My Life as a Legislator

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I am a libertarian. I am also a Republican freshman member of the Maine House of Representatives. Some would say that being a libertarian legislator is like being a fish out of water; I would say it’s more like a fish learning to ride a bike. But anything is possible with enough determination.

Like most libertarians I am a convert to the movement. I grew up in a Republican family. I was five years old when my father worked for Richard Nixon’s reelection. I was an active college Republican during the Reagan era. I thought that Reagan was a great leader, but rather old-fashioned and out of touch with my generation on many social issues. I learned about the libertarian movement in 1988 when I read an article in the Wall Street Journal about Ron Paul’s campaign for president under the banner of the Libertarian Party. I was intrigued. My views were far more in line with his than with those of George H.W. Bush. On a whim I voted for Ron Paul that year, and I didn’t feel as if I had wasted my vote. Two years later – after President Bush (the elder) and John McKernan, the Republican governor of Maine, had both raised taxes – I joined the Libertarian Party.

The libertarian movement is driven by the fundamental principles of individual liberty and self-sufficiency so well encapsulated in the non-aggression principle. The libertarian economist Murray Rothbard best described that principle, in his essay “War, Peace, and the State”:

The fundamental axiom of libertarian theory is that no one may threaten or commit violence Caggress”) against another man’s person or property. Violence may be employed only against the man who commits such violence; that is, only defensively against the aggressive violence of another. In short, no violence may be employed against a nonaggressor. Here is the fundamental rule from which can be deduced the entire corpus of libertarian theory.

How does a libertarian state legislator hold true to such a principle while participating in the formulation of public policy? After all, every law must be enforced by means of aggression, or at least the threat of aggression.

The answer came to me well before I ever had to ask the question of myself. It came at a rally I attended in Boston in 1996, a fundraiser for Harry Browne’s first presidential campaign. The speaker was the late David Brudno~who for more than a quarter-century was the voice of Boston evening talk radio. Brudnoy spoke o~ an allegorical”freedom train” making a journey to the perfect libertarian society – Galt’s Gulch perhaps? The train has far to travel from the statist society we live in. Many of us may want to get off before the train arrives at its final destination, but anyone who wants greater freedom needs to get aboard right here.

This message resonated with me because even then I was uncomfortable with the anarchist fringe of the libertarian movement. Nevertheless, I remained active in the Libertarian Party until 2000 because I believed that libertarian ideas could have an influence on mainstream politics. I also thought that the LP was the most effective means of bringing that influence to bear. It took less than a year on the Libertarian National Committee to disabuse me of that notion. It astounded me how much infighting and jockeying for position could exist in an utterly powerless political organization. The LP should have been focusing on how it might actually get more libertarians elected, but it squabbled instead over who should attend its conventions or what staff members should be hired or fired. In 2001 I resigned from the LNC and quit the Libertarian Party.

I stayed away from politics for the next few years, focusing instead on building a new business. But in 2004, redrawing of the 151 districts from which Maine state representatives are elected presented the opportunity of an open seat that included my home town of Frankfort, Maine. I decided it was time to throw my hat in the ring and filed papers for the RepUbli- can nomination.

I ran a pretty traditional Republican campaign. I first contacted and joined the Republican Liberty Caucus and signed the Liberty Compact, a statement of conscience by candidates running with the endorsement of that caucus. It stipulates that the candidate will work to

Restore liberty, not restrict it; shrink government, not expand it; reduce taxes, not raise them; abolish programs, not create them; promote the freedom and independence of citizens, not the interference of government in their lives; and observe the limited, enumerated powers of our Constitution, not ignore them.

I was running as a Republican, but also as a libertarian. I campaigned for lower taxes, a friendly business climate, and better education. I had one primary opponent, who dropped out early. My Democratic opponent was the well-connected chairman of the Hancock County Democratic Party. Two of the six towns in the district are in Hancock County, the other four – including Frankfort – in Waldo County. In the end I won by a margin of just 32 votes. I polled less than 35% of the vote in the Hancock County side of the district but won almost 70% in three towns in Waldo County. It was mainly parochial concerns that won the day for me. Few people were put off by my libertarianism, though much was made of it during the campaign.

The 122nd Maine Legislature, to which I was elected, is controlled by the Democrats. In the Senate, Democrats have a three-seat majority (of 36 seats). In the House, they have 74 seats (of 151) but control the chamber with the support of one Green and two Independents. RepUblicans hold 73 seats and

I thought that the LP was the most effective means of spreading libertarian ideas. It took less than a year on the Libertarian National Committee to disabuse me of that notion.

 

caucus with a third Independent (first elected as a Democrat). In such a closely divided chamber every vote counts, and that affords a great deal of influence to every member – but only if the influence is wisely and carefully used.

Once I was sworn in I had to decide on a strategy: how to be an effective legislator, being true to my principles but without simply saying “no” to everything. I had to learn quickly how to deal with the thousands of bills that would come be-

fore us. I developed three approaches to any philosophically difficult piece of legislation (and there have been many): defer action, take a stand, or try to make a difference.

Taking a stand, of course, is the most dramatic alternative. It is what I have done on issues that are either too important, or too well advertised, to be ignored. Taking a stand often

It astounded me how much infighting and jockeying for position could exist in an utterly powerless political organization.

means accepting that a particularly onerous piece of legisla- tion is destined to become law – raising taxes, curtailing free- doms, or creating new government agencies – yet still acting to oppose it. This might mean standing as a lone voice against a unanimous report from a committee that has not considered the impact that certain legislation can have on individual lib- erty.

Early in the first session a bill came to the floor prohibiting the furnishing or use of inhaled alcohol. A unanimous report came from a committee, recommending that the bill “ought to pass.” The bill aimed at creating a new crime – ingest- ing alcohol in vaporized form from a nebulizer. (Apparently this is quite a fad in some British “oxygen bars” and among the spring break crowd in Daytona Beach.) Nobody testified against the bill during the public hearings.

I did some research and found that there are no establishments in Maine that furnish vaporized alcohol, a fact that may have accounted for the lack of opposition. I also found that British health authorities had studied nebulizers and found that their use is no more harmful than traditional methods of consuming alcohol.

So I took a stand. I objected to the measure and requested a roll call, stating my objections to the bill. The response from the rest of the chamber was overwhelming support of the measure. I garnered only 10 out of 151 votes. Licking my wounds, I came back on second reading with an amendment to delay the implementation of the law for a year and direct the Bureau of Health to study the safety of vaporized alcohol. The amendment received 64 votes.

I took quite a bit of flack from my colleagues for”championing” vaporized alcohol. But I was vindicated when, a week after the bill was signed by the governor, Time magazine ran an article entitled “No buzz, not filling.” The writer pointed out that it takes an hour to inhale an ounce of vodka, and that a bar in New Jersey had installed an alcohol vaporizer but sent it back because nobody could get a buzz from it.

Sometimes a state legislator is faced with the choice of standing on principle and risking his reputation, or sitting silent for the sake of political expedience.

On June 10, 2005, the Maine House of Representatives overwhelmingly approved a supplemental budget, known in Augusta-speak as the Part 2 Budget. Part 2 is a fraction of the size of the Part 1 Budget, which in 2005 contained most of the $2 billion to be spent by the state over the following two years. Part 2 is meant to fund special items that don’t makeup the bulk of day-to-day government operations. Part 2 is also much less controversial and contentious than Part 1. Last year it was crafted as a compromise bringing together Republicans and Democrats in a unanimous recommendation by the Joint Committee on Appropriations and Financial Affairs.

I had voted against the Part 1 Budget and the mammoth $450 million in borrowing it contained. I voted for Part 2 because it returned some of the money owed to our local hospitals by the state’s Medicaid system, and also because I couldn’t bear to think about how awful the alternative might have been without the compromise.

The moment of truth for me came in the budget debate when Rep. John Eder, a Green Independent representative from Portland, proposed an amendment. The Eder amendment sought to halt a proposed doubling of the fine for simple marijuana possession from $250 to $500, an effort intended to restore funding for the Maine Drug Enforcement Agency. But this was not a question about the wisdom of the war on drugs.

For the last 20 years state policy has been to treat the simple possession of less than one ounce of marijuana as a civil violation, punishable by fine. The new idea was to increase the resources available to pursue drug traffickers and the users of more dangerous drugs, such as crystal methamphetamine. But doubling the fine might send a message to drug enforcement officers that the funding for their jobs relied on fines from pot possession, increasing the possibility that their attention would be diverted from criminal drug gangs to pot smokers.

My choice was either to sit silent while a misguided policy was enacted, or speak up and risk being labeled as a pro-pot legislator. Almost every representative spoke against the Eder amendment, failing to realize what a foolish policy shift was occurring. Finally I chose to speak, too. My speech raised the issues I’ve laid out here. The amendment was defeated, with support coming from only 19 members. I guess few others wanted to be labeled pro-pot. Several thought well enough of my principles to send notes to my desk rolled up like joints.

I can take the ribbing. My regret is that after drug enforcement officers have busied themselves ticketing pot smokers, the next complaint will be that the state needs more cops to go after meth labs.

On at least one occasion taking a stand has achieved more than making a statement. During the first session, a bill to establish an insurance fraud unit came before the Insurance and Financial Services Committee – the committee to which I am appointed. It was a perennial bill supported by private investigators who want to require the insurance industry and the State Bureau of Insurance to hire them to investigate fraud. The bill was opposed by insurance lobbyists and the Superintendent of Insurance. But since the Speaker of the House was the bill’s sponsor, the committee did not have the nerve to kill it. Instead we created a study commission to report back to the committee in the second session.

During the summer the insurance lobby and the Superintendent of Insurance hatched a plan. The problem they want- ed to address wasn’t necessarily insurance fraud. The Bureau of Insurance is funded by fees paid by the insurance industry; the revenues, however, far exceed the funds needed to run the bureau. So the legislature routinely sweeps the excess funds from the bureau to the general fund to pay for all sorts of other programs. Meanwhile, the companies rely on their own fraud investigation units, which routinely refer cases to local district attorneys for prosecution. The state attorney general’s office also has a financial crimes unit that investigates and prosecutes fraud. Now, however, the superintendent and the insurance industry proposed to employ the excess fees to create five new positions within the Bureau of Insurance for investigators and prosecutors of insurance fraud.

Private investigators were completely cut out of the deal, but when the parties came back to the committee they were all in agreement. The private investigators were nowhere to be found. There were only two opponents of the bill reported to committee by the commission: the Maine People’s Alliance (MPA) – a leftist coalition of social activists – and the Trial Lawyer’s Association. The MPA opposed the bill as corporate welfare. The trial lawyers objected to some of the police powers given to the proposed fraud unit. I had a different take on the issue; I saw it as an unnecessary expansion of government bureaucracy and power.

The bill came to the floor of the House with a 12-1 I I ought to pass” report. I was the sole dissenter on the committee, but I decided to continue taking a stand. I found an ally on the other side of the aisle. A former district attorney who had prosecuted insurance fraud, she immediately recognized the scheme for what it was. We each pitched our cases before our caucuses. This bill had something for both conservatives and liberals to dislike. For conservatives it was an unnecessary expansion of government. For liberals it was an example of the power of big insurance carriers to push through legislation that benefits only them.

The bill failed passage in a 53 to 82 bipartisan vote. Un- fortunatel~ the Senate approved it the next day by a 20-15 margin, almost completely along party lines. Democrats sided with the insurance indust~while all but one Republican sided with consumers and taxpayers. Since the Senate had passed the bill in non-concurrence with the House, it went back to the House to be reconsidered. The Democratic committee chair was so embarrassed about being forced into the posture of defending an industry bill in her own caucus that she made a motion to adhere to our previous action – killing the bill. By taking a stand, I had also helped to make a difference.

My view is that an elected representative has a duty to represent his district first and his personal philosophy second. The people who elected me would be sure not to send me back if I failed to honor this maxim. On some issues, however, my

The bill aimed at creating a new crime – ingesting alcohol in vaporized form from a nebulizer. I found out that no establishment in Maine sold vaporized alcohol.

 

constituents’ opinions are, or seem to be, in such conflict with my own principles that I cannot force myself to participate. One bill brought before the legislature would have required women to be subjected to graphic photos of aborted fetuses before undergoing an abortion procedure. I represent a socially conservative district and had promised to be respectful of issues important to the evangelical Christians in my district. I voted for a bill requiring parental notification when a minor receives an abortion. But I just couldn’t support the “abortion education” measure, even though the bill had no chance of passing, and I could have voted for it without affecting the outcome. I chose not to be in the chamber for the debate or the subsequent vote.

I voted against a “gay rights” bill because it did not respect the right of free association, regarding a bill prohibiting an employer from firing someone who lives as a transsexual as an infringement on the employer’s right to associate with whomever he wished and to regulate behavior in his workplace. It should also be the right of a property owner to prohibit sexual behavior that he finds offensive on his property. Many of my constituents are offended by homosexuality. I am not, but I voted against the bill out of deference to the rights of those who do – and, indeed, in defense of the right of association of all people, gay or straight.

Nevertheless, I spent much less of my time taking a stand than trying to make a difference. Taking a stand can some- times feel as fulfilling as merely deferring action: it feels empty. Seldom is anything accomplished by either of those two strategies. But trying to make a difference can actually work. It involves negotiation and compromise, but compromise need not imply a compromise of principle. To return to Da- vid Brudnoy’s analogy: it is about getting more people on the train and moving it closer to the libertarian ideal, or at least stopping the train from slipping too far backwards.

Committee work is where any legislator has the most influence and is most likely to be able to make a difference. Maine’s legislature has joint standing committees, each with three senators and ten representatives. As I’ve said, I serve on the Insurance and Financial Services Committee. This is the committee that oversees Governor Baldacci’s Dirigo Choice Health initiative. Dirigo is a state-run, state-subsidized health insurance plan that has so far spent over 113 million dollars to insure about 9,000 people, only 2,000 of whom were previously uninsured. Republicans have fought this plan for most of the 122nd Legislature (although many voted for it in the 121st). But Republicans are in a minority.

On Nov. 16, 2005, I unveiled to the Committee my proposal to add a third option to Dirigo. The proposal, which involved

a combination of low-cost catastrophic insurance policies and employee-owned health savings accounts (HSAs), promised to expand the appeal of Dirigo Choice by offering a consumer-driven option in addition to the two more traditional insurance plans now available. In my press release I announced:

I think this could actually save Dirigo Choice. It has become clear that employers and employees are both turned off by the plan as it stands. Premiums are too high, benefits are too stingy, and the structure too inflexible.

My plan keeps the subsidies for low-income individuals, but directs most of those subsidies to consumer-owned HSAs. Through the HSAs, people with low incomes would receive up to $1,500 per year to spend on basic preventive and routine

I guess few others wanted to be labeled pro-pot. Several thought well enough of my principles to send notes to my desk rolled up like joints.

 

care, and families would receive up to $5,250 per year. The catastrophic insurance plan would cover all medical expenses once the deductible of $5,000 per individual or $10,000 per family was met. If the HSA’s balance was not spent it could be rolled over and added to the following year’s contribution.

As I explained the details of my plan to my colleagues on committee, I explained how health savings accounts work and how they are a benefit to consumers. Maine was one of a handful of states that still taxed HSA contributions. Although my proposal was killed by the Democrats, I was able to convince enough of them of the benefits of HSAs to get a letter sent to the Appropriations Committee supporting inclusion of an HSA deduction in the 2006 supplemental budget. In March of 2006 we enacted a supplemental budget that implements the HSA deduction in 2006. I had indeed made a difference.

My legislative experience has given me a reputation as a principled, articulate, and thoughtful representative. I tend to stand up and talk too much on the floor, although I have learned not to stand if I don’t have anything to add to the debate. The problem is that my perspective is so uncommon in the chamber that I often find I do have something to add. After I spoke in favor of a bill that would have criminalized vandalism intended to ruin a person’s business or reputation (a bill meant to deter environmental terrorism), I received a note from a Democrat that read, “I will support the ONTP [ought not to pass] motion, but your motive/behavior distinction is precisely my line of thinking. Glad you expressed it.” The bill was passed. I like to think my speech had something to do with it.

At the end of the last session a Republican colleague approached me and said something to the effect that “at first I thought you were a flake, but as I got to know you I have come to respect your point of view.” He later said, “I think of you as one of them … I forget what you call it.” The next day he came up to me and said, “The word I was looking for was ‘libertarian.’ Yeah, you’re one of them libertarians.” I told him I considered that a compliment.

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