Governor makes rare move in executive-legislative battles

Gordon L. Weil

The tug of war between the executive and legislative branches keeps taking new turns.

In theory, the legislative branch is supposed to set policy through passing laws. Legislators can submit proposals for consideration and many of their bills are adopted. The executive branch is assigned the task of carrying out the laws.

In fact, the executive has become the principal source of legislative proposals. Presidents and governors serve up a package of proposals to legislatures every year or two. Lawmakers have become dependent on these bills and expect to focus much of their effort on reacting to them.

Once laws are passed and given the complexity of issues, the executive often is assigned responsibility of adopting detailed rules to apply broad legislation. Rulemaking has become a major form of legislating

The result has been that the development of much of new legislation has passed from the legislative branch to the executive. With that shift has gone much of the power of Congress.

This transfer of legislative power may explain why President Trump apparently has seen Congress as his board of directors, whose job is to review and approve his proposals for U.S.A., Inc. Surely, Congress is not a branch of government with equal or greater weight than the executive, in his view.

At the state level, some have developed “strong” governor systems and others “weak” governor systems. The decision is made by the state constitution, the legislative body or by custom over the years.

In Wisconsin, for example, the incumbent Republican governor lost in an upset to a Democrat. Before he left office, the GOP legislature adopted and he signed new laws drastically reducing the governor's powers. In effect, they turned a strong governor position into a weak one as a way of undermining the winner..

The new governor challenged some of those laws in court and lost. The complete reversal of the historic relationship set back the principle of checks and balances.

An unusual twist on the governor-legislature relationship has just occurred in Maine.

In her State of the State speech last week, Gov. Mills openly worried that foreign corporations were operating electric utilities to put their profits before consumers' interests. She expressed concern that utility regulation might not be doing enough to ensure that “utilities are accountable and answerable to the people of Maine.”

She said to the Legislature, “I ask your guidance and your help in making sure that these foreign corporations...are answerable to Maine, not Spain or some other foreign country.” She was referring to the foreign owners of CMP (Spain) and Emera Maine (Canada).

An almost immediate reaction from some in the media was that she had failed to provide a proposal to the Legislature. Action would have to await more specifics from her.

Here was the odd situation of the governor asking the Legislature for “guidance,” just as constitutions expect, and finding herself faced with a reaction that she should have guided the lawmakers.

There is a menu of options from which policy makers might choose, and the governor seems to be open to considering a choice by the Legislature.

It could adopt the bill proposed by Rep. Seth Berry, which calls for a non-profit utility, owned by its customers, to buy out the two foreign corporations. That would exactly meet her requirements.

It could send Berry's bill to a referendum this year to let the people decide to acquire the system from the two utilities.

It could instruct the Public Utilities Commission to deny any profit whatsoever to investors in those utilities if their management failed to provide reliability at a specified standard and subject to a cap on rates set by law.

Or, it could tell the governor that she exaggerates the problem, and nothing needs to be done.

Her request opens the door to a bipartisan answer, if the two parties can agree. Certainly, it implies they ought to try.

If the Legislature in unable to respond favorably and cannot give the governor the guidance she requests, she must turn the tables and guide the lawmaking. With a Democratic majority in both houses at least until the end of the year, she would have an incentive to take clear action with the support of her party.

With her strong statement of concern about the utilities, Mills has set government on this path. She has put herself in the position that she cannot walk away from the issue. The Legislature has been invited to address it through an effort between legislative and executive branches and between Democrats and Republicans.

This situation goes beyond the future of electric utilities in Maine. It marks an unusual opportunity for the effective operation of American government as it was intended.