AUGUSTA — Earlier this year, Maine lawmakers abruptly killed a bill that sought to protect gender-affirming care, and the professionals who provide it, from hostile out-of-state litigation.

The committee chairman would only say that the bill contained language that wasn’t needed, and the issue appeared to be dead.

About a month later, a bill with a vague title, “An Act Regarding Health Care in the State,” came up for a public hearing in a different committee. It had no text, only a nondescript summary: “This bill would enact provisions of law regarding health care in the state.”

It was seven days before the public hearing when people signed up to receive committee updates learned that the bill was a more expansive, 22-page version of the one rejected months before. The new version also included protections for abortion care and providers.

To this day, the bill details are not readily available online to the general public, although a more detailed explanation can be found buried in the 620 pieces of testimony submitted to the committee.

“It sounds sneaky. I will admit that,” said Rep. Anne Perry, D-Calais, a 16-year legislative veteran who didn’t realize that citizens could not access details online until after the committee votes. Now, she’s joining those calling for reform.

It was not an isolated case. Lawmakers are increasingly using placeholder bills with vague titles for significant pieces of legislation presented late in the process – a practice that reduces transparency and erodes trust in the government at a time when political rhetoric is becoming more heated and violent.

Some critics say lawmakers use the process to withhold information and blindside opponents, although concept drafts also can be used simply to allow time to draft complex legislation.

“I did not intend to be sneaky. But it sounds sneaky,” Perry said in an interview Friday. ” We have to change that. It’s too bad I had to learn about it this way.”

It’s the type of practice that Sen. Rick Bennett, R-Oxford, has been trying to end in all cases except for the governor’s budget proposal, which is a massive document and subject to ongoing review and revisions by lawmakers. He has proposed two resolutions this year to tackle the problem, but neither has gained traction.

“I think concept drafts have just gone off the rails,” Bennett said in an interview. “It’s really gotten bad. I think it’s made the Legislature really sloppy, and it’s really diminished public participation and public trust in the institution.”

This year, lawmakers submitted about 250 concept bills, often with little information other than a bill title. That’s a more than 25% increase over the nearly 200 placeholders in the previous legislature and a fourfold increase over the roughly 60 concept bills submitted 20 years ago.

About 11% of all bills introduced in the current Legislature were concept bills, compared to 5% of the bills introduced in the 2015-16 Legislature.

Sponsors of concept drafts eventually release the text of the bill in the form of an amendment, either shortly before the committee hearing or at the hearing. Occasionally, the final language is not available until a follow-up work session.

But even when introduced, those amendments are not immediately posted online with the bills. The only way to access those details is either to be signed up as an interested party to receive committee updates, or to be in the room when an amendment is presented and move quickly enough to secure one of the few extra paper copies available to the public. Otherwise, the amendment is not posted online with the bill until the committee votes on its recommendation.

In some cases, lawmakers never offer details on their bills and simply withdraw them.

Lawmakers from both parties use concept bills.

Senate Minority Leader Trey Stewart, R-Presque Isle, submitted a concept bill titled, “An Act Regarding Safe Schools,” which was referred to committee on Jan. 31, 2023.

Bill language was released two days before the May 22 public hearing, revealing a proposal that would, in part, allow a retired law enforcement officer employed by a school to carry and discharge a firearm on school grounds. The bill was ultimately voted down.

A spokesperson said House Speaker Rachel Talbot Ross, D-Portland, wasn’t available for an interview Thursday or Friday.

But Talbot Ross defended concept drafts in a statement, calling them “an invaluable tool,” while acknowledging “they can also present tremendous challenges.” She noted that new lawmakers have less than two months after their election to file bill ideas for the two-year session. After-deadline bills can be requested but need to be approved by legislative leaders.

“These drafts represent the preliminary stages of legislation, providing a framework for collaborative discussion and feedback from stakeholders,” Talbot Ross said. “However, their inherent preliminary nature and the ability to put forth entirely new initiatives can be problematic – both with providing ample public notice and an overload of work on nonpartisan staff. Striking a balance between harnessing their benefits and addressing their limitations is essential for ensuring effective and inclusive policymaking in Maine.”

Nicholas Jacobs, an assistant professor of government at Colby College, said he began researching concept bills shortly after he moved to Maine from Virginia, which does not allow them.

Jacobs said concept drafts can lend themselves to “performative grandstanding,” allowing elected leaders to signal to constituents that they’re addressing a problem without having to disclose details about possible law changes or funding.

“But there is a collective cost we pay. For some, this may raise expectations for what government can truly accomplish,” Jacobs said. “And it can make divisive ideas even more divisive than they need to be.”

That has certainly been the case with L.D. 227, which would safeguard gender-affirming and abortion care from out-of-state laws. That bill was referred to committee in January 2023 and was carried over into the second session, which is reserved for budget bills and emergency legislation.

“How can you carry over a bill into the emergency session when you don’t even know what it says?” Bennett said.

Perry, the bill sponsor and co-chair of the Health Coverage, Insurance and Financial Service, which held the hearing, said she submitted her concept bill at the beginning of the two-year session in case an issue arose before her committee that required legislation. She later worked with Planned Parenthood on language to protect abortion care and providers because other states were prohibiting the procedure and looking for ways to punish those who seek that care in other states, including Maine.

Perry, a retired nurse practitioner, said she included similar protections for gender-affirming care after speaking with Rep. Matt Moonen, D-Portland, who had co-sponsored a similar shield law in the Judiciary Committee, which he co-chairs.

It was that bill that Moonen abruptly killed in his committee in January without mentioning that the bill’s goals would be pursued in a separate bill before a different committee.

Before spiking the bill, Moonen spoke in support of ensuring access to health care and protecting providers from hostile out-of-state lawsuits and he made note of the pushback committee members received after the bill was criticized by conservative media.

“It’s certainly gotten a lot of attention,” Moonen told the committee on Jan. 25. “The initial draft of L.D. 1735 contained language that was not needed to accomplish any of the core goals that I have just outlined … Because this bill contains that language that does not further any of those goals, I would move ought not to pass.”

After the unanimous committee vote, Moonen would not speak to the Press Herald to answer questions about his concerns or why the unnecessary language wasn’t simply removed or changed, which is commonly done in the committee process. A spokesperson for House Democrats referred a reporter at the time to Moonen’s comments to the committee.

Moonen also refused an additional interview request last week but provided a written statement with a different explanation about the decision to kill the original bill than the one he read that day. Moonen said the original bill lacked language to address licensing discipline, malpractice insurance and the like, and that he knew at the time that another bill was taking shape behind the scenes and would address the same concerns.

“The goal of LD 1735 was to protect Maine providers from abusive actions by other states,” Moonen said in the statement. “But it became clear to the Judiciary Committee that the bill lacked a lot of language that would be needed in order to achieve that goal. … None of those are areas of law that the Judiciary Committee typically deals with or has expertise in. I was happy to learn that (Rep.) Perry wanted to take these issues on in the Health Coverage, Insurance, and Financial Services Committee, which is the committee that does have experience and expertise in those subject matters.”

With Democrats in control of the Legislature, the use of concept drafts has added to the disillusionment of residents who have been on the losing end of contentious battles on abortion, gender-affirming care and other policy issues, according to critics.

Kennebunkport resident Jerry Collins, a retired psychiatrist who closely follows state and national affairs, said Democrats’ efforts to push through controversial proposals have increased the level of anger felt by people in the community who hold different values.

And the lack of transparency on concept bills, like L.D. 227, only makes matters worse, Collins said. He said it seems to reflect a “win-at-all-cost” mentality that he believes is contributing to an increase in threats against lawmakers and state facilities by those who feel shut out of the process.

“Whether you’re involved or not, we should at least have access and openness. But I think there’s been a shift, and it’s become gamesmanship – who’s going to win the game,” Collins said. “People hate what’s going on in Augusta, they hate who’s doing it, and that’s wrong. This is our government. We shouldn’t hate everybody there.”

Perry’s experience in recent days has made her an advocate for changing the way concept drafts are handled. She believes the lack of transparency in the process, which is established by the joint rules that lawmakers set for themselves every session, contributed to anger and outrage – and misconceptions about the bill’s intent – expressed during the public hearing.

“I understand their outrage, and I don’t blame them,” Perry said. “We’re going to have to work and change what concept drafts are for the next Legislature.”

Sen. Craig Hickman, D-Winthrop, agrees that some changes are needed, though he defended his use of a placeholder bill to rewrite cannabis laws in the state.

That bill, “An Act to Amend the Cannabis Laws,” was introduced with a summary that read, “this bill would amend the cannabis laws.” When fleshed out, the bill ended up being 66 pages long. It was released seven days before the hearing and is still pending before the Veterans and Legal Affairs Committee, which Hickman co-chairs.

Hickman would not speak to the Press Herald for this story but said in an email that his bill sought to address issues that had come before the committee during the current session. He said “stakeholders and interested parties” had the weekend to review the bill.

But Hickman acknowledged that the process could be improved to increase transparency and access for the general public.

“One improvement to the Concept Draft Rule might be that when the concept draft is replaced with the first draft of the proposed committee amendment, that the proposed committee amendment version be linked to the website for the bill so that the public can see more than the concept draft language when they click on the bill,” Hickman said.

It’s too late to change the rules for the current legislature, which is supposed to adjourn by April 17.

All 186 seats are up for election this fall, and the current presiding officers, Talbot Ross and Senate President Troy Jackson, D-Allagash, are term-limited out. So it will be up to an incoming class of lawmakers to make any changes to the joint rules of the Legislature.

“We need to promote a new set of rules to the next Legislature and hopefully get the people who will be running the next Legislature to buy into trying them out,” Bennett said. “The thing is, the current system is a disaster. It doesn’t work well. And everybody’s too afraid of change to even experiment.”

Copy the Story Link

« Previous

Achsah Nesmith, who wrote speeches for President Jimmy Carter, has died at age 84

Next »

Supreme Court will hear NRA free-speech lawsuit against a former New York state official