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“I’ve got an idea.”
That’s how most legislation begins in Augusta. Whether a legislator, a lobbyist, or a citizen, someone comes up with something that “oughta be a law.”
The mechanics of bill writing are often mundane and opaque. Professional staff in the State House are charged with turning an idea into a piece of legislation that, if enacted, becomes the law of the land.
Lawmakers can outsource the writing of these laws to interested parties, oftentimes lobbyists. This isn’t nefarious; if you are going to suggest changes to hunting laws, it makes sense to ask the people who know all about hunting regulations to help inform the process. The legislators still need to determine whether the idea is a good one and the staff can explain the result of the technical language.
But for every rule, there is an exception. And Joint Rule 208 of the 131st Maine Legislature allows lawmakers to skip over the icky parts of actually drafting legislation and permits bills to be submitted as “concept drafts.” If you look closely at Augusta, it seems as if these have exploded in recent years.
Sometimes they make sense. For example, if a court case is ongoing at the start of a session, a lawmaker may want to have a bill submitted to respond to potentially new judge-made law. Until a court decision is issued, they do not know how to write legislation to address the issue. Keeping the concept open is reasonable in that situation.
But, other 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.
Which “concept drafts” fall into which category is like Schrodinger’s cat; you don’t know whether a bill has any secret substance until the public hearing begins. Here are two concept drafts pending in the Maine Legislature:
LD 306 is “An Act Related to Water.” What will it do? “This bill would amend the laws related to water.”
LD 241 is entitled “An Act to Reform Education.” “This bill would reform education.” Riveting stuff.
What is really behind LDs 241 and 306? I’m sure only a select group knows.
Reform of the bill-writing process is likely far down everyone’s list of things to care about. That is fair, since there are other major issues facing our state. Yet I still firmly believe that Augusta is capable of tackling multiple things at once.
The “good” use of concept drafts could be achieved by empowering committees to write their own, new bills whenever they want. Rather than single legislators needing to make sure they have a vehicle to react to changing circumstances, the jurisdictional committee could instead work to report out their own legislation without going through the “after deadline” process.
If legislators and lobbyists are worried about public blowback from unveiling their actual, real would-be law too soon, that should tell you something.
I am not a transparency absolutist; there is a role for closed-door meetings where horsetrading can be done to lubricate the gears of the policymaking process. But everyone should be able to see what horses are on the trading block before the doors are shut.
Transparency in the drafting of new laws is one of those basic “good governance” items that everyone should agree on. Will it happen? I’ve got an idea on the answer.