Those in opposition included:

  • A member of the Committee who stepped off the dais to read an editorial from the Ellsworth American;
  • a representative from the Attorney General’s Office;
  • a retired former Assistant Attorney General;
  • Maine Equal Justice Partners;
  • the Secretary of State’s Office;
  • the ACLU:
  • Natural Resources Council of Maine;
  • Maine Audubon;
  • Maine Municipal Association.

The Secretary of State’s Office also raised concerns about the elimination of the requirement of rule-making when incorporated material referenced in rules changes.[i] The proposed legislation contains no provision for public notification about how they can obtain copies of the incorporated referenced material and at what cost.

 

Now for the real reason for my presence on Monday – the Work Session:

LD 1103 (Resolve, To Study Understaffing in State Agencies) 

An amendment added language to the bill that would enable the State and Local Government Committee to report out a bill based on the results of the study.

Action: The motion was Ought To Pass as Amended. The vote, with 3 members absent was 5 in favor of the motion and 5 opposed.

 

Thus ended my visit to the State and Local Government Committee on Monday.

[i] Incorporated material refers to when an agency promulgates a rule and it may refer to a rule, code or guideline issued by an outside organization. An example might be a rule that sets a specific income level for qualifying for certain benefits, such as free or reduced lunch in a public school. The agency making the rule might say something along the lines of “Students are eligible for free lunch if their family income is no more than X% above the federal poverty level as defined in U. S. Department of Agriculture Regulation …. In this case, the entire federal rule would not be incorporated in the state agency rule, rather it’s just the reference. Currently, a new rule-making hearing is held when the referenced material changes. The proposed statute would remove the need for a rule-making hearing when the information in the referenced material changes.

We Want to Know: What is Going on with all the Closed-Door Discussions During “Public” Work Sessions?

By Helen Hanlon

We’ve seen several calls for caucus in public hearings before legislative committees this session. What’s the point of a public hearing if the discussion happens behind closed doors? Technically, a caucus is a group of legislators in the same chamber, same party: House Republicans, House Democrats, Senate Republicans, Senate Democrats. A cause meeting is where those groups get together to plan strategy and line up members to particular votes. Informally, in the context of legislative committees, legislators sometimes say, “let’s caucus” to mean, “let’s get together with others in our party to coordinate what we’re going to do next.”

Polly Ward, long time LWVME advocate, was surprised when not once but twice, a caucus was called during a hearing of the SLG Committee. She couldn’t recall ever seeing this before and, Polly being Polly, wanted an answer about this occurrence.

What’s up with these calls for caucus during State and Local Government Committee hearings? All the committees have been known to do this – it has become common practice. How does this practice square with Maine’s open meetings laws? We’d like to know, and no one seems too anxious to tell us. We’re still waiting for answers. Ann Luther, Chair of the LWVME Advocacy Comittee, got on the ball with calls and e-mails to the appropriate officials: no response (oh, they sent an apology for the delay in returning communication but NO information provided about the calls for committee caucus)!

However, some maybe not-so-subtle changes in the Veterans and Legal Affairs Committee were observed last week. During a hearing, one Representative said, “Let’s CAW… I mean talk among ourselves, I mean let’s go get a bottle of water next door.” Perhaps, just perhaps, the word may be out that Ann and Polly are on to something.

Then, last week, State House Legend Extraordinaire from Eagle Lake, Rep. John Martin extolled the benefits of institutional knowledge during his presentation of Term Limits Repeal legislation (LD182). He cited several outlandish instances where newbie legislators were downright dummkopfs totally unaware of the basic art of legislating. I betcha John Martin would know the answer about this caucus business.

Stay tuned…

 

Bills We’re Following This Legislative Session– So Far

The LWVME Advocacy Committee follows several bills through the Maine Legislature each session. Generally, these are measures that concern voting rights, election issues, and government ethics. Sometimes we simply monitor a bill, but often we give public testimony, attend public hearings and work sessions, contact senators and representatives for information, and work with other groups on issues that support the principles and priorities of the LWV. Here is a list of the measures we’re following (so far) in the first session of the 127th Maine Legislature.

LD & Web Link Title
LD 6 Resolve, To Implement Recommendations of the Government Oversight Committee To Strengthen the Ethics Practices and Procedures for Executive Branch Employees
LD 15 An Act To Increase Transparency in Campaign Funding in Legislative Elections
LD 53 An Act To Require Shareholder Consent for Corporate Political Contributions
LD 33 An Act To Strengthen the Maine Clean Election Act, Improve Disclosure and Make Other Changes to the Campaign Finance Laws
LD 80 RESOLUTION, Proposing an Amendment to the Constitution of Maine To Lower the Age Requirement To Run for Legislative Office
LD 106 RESOLUTION, Proposing an Amendment to the Constitution of Maine To Increase the Length of Terms of Senators to 4 Years
LD 145 An Act To Amend the Verification and Certification Process for Direct Initiatives and People’s Veto Referenda
LD 174 An Act To Restrict the Raising of Money by Maine Clean Election Act Candidates
LD 175 An Act To Limit Maine Clean Election Act Funding to First-time Candidates
LD 176 An Act To Amend the Law Governing the Gathering of Signatures for Direct Initiatives and People’s Veto Referenda
LD 182 An Act To Eliminate Term Limits for Legislators
LD 189 An Act To Prohibit Undisclosed Political Spending
LD 197 An Act To Strengthen Maine’s Election Laws by Requiring Photographic Identification for the Purpose of Voting
LD 204 An Act To Prohibit Certain Activities by Maine Clean Election Act Candidates
LD 225 An Act To Amend the Laws Governing the Collection of Signatures for Referenda
LD 237 An Act To Address Recommendations from the Report by the Office of Program Evaluation and Government Accountability Regarding the Public Utilities Commission
LD 252 An Act To Increase Transparency of Entities Receiving Substantial Amounts of Public Funding
LD 334 An Act To Improve the Maine Clean Election Act
LD 370 An Act To Amend the Lobbyist Disclosure Procedures Law
LD 383 An Act Requiring Corporations To Have Approval from a Majority of Their Shareholders before Making Political Contributions Valued at Greater Than $5,000
LD 413 An Act To Expand Access to Absentee Ballots
LD 509 An Act To Facilitate the Timely Return of Requested Absentee Ballots
LD 532 An Act To Prohibit Maine Clean Election Act Candidates from Accepting Special Interest Money through a Political Party or Political Action Committee
LD 584 RESOLUTION, Proposing an Amendment to the Constitution of Maine To Prohibit the Denial of Equal Rights Based on the Sex of an Individual
LD 585 An Act Regarding the Processing of Absentee Ballots Prior to Election Day
LD 617 An Act To Change Municipal Campaign Contribution Limits
LD 619 An Act To Limit the Participation of Candidates and Legislators in Political Action Committees and Nonprofit Entities Conducting Political Activities
LD 626 An Act Regarding Write-in Candidates in Municipal and City Elections
LD 641 RESOLUTION, Proposing an Amendment to the Constitution of Maine To Elect 2 Senators from Each County
LD 720 An Act To Establish an Open Primary System in the State
LD 742 RESOLUTION, Proposing an Amendment to the Constitution of Maine To Require That 5 Percent of Signatures on a Direct Initiative of Legislation Come from Each County
LD 744 An Act To Permit Unenrolled Voters To Cast Ballots in Primary Elections
LD 770 An Act To Permit Maine Residents To Register To Vote Online

Legislative Report: VLA Public Hearing March 2, 2015

The LWVME Advocacy Committee follows several bills each legislative session and three of interest to us were up for Public Hearing before the Veterans and Legal Affairs Committee (VLA) on yesterday (March 2). This report from Helen Hanlon (with the addition by Ann Luther) offers an update on the status of the bills and gives us a ring-side seat to the public discussion. If you want to read the testimony for each bill click on the links below.

 

By Helen Hanlon

LD 413 (An Act to Expand Access to Absentee Ballots)

Town Clerks were out in force to oppose LD 413 and the majority of attendees at this hearing were opposed to this measure. Several Town Clerks cited an increased work load, primarily on the Monday before Election Day from extensive use of “convenience voting” with no-excuse absentee ballots, and thus an increased chance of error if this bill passes. While absentee voting is becoming very popular with voters, Maine citizens’ already excellent access to ballots (“best in New England after Vermont”) was discussed. In addition, it was maintained that it’s unnecessary for voters to have in-person absentee voting on Election Day.

Ann Luther testified (LWVME Advocacy Committee Chair) neither-for-nor-against, as did the Acting Deputy Secretary of State.  Ann pointed out that the remedy could well be Early Voting. The bottom line seemed to be “if it ain’t broke”…., but there may be a chance to lift the ban on no-excuse absentee voting the Friday before Election Day. Read all the testimony on this bill under the “Status in Committee” tab here.

LD 334 (An Act to Improve the Maine Clean Election Act)

Rep. Michael Devin of Newcastle spoke in support of. Rep. Devin is also the sponsor of the bill. He spoke about political action committees (PACs) initiated by Clean Election candidates and how to close this loophole which runs counter to the concept of Maine’s Clean Election Act. Leadership PACs were a particular focus of discussion.

Maine Citizens for Clean Elections also testified in support of this bill, paying special attention to Leadership PACs and the need to have the same rules apply to both privately funded and Clean Election campaigns. It was reported that most of the leadership PACs in 2014 were run by privately funded candidates who vastly exceed their $375 contribution limit in their PAC fundraising.

It was clear that there is a lot of interest in shining light on campaign financing and the Veterans and Legal Affairs Committee seems poised for further study at a work session. Read all the testimony on this bill here.

LD 370 (An Act to Amend the Lobbyist Disclosure Procedures Law)

Finally, we heard testimony regarding LD 370. Currently Lobbyists must pay $200 annually to the State. Half goes to the general fund and half goes to the Commission on Governmental Ethics and Election. The proposed bill would give the entire amount to the Commission. Suggestion was made to consider simply including needed amount for update of IT and any other expenses in Appropriations. Based on our own experience, we believe there are substantial unmet needs with the Commission’s web site that could serve the public interest. Testimony provided by Mr. Jonathan Wayne, Director of Commission on Governmental Ethics and Election and by Maine Citizens for Clean Elections (MCCE). Read all the testimony on this bill here.

LD 383 (An Act Requiring Corporations to have Approval from a Majority of Their Shareholders before Making Political Contributions Valued at Greater than $5,000).

Reported by Ann Luther:

After a lunch break, the Committee reconvened, and Senator Gratwick presented his bill, LD 383. This bill is similar to LD 53, heard earlier this session, and parallels efforts at the federal level, thus far thwarted, to have the SEC require such contributions to be disclosed to shareholders, at least. Senator Gratwick acknowledged that his bill would only apply to Maine-based corporations and would only have a significant effect if similar measures were passed in many other states, but he cited efforts elsewhere to do exactly that. Rep. Rykerson, the sponsor of LD 53 also testified in support, as did Maine Citizens for Clean Elections. Read all the testimony on this bill here. LD’s 53 and 383 will have their work sessions today, Wednesday, March 4, beginning at 10:00 am. You can listen by audio link here.