Content of legislation shouldn’t be hidden from the public

By Matthew Gagnon

On Tuesday, Mainer’s went to the polls — though admittedly not very many of them — to register their choices in the Republican and Democratic presidential primaries. In both cases, the result was never really in doubt, as both former President Donald Trump and President Joe Biden won walking away. 

While they were voting, things were happening in Augusta. 

The first noteworthy event was the passage in the House of Representatives of the so-called national popular vote. This is an initiative that I have been watching closely for years, and have written about in these pages before, detailing the many problems with the proposal. Despite these problems, the bill has now crossed an important hurdle. It now moves into the state Senate, where Democrats have an overwhelming numerical advantage and it is expected to pass. 

If Maine does indeed formally sign on to the National Popular Vote Interstate Compact, it would not formally change anything here — yet. Instead, it would keep Maine’s electoral vote as it is, until such a time that the compact accumulates enough states that would amount to 270 or more Electoral College votes. At that time, Maine would vote for the winner of the “popular vote,” which does not even legally exist and is only a media collection of state totals. 

This is certainly disappointing to me, but it wasn’t even the most disturbing thing that happened in the Legislature Tuesday. 

As Mainers voted, the Legislature’s Health Coverage, Insurance and Financial Services Committee held a public hearing on LD 227, a controversial “shield law” bill dealing with legal protections for providers of abortion and gender-transition treatments. Proponents argue it is necessary to protect providers from litigious culture warriors, while critics object to it as a usurpation of parent’s rights and opening the door for interstate medical trafficking. Obviously, it’s an emotional and controversial bill.

You could be forgiven for not knowing that it was being heard publicly, though, because of the underhanded legislative tactics that kept it as far under the radar as possible. 

I received curious text messages about the bill starting this past weekend, as a half dozen people contacted me asking what I thought of it. Now I track legislation for a living, and when people started asking me about LD 227, I have to admit I had absolutely no idea what they were talking about.

There was a reason for this. As I looked it up to read the bill, I found out why I didn’t know anything about it. LD 227 began as what is known as a “concept draft,” which is legislation with no legislative language. The original text of this bill, and what was still listed as the text of the bill as it was listed for public hearing, said that the bill would “enact provisions of law regarding health care in the state.” 

That’s it, and that is all that a member of the public would know about the bill as they saw it scheduled on the committee’s website.

Yet behind the scenes, a 20-page amendment was drafted that contained the “real” text of the bill that was circulated to committee members, as a public hearing was scheduled with short notice on Election Day, which was a time that was likely to complicate awareness and participation in the public hearing. 

Which, given the controversial nature of the bill, was likely the point. 

This is a tactic that lawmakers of both parties have used with great frequency over the years. In this two-year legislative term, for instance, 28 percent of the bills submitted were these “concept” drafts. Lawmakers supposedly use these drafts for convenience, so they can submit a placeholder bill and give themselves the time they need to work on exact language, but increasingly it appears they are used as a mechanism for obscuring the intent and public awareness of bills, so as to tamp down opposition to them. 

That is a direct challenge and circumvention to Maine’s law on public hearings and transparency. If I, as somebody who is deeply familiar with the Legislature and follows legislation professionally, was caught unaware and off guard when LD 227 came through the pipeline, what hope does a general member of the public have of even knowing what legislation is being debated in Augusta? How can they know what to think of a bill when the text of the bill doesn’t even tell you what it actually does?

Enough is enough. The Legislature needs to end this practice, and the public needs to demand as much in the 2024 legislative elections. If someone running for office knocks on your door, tell them to fix this, or you won’t vote for them.

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.