Lawmakers call for transparency rules for ‘conceptual drafts’ of bills that frustrate public scrutiny

Maine politicians have long complained that some lawmakers are abusing “conceptual design” bills to circumvent transparency rules, but a meeting in Augusta on Thursday could be the first step toward ending the controversial practice.

The Joint Rules Committee of the Maine State Legislature discussed a number of proposals at this meeting aimed at reforming the process by which legislators introduce bills, particularly as it relates to concept bills.

Senator Rick Bennett (R-Oxford) and several other lawmakers introduced recommended rule changes aimed at improving transparency in the Legislature.

Broadly speaking, concept notes function as substitute legislation that legislators can introduce with very little detail beyond a vague statement of the bill’s intent.

The conceptual draft bill could only have a general title, such as “Water Act”.

The actual language of these bills is introduced as sponsor amendments on the day of the public hearing, meaning they are not immediately or easily made available online for public scrutiny prior to the opportunity to submit comments.

The result, intended or not, is that affected communities and industries are often unable to attend hearings in time to defend their interests or comment on the legislation.

In recent years, the use of conceptual designs to implement complex legislation in a very short time has become increasingly common. Many Augusta residents believe that this practice is at odds with government transparency.

(RELATED: Growing use of ‘conceptual design’ reduces legislative transparency and undermines public hearings)

One notable example was the passage of a highly controversial bill during the last legislative session that ultimately became law.

The legislation aimed to introduce legal protections for people seeking or providing “gender-specific health care” and “reproductive health care services” in Maine, two sensitive topics that have previously drawn massive protests to the State Capitol.

However, the text of the bill — and the sponsor’s intentions — remained unavailable and unknown until just before the public hearing, because it was originally presented as a concept draft.

Representative Anne C. Perry (D-Calais) introduced the bill during the first legislative session as a concept bill titled “The State Health Care Act.”

She proposed a sponsor amendment with a final version about a week before the public hearing, but due to the nature of the process, the text was not readily available for public review, causing frustration among members of the public who wanted to speak out.

(RELATED: Huge turnout at public hearing on last-minute bill that would establish abortion ‘right’ and ‘gender-affirming care’ in Maine)

During Thursday’s Rules Committee meeting, Senator Bennett proposed requiring that the conceptual design be publicly available online at least 24 hours before the scheduled public hearing.

“I really think we need some standardization of the process if we want to keep conceptual designs, which I am very much against — I think we should get rid of conceptual designs altogether, except for the budget document — but if we are going to have conceptual designs, I think we need to have rigorous rules around them,” he argued.

However, Bennett noted that he believed it would be more appropriate to make the proposed text of these bills available even further in advance.

“In this proposal, it’s one day. I actually think it should be much longer,” Bennett said. “There’s really no reason why, if a conceptual design is moved in conceptual form, we should have one day’s notice or zero days’ notice of what the actual proposal is going to be. Unfortunately, that’s happened a number of times in this last session.”

Although proposed conceptual design language is sometimes sent to a list of interested parties, Bennett argued that “it’s hard to know if you’re an interested party if you don’t know what the content is at all.”

Bennett noted that bill titles are often extremely vague, making it difficult to determine what their purpose is.

In his statement to the committee, Bennett asked lawmakers to consider how the entire system fits together when considering how best to reform the legislative process.

“In the world of concept notes, it’s very easy for members to put forward ideas, and when you combine that with the lockdown,” Bennett argued, “it creates a really perverse system where everyone has to put forward all their ideas that they want to be considered by the whole parliament in the month after they’re elected, before any of us have a chance to work together, before any of us have a chance to have committees.”

Cloture is the deadline by which Maine legislators must introduce a bill for consideration during a given session.

Bennett made a direct link between the issues of conceptual designs and closing discussions, calling on the committee to consider “how the system, if we are going to propose reforms, could work together.”

Several other lawmakers — including Rep. Janice S. Dodge (D-Belfast), Rep. Marc G. Malon (D-Biddeford), Rep. Cheryl A. Golek (D-Harpswell), Sen. Craig Hickman (D-Kennebec) and Rep. Jack Ducharme (R-Madison), among others — also expressed support for making significant changes to the process for introducing legislation and considering concept notes.

Senator Hickman reiterated the connection Bennett made between adjournment and the proliferation of conceptual projects, arguing that adjournment should be eliminated altogether for the first regular session of the Legislature.

“I think the shutdown of the first regular session should be lifted, and if that happens, there probably won’t be many concept projects,” Hickman said. “Because one of the reasons we bring in concept projects as chair is to make sure we have a tool to address urgent issues that we might not have thought about before the shutdown.”

“And I believe that cloture forces people to bring in a lot of concept notes to make sure that the bill gets passed,” he continued. “If we hadn’t had cloture in the first regular session, I don’t think there would have been a need for as many concept notes as the legislators brought in.

Hickman also suggested the possibility of allowing only chairmen to submit concept notes or limiting lawmakers to a maximum of one or two concept notes each.

Rep. Perry also spoke Thursday about the conceptual designs, noting her involvement in the controversial process that took place earlier this year surrounding her bill, the State Health Care Act.

In her speech, she explained that she was confident that the wording of the bill would become public when it was tabled, which ultimately did not happen.

“I learned a lot because I came up with a conceptual design that was controversial,” Perry said. “I assumed that as soon as the wording of the bill came out, it would be public. Of course, I learned that it was very different and that’s not how it was done.”

“I learned that the common rules refer very specifically to conceptual designs, treating it as an amendment, and amendments are not published until they are published by the committee, except to interested parties,” she explained.

Perry recommended that concept bills not be considered until there is specific legislation ready to be passed. She suggested that there could be exceptions to this rule, at the committee’s discretion, if the concept bill describes in sufficient detail what the upcoming bill will accomplish.

Representative Golek argued that while she believes conceptual designs are “essential,” the process by which they are currently recognized “deprives” members of the public of the opportunity to fully participate.

“My suggestions are designed to ensure that all stakeholders, voters and legislators, are fully engaged in our legislative process,” she said. “We need to change the way we approach conceptual drafts of legislation. As a first-term representative, I have seen that members of the public often feel alienated from the legislative process by the existence of conceptual drafts.”

“There is no doubt that conceptual designs are essential,” she continued. “However, the way they are currently handled has unintended consequences that disempower citizens from engaging in the lawmaking process.”

Other draft reform proposals presented at Thursday’s meeting included requiring texts to be made available online a week before public hearings and more sparing use of draft concepts.

Another recommendation was to make the sponsor’s original amendments to concept notes part of the publicly available public record of those bills.

It also suggested that concept bills not be assigned an LD number until the proposed language has been available for a week, and then that a public hearing not be scheduled until a week after that. As a result, legislators and members of the public would be guaranteed at least two weeks to consider the bill’s content before a hearing is held.

Because the next legislative session will take place after the end of the 132nd Legislature, the committee currently has only the authority to make nonbinding recommendations on rules to be adopted.

There was no vote on the proposals during Thursday’s meeting, but the Rules Committee indicated it plans to hold another meeting in early August to further consider the suggestions.