Statehouse Report: Maine legislators return to work amid continuing uncertainty

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The Maine Legislature returns to session this week for the first time since opening day back in December. The pace of legislation seems glacial, but leaders on both sides of the aisle say that was probably inevitable, given the strict distancing rules and closure of state buildings.

One veteran observer, Maine Audubon staff attorney Eliza Donahue, captured the tone: “With the limited fanfare that can be generated over Zoom, the 130th Maine Legislature got off to a relatively slow and definitely unusual start in January.”

So things meandered along. In 2019, by March 1 the revisor’s office had cranked out 1,050 bills, compared with just 700 this year.

Senate Majority Leader Eloise Vitelli, D-Arrowsic, said that’s partly because leaders requested lawmakers submit fewer bills. One Senate veteran, however, was bemused to find a mid-February Zoom committee session devoted, not to public hearings, but to a “meet and greet” with lobbyists.

Uncharted territory

Now, things are finally rolling, and the House and Senate will meet March 10 and 11 at the Augusta Civic Center. They will temporarily displace a mass vaccination clinic in the North Wing, the Senate “chamber.” That was always the plan, however; the Legislature has first dibs.

It’s open to question how much lawmakers can accomplish this year. This week’s session was called mostly to consider a supplemental budget, which the Appropriations Committee wrestled with for weeks.

On March 4, after an all-day session, the committee reached an impasse. It will be up to leadership, and Gov. Janet Mills, to devise a proposal that can achieve a two-thirds majority, with Democrats and Republicans still far apart.

A major sticking point remains the treatment of federal Paycheck Protection Program business loans. Mills has offered to provide most of the “double benefit” Congress approved Dec. 27, up to $1 million per business, and Democratic negotiators offered the whole benefit, costing $100 million.

But they demurred about another $32 million affecting prior tax years, and also want to conform to a tax exemption for unemployment benefits in the American Rescue Plan passed by Congressional Democrats.

Republicans are resisting, and also want to require two-thirds votes for distribution of new federal aid estimated at up to $1 billion for the next two fiscal years. How this will come out is anyone’s guess.

A two-thirds vote is needed for the supplemental budget to take effect immediately – that is, before the April 15 income tax filing deadline.

There are some bills ready for action, but most aren’t. Still, given the backlog of business, House Majority Leader Rep. Michelle Dunphy, D-Orono, said “we expect a 100-page calendar.” 

Signs of bipartisanship

There are widely different impressions of how the Legislature is functioning, and what to expect as the weather warms up and – perhaps – the pandemic recedes.

Dunphy doesn’t expect lawmakers to return to the Statehouse before June adjournment, though Vitelli holds out some possibility of that happening. Only a skeleton staff occupies the building, and without that constant contact, it’s hard to move things along, the floor leaders said.

The House Republican assistant leader, Rep. Joel Stetkis of Canaan, would like to return much sooner, and pointed out that many state legislatures are gathering more often.

In terms of safety, “We’ve really got things pretty well worked out. It baffles me not to allow the people into the people’s house,” Stetkis said. “Under current guidelines, it nearly shuts you out. These are voters, taxpayers, citizens. If the public doesn’t have access, it doesn’t work.”

Vitelli conceded that online proceedings are not to everyone’s taste, but, as time has gone on, participation has picked up and people who may never have testified on bills now can.

A committee chair ticked off home towns at one recent hearing, including Houlton, Fort Kent, East Blue Hill, and Machias, saying, “You’d never see that otherwise.”

In terms of legislative priorities, both Dunphy and Vitelli said the emphasis has to be on recovery from the ravages of the pandemic. There’s bipartisan agreement about expanding the broadband connections almost all Mainers now rely on; the Democrats see child care and food security as equally vital.

Vitelli has a bill to encourage retirement savings for everyone not covered by a 401K plan through an employer. “We saw how people just don’t have the cushion, the savings, to be prepared for something like the pandemic,” she said.

In addition to firm opposition to any tax increase, Stetkis said a Republican priority is limiting the governor’s emergency powers, which enables indefinite extensions without any legislative review. “There are several bills we could use,” he said. Some require a two-thirds vote, some a majority.

Would there be any Democratic support? “It’s something we’re willing to look at,” Vitelli said.

Douglas Rooks has covered Maine issues since 1984 as a reporter, editorial writer, columnist, and former editor of Maine Times.

Maine state Rep. Charlotte Warren, D-Hallowell, House chair of the Legislature’s Criminal Justice Committee: “We’ve spent $47 million on MDEA over the last 10 years, and in that time we’ve lost more than 3,000 Mainers to overdoses.” (Portland Phoenix/Douglas Rooks)

Criminal justice reform gains steam

Where there’s no bill, there may still be a way. That’s the approach taken by criminal justice reformers this year.

When Maine lawmakers abandoned their session last March, never to return, they left behind ambitious bills to deemphasize incarceration and promote less punitive measures.

This year, their agenda is even more ambitious, but few bills have even been printed. So they used a routine procedure – the March 1 public hearing by the Appropriations Committee on state agency budgets, held jointly with the Criminal Justice Committee – to make their case.

Bills to be heard later concern closing the Long Creek juvenile facility, removal of criminal penalties for minor offenses, and cutting funds for the Maine Drug Enforcement Agency. All have budget implications.

The resulting four hours of virtual testimony, by turns impassioned and poignant, focused on the practice of locking up the mentally ill and those afflicted by substance use disorder while failing to fund treatment programs. Much of it came from individuals and family members struggling with addiction.

As the Criminal Justice House chair, Rep. Charlotte Warren, D-Hallowell, put it, “Everyone was there, cameras were on and people were listening.”

One young woman talked about losing her stepmother to an overdose and her father, struggling with opioid addiction, to a long prison sentence after he couldn’t get help for his addiction.

Of Appropriations Committee members, Warren said, “I think they were surprised. This doesn’t happen very often. No one was checking their phone or doing their emails.”

The committees heard from Doug Dunbar, who had a 30-year career in government, including stints as a congressional press secretary and as Maine’s deputy secretary of state, and who now works in treatment programs.

Suffering from “lifelong debilitating mental illnesses,” he eventually found himself in the Penobscot County jail on drug charges. “Regrettably, not until going to jail,” he said, “were my eyes opened to the many injustices, inequities, and harmful practices.”

“I wish you could all spend time incarcerated,” Dunbar told lawmakers. “I’m very serious about this. You’d trip over one another trying to get to the revisor’s office to submit legislation to address the remarkably deleterious and costly flaws in our system.”

An independent researcher from Harpswell, Emma Findlen LeBlanc, testified that “when it comes to making public policy, there are a lot of areas that are gray, where you don’t necessarily know the right answers.”

This “is not the case when it comes to criminal justice,” she said. While lawmakers once “guessed that stricter drug laws would cut down on drug use,” research now shows the opposite.

“Even a short stay in jail pretrial makes a person less likely to be employed. Incarceration exacerbates mental health crises,” Findlen LeBlanc said. “Incarcerating youth, for any amount of time, leads to worse health outcomes as adults.”

“The structures of our criminal justice system this budget supports,” she continued, are “a huge waste of money.” She deplored framing the issue as “pro or against police,” because “this isn’t what police are trained for, and that’s not what the criminal justice system is designed to fix.”

Warren said she often reminds herself, “We’ve spent $47 million on MDEA over the last 10 years, and in that time we’ve lost more than 3,000 Mainers to overdoses.”

Families still don’t know what to do, she said: “They say ‘I need help. I’m afraid for my loved ones.’ And unless they can afford it, or have good insurance, they get turned away.”

The March 1 hearing “was like a miracle,” Warren said, conceding she “thought these ideas were radical” when she was first elected in 2014. “I couldn’t have imagined a reception like this.”

Completion of the biennial budget is still a long way off, but change is in the air. Corrections Commissioner Randall Liberty said he will soon present a new plan for Long Creek.

— Douglas Rooks

A bill before the Maine Legislature would restore the state flag to a version similar to the flag adopted for last year’s state bicentennial.

Racial injustice, state flag bills on deck

Aside from the supplemental budget, there will soon be at least two bills ready for House floor debate, which promises to be lively.

LD 2, sponsored by Assistant Majority Leader Rep. Rachel Talbot Ross, D-Portland, would require “racial impact statements” for certain bills. In its original form, it tasked the Legislative Council with setting rules for how statements could be requested, and how they would be carried out.

The bill is among the most closely watched of the session; at its Feb. 3 hearing, there was testimony from 124 agencies, groups, and individuals, including eight legislators.

In her remarks, Talbot Ross referred to “the staggering racial disparities in COVID-l9 infection rates and associated health outcomes” that became clear during the pandemic. “In the face of such glaring disparities, many of us are looking at patterns of racial injustice with fresh eyes,” she said.

While attempting to analyze bills through this lens “can seem a daunting task,” she said, “We make our systems more just and fair through a series of single steps forward.”

The second bill, LD 115, would restore Maine’s original state flag design. It revives a debate from 2019 when a similar bill was converted to using the design only in last year’s bicentennial observances, which did not take place.

Sponsored by Rep. Sean Paulhus, D-Bath, the new bill was enthusiastically and almost unanimously supported at the Feb. 3 public hearing.

The 1901 flag, featuring a star and white pine, the state tree, on a buff background, has been praised for its simplicity in comparison with the current design, adopted in 1909, which has a blue background, depictions of a farmer, fisherman, and the state seal, with a recumbent moose under a pine tree.

According to Secretary of State Shenna Bellows, there’s no surviving record of why the original design was scrapped.

David Martucci, a vexillologist (student of flags), spoke of previous bills from 1991 and 1996 when the original design was unfamiliar. Now, he said it’s being used all around the state, while the official version rarely appears except over public buildings.

Martucci emphasized that the widely circulated “star and pine” flag was never officially adopted, and exhibited eight different versions used during the decade it was the state flag. If the design is restored, he said, it could be recrafted. 

Despite proponents’ work in committee, the debate could be protracted. Six State and Local committee members, including one Republican, support restoring the original design, while seven, including two Democrats, oppose it.

— Douglas Rooks

Meagan Sway, ACLU of Maine policy director: “The government should never be telling journalists how to do their jobs.” (Courtesy ACLU Maine)

‘Accusation’ bill tests First Amendment freedoms

One new bill sure to attract attention in the Maine Legislature’s coming months is LD 923, the “Stop Guilt by Accusation Act” sponsored by Rep. Heidi Sampson, R-Alfred, and co-sponsored by five other Republicans, including Sen. Paul Davis, R-Sangerville. 

It was introduced on March 8, with expected referral to the Judiciary Committee.

The bill claims to focus on people “being permanently stigmatized and avoided,” according to Sampson, because news organizations may prominently report arrests and initial charges, but don’t often give the same attention when defendants are acquitted or charges are dropped.

Sampson’s proposed remedy is to allow the exonerated, or those whose charges are reduced, to petition the same media outlets to require them to publish or air those facts. Her bill strongly resembles one filed by four Rhode Island Democrats last year, later withdrawn by the sponsor following a vigorous First Amendment response from news organizations and civil liberties groups.

Courts have generally found unconstitutional any legislation that directly regulates news content or requires any specific information to be published.

But Sampson’s bill, and several filed elsewhere, seems to be part of a criminal justice debate that is focusing renewed attention on unequal treatment for defendants, and whether they are treated fairly by news organizations.

The Rhode Island bill overtly attacked the news media, with a proposed finding that “the state has a compelling interest to compel the press to promote the objective truth for the sake of the viability of democracy,” and therefore needs “to stop the press from serving as a slander machine.”

Sampson’s more sophisticated language approaches the issue from a different angle: “Freedom of the press … is not absolute” and that “the pattern of media outlets failing to report on the ultimate outcomes of cases has eroded the community’s trust in the integrity of government institutions.”

Still, the proposed requirements are essentially the same – the government should order the press to report a certain way. Other provisions include a requirement that mug shots be removed from digital files for defendants who are cleared.

The printed bill drew a swift response from the ACLU of Maine.

“The government should never be telling journalists how to do their jobs,” policy director Meagan Sway said. “Accountability … must come from dialogue between journalists and the communities they cover. It cannot come from a coercive and unconstitutional government mandate.”

A hearing on the bill has not been scheduled.

— Douglas Rooks