Bills with only a title are an affront to transparency
By Matthew Gagnon
If you were pursuing a list of bills to be considered by the Maine Legislature, what would you think that bill was about? Water, no doubt. But beyond that? You wouldn’t know much.
Unfortunately for you, if you were to try to investigate and learn more, you would quickly realize that there isn’t more to learn. An Act Related to Water and 202 other bills out of the 914 bills printed, as of the writing of this column, are nothing more than vague sounding titles with no legislative language at all.
These pieces of legislation — 144 sponsored by Democrats, 56 by Republicans, and two by independents — are made permissible under Joint Rule 208 and are known as “concept drafts.” This year they make up roughly 22 percent of all bills being considered in Augusta.
Long-time observers have noticed a dramatic increase in these types of bills in recent years, but this year’s total is far and away the highest percentage seen in recent memory. In most years, we typically see roughly 100 concept drafts out of more than 2,000 bills, meaning that by the time all is said and done, we may have nearly four times the usual number on our hands.
While discussing the method of sausage-making in the legislative process is about as thrilling as waiting for service at the Bureau of Motor Vehicles, it is still important to understand just why these concept drafts are such a problem.
On the surface, they seem relatively harmless. Lawmakers simply submit a bill as an idea, and later the “concept” language is replaced by official legislative language, usually around the time of the public hearing.
The issue, though, is that concept drafts allow for lawmakers to play games that help avoid public transparency. When a public hearing is called, the Legislature invites public testimony from anyone who might want to say something about the bill.
Yet how can anyone meaningfully testify on a bill that has no actual language, and has no details? It is impossible to evaluate a vague title — An Act Regarding Safe Schools is another of my favorites — without knowing what the bill seeks to do. Often concept drafts attract virtually no attention or testimony, even when they end up being controversial in the end.
Thus lawmakers of both parties who do not want to invite public scrutiny may use vagueness as a strategy, as it is an easier way to accomplish something. Lawmakers may even seek this as a pathway for uncontroversial proposals, simply because it is easier. And again, members of both parties employ this tactic.
Public testimony is an important part of the legislative process, and the legal requirement for a public hearing is something legislators and the governor frequently try to circumvent. Just a couple of months ago, Gov. Janet Mills pushed for the Legislature to bypass public input on her heating-aid proposal, before being forced to use the typical process.
Concept drafts are just one more way for lawmakers to get around the pesky need to involve the public in legislating.
Not all uses of concept legislation are nefarious and underhanded. In fact, I would estimate that most are benign attempts to just make things easier. Despite the marginal convenience, there is no good reason why concept drafts need to exist, and the entire process would be more transparent and better without them.
Given the large increase in concept bills, calls to reform the process have grown louder even within the Legislature. Sen. Rick Bennett, R-Oxford, has proposed a rule change (SP 10) to end the use of concept drafts. Despite this proposal, the Rules Committee has not yet been convened to consider it — and it may never.
But it should, and that change should be passed. And all future legislation should work through the standard process, fully formed and able to be scrutinized by the public.
Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.