Constitutional Rules and Practical Politics

Two Maine women have given us a couple of valuable lessons about government.

One was Leigh I. Saufley, Chief Justice of the Maine Supreme Judicial Court, and the other was U.S. Sen. Susan Collins.

For a unanimous Court, Saufley wrote the reply to questions from Gov. Paul LePage on whether the Legislature had adjourned or not.  The answer cost him the chance to veto 65 bills.

The Chief Justice reviewed the powers of the Legislature compared with those of the executive and judicial branches.  It turns out the three branches are not equal. 

Most importantly, she wrote that all power comes from the people, and it is “the power of the Legislature to act on behalf of the people.” She recalled a 1912 decision of the Court that the powers of the executive and judicial branches are only those given to them in the Constitution, while the 

powers of the Legislature are “absolute,” subject only to any constitutional limits.

As a result, only the Legislature could say whether it had adjourned.  The governor, claiming it had, could not.  Because it was still in session, new bills had become law without his signature and were not open to his later veto.

LePage has taken his victory in last year’s election as the sign of a public mandate for his policies.  He wants the Legislature to fall in line with his proposals, and it refuses.  Saufley’s lesson is the Legislature, not the governor, embodies the full power of the people.  If LePage will now work with it, some of his ideas have a better chance.

Beyond settling current battles, this little civics lesson reminds readers that the people are the “sovereign” in the American system, and they create a legislative body to exercise power on their behalf.  Because government sometimes seems to act as if the people are its subjects and not citizens, this point is worth remembering.

Sen. Collins was involved in a more ordinary legislative dispute.  Many fellow Republican senators want to cut all federal funding of Planned Parenthood, because they disapprove of what they understand to be its policies on fetal tissue and because it performs abortions, though not using government funds.

To enact such a bill, they had first to overcome a legislative filibuster, meaning that it would take 60 senators to end debate before a vote on cutting off funding could take place.  Defunding lost, because only 53 senators supported ending the filibuster and moving to the key vote.  Sen. Collins was one of them.

Collins has a history of supporting family planning and women’s health.  She soon came under criticism for her vote to open the path for the bill to be enacted.

Her answer was that Senate Majority Leader Mitch McConnell had promised her and the other two GOP sponsors that if the bill were debated, they would be allowed to propose an amendment not to defund the organization but to ask the Justice Department to investigate it and report to the Senate.

It seems quite likely that if debate ended, there were the necessary 51 votes to pass the bill ending funding of Planned Parenthood, even over Collins’ opposition.  With enough votes to slam the door on the organization, why would the majority have agreed to her amendment?

One of the co-sponsors of her proposal, probably cautious about what might happen, voted against cutting off debate.  He must have understood that most GOP senators, especially with some of them running for president, would reject anything less than defunding Planned Parenthood.

Collins surely understood that risk as well.  Yet she followed the party line to open the way to a funding cut, while excusing her action by making a counter-proposal that might be easily defeated.  Perhaps she figured there were not enough votes to end debate, so thought she could please GOP leaders without doing any real harm.

For her proposal to succeed, it would have depended almost entirely on Democrats.  She avoided aligning with them by sticking with her party, possibly because she knew the entire defunding exercise was a sham. 

Her tactic was less a reflection of her attachment to principle, which is undoubtedly sincere, than her attachment to the Republicans.  That’s practical politics, especially for a self-styled moderate in an increasingly conservative party.

The problem is some voters expect their representatives to favor principle over politics no matter the political risk.

While Saufley reminded us about the sometimes forgotten basic principles of American government, Collins provided us with a lesson about how principles risk being sacrificed to practical politics.