Soon New Hampshire will have its first Republican Governor since Craig Benson in 2003-2004. Benson was a one-and-done Governor (that is, he was not reelected), and was the first GOP Governor of New Hampshire since Steve Merrill, who served two terms between 1993 and 1996. Needless to say, having held the corner office only two out the last 20 years, the GOP has a lot riding on Chris Sununu.
So what kind of Governor will Sununu be? Perhaps a better way to frame the question is whether Sununu will be a status quo Governor or a transformational Governor.
The first indication we will get of the kind of Governor that Sununu will be is whether he recommends a status quo budget or a transformational budget. To understand what I mean by that, it is necessary to briefly review New Hampshire’s budget process.
A three-part budget process is followed in New Hampshire. The first part is the myriad government agencies putting together essentially a wish list of spending for the next budget, which in this case covers July, 2017 through June, 2019 (the Fiscal Years 2017 and 2018).
Next, the Governor turns this spending wish list into a recommended budget and presents it to the Legislature by February 15th.
The Legislature then takes this information and writes the legislation that eventually becomes the State’s budget.
The budget that the Governor recommends, and that the Legislature writes, must be balanced. That is, spending and anticipated tax revenues must be equal.
A status quo budget is one that makes no radical changes to how State government is funded or how it is structured or how much it spends. Rather it makes minor tweaks, such as the token cut in the business profits tax proposed by Jeb Bradley or a modest increase in funding for charter schools, makes a conservative estimate of how much tax revenues will increase over the next two fiscal years and then pares back the agencies’ spending wish list to that point. In other words, a status quo budget is pretty much business as usual.
A transformational budget is a budget that makes major reforms to New Hampshire’s tax scheme, that makes meaningful structural changes to State government such as making funding for school choice and charter schools the priority over crafting an arcane “education funding formula” designed to please unelected political judges and education-bureaucrats rather than meet the needs of 21st century students, and that doesn’t assume that State government cannot be shrunk.
Additionally, Sununu will have to decide between being a status quo Governor or a transformational Governor when filling vacancies in government agencies and the judiciary. As I noted in a prior post:
But additionally Sununu is positioned to make a significant mark on New Hampshire as he has a GOP controlled legislature and Executive Council to work with and a number of significant positions to fill: two Supreme Court vacancies, the Attorney General and the head of the Department of Environmental Services. With the right picks and the right legislative priorities, Sununu could be a transformational Governor.
A status quo appointment with respect to the Attorney General is someone who passes muster with the State’s legal establishment, which is comprised of Democrats and liberal Republicans, who believe that the Attorney General’s office is a Super-Legislature that can and should exercise a veto over laws they don’t like by refusing to defend these laws. A recent example is the Attorney General refusing to defend an education funding law:
Facing a school funding lawsuit from the city of Dover, the attorney general’s office is not defending the law that caps how much state money growing school districts can receive each year.
A transformational Attorney General is someone who respects the separation of powers and will not refuse to defend legislation for political reasons, and who will aggressively work to prevent and prosecute voter fraud.
A status quo appointment with respect to judicial appointments is, again, an individual who passes muster with the State’s legal establishment. More specifically, a status quo appointment is a judge who decides cases by starting with the outcome that the political Left would reach, and then finding a way to reason his or her way to the result. A paradigmatic example is former Judge John Lewis of the Superior Court:
Judge Lewis’ decision in the Duncan case is a paradigmatic example of judicial activism, or political judging. Essentially, what political judging involves is reasoning backwards from a political result that the judge wants to achieve. Here, the political result was to prevent application of the education tax credit law, because those credits are used to defray tuition to private schools, and the Left opposes making it easier for low and middle-class children to attend private schools.
How do we know it was political judging? Well, from reading the decision.
Lewis began with the “legislative history,” of the education tax credit law, which is exactly the opposite of how a statute is supposed to be interpreted under New Hampshire Supreme Court precedent ( “Unless we find statutory language to be ambiguous, we will not examine legislative history.” Clare v. Town of Hudson, 160 N.H. 378, 384-85 (2010).) What’s even more unorthodox is that Lewis used his “analysis” of the legislative history to emphasize the minority report, which of course was opposed to the law.
A transformational appointment would be someone along the lines of the late Antonin Scalia, a non-political judge.
Unfortunately, the indications are that Sununu intends to be a status quo Governor when it comes to judicial appointments. Sununu has pledged to continue appointing judges recommended by a “Judicial Selection Commission” started by Jeanne Shaheen. In reality, the “Commission” consists mainly of the “good old boys” and “good old girls” of New Hampshire’s legal establishment and which would result in continuing the practice seen under Democrat Governors of appointing political-judges committed to reaching left-of-center political results, such as the infamous Claremont/Londonderry education funding decisions:
Republican candidate for governor Chris Sununu said he would continue the New Hampshire Judicial Selection Commission if elected, after more 100 lawyers and judges sent him an open letter asking him to clarify his position last week.
Contrast Sununu’s approach to that of President-Elect Trump who is relying on conservative legal minds to help select Scalia’s replacement:
NEW YORK, NY – Today Donald J. Trump released a second list of individuals he would consider as potential replacements for Justice Scalia at the United States Supreme Court. This group builds upon the highly praised list of choices he named in May 2016. These individuals were selected, first and foremost, based on constitutional principles, with input from respected conservative leaders.
Mr. Trump stated, “We have a very clear choice in this election. The freedoms we cherish and the constitutional values and principles our country was founded on are in jeopardy. The responsibility is greater than ever to protect and uphold these freedoms and I will appoint justices, who like Justice Scalia, will protect our liberty with the highest regard for the Constitution. This list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court. I would like to thank the Federalist Society, The Heritage Foundation and the many other individuals who helped in composing this list of twenty-one highly respected people who are the kind of scholars that we need to preserve the very core of our country, and make it greater than ever before.”
I have no doubt that the GOP “establishment” -the lobbyists, donors, operatives- want Sununu to be a status quo Governor because they believe this would give him a better chance at reelection, which in turn would give them more time to enjoy the spoils of government.
The question is whether Sununu intends to be a Governor for the establishment or a Governor for the voters who supported Trump and made him New Hampshire’s first GOP Governor in over a decade.