What to expect in the next round of court arguments on Medicaid expansion

Good morning from Augusta on a key day in the battle over Medicaid expansion. A judge will hear arguments today and tomorrow in different areas of advocates’ complicated legal fight to force voter-approved expansion, which has been resisted by Gov. Paul LePage.

The case will be back in a Portland court on Thursday after the Maine Supreme Judicial Court ordered the state last month to file an expansion plan with the federal government while sending legal and administrative questions back to Superior Court Justice Michaela Murphy.

She’ll hear arguments on those issues today. On Friday, lawyers will assemble in Portland again to argue over whether the LePage administration is complying with the high court’s order, given that the state’s expansion plan was accompanied by a letter from the Republican governor asking President Donald Trump’s administration to reject the plan.

The arguments being heard Thursday have been at the core of the nearly yearlong expansion battle. Medicaid expansion has been in the Maine courts since April, but the finer points of jurisprudence have kept judges from answering the core question in the lawsuit: Does the state have to comply with a law that hasn’t been explicitly funded by the Legislature?

In short, Maine Equal Justice Partners has said that state surpluses should be used absent dedicated funding, while the LePage administration says it doesn’t have the ability to allocate funding that way. The governor’s July veto foiled a legislative attempt to fund it.

It’s hard to tell where judges will land on this issue. Justice Donald Alexander of the high court argued in a dissent on last month’s decision that “there must be an appropriation” before coverage is expanded. A concurrence from Chief Justice Leigh Saufley said “attention must be paid” to the Legislature’s authority, but those are just opinions from the sidelines now.

Murphy will get the first crack at deciding them. She’ll also hear arguments today over when expanded coverage should begin. The voter-approved law slated it for July 2, but that deadline has come and gone during the legal fight, though coverage could be provided retroactively.

Friday’s arguments will revolve around the administration’s level of compliance with court orders. Maine Equal Justice Partners wants Murphy to rule quickly from the bench and find the LePage administration in contempt of the high court’s order, citing LePage’s letter asking the expansion plan to be denied by the federal government.

Proponents want a third-party receiver to be appointed to manage the process and file a plan with the Trump administration by month’s end, since federal rules hold that if a plan isn’t filed correctly by the end of an annual quarter, claims for coverage during that time aren’t covered.

Decisive day in D.C.

Testimony today will likely decide the fate of a U.S. Supreme Court nominee. Christine Blasey Ford and Brett Kavanaugh will both testify before the Senate Judiciary Committee on Thursday. Ford, a Palo Alto university professor, accused Kavanaugh of sexually assaulting her in high school. Two other women have come forward since Ford made public her experience. Kavanaugh has categorically rejected the allegations.

Politico reports that the Judiciary Committee plans to vote Friday morning on the nomination, despite strong resistance from Democrats who claim it’s outrageous and disrespectful to schedule a confirmation vote less than 24 hours after Ford testifies. Sen. Jeff Flake, R-Arizona, has apparently backtracked and is now undecided on Kavanaugh’s nomination and is the key swing vote on the panel. Flake has not voted in the Senate this week and has not commented on his current thinking about Kavanaugh.

Senate Republican leaders appear poised to take a quick floor vote after receiving the committee’s nomination, although NBC News reports that, in light of the accusations against Kavanaugh, they do not have solid commitments from the 50 senators they would need to ensure his confirmation.

Maine Republican Sen. Susan Collins, who has deftly avoided saying up to this point whether she will vote to confirm Kavanaugh in light of the allegations, is likely to be one of two or three key GOP swing votes on the nomination. 

Watch the hearing live at 10 a.m. here.

If a tree falls in a state forest …

A legislative watchdog panel is slated to hear testimony today on how Maine allocates timber harvested on state land to sawmills. LePage was not involved in a decision to give less timber to four Maine mills earlier this year, according to an OPEGA report the Government Oversight Committee will review Thursday morning.  

In his role as a member of the Legislature’s Agriculture, Conservation and Forestry Committee, Sen. Tom Saviello, R-Wilton, requested an investigation into whether two mill owners received less wood from public land earlier this year as retaliation for their views on tariffs, which are at odds with the governor’s. But LePage was not involved in the diversion earlier this winter, the report found. The decision to instead give wood to a Stratton mill facing an emergency was made by Maine State Forester Doug Denico, and there’s “no evidence or indication that the decision was in any way related to mill owners’ position on softwood tariffs,” according to the report.

The agenda for today’s meeting indicates that the panel will invite public feedback on the report.

Reading list

  • Money is pouring into this year’s gubernatorial race, but not at the pace it flowed the last time the seat was open. Campaign filings submitted by a midnight deadline Tuesday show that Democrat Janet Mills and Republican Shawn Moody have so far outraised the contest of four years ago, but still lag behind fundraising in the 2010 election that eventually delivered Republican Gov. Paul LePage a plurality of the vote. Public and private money given to campaigns of unenrolled candidates Alan Caron and Terry Hayes is on par with recent years, matching the 2014 election in which unenrolled candidate Eliot Cutler’s campaign put $3 million into a second unsuccessful run. Click here for an in-depth look at this year’s spending and how it compares to the previous two Blaine House contests.
  • Outside groups also are dropping lots of cash into Maine campaigns. The BDN’s Darren Fishell created this nifty tracker, which will provide rolling updates of outside spending to influence the outcome of all Maine elections. Bookmark it to keep score at home. Here is Darren’s soundtrack.
  • The governor signed a ‘horrible’ bill. Likely the last piece of legislation that the 128th Legislature sends to LePage, the bill provides some protections for elderly Mainers faced with losing their homes because of municipal tax liens. Lawmakers cobbled together a compromise bill on the matter, which has been a LePage priority this year, but the Republican governor criticized lawmakers for failing to include protections opposed by municipal leaders. “At least it gives some lawyers, at least a fighting chance. But it is a horrible, horrible bill,” LePage told Maine Public.
  • A child sexual assault survivor’s story helped Maine pass a law designed to better educate teachers on how to help kids in similar situations. Kayla Garriott was 10 years old when her father began sexually assaulting her during the weekends she spent with him following her parents’ divorce. It went on until she was 17. Eventually, her father was arrested and imprisoned. Garriott shared her story with Sen. Joyce Maker, R-Calais, who sponsored a bill that became a law requiring Maine schools to train staff on how to recognize signs of sexual assault.

Roadside distractions

I love my little town, but it becomes a confusing place during campaign season.

As in most other places, Richmond’s roadsides fill up with campaign signs between Labor Day and Election Day. We don’t have many intersections, so the spots where our winding byways merge overflow with candidates’ signs. It’s kind of fun to drive by day after day to observe the jockeying, as one candidate’s sign suddenly grows taller than his or her competitor’s — or the signs multiply like mosquitoes in a moist midsummer marsh in an effort to create the impression of campaign momentum.

Signs aren’t votes, as the old adage goes, but it is fun to watch to political placard competition unfold in small-town Maine.

This year, there’s a strange new twist. I have noticed an inordinate number of signs in Richmond for people who are not going to be on the ballots we cast at the high school on Election Day. The Republican candidate for district attorney in Kennebec County seems very popular here, based on the number of his signs that I have seen. Problem is: Richmond is not in Kennebec County.

One would expect that a well-funded incumbent would be able to plaster the highways and byways of his district with signs. Hence, the “Bruce Poliquin: Our congressman” signs are prominent. Except he’s not “our congressman,” as Richmond is in the 1st U.S. House district.

Richmond does nudge up against Kennebec County and sits on the border of Maine’s two congressional districts, so maybe it’s just a matter of neighborly support or redistricting envy. But it’s confusing for someone who might be inclined to vote based on campaign sign color schemes or least annoying roadside distractions. Here is your soundtrack. — Robert Long

Today’s Daily Brief was written by Michael Shepherd, Alex Acquisto and Robert Long. If you’re reading this on the BDN’s website or were forwarded it, click here to receive Maine’s leading newsletter on state politics via email on weekday mornings. Click here to subscribe to the BDN.

To reach us, do not reply directly to this newsletter, but email us directly at aacquisto@bangordailynews.com, mshepherd@bangordailynews.com or rlong@bangordailynews.com.

Michael Shepherd

About Michael Shepherd

Michael Shepherd joined the Bangor Daily News in 2015 after covering state, federal and local issues for the Kennebec Journal for three years. He's a Hallowell native who now lives in Gardiner. He graduated from the University of Maine in 2012 and is a graduate student at the University of Southern Maine's Muskie School of Public Service.