Bipartisan effort to improve legislative transparency takes aim at placeholder bills

Representatives of the Maine House gather for session on April 11, 2024. (Emma Davis/Maine Morning Star)

This past session, legislators passed a shield law to protect healthcare providers from other states’ bans on reproductive and gender-affirming care. The bill was one of the most hotly debated of the session — not only due to its subject matter but also over how it was introduced.

Some of the incorrect claims about what the bill would do can be traced back to another proposal that was voted down at the start of the year after its supporters ultimately deemed the bill overly complex.

One month later, Rep. Anne Perry (D-Calais) submitted the text for the bill that did eventually become law, amending what is known as a concept draft.

Concept drafts are placeholder bills lawmakers file in order to secure a spot for an eventually fully fleshed out proposal while still meeting the deadline for submitting bills. Perry’s concept draft only stated that the bill would “enact provisions of law regarding health care in the state.” The actual bill text was made public less than a week before the bill’s hearing.

“It was such a conundrum of confusion,” Perry said. “I certainly understood the public’s frustration.”

While lawmakers and the public criticized the lack of publicly-available text, this critique was far from exclusive to Perry’s legislation and has been growing over the years. Transparency concerns about placeholder bills in committee rooms and on the chamber floors this past session abounded. The use of these bills has been growing, too, with Maine Public previously reporting that they made up more than a quarter of legislation introduced during the first year of the 131st Legislature.

The Legislature’s Rules Committee met earlier this month to consider proposed rule changes from Perry and over a dozen other lawmakers regarding concept drafts and other procedures, marking the first meeting of the committee since 2018 despite a requirement to meet each year.

The suggestions range from eliminating concept drafts altogether, requiring that bill text added to concept drafts be made publicly available well before the bill is heard, restructuring the legislative calendar, as well as hiring more staff for the nonpartisan offices that assist with research and bill writing, among others.

While the committee has yet to schedule its next meeting to decide which changes to suggest, an actual rule change will require the support of t wo-thirds of the new Legislature, which will be sworn in in December, to take effect for the next session.

The current structure

Maine is a citizen legislature , meaning it’s intended to be made up of elected officials who also juggle other jobs, rather than professional politicians. Among the country’s citizen legislatures, Maine’s ratio of legislative staff to the number of bills submitted is also among the lowest, a workload Rep. Holly T. Sargent (D-York) pointed to during the committee meeting.

“We sort of stand almost alone in trying to eat the elephant the way we do,” said Sargent, explaining why a number of the proposals being considered by the Rules Committees would make a difference.

Concerns about the volume of bills considered by Maine’s part-time Legislature date back decades. In 1995, then-Speaker of the Maine House Dan Gwadosky noted as much in a letter urging the Legislature to consider concept drafts as a solution to what he viewed as an insufficient bill drafting process.

“Originally, it was presented as a means to expedite things,” said Suzanne Gresser, executive director of the Maine Legislature. “The theory was rather than spending time drafting everything that may not go anywhere, draft sort of skeleton bills, let the committees decide what they actually want to pursue and then spend scarce resources on the things that are actually moving forward.”

For example, this is a regular practice for the state budget and changes to uniform law, which are typically very lengthy and take time to form.

During the past several sessions, concept drafts that garnered the most criticism were those with vague titles and initial text that do not give the public an indication of what the bill will be about.

“I wouldn’t say that the original purpose has been abandoned,” Gresser said. “I think that there are additional uses that perhaps were not initially contemplated.”

The idea of “concept drafting” appears to have been first brought to the Maine Legislature’s attention in a study of legislative structure and operations in the early 1990s, according to meeting minutes from the Legislative Council in 1995, while actual c oncept drafts first appeared in the legislative record in 1997, during the 118th Legislature.

During that session, the joint rules were amended, with a sunset provision, to allow concept drafts and then incorporated without a time limit during the following 119th Legislature. This rule change allowed a bill sponsor to direct the Office of the Revisor of Statutes to prepare a bill or resolve as a concept draft, defined as containing only a summary of the proposed legislation.

Since then, legislators say they’ve seen a proliferation in the use of concept drafts.

When now-Rep. Michael Brennan (D-Portland) first served in the Legislature from 1992 to 2000, he said to his best recollection he never saw concept drafts. When he was elected again in the early 2000s, Brennan said he rarely saw concept drafts. But when he returned to the Legislature in 2018, it was an entirely different story.

“All of the sudden everybody’s got concept drafts,” Brennan said.

Sen. Rick Bennett (R-Oxford) had a similar recollection. When he returned to the Legislature in 2020 after previously serving in the early 2000s, concept drafts had become a regular practice.

“There’s a sort of sense of, ‘Oh, they exist so we can’t get rid of them,’” Bennett said. “Well, we can change the rules. We can upend the rules however we want.”

Proposed rule changes

Bennett’s proposals are more on the extreme end of those being considered by the Rules Committee, which he sits on. Bennett is advocating for eliminating concept drafts , except for the budget document, as well as eliminating cloture for legislators in the first regular session, which is the deadline for submitting requests for legislation to the revisor of statutes. The process of cloture had been established in the legislative rules at least a decade before the authority to use concept drafts.

“Cloture exists in order to put limits around the number of bills that are introduced and to make sure that staff has time to develop the ideas that are put forward,” Bennett said, “but because it exists, it actually has this unintended consequence of, I think, in increasing the number of bills that the Legislature deals with instead of decreasing them.”

When concept drafts are added to that mix, Bennett added, lawmakers are almost encouraged to put in vague bills because by cloture they likely haven’t had a chance to work together and hear from agencies and constituents about problems and priorities.

“The essence of my proposals is the idea that we really need to take a look at the legislative calendar,” Bennett said, adding that he would also like to see the first month or so of session be dedicated to legislative oversight of the executive branch — where committees can meet to hear about the functioning of agencies and public concerns to then guide proposals.

Other rule changes being considered by the committee would still allow concept drafts but limit how and when lawmakers can use them.

While Perry said she doesn’t necessarily disagree with Bennett’s plan to get rid of concept drafts altogether, she’s skeptical the Legislature would make such a drastic change. Instead, Perry’s proposal would include requirements to ensure the text added to a concept draft is available before a public hearing — to make sure what happened with her bill last session doesn’t happen again, she said.

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Under Perry’s plan, committee chairs would determine if the information contained in the concept draft summary is sufficient to inform the public of the specifics of the proposal. The chairs can then only hold a bill hearing, which in theory is scheduled with two weeks’ notice , if the hearing notice includes the information about the proposal.

“This is at least a place to start,” Perry said.

An ad hoc group of eight members of the House Democratic caucus also came together to advocate for reforming the process around concept drafts, specifically requiring that bill language be submitted at least one week before the public hearing and posted online.

During the most recent legislative session, concept drafts served as the vehicle for bills on a  host of topics. Some, like Perry’s, received pushback because of how they were introduced, such as a late in the session mining rule change .

However, the use of placeholder bills did not stir controversy for others, such as when Brennan, who chairs the Education and Cultural Affairs Committee, used such a bill as the vehicle for the Department of Education’s plan to restructure responsibilities of preschool special education.

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Brennan, one of the lawmakers in the ad hoc group, said the idea of having available vehicles to use for committee priorities should not be done away with.

“I think that was a good use of a placeholder bill and saved the committee a lot of time,” Brennan said.

However, Brennan and the ad hoc group agree there needs to be clearer rules on how they’re deployed and recommend that, while allowed, they should be used sparingly.

Another lawmaker in the ad hoc group, Rep. Marc Malon, said he was frustrated by the use of a concept draft for a proposed change to cannabis law this past session. A 66-page amendment with sweeping regulatory changes replaced the blank concept draft less than a week before the public hearing.

“The short turnaround really puts people at a disadvantage in trying to sift through a complex piece of legislation and determine whether or not they want to take a position on it,” Malon said, adding that “ none of this is to attack any particular legislator.”

“People were all operating under the same rules and within the parameters of those rules, and that’s legitimate, but I don’t think it’s an ideal way to conduct business,” Malon explained.

Other concept draft changes lawmakers floated to the Rules Committee included a suggestion from Sen. Craig Hickman (D-Kennebec) to allow only committee chairs to submit them. Rep. Cheryl Golek (D- Harpswell) suggested not allowing concept drafts to receive a bill number until a week after they are amended with text.

Golek also urged the committee to find ways to ensure lawmakers have a more consistent schedule, in order to make workflow more manageable for lawmakers who often have other jobs as well as to make running for office more accessible.

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Inconsistent scheduling has also been a concern for transparency. Rep. Jan Dodge (D-Belfast) specifically called for banning votes on bills between 10:30 p.m. and 7:30 a.m. “I believe this is crucial for transparency for not only the public but fellow legislators, and especially relevant to the Appropriations and Financial Affairs Committee,” Dodge said.

This past session, the Appropriations Committee cast several late night budget votes that drew sharp criticism from lawmakers and the public alike.

Lawmakers are also looking at rule changes to ensure consistency in operations across committees as well as limit the sheer number of proposals each session, such as by combining similar pieces of legislation and restricting the number of bills each legislator can submit.

Beyond rules, a push for more nonpartisan staff

The Rules Committee only has purview over one aspect of legislative governance — the joint rules — but the Legislature must also follow separate House and Senate rules, the prerogative of presiding officers as well as the state Constitution.

While outside the scope of what can be changed via the joint rules, lawmakers coalesced behind an interest in bolstering the Legislature’s nonpartisan offices, whose staff provide legal research, assist with bill drafting and prepare fiscal notes, among other essential legislative functions.

Before serving in the Legislature, Malon previously worked as the legislative liaison for the Maine Attorney General’s Office and as a legislative aide for the Maine Speaker of the House and the Maine Senate Democratic Office.

“Because I was a staffer, I wasn’t a non-partisan staffer, but because I was a staffer I’m always thinking about the impact some of these things have on staff and mindful of what these workers’ experiences are,” Malon said.

The ad hoc group Malon is a part of called for increasing staffing levels and budgets for the nonpartisan offices, specifically noting in their letter to the Rules Committee that they’ve witnessed burnout among the offices’ staff and, as they see it, a resulting decrease in the efficiency of the Legislature as a whole.

This past session, Brennan, the Education Committee chair, said “committees may have acted and got all their bills out of committee, but then you had this logjam in the revisor’s office where they’re drafting amendments, rewriting bills.” More staff would make a huge difference, in Brennan’s view.

Members of the public who weighed in during the Rules Committee meeting also highlighted the work of these offices.

Patrick Woodcock, president and CEO of Maine State Chamber of Commerce, thinks the solutions to many of the Legislature’s problems actually reside in examples of when  processes works well, pointing to the extensive deliberations of proposed privacy legislation during 12 public meetings this past session, which lawmakers said would not have been possible without the work of the analysts from the Office of Policy and Legal Analysis.

“I think it’s a hallmark of a template of the public process,” Woodcock said.

Whichever suggestions the Rules Committee settles on will ultimately need support from those elected in November to take effect. E very seat in the Maine Legislature is up for grabs in the upcoming election.

At the moment, current legislators from both sides of the aisle have said they’re encouraged by the growing consensus in the need for procedural changes.

Knowing that many members of the Rules Committee will be termed out by next session, John Kosinski, government relations director for the Maine Education Association, implored them not to lose the opportunity to institute needed change.

“They are certainly your rules — they are legislative rules,” Kosinski said. “There is no question about that, but they guide the way the public can interact with your work, can engage with your work and that’s what’s most alarming.”

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