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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Intent to Stay: A Student’s View of LD 155

By Katie Stevenson

On February 15th I testified in front of the Committee on Veterans and Legal Affairs against L.D. 155. It was the first time I had ever testified in front of anyone, let alone a state legislature. It was also the first time I had ever stepped into the Maine State House — I doubt it will be the last. I am currently a senior at Bates College and live in Lewiston. And, as I explained to the Legislature, I feel far more invested in Lewiston that I do in my hometown in New Jersey.LD155

Let me tell you why I decided to testify. On November 5th 2016, my friends and I woke up to hear that flyers had been distributed around campus, falsely informing students that in order to vote in Lewiston we had to pay to change our driver’s licenses and re-register our cars in Lewiston. While it was disheartening to know that some students may have been successfully dissuaded by this these flyers, it was a relief to know that they were nothing more than a collection of lies. This relief crumbled when Representative Fredette proposed LD 155. NOTE: The work session for this bill is Friday March 23 before the VLA Committee in Augusta. The League will be there.

At the hearing before the Veterans and Legal Affairs Committee, Representative Fredette remarked that the residency requirements he was proposing were designed to demonstrate that students had “an intent to stay.” This struck me on a personal level because next year I’ll be attending a medical school program specifically aimed at training students to be physicians in rural communities in Maine. Re-registering my car, changing my drivers’ license, and paying property taxes in Maine (all of which LD 155 proposes as requirements for determining residency) hasn’t been financially and logistically reasonable for me while in school and probably won’t be for the time I’m in medical school, either. Why these actions should demonstrate an “intent to stay” any more than my commitment to a Maine medical school program and intention to practice in Maine is still unclear to me.

However, the lack of clarity in this proposal is not my biggest concern. The problem with this legislation is that it would undermine the development of the so-called “intent” that it claims to support. Maine has the oldest population in the country and is constantly looking for ways to keep or attract young people. The success of Maine’s future depends on young people “from away” who are willing to live and work here. I chose to testify because I believe that LD 155 sends a message that is harmful to Maine. This message is one which, ultimately, will lead to significantly fewer students feeling as passionately about their communities as my friends and I do now.

I love Lewiston and feel invested there beyond my classwork at Bates. Part of this love is based in my feeling that Lewiston wants me to be here. It’s clear to me that my students, my neighbors, and my city representatives want me here and that my participation in the city matters. I have invested in Lewiston and I feel the city has invested in me. Communities are reciprocal by nature. They cannot exist if the feeling of community isn’t mutual.

This proposed bill takes this message of mutual appreciation and investment and throws it in the mud. It suggests that regardless of how many hours students have spent volunteering at local elementary school, working at a local cafe, canvassing for elections, attending town hall meetings, or simply reading the local newspaper, our presence does not matter. The state does not want to invest in us.

Actions aimed at minimizing the voice and involvement of students threatens to undermine the future of relationships like mine. These relationships are an important part of Maine’s future and the legislation that damages them will have a very real and detrimental impact. I don’t want to see that happen to Lewiston and I don’t want to see that happen to Maine.

 

Katie Stevenson is a senior at  Bates College. She is working on a self-designed interdisciplinary major in Peace and Conflict Studies but plans to study medicine after college. She has been accepted into a medical program that offers clinical training experience in rural Maine communities.

 

 

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.

 

 

 

Voter ID Laws Damage Our Democracy

By Irene Lang

NOTE: The work session on LD121 will be held Friday, March 3, 2017, beginning at 9:00 a.m. in State House, Room 437.

Nearly 30 people showed up to testify at the February 15 hearing on LD121, An Act To Require Photographic Identification to Vote. If passed, the law 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 a free, non-driver ID card to anyone who wants one.

While voter ID laws have been introduced and enacted in many states over the last ten years, all have faced strong opposition. These new laws have often been justified by false claims of voter fraud, but no evidence exists of widespread fraud by voter impersonation.

In Maine, the issue of voter ID has come up repeatedly since 2010 and has been struck down each time. The League has been at the forefront of efforts to block such laws, supporting full voter participation by eligible American citizens and opposing efforts to create new barriers that block citizens’ constitutional right to vote.

Rep. Brad Farrin asserts that the law would protect “the integrity of the voting box,” and proponents say that voter ID is necessary to prevent voter fraud and impersonation. These are red herring arguments: there is no study or court case that supports claims of widespread voter fraud in Maine or the U.S.

The League and other opponents of voter ID categorize the bill as unnecessary, costly to implement, and likely to disenfranchise minorities, elderly people, and disabled voters because they are the groups most likely to have trouble securing an ID. In our testimony against LD 121, we focused on four issues:

  • It could disenfranchise voters: Between 5% and 16% of eligible voters do not have the required ID, with higher percentages among elderly people, ethnic minorities, and low-income voters.
  • It will be expensive: Implementation of voter photo ID laws in other states has cost millions of dollars, and the cost could be as high as $4 million in Maine. Costs to the taxpayers would include providing the free ID cards, opening ID-issuing offices, providing required documents such as birth certificates, creating public education initiatives, training poll workers, defending against legal challenges, absorbing additional ballot processing costs, etc.
  • The cost/benefit equation doesn’t add up: We will spend a lot of taxpayer money to implement this law, creating barriers to voting for tens of thousands of eligible citizens, to prevent a very few, if any, ineligible voters from breaking existing law.
  • It’s unnecessary: Voter ID laws counter one exceedingly rare kind of voter fraud—impersonating someone else at the polls—of which very few cases are in evidence across the country, let alone in Maine.

New research on the consequence of these laws has confirmed that voter suppression is a likely result of voter ID. A 2014 study by the nonpartisan Government Accountability Office concluded that voter participation fell between 2% and 3% in states implementing photo ID between the presidential election years 2008 and 2012. In a study conducted at the University of California San Diego, the researchers found that “strict photo identification laws have a differentially negative impact on the turnout of Hispanics, Blacks, and mixed-race Americans in primaries and general elections. Voter ID laws skew democracy in favor of whites and those on the political right.” Suppression of specific voters, if not the explicit intent of these laws, appears indeed to be the end result.

Beyond the high cost to taxpayers and lack of evidence of voter fraud, this research provides concrete evidence of the real danger of voter ID laws. Rather than protecting “the integrity of the voting box,” voter ID laws hurt our democracy and clearly have no place in Maine.

 

 

Maine’s landmark ranked choice voting (RCV) law is headed to court.

Yes on 5On Thursday, February 2, the Maine Senate voted to ask the state Supreme Court for a solemn occasion regarding the constitutionality of the law. The Court would first decide whether to grant the solemn occasion, and if so, would rule on the constitutional questions posed by the Senate.

On Tuesday, February 7, the Maine Supreme Judicial Court issued its briefing schedule for the solemn occasion:

  • Briefs are due March 3.
  • Responsive briefs are due March 17.
  • Oral argument is April 13.

You can read the full procedural order here.

Prior to the oral argument the Court will receive legal briefs from proponents and opponents of RCV and any other interested persons. The court also invited briefs from the governor, secretary of state, both houses of the legislature, and the attorney general. LWVME will be there. The League is being represented by an outstanding team of litigators from Verrill Dana. With their help, we are preparing to submit a brief arguing in support of the law.

This legal proceeding – known in Maine as a “solemn occasion” – is a rare exception to the general rule that courts should not engage in legal analysis other than that which is necessary to decide regular cases brought by opposing parties and litigated through the lower courts. Read more about the RCV solemn occasion at our website.

Opinions in solemn occasion cases are not binding and are merely “advisory.”  But the Court’s opinion could have repercussions for any future decisions of the legislature regarding full implementation of the law for the 2018 cycle.  And it would foreshadow how the Court would apply the law in the event of a challenge during or after the 2018 election.

The RCV law approved by voters in November 2016 applies to races for governor, the Maine legislature, and Congress.  Some of the arguments against the law apply only to the state races.

Oral argument in the RCV case begins at 8:30 a.m. on April 13 and will be open to the public at the Maine Supreme Judicial Court, 205 Newbury Street, Portland, ME 04101-4125.

Solemn Occasion Request on RCV Advanced by Maine Senate

By Jill Ward

In November, Maine voters passed Ranked Choice Voting into law. This was a citizen initiative powered by Maine people to give Maine voters more choice and more power in elections.

Today, the Maine Senate voted to ask the Maine Supreme Court to weigh in on the law. While there are competing opinions about the law’s constitutionality, the law as passed is presumed to be constitutional. Regular order dictates that the law is to be followed as passed. Dissatisfied candidates or voters may decide to challenge the law following an election and at that point the court would consider the question and issue a ruling as they see fit. That is how our political system works. Instead, the Maine Senate majority today asked for a Solemn Occasion[i] instead of allowing the process to proceed as usual. (The order was S.O. 12 and the text is here: http://www.mainelegislature.org/legis/bills/display_ps.asp?paper=SO12&PID=1456&snum=128)

In the League’s opinion, this undermines the will of Maine citizens, negates our voting power, and weakens the citizen initiative process. There is an established process to address issues of constitutionality, and the Senate should have followed it. To circumvent the regular order appears unnecessarily political and deliberately disenfranchises voters.

How your state senator voted on the solemn occasion:

Member Party           Vote
BELLOWS of Kennebec D N
BRAKEY of Androscoggin R Y
BREEN of Cumberland D N
CARPENTER of Aroostook D Y
CARSON of Cumberland D N
CHENETTE of York D N
CHIPMAN of Cumberland D N
COLLINS of York R Y
CUSHING of Penobscot R Y
CYRWAY of Kennebec R Y
DAVIS of Piscataquis R Y
DESCHAMBAULT of York D Y
DIAMOND of Cumberland D Y
DILL of Penobscot D Y
DION of Cumberland D N
DOW of Lincoln R Y
GRATWICK of Penobscot D Y
HAMPER of Oxford R Y
HILL of York D Y
JACKSON of Aroostook D N
KATZ of Kennebec R Y
KEIM of Oxford R E
LANGLEY of Hancock R Y
LIBBY of Androscoggin D Y
MAKER of Washington R Y
MASON of Androscoggin R Y
MILLETT of Cumberland D N
MIRAMANT of Knox D N
ROSEN of Hancock R Y
SAVIELLO of Franklin R Y
THIBODEAU of Waldo R Y
VITELLI of Sagadahoc D N
VOLK of Cumberland R Y
WHITTEMORE of Somerset R Y
WOODSOME of York R Y

[i] An opinion of the justices is issued when the Senate and House propound questions to the justices of the Supreme Judicial Court involving important questions of law in circumstances that present a solemn occasion. This process is authorized by article VI, section 3 of the Maine Constitution. From: http://www.courts.maine.gov/citizen_help/glossary.html accessed on 2/2/2017