Maine Governor Failed to Veto Bills He Opposed, Provoking Lawsuit

by | July 9, 2015

Gov. Paul LePage is apparently content to lead Maine directly to another court faceoff after missing his chance to veto 19 bills sent to him by the Legislature in late June.

He had more than 10 days to act on the bills -- including some he firmly opposed -- but he missed his chance to veto them. The result? They will all take effect as law. But unsurprisingly for a governor with a generously expansive view of his own power, LePage on Wednesday said his administration won't enforce them.

With the new laws now being incorporated into state statute, LePage and his staff clearly made a mistake, either misunderstanding the Constitution or losing track of time (the Maine Constitution gives governors 10 days, not counting Sundays, to act on bills passed by the Legislature while the House and Senate are still in session).

At this moment, LePage and his staff could choose to act with integrity. They could admit they erred and concede that the Constitution -- as it has been applied throughout the state's history -- and rule of law do, in fact, apply.

Instead, they have raised an artificial legal question concerning what it means for the Legislature to adjourn -- arguing for a definition no one with deep knowledge of Maine government (who isn't working for LePage) accepts. (If the Legislature has adjourned, the Constitution would allow LePage extra time to hand down a veto.) If the administration follows through on LePage's pledge not to enforce the new laws, it's a needless battle that could nevertheless end up in court.

But it should be an easy matter for a court to settle. While the matter might be new as it relates to the Maine Legislature, a Supreme Court case could help to put to rest the question (that only LePage and allies are raising) of whether the Maine Legislature was adjourned or just at ease and ready to conduct business when called back to Augusta.

In 2013, the Supreme Court considered President Obama's ability to make recess appointments to the National Labor Relations Board. The court had to determine what constituted a recess -- a formal break in the Senate's business.

Citing the U.S. Constitution (on which Maine's Constitution is modeled, especially as it relates to approval and vetoes of legislation), the court ruled unanimously, "the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business."

The Maine Legislature temporarily adjourned on June 30 (as it does constantly during its session), but with the publicized intention of returning July 16 to transact its remaining business. Lawmakers are basically on call, ready to conduct the business that comes their way.

While a court would have to treat this as a serious legal question, there's reason enough to believe LePage and his staff are raising it to cover for incompetence.

The trail of incompetence and misunderstanding of the Constitution and legislative process began early in LePage's administration, when LePage in 2011 called on lawmakers to pre-empt the legislative process and swiftly vote on his first budget proposal. "I'm sorry that the governor still doesn't understand the legislative process and apparently nobody on his staff has explained it to him," former House Speaker Robert Nutting, R-Oakland, said at the time.

In May of this year, the governor's lawyer repeated in separate emails to Republican lawmakers that LePage intended to veto a bill proposing a constitutional amendment to require a more even geographical distribution of signatures gathered to place referendums on the ballot.

"A veto would be redundant," said Rep. Jonathan Kinney, R-Limington, a bill supporter and member of the Legislature's Veterans and Legal Affairs Committee. Indeed, a governor has no opportunity to veto a constitutional amendment. It goes directly to the voters once two-thirds of the Legislature has voted for it.

Then, last week, the governor's lawyer claimed that the state Office of Program Evaluation and Government Accountability doesn't have the authority to investigate the governor. The statute authorizing OPEGA, meanwhile, says the agency can examine "any public official or public employee during the course of public duty."

"If the governor thinks he's going to escape this by saying, 'You don't have the right to investigate me,' that's just not true," said David Trahan, executive director of the Sportsman's Alliance of Maine and a former Republican legislator instrumental in passing OPEGA into law. "We fought for years for OPEGA to have the right to investigate individuals." If a court ultimately has to settle this issue of LePage's botched veto timeline, it will show the unfortunate and real consequences of a governor's hubris and incompetence.

(c)2015 the Bangor Daily News (editorial)