For the sake of stability, the failure of bad ideas and the formation of consensus, democracy is supposed to be hard.
Why Maine lawmakers spend so much time on bills that have no chance
Last modified March 26, 2017, at 6:05 p.m.
AUGUSTA, Maine — More than 1,800 bills are under consideration by the Legislature this year, but if history is any indication, fewer than half of them have any chance of ever becoming law.
In the past 10 legislative sessions, which date back 20 years, the highest percentage of bills that have made it into the law was 48 percent in the 119th Legislature, which convened in 1999 and 2000.
Most years, the total was much lower: 36 percent in the 126th and 127th legislatures, and less than 25 percent in the 117th, 118th, 120th and 122nd legislatures.
According to a 2016 analysis by FiscalNote, several states have bill passage rates above 60 percent. Colorado, for example, typically sees about 600 bills go through the legislative process but usually passes well more than half of them. Others, such as New York, where more than 12,000 bills were introduced last year, have far less success. Empire State legislators enacted only about 10 percent of submitted bills last year. It was worse in Connecticut. A meager 38 of 2,316 bills passed there last year, which equates to less than 2 percent.
In Maine, most bills are disposed of in the first year of every two-year legislative session. For the 128th Legislature, that’s this year. Midway through the session, the committee process is approaching full bore. Last week alone, several dozen bills were killed at the committee level with unanimous ought-not-to-pass recommendations. In another month the frenzy will transfer to the House and Senate, and by June, the Legislature will meet four or five days per week, sometimes well past dark, to deal with all the bills.
So, why do lawmakers introduce so many pieces of legislation they know are doomed to fail?
Maine has basically no limits on the number of bills each lawmaker can propose. Between Election Day and the deadline for bills to be submitted — which is usually in December or January — lawmakers may submit as many bill proposals as they want. In the second year of the legislative session, legislative leaders must approve all new bill requests. This year, Republican Sen. Tom Saviello of Wilton and Senate Minority Leader Troy Jackson, D-Allagash, are tied so far with 43 bill submissions each.
Every Maine bill has its day in the sun. How states handle bill requests varies widely, but in many states, there are mechanisms for legislative leaders or committees to kill bill concepts before they are even written. In some states, such as Massachusetts, the leaders of the House and Senate must agree to bring a bill to floor debate.
That’s not the case in Maine, where virtually every single bill is drafted by the Legislature’s Revisor of Statutes. Every bill requires votes in the House and Senate to send them to a committee. Once there, they all have a public hearing, work session and eventually a vote. Any bill that has at least one committee vote in favor goes back to the House and Senate for further consideration.
“That’s extremely unusual,” said former Democratic Speaker of the House Mike Saxl, now a consultant who has worked on legislation in roughly 40 states. “Most states allow committees to kill or table bills inside their committees. I have never heard of another state where a 12-1 ‘ought not to pass’ bill comes to the floor for a vote.”
Former Republican Senate President Rick Bennett said the Legislature’s joint rules should be overhauled. Among the needed changes is a later deadline for bills so legislative committees could convene first, debate the issues, then write bills.
“That would empower the rank and file to create consensus as the bill is being written rather than in some sort of kludgy amendment process,” he said. “The Legislature is its own worst enemy in terms of how it allocates its time and energy.”
Legislators old and new want to make their marks. Maine law limits the number of consecutive terms a lawmaker can serve in either the House or Senate at four. Over time, that increases the churn of lawmakers who enter and exit legislative service, which in turn increases instances of repeated attempts of concepts that have failed in past years. Examples range from efforts to allow hunting on Sundays to implementing single-payer health care — perennial favorites that perennially fail.
Legislators benefit by doing favors for the people who vote for them. Many bills originate from constituent requests. Anyone who can convince his or her lawmaker to submit a bill can potentially see the concept become law. That results in a high number of bills with extremely narrow focuses, such as proposals this year to allow unlicensed hedgehogs as pets or past efforts by rural Maine residents to secede from their town.
Sometimes persistence pays off. One reason for bringing back the same concepts year after year is that drawing attention to even a losing issue raises its profile and chances of eventual success. Gay rights and same-sex marriage are examples of issues over which there were years of debate before they became law. Maine banned marriage for same-sex couples in 1997 but established domestic partnerships in 2004. The Legislature legalized same-sex marriage in 2009 but the law was repealed by citizen referendum later that year. In 2012, another referendum allowed the same-sex marriage law that is on the books today.
The political parties propose bills every session they know are nonstarters. In recent years, the relatively close number of Republicans and Democrats in the House and Senate has meant that for emergency legislation or to overturn a veto, neither party has had the two-thirds majority to push through whatever they want without winning over some of the opposing party. Still, a lot of bills are submitted and resubmitted just to force lawmakers from one party or the other into voting on a given issue — which can later become powerful campaign fodder. Recent examples of that have included numerous attempts by Democrats to expand Maine’s Medicaid program and proposals by Republicans for gun control and deep tax cuts.
The pros and cons
The volume of bills makes for a lot of busywork and distracts from the most important issues. Former Republican lawmaker Peter Mills of Cornville has long been a critic of Maine’s legislative process.
“For the first three months, little is accomplished but the routine reference of bills, an exercise to test whether majority committee chairs can read in public,” he wrote in a 2009 screed he recently gave to the Bangor Daily News. “With the advent of term limits, the Maine Legislature is in greater danger than ever of becoming a passive, reactive and impotent body.”
Bennett said the legislative process is set when the joint rules are voted in, typically on the first day lawmakers meet. Major changes to the process would require the election of legislative leaders with singular focus on the process.
“Nobody gives it much thought,” said Bennett. “The people who are elected are there because they are concerned about certain issues. … The legislative process in itself is not as interesting and not a motivator.”
Having few limits on bill submissions creates a lot of work, but it’s good for democracy. Power to the people is preserved when laymen have sway in the process.
“There’s very little separation between Maine citizens and their Legislature,” said Saxl, who backed efforts during his legislative service to reduce the number of bills in Maine — to no avail. “I really love and admire that. It’s extraordinary how an ordinary person in Maine can make an impact on the process if they have a passion.”
While it’s fun to read about the strange, cute and petty ideas Maine legislators try to get into law, and while it keeps the Maine Legislature busy for at least 10 months out of every two years, the fact is that a small percentage of what they talk about each session becomes law. Let’s not forget that that’s what the nation’s founders intended. For the sake of stability, the failure of bad ideas and the formation of consensus, democracy is supposed to be hard.