Inside Augusta

Fake concept drafts don’t belong in a virtual legislative session

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Much of the Maine Legislature’s regular business looks different this year. The Clerk of the House and Secretary of the Senate are responsible for assigning bills to committee, a duty that belonged to lawmakers before the pandemic. Instead of gathering in the State House or the Cross Building for public hearings and work sessions, these meetings are being held virtually via Zoom. Today, there’s still no defined timeline for lawmakers to return to Augusta and perform the people’s work in person.

This arrangement undoubtedly alters “business as usual” in Augusta, but some things just aren’t changing. As of this writing, 303 bills have been released by the Revisor’s Office, and of those bills, more than 10 percent (35) of them are “concept drafts.”

Concept drafts are permitted by Joint Rule 208. By definition, concept drafts are bills that consist only of a bill title and summary. They may only be submitted by legislators, as the Joint Rule prohibits the governor and state entities from submitting legislation in this fashion. At the public hearing for bills submitted as concept drafts, the sponsor often releases the language for the first time and testifies in its favor; the public does not always have access to the official legislative language prior to the public hearing.

Joint Rule 208 reads in part:

“When directed by the sponsor, the Revisor of Statutes shall prepare a bill or resolve in concept form. The bill or resolve shall contain only an enacting clause and a summary of the proposed legislation and shall not be fully drafted by the Revisor of Statutes. The bill or resolve prepared in this form shall be printed and referred to a committee in the same manner as other legislation and may be reported in fully drafted form by that committee in the same manner as other legislation. Except as otherwise provided in this Joint Rule, this method of drafting legislation is not allowed for legislation submitted by the Governor, by agencies or departments of state government, by study commissions, by joint standing or joint select committees or pursuant to law or statute. Any request for a bill or resolve submitted after cloture must state if it is a request for a concept draft. Any committee amendment must be germane to the detailed summary of the concept draft.”

Joint Rule 208 allows lawmakers to submit legislation in concept form and hammer out the specific language of the bill themselves or over the course of the legislative process. It enables lawmakers to advance an idea without defining the legislative language beforehand, giving other stakeholders the ability to provide input. That’s not the only utility of concept drafts, however, and sometimes their use is more sinister.

Sometimes draft concepts are used as placeholders by legislative leadership or the heads of legislative committees to advance or resurrect certain priority issues debated over the course of the session. Other times they’re used by lawmakers to advance an agenda without exposing the contents of the bill to their opponents, shielding the specifics of hyper-partisan legislation.

This was the case for LD 837 in the 128th Legislature. The bill, “An Act To Provide Supplemental Appropriations and Allocations for the Operations of State Government”, was a concept draft used to try and redirect funding from the Fund for a Healthy Maine to partially implement Medicaid expansion. In this instance, the intent of the bill was known by the sponsor and its supporters all along, however they did not want their political opponents to be aware of what the bill was trying to accomplish.

In effect, there are two types of concept drafts. One follows the original intent of these proposals by permitting a legislator to outline what the bill intends to do without making legislative staff prepare a statutory draft. The other is essentially a blank piece of paper with a vague title and an even more vague description of what the bill is trying to accomplish.

While concept drafts should always bother advocates of open and transparent government, their excessive use is concerning in the context of a virtual legislative session. Since the official language of these proposals is not always available to the public before the public hearing, and because the State House is closed to the public and lobbyists, few will know what many of these bills are trying to accomplish before their public hearing.

Meanwhile, it’s basically impossible to coherently testify in support or opposition to a bill that you only know its title and summary. Yet that’s what our lawmakers expect of us, in normal times and, apparently, even more so during a pandemic.

Take, for example, LD 276, sponsored by Rep. Seth Berry this session. The bill, “An Act To Improve and Update Maine’s Tax Laws”, is a concept draft. Based on subject matter alone, the bill is certain to raise a few eyebrows and get the professional lobbyists in Augusta buzzing. But in searching the legislature’s website, this is all you will find about LD 276:

Or LD 282, sponsored by Rep. Maggie O’Neil. The bill, “An Act Regarding Maine Agriculture”, is also a concept draft. Rep. O’Neil was the sponsor of an unsuccessful bill last session that sought to require cage-free facilities for chickens that lay eggs for commercial sale. Is this bill a rehashing of last year’s cage-free egg debate? In searching the legislature’s website, this is all you will find about LD 282:

How incredibly useless to the public. How is anyone supposed to know if the bill impacts them or the people they represent, and whether they would support or oppose it?

There are two ways to fix this issue, as I see it. We can ban concept drafts altogether and require every bill to be submitted with official legislative language for the public to consider. Or, we can require two public hearings on every bill submitted as a concept draft, so the public has a legitimate opportunity to dissect the bill and a render an informed judgment on its contents.

Unfortunately, I strongly doubt the powers that be in Augusta have any appetite for eliminating the Joint Rule that enables their regular legislative shenanigans. Nonetheless, fake concept drafts have no place in a virtual legislative session.

About Jacob Posik

Jacob Posik, of Turner, is the director of communications at Maine Policy Institute and the editor of The Maine Wire. He formerly served as a policy analyst at Maine Policy. Posik can be reached at jposik@mainepolicy.org.

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