Policy Wonk: LePage inflicts harm by refusing to issue Maine bonds

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First of two parts.

Gov. Paul LePage, citing a need for borrowing restraint, in 2012 refused to issue (for nearly two years) nearly $40 million dollars in voter-approved highway bonds. On economic grounds this was foolish policy.

Our credit rating was strong, and we had only begun to recover from the recession. Unemployment was high; bid prices were low (contractors were looking for work); interest rates were low. It was the ideal time to build and or repair essential infrastructure.

In 2014-2015 the governor refused to issue (for nearly 18 months) $12 million in voter-approved bonds to acquire property that would be open to the public through the Land For Maine’s Future program.

The governor cited his disapproval of the program. In reality, his objective was to exert pressure on the Legislature to allow increased timber harvesting on publicly owned lands.

This year the governor announced he will again refuse to issue (for up to three years) $15 million in voter-approved bonds for elderly housing. He asserts the bonds will jeopardize Maine’s credit rating; that there are insufficient safeguards to limit developer profits and assure that cost-effective elderly housing will be built.

Rubbish.

Our credit rating remains strong, and individual requests for proposals to build elderly housing projects can impose any and all necessary limits and safeguards, as we do with all bond-financed highway projects.

In each of these three bond refusal settings, Maine people and our economy lost matching federal and private dollars that would have more than doubled the benefits derived from the state’s commitment of bond revenues. What a waste.

Instead of timely investment in our own future, the governor’s policies leave Maine with unsafe roads, thousands of elderly families who are ill-housed, and inadequate protection of unique lands. His policies have prolonged hardship, unemployment, and the effects of recession in some of the neediest areas in our state.

More importantly, the governor’s assertion of a right to refuse to issue voter-approved bonds for up to five years – to delay issuance to the point where such bonds have expired – finds no support in Maine’s Constitution.

On the contrary, the Constitution imposes a duty on the governor to do the very thing he refuses to do: issue voter-approved bonds.

Article 5, Part 1 outlines the scope of Executive Powers: “The Governor shall take care that the laws be faithfully executed.” Nothing in Part 1 gives the governor a five-year period within which he may unilaterally decide whether or when to execute an enacted law.

Article 9 outlines the “authority and procedure for issuance of bonds.” In two places it refers to legislative- and voter-approved bonds as “enactments.” Enactments are laws.

Article 4, Part 3 outlines the “Effective date of measures approved by (the) people.” It states: “Any measure referred to the people and approved by a majority of the votes given shall, unless a later date is specified in said measure, take effect and become a law in 30 days after the Governor has made public proclamation of the result of the vote on said measure.”

Both provisions characterize voter-approved bonds as “laws” that the governor must “faithfully execute.”

The Constitution also imposes an express limitation on gubernatorial powers. It states: “The veto power of the Governor shall not extend to any measure approved by vote of the people.”

If voter-approved bonds may not be directly vetoed by the governor, it follows they may not be vetoed by indirection – by a refusal to carry out the ministerial duties imposed on the governor and treasurer by the people’s approval of a proposed bond issue.

This array of provisions makes clear that the governor’s refusal to issue voter-approved bonds – his unilateral assertion of a five-year period within which he may issue, or not issue, such bonds – has no legal foundation.

In point of fact, he has a clear duty to issue such bonds. They are enactments (laws) that must be “faithfully executed.” The Constitution does not give the governor discretion to pick and choose which laws he will execute, or when. One must assume that “faithfully executed” means now, or as soon as is reasonably possible, given normal delays in the bond market.

In sum, LePage’s refusal to issue voter-approved bonds is almost certainly illegal. No previous governor has asserted such a power. His actions are harmful. Their legality must be resolved by court proceedings, or by the Legislature’s leadership seeking an opinion of the Supreme Judicial Court.

Maine people deserve nothing less.

Next week: Debunking LePage’s argument that he can refuse to issue voter-approved bonds.

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.

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