Laws are tricky; that’s why voters have other people make them

Laws are tricky things. Just ask the Portland City Council.

This past week, seven members went on a learning junket out into Portland’s harbor to inspect safety improvements at the historic Fort Gorges. The problem? Maine’s “Freedom of Access Act.” It specifies that, when three or more public officials are gathered in any official capacity, it is a “meeting” for purposes of the law requiring public notice.

Those in the press and their attorneys, zealously guarding laws surrounding public transparency, cried foul. The city hadn’t provided adequate public notice of the trip, and therefore the councilors were scofflaws. And they are 100 percent correct; the law is clear, Portland fell short. But beyond those who make a living reporting on public business, the response was, at most, a tepid yawn.

Portland Mayor Ethan Strimling and six city councilors toured Fort Gorges in Portland Harbor on Monday.

While the statute books spell out certain requirements by which public officials must act, most voters are more focused on their substantive decisions. When your argument faulting politicians is premised on a failure of process, you are going to lose. Not because process isn’t important — it absolutely is — but rather because most people do not want to be bothered with the intricacies of policy, process, laws, and ordinances.

That choice by the public is entirely rational. After all, we have representative government to empower people to deal with all of that on our behalf. It frees us up individually to address the countless challenges in our own lives, be they raising a family, growing a business, or tending a garden.

Yet even those we choose to serve in office are not always able to keep up with the mountains of words regulating — well, everything. Mayor Ethan Strimling’s struggles with the language of the city charter concerning the role of the mayor are well known. He is also a former state senator, while other members of the council include lawyers, law school graduates, and long-time politically involved individuals; none of them appeared to know the requirements of Maine’s law, despite a requirement they undergo training.

So, when we kick these intricate policy decisions out onto a ballot, should we expect that voters will obtain a better grasp on the proposals’ facts, effects, and interplay with existing laws than those who we deputize — and pay — to do so on our behalf? The answer is a firm “maybe.”

At the state level, two referendum questions will appear on the ballot in November. Taken together, there are nine pages of proposed legislation. They have been distilled — and then further refined — by Secretary of State Matt Dunlap into two sentences. And for the vast majority of voters, their knowledge of the questions will be informed by paid political actors flooding airwaves and mailboxes with tested messaging designed to move “hearts and minds” into whatever column they deem a “win.”

The shortcomings of this referendum process have been covered before. And the 186 representatives and senators we choose to send to Augusta recognize it may not be the best way to create clear, comprehensive policy for our state. Democrats and Republicans alike changed last year’s victorious ballot questions in various ways, bringing a more holistic and considered approach to the problems they sought to solve.

Portland’s council appears to be taking a different tack. Instead of attempting to distill the details of two proposed ordinances — one concerning residential rents, the other on zoning policy — into a single sentence, they will likely put the entire proposal on the ballot. Voters will have the opportunity to read, for the rent question, the full 16 pages.

There may be objections to that approach. After all, it is written in ordinance-ese, which is a cousin of legalese and often off putting. Will voters reject the proposal because of appearances, rather than substance? What about the inverse; will they pass the statewide questions because of the appearance of the question, rather than the actual, legislative substance?

And when elected officials — who earn actual paychecks as part of their service — have a challenging time complying with existing Maine law, how do we shift that burden to individual citizens? We all have lives with plenty to do other than resolve technical language and explore intricacies of competing policy proposals.

That is why we hire people to deal with these oft-tricky laws. They can do that. The rest of us can try to find a junket in Portland Harbor instead.

Michael Cianchette

About Michael Cianchette

Michael Cianchette was the chief counsel to Gov. Paul LePage from 2012-2013 and deputy counsel from 2011-2012. A Navy reservist, he was deployed to Afghanistan from 2013-2014 as a trainer and adviser to the Afghan National Police. He is an alumnus of the Leadership Maine program and holds a BA in economics and political science from Boston College along with a JD and an MBA from Suffolk University. He works as in-house counsel and financial manager for a number of affiliated companies in southern Maine.