The safe and best thing to do, of course, is to never use the word “discharge.” It’s a foul word that conjures up the image of yellow pus to anyone who’s postponed a root canal or stepped on a rusty nail and gotten an infection. Other people will hear the word “discharge” and imagine the sudden release of toxic wastewater from a derelict mine into a pristine river or picture the expulsion of a putrid gas. And that might explain why Maine Secretary of State Matthew Dunlap decided this week not to certify to the Supreme Judicial Court that Gov. Paul LePage is unable to discharge the duties of his office.
A public dialogue about whether LePage is discharging his duty is unpleasant and disturbing, but it’s a conversation we must have if we want to clear the air. Our welfare, safety and happiness require it, plus it’s our job according to the Constitution. We are supposed to govern ourselves for our benefit, and we should do it. At least we don’t have to discharge anything.
“All power is inherent in the people; all free governments are founded in their authority and instituted for their benefit; they have therefore an unalienable and indefeasible right to institute government, and to alter, reform, or totally change the same, when their safety and happiness require it,” declares the Constitution.
Government for the people, by the people. Brilliant and simple, and if done correctly, presumably we would not have the world’s worst governor. But we do, so something’s not working. Somebody is not doing his or her job.
The job description for Maine’s secretary of state is short. He’s got two things to do all day long: He shall keep and preserve all the official state records and “attend” the governor and the Legislature “as they shall respectively require.”
Keeping and preserving records in the digital age is likely quite hard, but attending to LePage is no doubt significantly more challenging. To attend to the governor is to deal with the governor. To handle him and, when the secretary “shall have reason to believe that the Governor is unable to discharge the duties of that office, the Secretary of State may so certify to the Supreme Judicial Court, declaring the reason for such belief,” according to Article Five, Part First, Section 15.
In response to a request to invoke Article Five, Part First, Section 15, Dunlap said last week that because the governor appears to be signing papers, in addition to engaging in “reprehensible” behavior, LePage is discharging his duties. And besides, Dunlap said, his hands are tied if what ails the governor is not temporary.
“I must emphasize here that the provisions of Section 15 are, by design, temporary. It must be assumed that any condition that would render the Governor unable to perform his duties would be surmountable,” he wrote.
Invoking the constitution’s incapacitated clause is inappropriate because it envisions a temporary situation, the secretary said, and presumably what the governor’s got is permanent and insurmountable.
Dunlap wrote: “While his latest series of statements plows yet new ground, nothing he has done is really surprising or out of character when contemplated against his prior trespasses on the public discourse. That his comments cause discontent and even outrage is not new, and while many feel the coarseness of his rhetoric does nothing to elevate the office, those statements in and of themselves do not indicate an inability to perform the functions of the office of Governor.”
Not so, says everyone not under the dome in Augusta.
Not so, suggested the Founders who wrote the Constitution.
“The Governor shall take care that the laws be faithfully executed,” they wrote. That means the governor’s job includes having faith in government and in people, and LePage lacks both. He recently rejected federal funding for teenagers with mental illness, on top of a litany of other offenses that any Mainer can recite off the top of their heads.
South Portland elder law attorney Ed Saxby said: “OK, so he won’t meet with the Democratic leadership, doesn’t want to meet with other Democratic legislators, has said that he doesn’t like or intend to meet with (Senate President Mike) Thibodeau on legislative issues, he doesn’t like or want to talk with (Sen. Roger) Katz on legislative issues. He has banned his department heads from speaking directly with legislative committees. He refuses to take part in the budget process other than to submit his own budget. He then vetoes dozens of bills and defames leadership on both sides of the aisle. He has said that he wishes that columnist Bill Nemitz would die. He has said that the cartoonist for the Bangor Daily News would be better off dead (said this while the journalist’s son was in the audience). He has walked out of a building dedication ceremony because two student protesters silently held up signs in the background. He has argued with legislators and citizens who have disagreed with him at town meetings. He has sought the removal of citizens who disagreed with him from town meetings. Now he will no longer speak to the press. How does this guy govern? Who is this guy? Why does (House Republican Leader Ken) Fredette embrace and protect him? This is simply nuts …”
The governor’s “duty” is not simply to sign papers so the lights stay on in the capitol building. He’s supposed to believe in the ideals of democracy and discharge them. He’s supposed to believe in our collective capacity “to establish justice, insure tranquility, provide for our mutual defense, promote our common welfare, and secure to ourselves and our posterity the blessings of liberty, acknowledging with grateful hearts the goodness of the Sovereign Ruler of the Universe,” as the founders wrote.
Cynthia Dill is a civil rights lawyer and former state senator. She can be contacted at dillesquire@gmail.com and on Twitter @dillesquire.
Send questions/comments to the editors.
