Sunday, March 27, 2011


We recently celebrated "Sunshine Week" in Maine, an annual recognition of  the importance of transparency in government and freedom of information. Among the milestones celebrated are the federal Freedom of Information Act and the 50 separate state acts. Maine's Freedom of Access Act requires all public proceedings be open to the public; public notice be given for all proceedings; and that public documents be available for inspection and copying. More on our law
Public access and participation in government is the cornerstone of our democracy. This is a good time to take stock: how well is Maine doing? Unfortunately, not so great, despite promises by Governor LePage that his government would be the "most transparent in history."  In today's Kennebec Journal, Mike Tipping's column reveals comments by the Governor comparing use of Maine's Freedom of Access Law to "internal terrorism".  This follows an Executive Order creating a business advisory council that would be explicitly exempted from our right to know laws. After a firestorm of criticism from both Republicans and Democrats, not to mention the media, Governor LePage announced he will back off from this plan, but his recent comments seem to indicate that he still doesn't fully appreciate why people are upset and why secret advisory panels don't meet most definitions of "transparency".   
One reason regular people are upset is they perceive that lobbyists have access to state decisionmakers that they do not.  This perception certainly isn't a recent development, but recent actions by this Administration and the Legislature do nothing to change it. For example, a key initiative of the Governor, one he has yet to back away from, would limit citizen access to hearings on environmental issues by abolishing the citizen Board of Environmental Protection and replacing it with a panel of administrative law judges.  

Unfortunately, this attitude toward public participation has also infected the Maine Legislature these days. The Regulatory Fairness & Reform Committee has held 8 public hearings, but NONE of these forums were on the actual details of LD 1.  The Governor's 48-page amendment to LD 1 was handed to the Committee during the final public hearing, effectively limiting public scrutiny of the proposal until after public comment was taken.  LD 1 appears to be the leading edge of a really bad trend in the Legislature, the emergence of "concept drafts".  These have been authorized for a few years in Joint Rule 208 but seem to be coming into their own this year (a quick search found 74 such bills as of March 27). The problem with concept drafts is they don't include actual legislative language.  Thus, the public hearing is on a one- or two-sentence summary, and the public is effectively prevented from weighing in the details which are written up later.
This has many bad consequences, one of which is lobbyists and other insiders get heard but others do not.  As we have seen with LD 1, which has expanded from 2 lines in the printed online bill to a 48-page amendment not available in the Legislative Bill Status System, most of the input to the committee is being provided in work session by lobbyists and Administration staff, at the invitation of the committee chairs -- a very different scenario from the everyone-is-welcome free-for-all that characterizes the typical Maine Legislature public hearing.  (By the way, if you want to find out when those public hearings are and don't have a computer, forget it next session, because the Secretary of the Maine Senate announced March 10 that hearing notices will be online only starting December 1.)    

Even if you figure out when the hearing is, how can you testify on a concept bill? It is actually impossible to know what these bills intend to do.  Take LD 934, An Act To Reform the Dirigo Health Program (please!).  What does this bill purport to do? Here it is in its entirety: "This bill proposes to reform the Dirigo Health Program established under the Maine Revised Statutes, Title 24-A, chapter 87."  Whoa! How? To what end? Should I support it? Oppose it? Based on what? Is this really a serious piece of legislation, or is it a messaging opportunity? How about this one, LD 515, An Act To Review State Water Quality Standards.  Here is the complete bill: "This bill would revise and update water quality standards utilized to establish waste discharge license parameters. This bill would also establish procedures for developing alternative state and site specific water quality standards." Huh? Is this going to tighten up our water pollution laws or gut them? Absolutely no way to know. 

No matter what your political persuasion, let's agree that public access to information about government and the opportunity to participate in a meaningful way is incredibly important.  Twitter, Facebook and one-sided websites controlled by partisan caucuses cannot replace the spirited debate and and exchange of views that has long characterized our Citizen Legislature and Executive Branch. Sunshine Week and what it represents should be a wake-up call to us all - feel free to speak up!