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Here's how CMP's 'retroactive laws' message could unite groups against Question 1

Hydropower Transmission Corridor
Robert F. Bukaty
In this April 26, 2021 file photo, workers for Northern Clearing pound stakes to mark land on an existing Central Maine Power power line corridor that has been recently widened to make way for new utility poles, near Bingham, Maine.

With Election Day about a week away, Central Maine Power and its aligned political committees are targeting specific voting constituencies in a last-ditch effort to defeat Question 1.

A "yes" vote would halt construction of the CMP corridor, while a "no" vote would allow work on the $1 billion project to continue.

But CMP-affiliated groups are highlighting a key word in the ballot question to suggest that there's more at stake on Nov. 2 than just the fate of the corridor.

Listen carefully to an ad from the CMP-funded group Mainers for Fair Laws, and you're likely to hear the word "retroactive."

For example, the narrators of three separate ads funded by CMP can be heard saying:

  • "This is ballot Question 1. It empowers politicians to impose new laws retroactively, targeting Mainers for things that happened legally in the past..."
  • "...That means if a politician doesn't like me, or a business like ours, they could target us for things we did legally in the past and shut us down..."
  • "... and that's not just unfair. It's dangerous."

To be clear, Question 1 does not give elected offic'ials in Maine any more power than they already have to make or change laws, even retroactive ones.

"No. I mean, that's a pretty straightforward answer. It does not," said Anthony Moffa, an environmental law professor at the University of Maine School of Law.

"This is a citizens initiative that is attempting to do something that the legislature could themselves have done. It doesn't say anything about their ability to pass future retroactive laws in subsequent legislative sessions. It doesn't alter the constitution of Maine with respect to this issue. It just doesn't say anything about that," Moffa said.

Some of the campaign materials go even further.

Last week, the CMP group Mainers for Fair Laws sent letters to voters in Republican-leaning areas asserting that Question 1, "empowers politicians and out-of-staters with a new set of tools that can be used to target gun owners," and, "We know these politicians will do anything to limit our 2nd Amendment rights."

"That's how crazy they've gotten, OK? This has nothing to do with gun rights," Natural Resources Council of Maine staff scientist Nick Bennett said during last week's Maine Calling program on Question 1.

Bennett and NRCM, who oppose the CMP corridor, are up in arms about the gun-grabbing mailers and others that suggest that unless the corridor is built, climate change will threaten the future of Maine lobster and blueberries.

"Why are they sending out letters about gun rights? That's the same thing as saying we're not going to have blueberry pie if this project isn't built," Bennett said.

"There's very sort of clever messaging strategy here, designed to reach certain audiences," says Mike Franz, a professor of government at Bowdoin College, who last year analyzed ads for the Wesleyan Media Project.

He says the corridor is not a Republican versus Democrat issue, so CMP is tailoring ads to mobilize different voting constituencies.

Some got the gun-grabbing mailer, while others were sent one comparing the campaign to stop the corridor to former President Donald Trump's effort to repeal the Affordable Care Act.

"I think there's an attempt here to kind of tap into the sort of emotional reactions that voters are having to these longstanding political debates around Trump, around health care, and so forth, and to try and sort of piggyback on that emotion to move voters on this issue," Franz said.

In a written statement, Chris Glynn, a spokesman for CMP's Clean Energy Matters campaign committee, acknowledged that Question 1 does not give lawmakers additional power to pass retroactive laws, nor does it directly impact health care or guns.

The point, he says, is that Question 1 is a citizens initiative — a tool that could be be used more frequently to determine policy in areas outside of energy and infrastructure.

"Nothing like this has happened before, but now that there is a blueprint, it certainly could happen again," Glynn said. "Passing retroactive laws sets a dangerous precedent that law-abiding citizens and businesses can be liable for actions taken in good-faith reliance on existing law.

"It means that even if you play by the rules, you can be penalized for your actions. These laws push us down a slippery slope. Obviously, the language within Question 1 deals with the infrastructure projects, but the retroactive nature of the law is nonetheless concerning to many Mainers who see it as a tool that can be used to target them in the future, particularly in the hyper-partisan environment we live in today."

It's an argument echoed by Thorn Dickinson, president of the New England Clean Energy Connect, the corporation CMP created to oversee the project.

"That same strategy can be used by other companies, other competitors, other social activists that want to attack, whether it's rights people have had in the past, health care issues, and that slippery slope is really critical," Dickinson says.

The slippery slope argument hinges on the fear that it sets a bad precedent — as citizens initiatives in the 20 or so states that allow them possibly become a blueprint for fossil fuel interests to scuttle future renewable energy projects, even if they've been permitted and are under construction.

That was the concern of former U.S. Environmental Protection Agency administrator William Reilly, whose misgivings in a recent column in the Washington Post largely mirrored the arguments of CMP.

Moffa, who worked for the EPA during the final two years of the Obama administration, says such worries, while valid, are probably overstated by CMP and its allies.

"It has the potential to set a bad precedent, though not as expansive a bad precedent as the campaign wants to make it sound like," he said.

But the campaign is nothing if not hyperbolic.

The battle for Question 1 just topped $87 million in spending, more than quadrupling the previous record for a Maine ballot initiative.

And because it's not a partisan issue, voters are more likely to be swayed by over the top, and often misleading, messaging from both sides.

Franz says that could affect the outcome of Question 1.

"I suspect that even though we don't have a lot of polling on this, that the messaging has probably had an impact. And that's why we're seeing a lot of ads, in order to see if either side can find a message that really resonates and works," he said.

In other words, whether your issue is guns, health care, or something else, expect more ads trying to convince you that its fate depends on the outcome of Question 1.