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.

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.

 

 

 

Maine’s FOA Law Cloudy on Closed-Door Meetings

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.

 

 

Report from the Statehouse: SLG Committee Public Hearing May 27

By Helen Hanlon

Demonstrators crowded the entrance to the State House for a press conference in anticipation of the Public Hearing on HP 956 (A Joint Resolution Calling For a Constitutional Convention Regarding The Status of Corporations As People and the Role Of Money In the Election Process). Dressed in a variety of garb sure to draw attention – especially in the 90 degree heat –their passion was obvious.

With a full afternoon of hearings ahead, we all streamed into the SLG Hearing room. There was an overflow crowd to hear proposals for changes to the selection process of State constitutional officers (Attorney General, Secretary of State and State Treasurer). The full SLG Committee was in attendance, though some needed to leave during the long afternoon for work on other Committees. To my surprise, Senate Chair Whittemore said that each proposal for each office would be heard separately.

LD 1417 (Resolution, Proposing an Amendment  to The Constitution Of Maine  To Change The Selection Process for The Attorney General)

LD1418 (Resolution, Proposing An Amendment To The Constitution Of Maine To Provide For A Lieutenant Governor and Change The Line of Succession For Governor)

LD 1419 (Resolution, Proposing An Amendment To The Constitution Of Maine To Change the Selection Process for The Treasurer of State)

First-term Legislator, Rep. Stetkis, presented each proposal while acknowledging that these were the Governor’s bills. Despite that, he faced very tough grilling, primarily from Reps. Evangelos and Co-Chair Martin with a few more polite jabs from Rep. Babbidge. Rep. Stetkis, took it in good humor, admitting he’d had no part in writing any of these proposals and hadn’t spoken to the Governor about why we needed these changes. This was all in the spirit of getting away from partisan politics, he said. After the guffaws subsided, the very public issues between the Attorney General and the Governor were rehashed and the consolidation of power was mentioned. Hank Fenton, Deputy Counsel to the Governor, spoke on behalf of the Governor, saying that a more efficient, cohesive team would be better for Maine. No one seemed to buy that argument.

Next we moved on to items of interest to the League: HP 804 and SP499

HP 804 (Joint Resolution Making Application To the Congress of The United States Calling a Convention of the States to Propose Amendments to the United States Constitution To Impose fiscal restraints, Limit Federal Power and Impose Term Limits)

A long list of people signed up to testify and there was a 6-1 ratio in favor of the Resolution. Note: We were surprised to find so much well-organized support for these measures. To learn more about the supporters see the links below.[i]

SP 499 (Joint Resolution Making Application To The Congress of The United States Calling A Constitutional Convention To Propose an Amendment to the United States Constitution to Require a Balanced Federal Budget and Further Fiscal Restraints)

Rep. Short and Rep. Crafts introduced the resolution and spoke about the need to fix the Federal Government, saying that we shouldn’t be afraid to do this. Since there was a packed house, the Committee Chair, stated that there would be a strict 3-minute rule for testimony. Despite that, Ken Quinn of Grassroots Citizens for Self Government (whom Rep. Crafts and Rep. Short called an expert on the topic) was given an hour and a half to speak. Mr. Quinn is apparently leading the charge throughout the land for a “meeting of states” – not a constitutional convention. He stated that whoever wrote the bill did it incorrectly and the wording would need to be amended. His extended testimony turned into a lecture on constitutional convention, Federalist Papers, Hamilton, Madison and state vs. federal powers. At one point, Rep. Evangelos interjected that he was hearing from all sorts of “arm-chair constitutional scholars” via email on this issue and so facts were thrown back and forth in a match between government history wonks.

Once Ken Quinn brought his testimony to a close, others could speak (it was after 4:30 by then) and the pro/con testifiers alternated with 5-4 ratio in favor. Those supporting the measure railed against our unfair federal government, and one woman even held up a torn $10 bill stating this was all the money she had left and hadn’t been able to pay this year’s or last year’s taxes. She demanded that the government has to get off her back. Meanwhile, her cell phone kept ringing – adding to the cacophony in the room.

Those in opposition included a district rep from the John Birch Society, an Attorney from Connecticut and the League, along with a citizen from Camden who spoke spontaneously (the “League of Voters got it right!” regarding what happens when cutbacks occur in times of crises). I was asked one question after testifying: Rep. Pickett questioned the statement in our testimony about deficit spending being admissible, in our opinion, in times of crises. “What about our $19 trillion deficit?”

The Attorney from Connecticut, Deborah Stevenson, testified testified because she was asked by friends – that is, she was not being paid. Her testimony was precise, interesting and focused, citing specifics of why we should proceed very cautiously when considering a Constitutional Convention. She noted that states have unlimited powers to rectify situations when we don’t want to deal with the Federal Government: we can tell them to take their $ and leave. She and the windy Ken Quinn agreed to return for a work session. Some members of the gallery were restless and objecting during her presentation (because she’s from away). It was enough of an interruption that Rep. Dore ask them to be polite and quiet. Questions from the Committee were xenophobic in nature – who was she & why did she come up from Connecticut for this?  Yipes, someone from away!

Meanwhile the pack of people there for HP956 were getting hungry because it was after 6pm. I headed home, waving “nite-nite” to Danielle Foxx, Legal Analyst extraordinaire from VLA Committee. At least I’ve made some friends this session – but I miss the bear bills & the good ol’ days of February and March!

 

 

[i] http://www.conventionofstates.com/; https://selfgovern.com/ & http://www.themainewire.com/2015/05/quinn-maine-joins-convention-states-movement/

 

Public Hearings in VLA and SLG, April 13, 2015

By Helen Hanlon and Ann Luther

Hop-scotching through the State House, Ann Luther, Polly Ward and Helen Hanlon played tag covering bills in hearings in both the SLG and VLA Committees on Monday.

VLA heard five bills that we are following:

  • LD 1192 An Act Regarding Campaign Finance Reform: Seeks to address how money is moved back and forth between PACS. It would require naming the top donor, paying a tax  to the Maine Clean Election Fund , voluntarily signing of pledge form, detailed disclosures by unions to their members with a $500 fine for non-compliance.  Despite the concern that some of the provisions are likely unconstitutional and others probably ineffective, it seemed that many of the committee members felt that some reform is needed to address PAC-to-PAC transfers. Rep. Turner felt that this transfer of money without disclosure was “nothing more than money laundering.”

Opposed by MSEA as specifically targeting unions  who already have numerous reporting requirements  and other federal limitations, also citing some constitutional issues and “onerous burden” considerations.

NFNA: Maine Clean Elections concurred with the unequal treatment of unions vs corporations, calling for any “pledge” to apply to all, not just MCEA races ( Specifically Sec. 4 and 7), as well as raising “competing measure” issues.

NFNA: Commission On Government Ethics: Submitted an outline of what is currently available for disclosure on their website and felt the Attorney General’s office should review the proposal on  the issue of fees/fines and the pledge.

  • LD 1138 An Act Regarding Municipal Reporting of State Elections:  This Bill attempts to correct the problem of some towns chronically failing to report election info to the Secretary of State, currently a 20 day window after an election. LD 1138 has a “shaming “provision, requiring posting the Town Clerk’s delinquency in a newspaper and town report, along with a $50/day fine (levied on the Clerk).  The role of Town supervision of clerks was discussed. Many clerks are elected.

Opposed by Maine Municipal Assoc.  Another mandate? Plus punishing a clerk in such a humiliating way was viewed as not the way to go.

NFNA : Maine Clerk’s Association:  “How about a $50 incentive vs a fine?”

NFNA:  Deputy Secretary of State:  Much testimony about requirements/ compliance efforts, frustration with some Town’s that repeatedly fail to report, plus accuracy issues and impact on an accurate voter data base. Supports increasing time for reporting from 20 business days to 35 or 40 days.

NFNA: Ann Luther testified about the need for accurate and efficient reporting system .  Read her testimony here.

  • LD 1067 An Act To Protect The Clean Election Fund.   Rep. Davitt introduced this constituent bill, and Rep. Dillingham read testimony from the constituent, discussing how the Maine Clean Election Fund was marginalized  by PACs  and proposing a 10% fee to maintain the  Clean Election Fund. Despite broad sympathy from many on the committee, it seemed tacitly understood that such a fee may be deemed a tax on speech and, as such, unconstitutional.

Committee recessed until 1:30 pm: Ann Luther covered the remainder of the day in VLA while Polly Ward and Helen Hanlon were at the State and Local Government Committee.

In VLA, the committee heard a couple of bills on veterans’ affairs before turning to:

  • LD 1127 An Act Regarding the Authority of the Secretary of State and the Attorney General To Conduct Investigations of Vote Recounts. This bill was introduced in reaction to the issues that arose from the Senate District 25 recount last fall. Sen. Cathy Breen, who ultimately prevailed in that race, offered testimony is support. Julie Flynn offered comprehensive testimony about what happened in that race. The League testified NFNA but supporting the idea that there are other stakeholders than the candidates and the parties, and that the recount supervisor should have the authority to take measures to protect those interests regardless of what the candidate/party representatives might want. Read the League’s testimony here.

Meanwhile, over in SLG they were hearing:

  • LD 1103 Resolve, To Study Understaffing in State Agencies. Chronic under-staffing and salary suppression were underscored throughout the hearing. Apparently there was a report commissioned in 2005 outlining serious pay deficits in comparison to private sector  pay bases  that  was marked “Confidential”  until discovered by FOIA in 2009 (ranging from 7.5%- 21.6%  less than private sector).

All who testified were in support of a survey but some indicated that another study without action will be another blow to morale and recruitment and retention. Age of current State workers, workload, as well as a living wage was discussed. Ferry captains and foresters discussed chronic staffing shortages. Ferry operators have at times been working 12 hour days for up to 25 days, using some unqualified or barely qualified staff to fill the ranks. Polly Ward testified in support of LD 1103 for the League, well received by State employees. Read the League’s testimony here.