Margaret Matheson, center, an independent, served on the Maine Commission on Governmental Ethics and Election Practices until March 2018. Remaining members are, from left, Meri Lowry, a Portland Democrat; Richard Nass, an Acton Republican; Waterville Democrat William Lee III; and Freeport Republican Bradford Pattershall. Brianna Soukup/Staff Photographer

AUGUSTA — Leaders of the Maine Legislature have yet to fill a seat that opened on the state ethics board 19 months ago, leaving the public’s only watchdog for campaign finance accountability in a weakened state as candidates begin raking in piles of cash for the next election.

Only five people serve on the Maine Commission on Governmental Ethics and Election Practices, and by law no more than two members can belong to the same political party. As a result, one of the seats is usually held by an independent.

The last independent commissioner stepped down in March 2018, leaving ethics decisions in the hands of four commissioners who must set aside party loyalties – and who face no prohibition on making political donations themselves.

Last week, in a case involving House Speaker Sara Gideon, D-Freeport, Commissioner Meri Lowry, a Portland Democrat, recused herself because she had made a donation to Gideon’s primary campaign for the U.S. Senate. That left the commission with three voting members, who agreed to fine Gideon $500 for a reporting violation involving her PAC in 2016.

One of the three commissioners who voted on the Gideon fine, Richard Nass, a Republican from Acton, said in an interview later that he will likely contribute to the re-election campaign of U.S. Sen. Susan Collins, whom Gideon would run against if she wins the Democratic primary. Another sitting member of the commission, Brad Pattershall, a Republican from Freeport, has not made any candidate contributions, according to state campaign finance records.

The commission’s chairman, William Lee III, a Democrat from Waterville, warned after the meeting that the long-standing vacancy could have serious consequences if other members of the commission recuse themselves in cases where there may be a potential conflict of interest. He said commissioners have repeatedly urged the Legislature to take action on the vacancy.

“I don’t think I’ve ever heard anybody say they think decisions are well made when it’s a minority of a sitting body voting,” Lee said.

To fill the seat that is now vacant, top Democrats and Republicans in both chambers of the Legislature are required to work together to find three nominees for commissioner for the governor. The governor selects one from the three and submits the nomination to the Legislature’s Veterans and Legal Affairs Committee for a confirmation hearing and vote, with a final vote by the Senate.

A nominee cannot be a member of the sitting or previous Legislature, hold an elected office or have been a candidate for federal, state or county elected office for the last two years.

The vacant seat was held by Margaret Matheson, a retired attorney who previously worked in the Legislature’s Office of the Revisor of Statutes, a nonpartisan office that drafts and publishes legislation. After she stepped down in March 2018, top lawmakers were able to agree on two nominees to replace her and sent the names to Republican Gov. Paul LePage.

He rejected them both because of their past political contributions, according to Jonathan Wayne, the commission’s executive director.

It’s not clear why the present Legislature, under Democratic Gov. Janet Mills, has not moved ahead with filling the vacant seat.

Tom Desjardins, spokesman for Senate Republicans, said last week that legislative staff had met and submitted names to top lawmakers, but he didn’t know why the nominations hadn’t been forwarded to the governor.

“It’s up to the majority party (Democrats) to make the nomination,” he said.

But Mary Erin Casale, communications director for Gideon, the House speaker, pointed to the restrictions against political activity by commission members as a factor that makes it difficult to find an acceptable nominee.

“We have yet to find a slate that meets those stipulations and is agreeable to all four caucus leaders,” Casale said.

Mills’ office said she has urged the Legislature to move forward and fill the panel, which could have its work cut out for it as the state rolls into the 2020 election cycle with all 186 seats in the Legislature up for election.

“The governor would welcome the Legislature’s recommendations,” said Mills’ press secretary, Lindsay Crete, in an email.

As the 2020 election cycle nears, candidates and ballot question committees will be filing reports on both traditionally funded and Maine Clean Election Act campaigns that will be reviewed by the commission’s staff for compliance with deadlines and other rules. The filings will also come under intense scrutiny from rival parties, candidates and numerous interest groups. That scrutiny is likely to yield dozens of complaints that will require staff investigations, followed by recommendations for action by the commission itself.

Mills herself could be the subject of a commission decision in December. That’s when the panel is expected to deliberate over whether her inaugural committee should have to pay a fine for accepting donations to pay off its inaugural debt after the deadline for it to do so. Mills’ inauguration was the first to be subject to a new law requiring reporting by an inaugural committee.

Wayne, the commission’s executive director, said all the current commissioners have made it abundantly clear that they would like a full commission. But Wayne also noted, and the commission’s own meeting minutes confirmed, that most decisions made by the panel have been unanimous, with only a handful of split votes.

Wayne also noted that the commission was able to get through the 2018 election cycle, which included an open race for the governor’s office.

Kenneth Fredette, a former Republican lawmaker who served as the House minority leader, has been involved in selecting nominees and said the task can be difficult. He pointed out that commissioners are doing complex, time-consuming work for no pay, in an environment steeped in political animosity and rancor.

“It’s not a very easy vacancy to fill by the very nature of the job,” Fredette said.

He also noted that complaints to the commission are frequently being used as political weapons. Even small fines for minor infractions can be amplified or distorted by political operatives seeking to gain advantage for their side or candidates, Fredette said.

“They probably should be prepared for a busy 2020,” Fredette said of the commission.

Matheson, the former independent commissioner, said she understood the challenges of finding an acceptable nominee – even in a state where more than a third of all voters belong to no political party.

But she also said the commission’s fifth seat was critical to the integrity of the process.

“It gives the public an assurance and perception that it can’t be stacked either for you or (against) you based on partisan affiliation when you go before that group,” she said.

Matheson served on the panel for nearly nine years. By law, a commissioner can only be appointed to two three-year terms but can serve for a third term if a replacement hasn’t been found. She said she felt she had done her time in public service when she finally stepped down in March 2018.

Although much of the commission’s work is technical and legalistic in nature, it is meant to build public trust and help create transparency, which is harder to do if the commission has only its partisan appointees on board, Matheson warned.

“It’s there to foster that transparency,” she said. “That, to me, is an important part of the political process – being able to see and follow, where does the money come from.”


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