Government agencies at the state and local levels could be required to disclose spending and advocacy efforts related to future ballot questions in Maine.
Lawmakers will consider a bill in the coming session after the Maine Commission on Governmental Ethics and Election Practices voted 4-1 this week to propose such legislation. The action follows the contentious campaign this past fall by advocates for and against a ban on the use of bait, dogs and traps to hunt bears.
Uniformed wardens for the state Department of Inland Fisheries & Wildlife appeared in political ads and the agency produced its own YouTube videos opposing the ban in a high-profile level of advocacy rarely seen in Maine. Typically, public agencies keep a distance from political campaigns.
Advocates for the ban on bear baiting filed a complaint with the five-member ethics commission over the IFW’s opposition to the question and the appearance of state wardens in political advertisements.
While supporters of the ban contended that such advocacy by state officials violated state law, the majority of the commission voted in October that state law does not prohibit public employees from participating in political campaigns. Prohibiting them from doing so, they argued, could violate their First Amendment right to free speech.
The advocates also went to court to try to stop Inland Fisheries & Wildlife from using its resources to campaign against the bear baiting ban. Mainers for Fair Bear Hunting sought an emergency injunction, but Cumberland County Superior Court Justice Joyce Wheeler refused to issue the order in an Oct. 22 ruling that said the group had failed to demonstrate that the department’s opposition campaign caused “irreparable injury,” and that department employees’ free speech is protected under the First Amendment.
CAMPAIGNING STILL ALLOWED
The legislation advanced by the commission last week does not attempt to prohibit public employees from engaging in political activity, either during regular work hours or off duty. Rather, the draft bill would require state agencies to disclose the activity as a donation to a campaign.
If it passes in the Legislature and is signed by the governor, the proposal would inform the public about how much state or municipal agencies spend in political activity on a particular ballot measure. Currently, the state’s disclosure law does not require public agencies to report direct advocacy efforts in political campaigns or say how much taxpayer money is expended doing so.
The Legislature will review the commission’s proposal during the new session, which will begin in earnest the second week of January. The Veterans and Legal Affairs Committee has jurisdiction over proposals affecting Maine election law. The panel will have the ability to change the proposal, support it or oppose it before sending it to a full vote in the House of Representatives and the state Senate.
It was unclear Friday how the Legislature or the LePage administration will respond.
Rep. Louis Luchini, D-Ellsworth, and Sen. Scott Cyrway, R-Benton, the newly appointed chairmen of the committee, could not be reached for comment. State offices were closed Friday.
STATE LAWS OFTEN SILENT ON ISSUE
Some have called for an outright prohibition on state employees campaigning for a ballot measure during office hours.
The Hatch Act prohibits federal employees from engaging in political advocacy efforts. But state laws are more of a patchwork or completely silent on the issue, according to a 50-state compilation of ethics laws by the National Conference of State Legislatures.
In many cases, the state laws are designed to prevent supervisors from forcing or coercing public employees to participate in political campaigns either as a condition for employment or promotion. Prohibitions on the willful participation in political campaigns are less prevalent.
Some states limit political advocacy during office hours or when the public is paying for staff to perform duties consistent with their job descriptions. Florida, for example, prohibits public employees from taking “any active part in a political campaign while on duty or within any period of time during which the employee is expected to perform services for which he or she receives compensation from the state.”
The advocacy performed by Inland Fisheries and Wildlife likely would have been banned under the Florida prohibition.
‘EXCEPTIONAL’ DEGREE OF ADVOCACY
The bear baiting referendum is believed by some political observers to have had some impact on the gubernatorial race by contributing to a stronger than usual turnout among conservative voters in rural districts. Such claims are difficult to verify, much less quantify because of a dearth of exit polling.
Nonetheless, the LePage administration’s opposition to the referendum was explicit.
Jonathan Wayne, the executive director of the ethics commission, wrote in a memo to the panel, “This degree of advocacy by a state department on a ballot question is exceptional and may not be repeated for some time.”
The commission’s proposal is the least restrictive of the two drafted by Wayne. Another would have required public agencies to register as a political action committee if it engaged in political activity.
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