Pocket veto: health insurance, not process

The Legislature’s short session finally concluded near the end of May and is quickly fading from memory. The political primaries are over and the politicians are moving into campaign mode. So I wasn’t surprised to see the June 16 op-ed column by Sen. Paul Davis critical of Gov. Baldacci.

The problem with the column was that the governor was doing exactly what our state constitution requires. And he did it standing tall in firm support of his long stated commitment to affordable health insurance for everyone.

Sen. Davis thinks Gov. Baldacci should not have pocket-vetoed two bills. But the Legislature left him no choice. Here’s what the Maine constitution says: once the Legislature finally passes a bill, it sends it to the governor for his signature or veto.

The governor has 10 days to sign it or veto it. If he vetoes it, he has to return it to the Legislature for their consideration. The Legislature can, by a two-thirds vote in each house, overrule the governor’s veto. If, however, the Legislature is not in session, making it impossible for the governor to return the bill with his objections, nothing happens until the Legislature returns.

When they return, the governor has three days to sign the bill or veto it. If he does neither, the bill becomes law without his signature. But if the Legislature does not return, never giving the governor the chance to return it, the bill never becomes law. This is called a pocket veto and it can only happen at the end of the two-year legislative cycle.

To address the possibility of a pocket veto, the Legislature will often schedule a so-called Veto Day to force the governor to either sign or veto all bills. This year the decision was made not to do that. I believe that the Senate president and the House speaker share Sen. Davis’ desire not to waste the taxpayers’ money. They know that a governor always picks up votes from his own party on vetoes and that neither of the bills was likely to garner the two-thirds majority in both houses needed to override a veto. So, as Sen. Davis points out, why waste our money?

The process described above is more detail than anyone could possibly want to know. By objecting to the process, Sen. Davis avoids highlighting the policies and principles that the governor stood up for. The need to provide affordable health insurance for Maine people has been one of Gov. Baldacci’s highest priorities. He has focused on this since he took office and it is a policy that he will ask us to judge him on this fall.

So the fact that the governor vetoed a bill that would reduce the availability of health insurance should surprise absolutely no one.

The vetoed bill directly affected MaineHousing. In our multi-family housing program, developers compete for scarce public dollars and can earn a few extra points if they use contractors that offer health insurance. Our Board of Commissioners and I share the governor’s belief that this is important. We offer many incentives not specifically mandated by the Legislature such as providing two-bedroom apartments, a community room, or laundry facilities, and the insurance incentive could boost a score by four points at the most out of 119.

This is not a deal breaker – some of our awards went to developers who did not use the incentive and others went to developers who did. Our consultive rule-making process took almost a year. It included many meetings with interested parties for us to get feedback and suggestions before we started the formal process. We listened and made adjustments based on the public input.

Sen. Davis compares the MaineHousing rule encouraging health insurance to a bill the Legislature defeated that would have changed how the cost of health insurance was measured by the Department of Labor in order to compare contract bids. It did not address what we are doing, nor did it say that the state cannot encourage employers to provide health insurance. He is comparing apples to oranges. In fact, however, the Legislature did pass legislation requiring employers to provide health insurance if they are going to benefit from the tax advantages available in the Pine Tree Economic Development Zones.

That legislation is where we should turn to look for guidance on the Legislature’s intentions, not to a bill on a different topic that did not pass. Furthermore, it is dangerous to conclude that if the Legislature does not pass a bill they must be opposed to it. The Law Court has long held that you cannot draw any conclusion from legislative inaction.

Gov. Baldacci, in his veto message, spoke emphatically about both the need to protect Maine’s unique authorities such as MaineHousing, from which we gain millions of dollars each year for affordable housing, and the importance of health insurance to the people of Maine.

The second bill – the retroactive referendum bill – was very controversial. While MaineHousing supported the bill, many people on both sides of the issue understood the governor’s concerns about limiting the right of citizen-initiated referendums. He stated his desire to work on this issue and we stand ready to help him in any way we can.

For both bills, the governor called a press conference and took a firm policy stance. The arcane distinction of a pocket veto was simply a matter of using the only approach available to him.

It is too bad, but entirely expected I suppose, that the dust cannot settle on the legislative session before the election season mud starts to fly. I hope the election process will bring strong and enlightening debate about the issues that matter to Maine people, not about the arcane process of how gubernatorial vetoes are handled. I hope that all partisans will assume, until proved wrong, the good intentions of those on the opposite side.

Dale McCormick is director of the Maine State Housing Authority.