Welcome to a legislative rabbit hole—the concept draft. It is a way of submitting legislation that is much abused, though it had merit as originally designed. What if this newspaper’s editor accepted “concept columns”? Title: “Concept Drafts.” Column, in its entirety: “Concept drafts may be good or bad.” It states a point of view but doesn’t give readers their money’s worth.
Smoke-filled rooms, back room deals, ramming things through or shoving things down people’s throats are highly overrated. The process from the outside may be hard to follow, but there is almost always a defensible explanation for what happens in Augusta, when, and why. Legislators individually and the Legislature collectively follow the rules. It is too easy to be called out by the loyal opposition if they don’t.
In the case of the concept draft, the rule itself is faulty. Intended as a more efficient way to present a bill, it has become a workaround at best and a violation of a voter’s right to know at worst. It was added to the Legislature’s Joint Rules in the 119th Legislature (1999-2000). It has occasionally been used to good effect but frequently misused ever since.
A concept draft must identify itself as such at the start of the bill and provides only a summary of the bill’s intent. Why? Most bills, certainly those addressing major policy issues, are “worked” by a policy committee and usually end up different than they began. Rather than the sponsor (and the Revisor’s Office—pity the poor revisors!) preparing bill language in great detail only to have it substantially re-written by the committee, the sponsor would give a statement of intent and then work with the committee to develop the details.
Some bills hew closely to the spirit of a summary of intent, for instance this year’s LD 1146, an aquaculture bill. The summary references the exact sections of law it proposes to amend and the various subjects it intends to address. Fine. That’s what a concept draft was meant to do.
But in many concept drafts, the bill summary merely repeats the bill title. The summary of “An Act to Regulate Airboats?” “This bill would regulate airboats.” A bill to “Ensure Student Success” proposes to “make changes to the law to help ensure the success of students.” A bill to Improve and Update Maine’s Tax Laws” would “improve and update Maine’s tax laws.” An act “Regarding Maine Agriculture” proposes to “enact measures regarding agriculture in the State.” Hot button item this year: “An Act to Protect Data Privacy and Security in Elections” tells us its intent is to “protect data privacy and security in elections.”
You get the picture. There are 127 concept drafts submitted in the 130th Legislature. The biggest problem with concept drafts is this: Those bills are advertised for public hearing as quoted above. The members of the public have no idea what the bill might include, so they have no way to know whether they want to testify. Does the bill to “ensure student success” ban home schooling? Lengthen the school year? Increase teacher salaries? Consolidate schools? Who knows?
It gets worse. After the public hearing based on the skimpiest of statements of intent, the committee undertakes drafting an actual bill in work sessions. No matter what ends up in the bill, it has already had its public hearing, without any content, and there will be no formal way for the public to comment on the actual drafted bill. Unless you are a lobbyist or employed in an industry affected by the bill, chances are you are not going to have the time or ability to follow the process of work sessions, floor votes, etc.
There are other weak points in the concept draft process. It is easy for a sponsor to toss a title in by the deadline and plan on figuring out the details later, but sometimes a sponsor has only a hazy idea of what he or she wants to include in the bill. When the work of a session hits its stride, the sponsor abandons the bill and no committee under the dome is going to pick up and do the work of a sponsor who has divorced a bill. It’s an easy ONTP (Ought Not to Pass), though it still has to go through the full process before it reaches the dead file.
Failure to disclose a bill’s contents except in the vaguest and most general way prior to public hearing is a violation of the public’s right to know. Either the standards for a statement of intent should be significantly increased (and enforced) so that a meaningful summary is part of a concept draft, or the public hearing should be held after the committee produces a drafted bill, not before. Otherwise, concept drafts should be abolished.
Jill Goldthwait worked for 25 years as a registered nurse at Mount Desert Island Hospital. She has served as a Bar Harbor town councilor and as an independent state senator from Hancock County.