There will be three referendum questions on Maine’s Nov. 2 ballot. If you haven’t heard about Question 1 by now – the campaign concerning Central Maine Power Co.’s line to Quebec – you haven’t been paying attention.
Question 2 has received much less attention, but it’s familiar – yet another $100 million transportation bond, primarily for highway projects, the seventh straight year there’s been such a borrowing measure on the ballot.
Then there’s Question 3, a constitutional amendment proposing a “right to food” for the state’s bill of rights. It would be the first change to this charter of liberties since Maine buttressed its right “to keep and bear arms” in 1987.
The amendment surmounted the considerable hurdles to passage by achieving two-thirds majorities in both the House and Senate, the former with a 106-31 roll call, the latter by voice vote on the final day of the session.
Originally sponsored by Sen. Craig Hickman, D-Winthrop, when he was a term-limited House member, this year’s version, LD 95, was headed by Billy Bob Faulkingham, R-Winter Harbor, who supported the bill in 2019 when it fell short and realized it needed another push.
Hickman returned to the Legislature after winning a Senate special election March 9 to replace Shenna Bellows, who’d been elected secretary of state, so he was around for the Senate debate and a successful outcome.
It was a rare example of bipartisanship, winning favor from all House Democrats, and more than a third of the Republican caucus.
“This bill was won in caucus,” Faulkingham said in an interview. Asked how it happened, he said, “I guess I’m a good explainer.”
The food amendment prevailed after the failure of another proposal, to establish a right to a clean environment. That bill, LD 489, from Sen. Chloe Maxmin, D-Nobleboro, received no Republican support in the House despite having two GOP co-sponsors in the Senate.
That may stem in part from persistence. It was the environmental amendment’s first outing, while it was the third time the right to food has been considered by the Legislature; bills sponsored by Hickman fell short in 2015 and 2019.
A basic right
It’s generally agreed that Maine’s legal push for what’s called food sovereignty began with the efforts of Heather Retberg, who with her husband Phil runs Quill’s End Farm in Penobscot, an organic farm and micro-dairy that markets directly to consumers.
Such farm sales have occupied a gray area with state and federal regulators, and farmers organized to back legislation, signed into law by Gov. Paul LePage in 2017, that allows local farm sales and forbids what the farmers saw as heavy-handed restrictions.
Faulkingham said the amendment has a different purpose than the food sovereignty law, which he also supported: “When you establish a basic right in the Constitution, you’re doing something that no future Legislature can take away.”
On that point, he and Hickman agree – although they have different theories about where the main threats lie.
Hickman is an organic farmer: co-owner, with his husband, of Annabessacook Farm. He traces his concerns back to court filings by the federal Food and Drug Administration in 2010 that accepted corporate arguments, by Monsanto and others, for patenting seeds and creating other proprietary rights.
Courts have found, he said, that food “is not a fundamental right” in any federal law or constitutional provision. So if the Maine amendment is ratified, “We will shift power away from corporations and toward people.”
The language of the amendment pointedly refers to citizens’ right “to save and exchange seeds, and the right to grow, raise, harvest and consume food of their own choosing.”
Faulkingham, on the other hand, sees government itself as a primary threat. In fiery written testimony, he conceded that there may not be a problem now, but in the future, he said, “could we see our government creating roadblocks and restrictions?”
He then asked, “Will people even be allowed to grow gardens? Or will gardening be a luxury reserved for the rich? Will Monsanto’s big pockets buy government officials?”
Ironically, the lack of any immediate threat led other Republicans to vote against the amendment. Sen. Jeff Timberlake of Turner, the GOP caucus leader, said the amendment “wouldn’t do anything.”
Its broad wording, like other constitutional statements of rights, does allow supporters to see in it what they want to see. Because it’s clear only individual rights are protected, the state Bureau of Agriculture did not oppose the bill.
The only sustained opposition came from animal welfare groups, which testified that cruelty laws against slaughtering animals might become unenforceable.
Faulkingham said the language was amended to clarify those points, “and there’s no problem with hunting laws either.” Hickman agreed: “We changed the wording long ago. Cruelty will still be prohibited.”
‘Grassroots, all the way’
The ultimate meaning of the amendment will, of course, depend on future court rulings on specific cases.
To Faulkingham, it’s insurance and not a policy prescription. It won’t require “that the government provide food to people,” as some of his constituents worry. Amendments “are there to protect our rights,” he said, “not provide them.”
Hickman has a different take. He has strong reservations about the federal government’s approach to food issues and said that, while the government isn’t obligated to feed its citizens, “it can’t let them starve, either.” Emergency food aid will always be part of the picture, he said.
But Hickman is concerned about the quality of food being produced by industrialized agriculture.
“If our diet is creating unhealthy conditions, we need more and better options to grow and consume food,” he said, adding that the links of poor nutrition to widespread chronic conditions such as obesity and diabetes are too strong to be ignored.
Unlike Question 1, where spending has already topped $60 million, no registered groups are supporting or opposing Question 3. “This is grassroots, all the way,” Faulkingham said.
Hickman said he knows that food industry groups “are wary, and they’re watching,” and wouldn’t be surprised if some ads opposing the amendment surface before Election Day.
Just getting to this point counts as a major victory, he said. And he freely admits the accident of his not being a legislator when the bill was introduced worked out well.
“It helped that Billy Bob was the sponsor,” he said. “He convinced the Republicans.”
Which provides hope, too, that environmental rights may someday get the same treatment.
Douglas Rooks has been a Maine editor, commentator, reporter, and author since 1984. His latest book is “First Franco: Albert Beliveau in Law, Politics and Love.” Visit douglasrooks.weebly.com/#/ or e-mail [email protected].
As Maine goes?
Maine is not the first state to consider creating a “right to food,” but it is the first to come this close to enshrining it in its state Constitution.
From the point of view of proponents, the legal landscape is bleak. Though there have been few significant cases, the existing precedents are discouraging.
The U.S. Supreme Court, in Wickard v. Filburn (1942), overruled a federal District Court decision that had permitted a farmer to grow and consume a surplus Ohio wheat crop, even though he was under an allocation from the Agricultural Adjustment Act limiting his output.
The farmer contended he distributed only locally, but the court saw a threat to interstate commerce and upheld the law.
“From where we are now, there was regulatory overreach in some of the New Deal programs, said Maine state Sen. Craig Hickman, D-Winthrop, “but that’s still where the law stands.”
The Wholesome Meat Act of 1967 presents even greater difficulties for local producers, Hickman said. By granting the Department of Agriculture broad authority – including federal inspection of each animal before slaughter – it essentially put local processors out of business.
By creating a “bigger is better” incentive for producers, it created the factory farms of today, including their dependence on the use of antibiotics in feeds and other additives. In Maine, the “food sovereignty” law of 2017 created some space for direct farm sales to consumers.
For Hickman and other proponents, that’s just the beginning. Since trying to amend the federal Constitution seems out of reach, states are becoming a testing ground for reform.
And now that Maine is about to vote, Hickman said he has been hearing from states all over the country: “West Virginia, Washington, Texas, Illinois, Arizona, and Florida – the whole gamut.”
And if Mainers pass Question 3, he said, it’s sure to prompt legislative efforts elsewhere.
— Douglas Rooks