2004 and 2008: Two different questions of special session pay

Legislative Democrats were quick to point out that history appeared to be repeating itself after the Republicans proposed a special session without pay for legislators last week.

In 2004, the Democrats had approved retroactive legislation to waive pay for lawmakers in a special session that dovetailed the regular session. Republicans sued, won, and back pay was awarded.

The circumstances, however, were vastly different.

“It dawned on some of the staff here that we recently had a similar debate on special session pay back in 2004,” said Michael Johnson, communications director for the Senate Majority Office. “Dems at the time wanted special session pay waived, but many GOP led by then Sen. Tom Sawyer as well as Rep. Josh Tardy and Sen. Carol Weston pushed for the special session pay and won in court.”

Last week, legislative Republicans called for a special session to address the skyrocketing energy costs. Democrats were concerned about the cost – roughly $40,000 for one day – so the Republicans called for emergency legislation waiving pay and expenses for lawmakers, thus saving $31,620.

“The Maine Legislature should take immediate action to guarantee that our most vulnerable neighbors will stay warm this winter, and we should do so without placing a greater burden on Maine taxpayers,” Senate Republican Leader Carol Weston (R-Montville) said in a release.

This call went unanswered, and Gov. John Baldacci announced on Friday that there would be no special session, instead announcing a number of measures that would address the energy crisis.

In 2004, the Democrats had voted to pass a budget by a simple majority. This meant that it wouldn’t classify as emergency legislation, therefore it would take 90 days from the end of session for it to take effect.

So they adjourned early, and went into a special session the next day. Democratic leaders first passed a joint order dismissing the $100 per day special session pay for each lawmaker, arguing that this is time the Legislature would have spent in session anyway, therefore extra pay wasn’t necessary.

The joint order didn't fly with the Attorney General, so then they passed a regular piece of legislation stating that legislators would not be eligible for special session pay before the statutory adjournment date, to be applied retroactively.

This legislation is still in effect, and is the reason why special session pay did not become an issue when a similar situation over the budget occurred this year.

Republicans, however, took issue with the retroactive part, and sued for their back pay. In March, 2005 the court ruled in their favor, and back pay was awarded. Many lawmakers refused the money or gave it to charity.

"The Superior Court found the retroactive application was taking away their vested rights," said attorney Dan Billings who litigated the case.

According to a Mar. 19, 2005 article in the Kennebec Journal, then Senate Minority Leader Paul Davis (R-Sangerville) said the court case wasn’t about the money, rather “It was about a power grab by Democrats who weren’t interested in working toward compromise with Republicans on the budget.”

In the same article, current House Republican Leader Josh Tardy (R-Newport) said: “It was an important battle to wage because we believe the interests of Maine people are best served by bipartisan, two-thirds budgets. It resulted in a complete shutdown of communications for the rest of the legislative year.”

A joint order can be approved by a simple majority and enacted immediately. It is typically used for motions to adjourn or motions to amend the rules.

This year Weston called for an emergency bill to waive the pay. Emergency legislation requires a two-thirds vote for passage, and then is effective immediately.

This would have been acceptable, Billings said.

On Friday, Tardy said that he hoped both the public and lawmakers would make the distinction between a partisan budget fight and an energy crisis.