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.

 

 

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

 

 

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 Work Session June 2

By Helen Hanlon

Commiserating with each other about the stalemates, partisanship and whatever else, the State and Local Government Committee held a rare and last minute Tuesday Work Session. All committee members were present and accounted for except for Reps. Evangelos and Libby who were working on other committee assignments. After discussion  of their favorite Capitol-area food (fisherman platter at Red Barn or chowder at the Liberal Cup) and fortified with “made from scratch” Milky Way brownies courtesy of Treasurer  Hayes, members were in a better mood and ready to polish off what was left on their legislative plates…

Almost no one in attendance – just me, a sprinkling of Representatives waiting for the bond bill and Ken Quinn (see our previous post) from Citizens For Self Governance, who was bedecked with a flag pin and lugging a huge briefcase — just in case he was called upon.

WARNING: This is a long one!

LD 1417 (RESOLUTION, Proposing an Amendment to the Constitution of Maine To Change the Selection Process for the Attorney General)

Several issues were raised with this bill, including the fact that it has no effective beginning date and no way to transition from the current Attorney General’s term of office.

Action: No discussion. ONTP (6), OTP as amended (5) (current AG allowed to complete current term), Absent (2)

 

LD 1418 (RESOLUTION, Proposing an Amendment to the Constitution of Maine To Provide for a Lieutenant Governor and Change the Line of Succession for Governor)

Similar problems plagued this bill: there is no effective start date, it contains confusing language and there is no transition plan. And most importantly, perhaps, there is a potential conflict of interest if the Lt. Governor is called upon to certify their own or the Governor’s election).

Rep. Dore of Augusta made a strong statement about her years working in the Sec. of State’s office with no hint of partisanship and her plan to vote NO.

Action: ONTP (6), OTP as amended (4) (amended to include transition language). Absent (3).
At this point it was really hard to keep track of who was where. It was like Grand Central Station with people coming and going. There were caucuses, people coming in and going out –grabbing the last of the brownies on their way (oohing and aaahing about how really good they were and “what was that recipe?”). Poor Rep. Tuell rolled in in a wheel chair, apparently with a  recent foot injury ( John Kerry , Maine style?) – but there were no brownies left for the poor guy. No one offered me one, either (So much for constituent services!)…

 

LD 1419 (RESOLUTION, Proposing an Amendment to the Constitution of Maine To Change the Selection Process for the Treasurer of State)

Transition issues as noted in previous bills.

Action: ONTP (6), OTP as amended (3) (amended to address transition issue), Absent (4)  (OD on chocolate?)

 

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)

Rep. Pickett moved to carry this bill over; motion failed.

Rep. Turner moved ONTP. 5 approved ONTP, 3 OTP as amended (amended  with Rep. Short’s language change – not Con/ Con but Convention of States). 5 Absent.

 

HP 956 (JOINT RESOLUTION MAKING APPLICATION TO THE CONGRESS OF THE UNITED STATES CALLING A CONSTITUTIONAL CONVENTION TO PROPOSE AN AMENDMENT TO THE UNITED STATES CONSTITUTION REGARDING THE STATUS OF CORPORATIONS AS PEOPLE AND THE ROLE OF MONEY IN THE ELECTION PROCESS)

Sponsor Rep. Chapman, as a procedural matter, asked the committee to consider holding the bill over.

Action: ONTP Unan.

 

SP499 (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)

Action: ONTP Unan.

 

LD 862 (Act To Clarify Who May Authorize Repairs in a Burying Ground) 

OTP (Unan). The committee gave major huzzahs over their efforts on these graveyard bills which have been hanging around for years and were finally “put to rest.” (Sorry.)

 

LD1378 (An Act to Amend the Laws Governing  The issuance of Bonds  To Support Maine’s Natural Resource based Economy)

This bond business has been in the news recently as our Governor has refused to sign off and has been accused of holding these citizen-initiated bonds hostage for a variety of reasons. It appears that, according to the Attorney General, the Governor’s role in this is basically magisterial and the Legislature can make the call about the process. I am unclear on this but, according to discussion, it seems that this is already addressed in legislation.

Action: ONTP – 5, OTP as amended – 5. Absent – 3

 

LD 66 (Resolve, Naming the Bridges That Span the Machias River in Machias the Jeremiah O’Brien Memorial Bridges)

Brought back for reconsideration. Action:  Motion to Carry Over was Unan.

 

At this point, a pile of papers awaiting final clean-up appeared. It was amendment reviews, but there was also action to get rid of some minority reports. The committee members were really moving in and out of the back room and corridors. Some of the bills we’ve been following were in this pile, so I stayed. There are still 15-16 bills waiting to hit the floor, according to Chair Whittemore. I was the only person left besides the Committee.

 

LD957 (RESOLUTION, Proposing an Amendment to the Constitution of Maine To Provide for the Popular Election of the Attorney General, Secretary of State and Treasurer of State)

Rep. Turner made a motion to reconsider. Action: ONTP – Unan.

 

LDL1012 (RESOLUTION, Proposing an Amendment to the Constitution of Maine To Increase the Length of Terms of Senators)

Motion to Reconsider:  ONTP – Unan.

 

LD1354 (An Act To Improve the Maine Administrative Procedure Act)

This was the Governor’s bill. Despite a short, intensive caucus, Rep, Bryant stated he had major heartburn about this bill and could not support it, necessitating the need for a minority report.

 

LD732, 909 & 999 were also briefly mentioned regarding fiscal notes.

 

Members gladly celebrated nearing end to the session and planned a Friday outing at the Chair’s home (mercifully, I was not invited). So after a long, long afternoon, I followed the trail of chocolate crumbs and went home. I’m glad I am not on that committee, I’d be even fatter – boy, they eat a lot!

 

Report from the Statehouse: SLG Work Session May 13

By Helen Hanlon

The session began with many motions, corrections, retractions of motions and confusion about what the Committee was being asked to decide today. It demonstrated to me – once again – the lack of preparation, communication and research in the development and drafting of some of these bills. So often it’s déjà vu all over again because many of these measures have been proposed and reworked for years. I get flashbacks of a comic strip from my youth called, “There Ought to Be a Law” and then envision a bunch of Mainers hard at work to make this a reality show.

After much debate about the process of today’s scheduled work, the Committee unanimously decided to form a 3-member subgroup to draft acceptable language that would allow the bills to pass rather than carrying them through into next session. I should note that Reps. Turner, Babbidge, and Evangelos seemed exceptionally thoughtful and practical throughout today’s work sessions.

 

LD857 (An Act To Prohibit Public Endorsement of Candidates for Office By County Employees and Elected Officials)

Debate continued into the bill discussion… with questions about the rationale for legislating an issue that is probably covered by existing rules and regulations in State, County and Departmental entities. The Committee was unsure how to proceed after Rep. Evangelos stated that he felt there was a conflict at issue since they had been asked to decide on the popular election of  an Attorney General (LD743) and to weigh in on LD857.

It was proposed that Committee vote ONTP with a letter asking the Secretary of State to review existing regulations for any conflicts or loopholes, but Rep. Evangelos made the sensible suggestion that the Chair and Co-chair simply send a letter seeking advice from the Sec. of State on how or if to proceed. Phew!

 

LD 1354 (An Act To Improve The Administrative Procedure Act)

This bill repeals a requirement that rules be approved for form and legality by the Attorney General and adds a requirement that rules be submitted to the Attorney General for advice as to form and legality. It changes a statutory provision regarding the taking of private property and notice requirements; allows for electronic submission of certain rule-making information; and enacts a provision that allows an agency to choose to incorporate by reference certain amendments to a code, standard, rule or regulation.

Rep. Martin forcefully maintained that there should be no change to the existing process and suggested the bill stemmed from the “Governor’s major heartburn with the Attorney General.”  Rep. Turner, however, felt that they “should not throw the baby out with the bathwater.” She urged the Committee to work on parts of the bill that made sense and keep provisions 3, 4, 5, 6.

On the ONTP motion, the vote was split 6-6 with one absent.

 

Report from the Statehouse: SLG Committee Work Session April 27

Terms of Service

By Polly Ward

This will be brief because the work session was fairly brief.  There were two bills in public hearings before the work session, and I learned a lot about ancient and family burial grounds – though maybe not as much as Helen has gleaned on bear baiting.

The three bills covered in this State and Local Government work session were:

LD 182 (An Act to Eliminate Term Limits for Legislators)

The original ONTP motion was withdrawn so that Rep. Babbidge could offer an amendment that would change the number of terms members of the Legislature can serve from four to six. This would enable legislators to have more time to gain experience before going into leadership, and perhaps reduce the number of leaders who are termed out after only one term in leadership. Following Rep. Babbidge’s presentation of his amendment, the motion was made ONTP.

Action: ONTP. The vote was 10 ONTP, 1 OTP/AM and 2 absent.

 

LD 106 (Resolution, Proposing an Amendment to the Constitution of Maine to Increase the Length of Terms of Senators to 4 Years)

This bill would have had all senators run for 4 year terms beginning in 2016. The Secretary of State’s Office testified NFNA due to the potential that 4 year terms would not mesh well with the requirements of redistricting every 10 years.

Action: ONTP. The committee voted 11-0.

 

LD 1012 (Resolution, Proposing an Amendment to the Constitution of Maine to Increase the Length of Terms of Senators)

This bill would create 4 year terms for Senators with half running in 2016 and the other half running in 2018. The sponsor offered an amendment that would have senators run for 4, 4, and 2 year terms to resolve the potential with conflicts with redistricting requirements.

Action: ONTP. The original motion was OTP as amended; this motion failed. The next motion was ONTP with 6 in favor, 5 opposed and 2 absent.