The good, the bad and the ugly of the first session
As the people’s representatives prepare to wrap up their work for the year this Wednesday, a dizzying and exhausting session for many finally closes — but not without some fireworks. There is still more to be told as legislators will return for one more day to contend with any bills vetoed by Governor Janet Mills and any unfinished business, including two massive spending packages. One, dubbed by the governor as the Maine Jobs and Recovery Plan, is a little more than $1 billion of federal tax dollars disbursed as part of the $1.9 trillion American Rescue Plan Act (ARPA) passed by Congress and signed by President Biden in March. The other is a supplemental budget proposal to tack on more spending in unforeseen tax revenue increases projected over the next biennium, through June 2023.
In order to initiate the allocation of this new spending for the beginning of the next fiscal year, starting on July 1, legislators will need to pass them with at least two-thirds in favor in both the House and Senate. If they pass with only majority support, the new law will not go into effect until 90 days after adjournment, pushing enactment of these bills to early October, three months into the new fiscal year.
Due to the enormous influx of money to the State of Maine over the last year or so, plus Governor Mills’ first budget passed in 2019 (which raised two-year spending by nearly a billion dollars), come 2023, the baseline biennial budget will be in the neighborhood of $9 billion. This will mean that Mills increased spending by more than a billion dollars over the course of two budget cycles for which she occupied the Blaine House.
So far, legislators and Governor Mills have made significant changes to Maine law in the First Session of the 130th Legislature. Some are good, some bad and some of which are downright ugly.
An issue which rose to the surface of public debate in 2019 is that of so-called “tiny homes,” small dwellings, usually built on a trailer, but generally take up no more than 400 square feet. This year, legislators passed and Gov. Mills signed LD 1530, which requires municipalities to permit tiny homes on individual house lots as accessory dwelling units or single-family housing.
Among the positive changes which came down this session, the most potentially freedom-enhancing were tweaks to Maine’s alcohol regulations. Because of the intense shockwaves through the economy due to Gov. Mills’ stay at home order, restaurants and bars were prohibited from serving customers inside or in-person. While these businesses hurriedly tried to adapt, Gov. Mills issued various executive orders to allow for the sale and delivery of beer, wine and spirits by bars and other authorized sellers for off-site consumption.
This policy was extended by an emergency bill sponsored by Sen. Luchini of Hancock County and passed in March, with a provision for its repeal on September 10, 2022. Until then, breweries, distilleries, restaurants and bars may sell alcoholic drinks to-go as long as they include no more than 4.5oz of approved spirits in each drink or cocktail sold, accompany alcohol sales with a food order and notify the Bureau of Alcoholic Beverages and Lottery Operations (BABLO).
In addition to LD 205, lawmakers passed LD 307, a bill that now allows Maine liquor manufacturers to sell and ship their products to other states, and LD 714, which allows distilleries to sell cocktails made from their own spirits. Another similar bill, LD 1620, allows auditoriums, civic auditoriums and performing arts centers licensed to sell spirits, wine and malt liquor to apply for an additional license to conduct off-premises catering of alcoholic beverages at planned events or gatherings. This bill, as well as LD 1272, which removes the limit on taste-testing events that an agency liquor store or off-premises retail licenses may hold, will help spur more options for Maine event planners to attract and host guests and residents alike for the benefit of local communities.
Other somewhat positive things accomplished in this year’s session are related to occupational licensing reform, though more thorough reform is sorely needed. LD 374 will help ease the transition for active duty service members and their spouses by allowing them to apply for temporary occupational licensing through their Maine professional licensing board, provided they hold a license of certification issued by other states or territories of the United States.
LD 11, signed by Gov. Mills in early May, allows the state board which licenses professional engineers to do so for those from another state, provided their license has been in good standing with that state’s board for at least 8 years, received no disciplinary action, and “whose licensure qualifications are, in the opinion of the board, substantially equivalent to the requirements in this chapter.” The new law allows the board to waive certain education and certification rules and grant a Maine license to these engineers.
Similarly, LD 171 establishes parity in license mobility for Certified Public Accountants (CPAs) by enabling out-of-state CPA firms to provide services in Maine as long as their state’s licensing requirements are substantially equivalent. Hopefully, these changes will ease the process for some professionals to relocate to Maine. Otherwise, these skilled workers may look to other states with less onerous regulations to practice their trade.
While not a great bill, LD 149 similarly allows Maine’s occupational licensing offices greater discretion in waiving regulatory requirements for applicants from other states and foreign nations, but unfortunately, still provides the caveat that the applicant must show that their current license is “substantially equivalent” to Maine’s. The bill will end giving bureaucrats more power instead of contributing to real reforms in our regulatory system in order to attract qualified workers to Maine.
Unfortunately, there were plenty of poorly-crafted bills that advanced this session, too. Thankfully, some of the most egregious: those to raise taxes on income, fuel, wealth, estates and corporate earnings all failed. Maine lawmakers still dropped the ball on much-needed reforms, predominantly in the regulatory space.
As recently noted in The Maine Wire, even faced with a dire loss of child care providers across Maine over the last 10 to 15 years, legislators failed to take on substantial regulatory reform for those involved in the industry. Instead of moving a bill to loosen restrictions on more affordable family-care providers, the legislative majority delivered LD 98 to the governor. This is a bill that further restricts child care, allowing the Department of Health and Human Services to regulate the arbitrary idea of “quality” child care programming. While this law will allow the state to concentrate providers under more standardized rules, the effect of the change will lead to even more losses among providers, squeezing options for parents, limiting competition and choice and ultimately driving up prices.
In regards to licensing reform, legislative leadership balked at significant reform like Rep. John Andrews’ LD 835, which would require state government agencies to review the licensing regulations currently on the books with an eye to those which do not guarantee consumer health and safety, as well as allow individuals to petition the government to repeal a licensing requirement that they believe is unnecessarily onerous.
One of the top policy priorities for Maine Policy for the past many years, and especially in the shadow of the coronavirus pandemic and ensuing public health crisis, is reforming Certificate of Need (CON). CON is a lengthy bureaucratic process which requires healthcare facilities to obtain permission from the state and their competitors before offering certain services or expanding their existing capacity. We have written extensively about the real need to get rid of this program entirely. Unfortunately, Gov. Mills and her legislative allies voted to maintain this opaque, outdated system which the Federal Trade Commission and Department of Justice have deemed sufficiently anticompetitive and harmful to consumers.
Perhaps the biggest missed opportunity was for lawmakers to reform the powers of the chief executive in times of emergency. Gov. Mills’ pandemic-inspired state of emergency is slated to end on June 30 after first being declared in March of 2020. Republican lawmakers submitted more than a dozen bills to reform the process by which a governor may declare a state of emergency in order to ensure greater legislative and public involvement in situations that require extended emergency management.
Not only did Gov. Mills and her allies continually endorse a year-plus-long state of emergency, they rejected any attempt to equalize the balance of power during the pandemic and even refused a bill to merely review the administration’s actions related to the emergency.
Not only did #Maine's legislative leadership endorse a 15-month state of emergency, they refused to take up any emergency powers reform AND even rejected a commission to STUDY @GovJanetMills administration's response to #COVID19… Sad!#mepoliticshttps://t.co/ImjuGxDlnc— Nick Murray (@NickMurr) June 18, 2021
Alas, there is some silver lining to the massacre that was inflicted on sensible emergency powers reform this year. Within LD 1, also known as the “COVID patient bill of rights,” a bill that requires healthcare providers to cover patients’ screening and testing for COVID-19, as well as vaccinations, an amendment offered by Sen. Trey Stewart of Aroostook and accepted by the committee changed an aspect of the governor’s emergency powers under Title 37-B Section 742 to affirm that “health care services and surgeries are not considered to be nonessential services.” This is a substantial change in law that will hopefully guarantee that the immense social and public health costs of lockdowns are never seen again in Maine.
Sometimes, nobody really wants to see the sausage made, so to speak. But this year, the people of Maine were the ones who lost out when legislative processes were made almost entirely virtual. Members of the public had to navigate Zoom hearings and remote testimony submission in addition to the mess of bills released by nonpartisan State House staff. Instead of working with legislative sponsors to combine duplicate bills as was done in years past, nearly every bill request submitted became a piece of legislation. This contributed to a feeling of a lack of public transparency as a flurry of bills were scheduled for hearings with very little public notice, often leaving only lobbyists and government officials with the time and capacity to testify live.
Of the ugliest changes made to law this session is LD 1344, a blatant power grab by the Department of Health and Human Services (DHHS) via the state CDC. While operating under the governor’s emergency orders, DHHS agents were able to suspend various business licenses for refusal to abide by the administration’s oftentimes arbitrary, capricious and extraneous pandemic-related rules on capacity, physical barriers, distancing, mask wearing, etc. This apparently was not enough power for Mills and her administration, as DHHS put in LD 1344, a bill which allows them the devastating authority to fine, suspend licenses and ultimately close down businesses if they “directly and repeatedly violate public health control measures” during a declared emergency. This includes the power to suspend business licenses for longer than 30 days, a limit currently spelled out in law. Watch my impassioned testimony against this heinous bill during the public hearing on April 14.
One piece of legislation that might seem innocuous, but could be much more insidious is LD 130, which allows the secretary of state to police and censor the arrangement of letters and numbers of Maine drivers’ vanity license plates. For Secretary of State Shenna Bellows, former executive director of the Maine chapter of the ACLU, supporting the bill is especially ironic. Her willingness to become the language police shows how much those on the Left are willing to cast aside their supposed principles for just a little more power over the lives of others. Keep watch on this issue, since a US District Court judge recently ruled that a similar Rhode Island law was unconstitutional and must be struck down. LD 130 could be the target of the next case in this policy arena.
We will wait to see the fate of LD 1708, the massive bill to plan a takeover of the state’s power utility companies, on Wednesday as well. Even though the Senate voted down the measure last week by the razor thin margin of a single vote, it is possible the bill sponsors amend it for veto day. Even if sponsors can change the bill in a way that appeases a couple of the soft “no” votes in the House and Senate, Governor Mills has been clear that she is not supportive of the measure and could very well veto it if it reaches her desk.
An immensely complex issue, the bill would force a buy-out of Central Maine Power and Versant Power by eminent domain and put control of running a “consumer-owned” utility in the hands of seven elected officials and four hired board members. Even though legislators could not wrap their minds around the myriad unintended consequences of such a move, sponsors propose sending the bill to the state ballot this November to be adjudicated in 30-second ads and soundbites, hardly a fleshed-out policy idea for such a big change.
Stay tuned for the fate of that bill, and nearly $2 billion more in spending, when the legislature meets again on Wednesday, June 30.