Question 1 is about the CMP corridor, so why are so many ads about ‘retroactivity’ instead?

Maine Beacon

Maine voters have begun to be inundated with digital ads and flyers from a pop-up political group called Mainers for Fair Laws that claim Question 1 on the November ballot will set a dangerous precedent of “retroactivity.” The campaign mailers, which are pushing back on the referendum against Central Maine Power’s proposed transmission corridor, make no mention of the controversial project and have caused some confusion among voters.

Anti-corridor campaigners believe that omission is a deliberate move by CMP and political action committees to muddy the waters and pivot away from discussing the 145-mile transmission corridor by CMP affiliate New England Clean Energy Connect (NECEC) that would deliver hydro-electric power from Quebec to Massachusetts —the fate of which is the crux of Question 1.

“Voters need to know these ads are CMP talking,” said Sandi Howard, a volunteer with No CMP Corridor, a grassroots group she runs with former Republican state Sen. Tom Saviello.

“I think it’s telling that the media campaign from the CMP side has completely tried to divorce Question 1 from the corridor. We know through statewide polling that a majority of Mainers think that the corridor is a bad deal,” Howard said, citing polling that shows only 34% of Mainers support the corridor.

The retroactivity bogeyman

Question 1, drafted by the Maine Secretary of State’s office, asks voters if they want to ban high-impact transmission lines in the Upper Kennebec Region. A “yes” vote is a vote to block the corridor.

But the question goes further, asking voters to “require the legislature to approve all other such projects anywhere in Maine, retroactively to 2020, and require the legislature, retroactively to 2014, to approve by a two-thirds vote such projects using public lands.” 

The retroactivity clauses were included in the ballot question because construction on the project is already underway and it is illegal for laws to target a single project. A 2020 petition was struck down in court for specifically targeting the corridor, prompting petitioners to craft a more general law. 

The proposed law would ban construction on public land back to September 2020, when the original citizen’s initiative was launched, and ensure legislators have oversight of public land projects dating back to 2014, when former Gov. Paul LePage signed a lease of state land over to CMP for a section of the corridor without seeking legislative input.

Question 1 attempts to undo that sidestep of legislative oversight. The Maine Constitution requires that two-thirds of both chambers of the legislature must authorize leases that substantially alter public lands.

Mainers for Fair Laws has seized on Question 1’s references to retroactivity, likely the most confusing part of the ballot question to many voters.

“Rewriting our past is a dead end for our future,” reads one flyer distributed by the group. “The potential consequences are unnerving. The harm that could come to small businesses, renewable energy and manufacturing is real — and avoidable. Vote ‘No’ on Question 1 to keep retroactive laws out of Maine.” 

The group has hired as its spokesperson former Republican Second District Congressional candidate Adrienne Bennett, who was LePage’s press secretary at the time he signed the legally-challengedlease of public lands to CMP. In her 2020 campaign to unseat Democratic Rep. Jared Golden, Bennett took a position against the corridor, which many conservative voters oppose. She has since recanted, penning an op-ed in the Lewiston Sun Journal in which she described Question 1 as a “political power grab.”

“This new question, which was clearly drafted by a team of clever lawyers, is not the same as the one that was ultimately struck down as unconstitutional in 2020,” she wrote. “If Question 1 passes, it will empower politicians to target Mainers and businesses by making new laws that apply to events that happened legally in the past.”

In a Sept. 18 radio interview on WGAN, Bennett expanded on her new perspective that Question 1 will give elected public officials — or, in her words, “politicians” — undue power to impose retroactive laws. 

“If this goes through, think about this, as little as 12 senators could deny any project going forward,” she said, referring to the number of senators needed to block a two-thirds vote in the upper chamber.

Howard and other corridor opponents say that it is CMP that holds undue influence in the legislature, not popularly-elected lawmakers. 

CMP has spent a record $25 million to date on political advertising and outreach in defense of the corridor and regularly ranks as a top spender on State House lobbying. Outside of LePage and Gov. Janet Mills, who both favor the corridor, Howard said that Maine’s elected lawmakers and voters have had no ability to weigh-in on the controversial corridor.

In Bennett’s Sept. 18 interview, she went so far as to suggest that Question 1 would impact what Maine residents decide to do with their own property.

“The example I give: you buy a house on a lake in 2001 but it didn’t come with a dock,” Bennett said. “In 2005 or so, you install the dock. Another few years pass, a neighbor moves in. They don’t like the dock. They say it’s an eyesore … They go to the town to retroactively ban private docks on the lake.”

Howards says such claims about private property amount to fearmongering.

“This is not about someone’s house or what they want to do on their property,” she said. “Question 1 only deals with projects that would substantially alter public lands.”

Howard noted that retroactivity is nothing new in Maine law.

“What they’re not saying is that retroactivity already is very well established in Maine law,” she said. “It’s already very commonplace.” 

In a Sept. 2 letter to television station managers, Adam Cote, counsel for Mainers for Local Power, a PAC largely funded by energy companies in Florida and Texas, urged networks to stop running ads by Mainers for Fair Laws, alleging they are “inaccurate and misleading” and lacking the proper disclosures. Cote has also filed a complaint with the Maine Ethics Commission.

“They state that the word retroactivity in Ballot Question One would give politicians the power to apply new laws to things that happened in the past. It does no such thing,” Cote wrote. “Politicians have always had the ability to pass retroactive laws, which are governed by 1 M.R.S. § 302 — a Maine statute that has been on the books for decades. Ballot Question One does not grant them any new power.”

Cote cited precedent, such as in State v. L.V.I. Group, when the Maine Law Court upheld a retroactive amendment to a state statute that changed the definition of employer for purposes of severance pay liability. He also cites Kittery Retail Ventures LLC v. Town of Kittery, where a referendum that called for retroactive zoning changes that prohibited the development of a shopping mall was upheld.

CMP behind confusing mailers

The money trail for the mailers leads back to CMP. Mainers for Fair Laws’ first finance report shows that the group was, at least initially, solely funded by Clean Energy Matters — a political action committee that Beacon previously reported lists CMP and NECEC as its founding organizations. CMP, NECEC and CMP parent company Avangrid have given Clean Energy Matters a combined $26.9 million.

As of Aug. 18, Clean Energy Matters PAC contributed $401,104 to Mainers for Fair Laws for ad buys and another $5,257 for staffing.

Bennett did not respond to Beacon’s request to clarify Mainers for Fair Laws’ connection to CMP. She also did not respond to a question about whether the group has any unpaid volunteers. 

Mainers for Fair Laws’ advertising seems to be gearing up. On Sept. 23, the group released a new adfeaturing Larry Grondin, the owner of Gorham construction firm R.J. Grondin and Sons, who argued that Question 1 was bad for business in Maine.

Howard said that pro-corridor groups are turning to a tactic common in ballot campaigns — rather than making an affirmative case for their position, they are instead trying to sow doubt in voters’ minds.

“CMP is doing everything they can do to draw attention away from themselves. CMP knows Mainers don’t trust them and they oppose this project,” she said. “The fact that CMP has changed their marketing tactic this close to the election after already spending $25 million shows they are relying on confusing voters and drawing attention away from the actual issue, which is that a ‘yes’ vote would ban the corridor.”

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  • Sandra Howard
    published this page in News 2021-09-29 11:07:28 -0400