Inside Augusta

Governor Mills’ steady stream of vetoes continues

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Gov. Mills recently issued vetoes for seven pieces of legislation approved by the Maine Legislature.

Her veto of several of those bills drew criticism from her own party, particularly Senate President Troy Jackson.

L.D. 125, An Act To Prohibit the Aerial Spraying of Glyphosate and Other Synthetic Herbicides for the Purpose of Silviculture

On June 25, Mills vetoed L.D. 125, which would have banned the spraying of certain chemicals used in forestry. The bill was sponsored by Senate President Troy Jackson (D-Aroostook).

L.D. 125 would have banned aerial spraying of glyphosate and other synthetic herbicides used in silviculture, including for reforestation, regeneration or controlling vegetation after a timber harvest.

In her veto letter, Mills said she shares the environmental concerns of supporters of the bill, but cannot support a blanket ban on aerial spraying. She claims an independent audit of the Board of Pesticide Control conducted at the request of the 129th Legislature found no evidence to contradict the statement that the state’s current regulatory framework for aerial spraying is working as designed.

Mills also stated that the use of aerial spraying in Maine is limited and has been decreasing. “In 2018, the acreage treated amounted to less than five percent of the total annual forest acres harvested statewide. And, in the last 30 years, Maine has seen an 82 percent reduction in acres treated,” Mills wrote.

Mills expressed concern that banning aerial spraying would force landowners to apply pesticides on the ground, which is manually intensive, requires more applications of chemicals at higher levels and has a greater potential to damage the soil. 

“The environmental concerns associated with aerial application need to be balanced with the goal of decarbonization and the legitimate needs of silviculture enterprises,” Mills wrote.

In her veto letter, Mills also expressed an intent to issue an executive order directing the Maine Forest Service and the Board of Pesticide Control to pass additional rules limiting aerial spraying of herbicides. 

On June 30, Mills issued Executive Order 41 FY 20/21. The order directs the Board of Pesticides Control, working with the Maine Forest Service, to review and amend rules related to the aerial application of glyphosate and other synthetic herbicides used for the purposes of silviculture.

But Mills’ position and her decision to veto the bill put her at odds with her party’s leadership in the legislature. In an interview with Maine Public, Senate President Troy Jackson, the chief sponsor of L.D. 125, said Mills needs to stop calling herself an environmentalist.

Jackson characterized the governor’s veto as “a giveaway to the large landowners so they can maximize their profits off the lives of the people in Maine and the wildlife in Maine.”

He also said he thinks it’s unlikely that the legislature will override the governor’s veto. According to Jackson, failure to override the veto might result in a citizen’s referendum.

On Wednesday, the Senate sustained the governor’s veto on LD 125 by an 18-16 vote. 

L.D. 1117, An Act To Prevent Excessive Prices for Prescription Drugs, and L.D. 675, An Act To Protect Maine Consumers from Unsupported Price Increases on Prescription Medicines

On June 29, Mills vetoed another bill sponsored by Jackson (L.D. 1117) and one by Sen. Ned Claxton (D-Androscoggin) (L.D. 675). Both L.D. 1117 and L.D. 675 attempted to control prescription drug prices and were part of a larger package of five pieces of legislation, known as the Making Health Care Work for Maine package.

Mills previously signed two bills that were part of the healthcare package. L.D. 673 created a program that requires insulin manufacturers to provide insulin to pharmacies to dispense to those who need it, and L.D. 686 changed some reporting and pricing requirements for drug manufacturers. A fifth bill, L.D. 120 is still on the Special Appropriations Table and would create the Office of Affordable Health Care.

In her vetoes of L.D. 1117 and L.D. 675, Mills expressed concern about the bills’ constitutionality.

L.D. 1117 prohibited drug manufacturers from excessively raising the cost of generic or off-patent prescription drugs, defined as anything exceeding a 20% increase in the cost per pricing unit from the previous year for any drug that cost more than $10 per pricing unit. Under the bill, violations would have been reported to the attorney general by the Maine Health Data Organization. The attorney general could then seek an order from the Superior Court and assess fines up to $3,000 per day against manufacturers that violated the law.

This fine would have applied to drug manufacturers regardless of whether they were located outside the state of Maine, which likely violated the Constitution’s dormant Commerce Clause. The dormant Commerce Clause prohibits states from passing legislation that discriminates against interstate or international commerce. 

In her veto, Mills cited concerns that L.D. 1117, which is similar to a law passed in Maryland that was struck down as unconstitutional by a federal court, would face costly legal challenges that would ultimately be passed onto the people of Maine. 

“[T]the Maryland law, like L.D. 1117, applied only to medications available for sale in the state. Ultimately, however, the out-of-state manufacturers are liable for the price increase, based on the terms of these dealings with out-of-state wholesalers. It was this attempt at extraterritorial regulation that the Fourth Circuit Court of Appeals found to be a Commerce Clause violation. The Court specifically held that the law could not be applied to situations in which both parties to a transaction are located out of state. L.D. 1117 is fundamentally structured in the same way, and, as a result, would likely meet the same end in court and Maine people would shoulder the costs of the legal challenge,” Mills wrote.

Mills also expressed doubt that the bill would do much to lower the cost of prescription drugs because it only applies to off-patent and generic drugs, which are much less expensive than brand-name drugs.

Mills also called on the federal government to pass legislation to address drug pricing. She specifically called on the federal government to use Medicare to negotiate drug prices on behalf of seniors.

In her veto of L.D. 675, Mills also expressed concerns about the legislation’s constitutionality. 

L.D. 675 also prohibited “unsupported” price increases of prescription drugs and required the Maine Prescription Drug Affordability Board to identify up to 12 drugs with unsupported price increases based on data identified by the Maine Health Data Organization’s annual report. Drugs with unsupported price increases are to be reported to the State Treasurer so fines can be collected from the manufacturers. The fines would be placed into a fund to offset the costs of enforcing the law and after the 2027-2028 fiscal year could be used to offset healthcare costs to consumers.

“[B]ecause the bill applies state consequences (fines) to out-of-state prices, the bill is vulnerable to a challenge based on the dormant Commerce Clause, which precludes states from regulating transactions that apply wholly outside their borders. Moreover, because the bill applies to both generic and patented drugs, the State may also be vulnerable to claims related to patent preemption,” Mills wrote in her veto letter.

As with L.D. 1117, Mills expressed concern that Maine residents would bear the costs of legal challenges to the bill and called on the federal government to take action to address drug pricing concerns.

In a press release posted on his website, Senate President Jackson characterized Mills’ vetoes as part of a “pattern of people in power caving to the pharmaceutical industry and other wealthy special interests.”

“The governor made these same arguments back when she was attorney general, not only was she wrong but the legislation made a difference,” Jackson said. 

Jackson told Mainers to contact their representatives and ask them to override the governor’s veto. 

“[I]f you are sick of a system that only works for the powerful and wealthy elite, not everyday people, then you need to contact your state lawmakers in both the House and the Senate. Tell them to do what the governor did not have the courage to do — stand up to Big Pharma,” Jackson said. It’s time for elected officials to do what’s right for Mainers and put an end to sky-high prescription drug prices,” Jackson said. 

L.D. 920, An Act To Promote Oversight of and Competitive Parity among Video Service Providers

Mills vetoed L.D. 920, which aimed to create parity between video service providers through several measures, on June 25. 

As originally proposed, the bill prohibited video service providers, defined as any person in the state selling access to video, audio, computer-generated or computer-augmented entertainment and delivers those services through facilities located in whole or in part in public rights-of-way, from providing services in a municipality unless the provider has entered into a franchise agreement. For each municipality in which it has a franchise agreement, a video service provider is required to pay a fee of 5% of its gross annual revenue made within that municipality.

The law also required that costs associated with public, educational, and governmental (PEG) facility equipment used for managing PEC channels within a franchising municipality be paid by the video service provider, not to be offset through franchising fees. The Public Utilities Commission (PUC) was authorized to oversee and enforce provisions related to municipal franchising. The costs of overseeing and enforcing this provision would have been offset by a regulator service surcharge, not to exceed 25 cents per month per subscriber, and collected by video service providers from their subscribers.

Video service providers that failed to comply with the law would have been subject to enforcement actions brought by the attorney general and by a municipality. 

In her veto, Mills expressed concern about the local control and consumer cost issues she believes would result from the bill’s implementation, including higher fees passed on to consumers. 

Mills wrote the bill’s implementation would “make Maine an outlier by imposing franchise fee obligations related to the access of public right of ways over streaming websites, raising costs for consumers and negatively impacting the State’s efforts to expand broadband across Maine.”

L.D. 1592, An Act to Remove Punishments for Sex Selling and Decrease Demand by Increasing Penalties for Sex Buying

On June 29, Mills vetoed L.D. 1592, which would have eliminated the penalties for engaging in prostitution and increased the penalties for a person who engages with a prostitute, making them a Class D crime rather than a Class E crime. It would also have created a process allowing anyone previously convicted of engaging in prostitution to have their criminal record sealed.

The bill would have made Maine the first state in the nation to fully eliminate all penalties for engaging in commercial sex work, but would still have penalized anyone who engaged a prostitute. The bill created the crime of commercial sexual exploitation, a class D crime defined as engaging a prostitute.

In her veto Mills expressed fear decriminalizing prostitution would incentivize sex trafficking and sexual exploitation, particularly for minors. 

“While engaging in prostitution is not now a jailable offense in our state, and while courts and prosecutors strive to treat prostitution as a social services issue rather than a criminal problem, fully decriminalizing prostitution, I fear, will only increase demand and encourage the exploitation of young people by those who profit from the mistreatment of others, undermining the free will of those trapped in difficult and sometimes tragic circumstances,” Mills said.

L.D. 1592 also made the commercial sexual exploitation of a minor and solicitation of a child to engage in prostitution Class C crimes. 

In her veto, Mills expressed support for L.D. 1455, which she signed into law on June 22, and makes engaging in prosecution defensible if done to “prevent bodily injury, serious economic hardship or another threat to the person or another person.”

Mills claimed L.D. 1592 and L.D. 1455 conflict with each other.

“In my view, the approach taken under L.D. 1455 is a more measured approach for promoting both public safety and compassions for survivors of sex trafficking.”

L.D. 1160, An Act to Reduce the Burden on Courts and Promote the Resolution of Civil Cases, and L.D. 1134. An Act to Amend the Bail Code Regarding Certain Conditions of Release

On June 25, Mills also vetoed a pair of bills that would have made minor changes to the state’s court system.

L.D. 1160 would have increased the prejudgment and postjudgment interest paid by a losing party in a civil case to 10%. Currently, the rate paid on prejudgment interest is less than 1 percent and the rate paid on post-judgment interest is just over 6 percent. 

Mills said this would increase the interest a losing party will pay on an award if they take a case to trial and lose.

“People have a right to their day in court and that may not always come quickly. And layering costs on to taking a case to trial against a party with insurance will only make insurance more expensive for everyone. While it may make sense to revisit this interest rate, 10 percent across the board is too high,” Mills wrote in her veto letter.

Under L.D. 1134, a defendant who had been granted either preconviction or postconviction bail and violated a condition of release would have been charged with a Class E crime. Currently, violation of certain conditions of release are a Class C crime. 

The law made any defendant who violated a condition of release guilty of a Class E crime if they were charged with a crime against a family or household member, sexual assault, or were violating a protective order. Defendants also would have been guilty of a Class E crime if they failed to follow certain conditions of their release, such as abiding restrictions on where they could travel, avoiding contact with victims of the alleged crime, possessing a firearm, and participating in electronic monitoring programs. 

Mills objected to the conditions placed on bail removed by the law.

“By their nature, bail conditions are designed to ensure responsible behavior pending trial. These conditions constitute court orders. It is essential that law enforcement has the ability to arrest someone engaging in behavior in violation of their conditions of release even if that behavior would not otherwise constitute a violation of law,” she wrote in her veto letter.

About Katherine Revello

Katherine Revello is a reporter for The Maine Wire. She has degrees in journalism and political science from the University of Maine. Her writing has appeared in Reason, The Washington Examiner, and various other publications. Got news tips? Contact Katherine at krevello@mainepolicy.org.

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