The Portland City Council voted unanimously Monday to approve a statement to Maine’s top court justifying a 2019 decision not to place a citizen referendum on the ballot to create a public financing program for municipal candidates.

Fair Elections Portland, which led the citizens initiative to create a local clean elections program, sued the city over its decision two years ago to require the proposal to be vetted first by a charter commission, a process now underway. After losing in the lower court, Fair Elections Portland appealed to the Maine Supreme Judicial Court, which directed the city to formally articulate its rationale before deciding the case.

Advocates for a municipal clean elections program on Monday essentially urged the councilors to discard the previous decision and look at the arguments anew.

“I would encourage you not to simply double down on the same mistake that was made two years ago and instead let this go forward and not contest this in court and let the people have their say at the ballot finally,” said Anna Kellar, the chair of the Fair Elections Portland.

But a city attorney and councilors, including those who support a clean elections program, argued that approach was outside the scope of what the court had ordered.

“We’re not debating whether or not this should have been or could have been a revision or an amendment,” said Mayor Kate Snyder, who took office after the council had made its decision in 2019. “That happened.”

Associate Corporation Counsel Jennifer Thompson said the city was simply following state laws for changing a city charter, which is essentially a municipality’s constitution.

Before being elected to the city council, April Fournier was one of 13 residents to file suit against the city, though she is in the process of removing herself from the suit. Fournier had previously said she would not recuse herself from the discussion, as recommended by the city attorney, because she didn’t technically have a conflict of interest.

But Monday she reversed course and recused herself from the discussion, so she wouldn’t be a distraction.

The proposal from Fair Elections Portland would create a local financing option for municipal candidates, similar to the state’s clean elections program, which can be used in gubernatorial and state legislative races. Such programs provide taxpayer money to finance the campaigns of candidates who limit the amount of private donations. The state program requires candidates to collect a certain number of initial donations to show evidence of support in order to qualify for public funding.

Advocates, who collected over 6,800 signatures to get the issue on the ballot, say clean elections programs reduce the barriers – specifically the high costs – people face when running for office. Public financing, they say, allows candidates to spend more time talking to voters, rather than potential contributors.

After deciding that the proposal could not go directly onto the ballot, the council asked voters whether they wanted to create a charter commission to look at the issue. Voters approved the concept in July 2020 and elected members in June. The commission is now studying the issue.

The findings approved Monday explain that an annual funding requirement would constitute a fundamental change in municipal government because it could hamstring the council and manager when making budget decisions. The city asserts that no other city service or school operations are required to have either a specific, or “sufficient,” level of funding, like the clean elections program would.

FUNDING A KEY ISSUE

“If approved, the change proposed by the petitioners would require not just that the city create a campaign finance program but that it also earmark and, therefore, prioritize over other city operations, funding of that program,” the city said in its findings. “Under the proposal, in times of financial strain, a requirement that election campaigns be sufficiently funded with public monies, a future City Council would be required to elevate the funding of election campaigns over the operation of emergency services, snow plowing or school operations.”

Advocates tried to convince councilors to reconsider the 2019 decision.

John Brautigam, an attorney representing Fair Elections Portland, sent councilors an alternative finding of fact prior to the meeting, as well as an outline of other areas in the city charter that set funding mandates. His submission included an estimate that a clean elections program would cost about $100,000 to $300,000 a year, or roughly 0.1 percent of the city’s $268 million budget.

Brautigam argued that the court was skeptical of the city’s arguments. He suggested that repackaging the city’s previous legal arguments was like putting “the same old beer into a new bottle.”

“The court had all of this information and said it doesn’t hold water,” he said.

Only four of the nine members of the council were serving when the 2019 decision was made to require the citizen initiative to first be reviewed by a charter commission before being placed on the ballot. But the new councilors said they had reviewed the meeting videos and public records from that debate.

They agreed that the findings accurately reflected the previous council’s rationale.

“There’s no question that was their logic,” City Councilor Andrew Zarro said. “That’s what they did.”