Policy Wonk: Bond holdup is LePage’s latest blunder

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Let me repeat something I’ve previously said: The governor does not have the power to refuse to issue voter-approved bonds.

The Maine Constitution says “any measure referred to the people and approved by a majority of the votes thereon … shall take effect and become a law …”  and the governor’s duty is to “take care that the laws be faithfully executed.”

Notwithstanding these constitutional mandates, Gov. Paul LePage has frequently refused to issue voter-approved bonds. He began in 2012 with highway, other infrastructure, and Land for Maine’s Future bonds. His motives were purely political: He wanted to leverage the Legislature to carry out his policy agenda.

These actions have now created a major problem.

The Constitution provides that voter-approved bonds are accorded an initial five-year period within which they must be issued. It goes on to state “if any bonds have not been issued within five years of the date of ratification, then those bonds may not be issued after that date.”

The governor, either unaware or unconcerned with these constitutional provisions, has refused to issue nearly $6.5 million of LMF bonds that were ratified in 2010. He now faces the need to extend the time frame for the issuance of these bonds.

Professing support for the LMF program, LePage proposed LD 1454 on the last day of the legislative session. His bill would extend the deadline for expiring LMF bonds to June 30, 2016. He cited the constitutional provision that allows the life of expiring bonds to be extended. But he ignored constitutional provisions that establish the means for, and the duration of, such an extension.

The Constitution provides: “Within two years after expiration of that (initial) five-year period, the Legislature may extend, by a majority vote, the five-year period for an additional 5 years.”

In short, the Constitution leaves the power to extend expired bonds completely in the hands of the Legislature. No gubernatorial role is needed or contemplated. The Legislature has two years in which to act; a simple majority vote is all that is needed. And the period of extension is fixed at five years. The Constitution is clear, and LD 1454 ignores its language.

Whether, on the last day of the session, all members of the Legislature were aware of these constitutional provisions is problematic. Most knew the governor’s last-minute bill was unique. Many, no doubt, sensed they were being played; a press release accompanying LD 1454 was rife with political overtones.

Moreover, only hours earlier on the last day, the Legislature narrowly sustained the governor’s veto of LD 1378, which would have put added pressure on LePage to issue all voter-approved bonds.

Nevertheless, whether sensing defeat of LD 1378 and wanting a fall-back position, or aware of the constitutional blunders inherent in LD 1454  – or both – some on both sides of the political aisle and within the legislative leadership were fully prepared to deal with the governor’s bill.

It was killed by an amendment of the whole, “A Resolve Directing the Governor and the Land for Maine’s Future Board To Fulfill the Will of Maine Voters and Issue Bonds Approved in 2010.” The resolve was passed in both the House and the Senate.

The resolve, in a series of clauses, laid out in detail the 28-year success story of the LMF board; it laid out the wide public support LMF bonds have had; it referenced the fact that 30 LMF project commitments are immediately at risk due to the lack of funding, and finally, it pointedly noted there are still four months left before $6.5 million in LMF bonds expire.

The resolve contained four directives; the most important stated that “the Governor shall work with the Treasurer of State to issue the bonds ratified by Maine voters in 2010 before that authorization expires.”

The remaining directives charge the governor and his assignees to take “all necessary” procedural steps “to implement the borrowing authorized.” Finally the LMF board is charged with carrying out its statutory responsibilities and with finalizing pending projects (presumably as funds become available).

The rebuke to the governor is clear and fully warranted.

More importantly, it seems clear that if LePage remains adamant – if $6.5 million in LMF bonds expire – there are those within the Legislature who know that ultimately time (and the Constitution) are on their side. They have two years to revive these expired bonds for an additional five years. At some point more rational LMF behavior will be resumed.

Focusing more broadly, these same legislative leaders will hopefully find the courage to challenge the governor’s repeated refusal to issue voter-approved bonds in court. There is no constitutional basis for these refusals. They are harmful to Maine and its people. LePage must be told he cannot ignore constitutionally imposed duties.

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Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at orlando.delogu@maine.edu.