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.

 

 

 

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. 

Top Ten Reasons to Support LWVME in 2015

 

Giving Tuesday 2015 copyWe hope your Thanksgiving was full of family, friends, food and fun.  We hope, for those of you who like a good bargain, that Black Friday and Cyber Monday brought you many steals and deals.DonateStar

Now, we hope you will help us have a successful #GivingTuesday by supporting the League of Women Voters of Maine and our efforts to make democracy work better in Maine.

Top ten reasons to support LWVME in 2015:

10. Registering new voters.  On National Voter Registration Day, at naturalization ceremonies across the state, and throughout the year the League is there making sure citizens are registered.  So far this year, we have helped to register more than 400 new voters.

9. Annual Easy-to-Read Voter Guide.  The 2015 guides helped Portland voters make informed decisions on the mayoral race, and all Maine voters got the facts on the statewide ballot questions.

8. Open Dialogue and Civil Discourse.  Through candidate and issue forums the League gave voters an unbiased place to ask questions and get them answered.

7. Advocacy.  Providing expert testimony in Augusta on voting rights and laws that encourage voter participation.

6. All-Volunteer.  That’s right.  The League does all this great work and more through volunteers.

5. Holding our local and state officials accountable.  The League is a leading voice in Maine for your right to know and our right to a government free of corruption and undue influence.

4. Ranked Choice Voting in Maine.  Ranked Choice Voting is certified for the ballot in 2016, which would give voters the power to rank candidates from favorite to least favorite, thanks in part to the League’s leadership.

3. Pushing Back against Big Money in Politics.  YES on 1 passed, strengthening our landmark, first-in-the-nation Clean Elections system and bringing more transparency and accountability to Maine elections.

2.  Nonpartisan.  The League continues to be one of a few nonpartisan, grassroots, political organizations working on behalf of all voters, and we are proud of this heritage.

1. Your voice.  Your vote.  It’s what makes democracy work and it’s why the League of Women Voters of Maine is here, working every day for you to make sure your vote counts, your voice is heard.

#GivingTuesday is propelled by those who believe that passion and commitment can make a difference.

We certainly believe that here at the League of Women Voters of Maine.

If you want to help us make a difference, please make a donation today to support our work.

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Jill Ward
President, League of Women Voters of Maine

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.

Report from the Statehouse: VLA Work Session April 24

Showing Initiative

By Helen Hanlon

The place seemed deserted on a Friday – I even found a place to park!

First up on the docket:

LD1290 (An Act To Repeal the Maine Clean Election Act and Direct the Savings To Be Used for the State’s Contribution toward the Costs of Education Funding)

Things started off with Senator Brakey of Auburn introducing his bill. He explained that it wasn’t really his intent to “REPEAL” the Clean Election Act, but rather to give Maine Citizens a choice: to keep, expand or repeal the Act. He admitted that the bill was misleadingly titled and needed clarification. The goal, he said, was to allow Mainers to use their tax dollars for education vs. more political signs and victory parties. He claimed that the Maine Clean Election Act had not reached its goal of transparency and had failed to clean up negative campaigning. And, though he didn’t present details, he said it actually increased campaign costs.

The Committee members grilled Senator Brakey about the intent of this bill and about his statements that MCEA was a failure. Many (10 out of 12) on this Committee had used MCEA funds for their campaigns, and so most seemed to be against (or at least perplexed by) this bill. The lone hold-out was Rep. Dillingham of Oxford who seemed to agree with Brakey. She is one of the few traditional candidates on the Committee.

Rep. Luchini noted that the MCEA was initiated by the voters and suggested that any repeal efforts should also involve signature gathering to place it on the ballot. The Committee Chair, expressed his profound appreciation for the MCEA saying,

“Never in a million years could I ever have imagined sitting in this chair without the MCEA, I am humbled.” – Sen. Cyrway

Additionally, Rep. Schneck and Sen. Patrick both voiced strong support for keeping the MCEA, with Senator Patrick adding, “If money is speech, then speech isn’t free.”

Senator Brakey answered Committee questions for nearly 40 minutes. There was a lot of confusion about the education funding piece of this bill. Was it a way of diverting voters from the real issue (repealing MCEA)?  Was this a competing measure? Why 2015? Why not 2016? Brakey agreed to consider amending the education piece upon the recommendation of Rep. Longstaff.

(Note: Contrary to the title of this bill, there is no dedicated Educational Fund and monies are almost never segregated in this way. It would most likely go into the General Fund to be allocated just like any other State funds)

Senator Brakey couldn’t stay for more discussion due to commitments on the Senate floor. It’s unfortunate but Legislators are busy this time of year with responsibilities for several bills and committees.

No one spoke in support of LD1290.

Ed Youngblood spoke for nearly an hour about the importance of MCEA and efforts to improve the Legislation through the 2015 initiative. He fielded many insightful questions from the Committee who obviously had immense respect for him. They expressed how much they missed his experience and presence in the Legislature.

Allison Smith, founder of the Maine Citizens for Clean Elections, spoke forcefully about this as a citizen’s initiative, emphasizing to Brakey, “We have thousands who signed petitions, no one is here speaking with you.”

MCCE spokesperson Robert Howe put the icing on the cake, when he reminded the Committee members that this wasn’t a “competing measure” but a calculated plan to undermine the initiative by depriving it of a majority. “Go out and collect your own signatures if you want this repealed,” he said.

It was a spirited hearing, for sure. My read on the Committee members is this:

  • Dillingham supports Brakey & this bill.
  • Longstaff supports an amendment eliminating the Education piece and then may support the bill.
  • Harrington, Cyrway, Schneck, Patrick, Luchini, oppose LD1290.
  • Kinney, Turner, Soucier, Golden played it closer to the vest and their opinion is unclear.
  • Bear, absent.

Other bills

LD1335 (Act to Amend Election Laws)

Addressing a variety of issues; an agency bill from Deputy Sec. Of State Julie Flynn.
LD1138 (An Act regarding Municipal Reporting of Statewide Elections)

Action: ONTP (Unanimous) – with timeline components to be folded into LD1335

LD742 (Resolution proposing an Amendment to the Constitution requiring a 5% of signatures on a Direct Initiative of Legislature Coming From each County).

Action: Tabled (Unanimous)
LD1127 (An Act regarding The Authority of the Secretary of State and the Attorney General To Conduct Investigations of Vote Recounts)

Action: ONTP (Unanimous)

Rather than passing a new law, the Committee chose to appoint Deputy Secretary of State, Julie Flynn, to work on new rules and regulations, and keep Committee informed.
LD1084 (Resolution Proposing An Amendment To The Constitution of Maine To Exclude Wildlife Issues From Citizens Initiatives)

Action: Tabled (Unanimous)

 

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…