Increasing Use of “Concept Draft” Reduces Legislature’s Transparency, Undermines Public Hearings

Rick Bennett Senate

Is the over-use of “concept bills” making the legislative process in Augusta less transparent? There is growing concern among current and former lawmakers as well as experts that it’s time to change the rules about when a lawmaker has to say what’s actually in their bill.

Like a placeholder, a “concept bill” is basically a detail-free statement of intent, like “An Act to Reform Education.” Under current rules in the Maine state legislature, a lawmaker can supply the actual text of the bill at the last possible minute making public scrutiny difficult if impossible.

In a loose parallel, former U.S. House Speaker Nancy Pelosi famously said of the bill that birthed Obama-care, “we have to pass the bill so you can find out what’s in it.” Sometimes, when the executive and the legislature are on the same side politically, that’s just how it goes.

Today, more than 200 bills introduced this session in Augusta are concept bills. Veteran Sen. Rick Bennett (R-Oxford) sees the practice being increasingly abused, which is why he’s introduced a proposed change to the legislature’s rules that would essentially strike the use of concept bills, except under specific circumstances.

“What I’ve seen is concept drafts are beginning to be used more and more,” said Bennett.

He said the reason for this was the artificial date of cloture which requires lawmakers to get bills in before the end of the December. “People are being encouraged to put in concept drafts rather than fully formed legislation because of the artificially imposed deadline,” he said, adding that the result of this is a host of bills that “aren’t ready for prime time.”

The concept drafts also undermine what is typically a transparent process open to voters, lawmakers, and even lobbyists.

“The public has no idea what the contents of a concept draft may be until the sponsor comes to the hearing with a better idea of what he or she is trying to do with the bill,” he said. “And so you end up with a public hearing which doesn’t fulfill a public purpose.”

Bennett said the legislature needs to take a hard look at how it manages its business.

“We should try some new things, one of which is to get rid of cloture, and the other is to get rid of concept drafts,” he said.

Getting rid of the December cloture deadline would allow lawmakers to benefit from learning more about their committees and the agencies they regulate prior to submitting legislation. An additional benefit to rule changes he’s proposed, he said, would be empowering the legislative branch in relation to the executive branch.

Bennett said he has reached out to Democratic leaders about the rule changes, but that there is a lot of inertia when it comes to tinkering with rules that have been in place for multiple legislatures.

Michael Cianchette, a former counsel to Republican Gov. Paul LePage, wrote an op-ed earlier this month in which he said there are some legitimate reasons to put a bill’s text on pause, such as having to wait for a court decision, but the practice has been over-used in recent years, he argues:

“(Some)times, legislators (or lobbyists) have big ideas they know will be unpopular with someone. Rather than submitting the substance in the ordinary course and letting the sometimes messy and heated lawmaking process unfold, ideas are hidden behind concept drafts. Then long, complex changes are sprung at the public hearing and people cannot digest the substance and engage effectively during the time for comment.”

It’s not just Republicans who are concerned. Former state senator Jill Goldthwait (I-Hancock) wrote in a Mount Desert Islander op-ed last week:

“A concept draft may be the product of the good intentions of a legislator (or pressure from constituents), but not a thoroughly developed idea for a change in Maine law. The sponsor’s enthusiasm may have cooled, or the reality of the session workload leaves the sponsor unable to attend the hearing or work sessions. The bill becomes an orphan. If no one on the committee has a passion for the subject, there will be little appetite for developing a bill under someone else’s title.”

In other words, the concept bills allow a false sense of commitment to an issue, and can open the door to half-baked changes to the law at the last minute.

Having studied the question, the Maine Policy Institute’s Jacob Posik believes: “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 render an informed judgment on its contents. (Disclaimer: The Maine Wire is a project of The Maine Policy Institute)

Senate President Troy Jackson (D-Aroostook) chairs the joint rules committee, on which Bennett sits. His office did not immediately respond to a request for comment, though Jackson had earlier told Maine Public:

“At this point, I don’t know that we’re in a problem or anything like that. But what I really want to make sure is, as often as possible, the public knows what a bill is about, that it goes to the right committee and that it gets a timely hearing,” which sounds a little bit like “nothing to see here.”

House Speaker Rachel Talbot Ross (D-Portland)’s office also did not respond to a question on her position on “concept bills” on Tuesday.


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