BREAKING NEWS: Democrats Win Special Election in State Senate District 16

Yes, I know the election is not until July 25th.  And, actually, I expect the candidate running as a Republican, former State Senator David Boutin, to come out on top.  But while the Democrats may lose this particular battle, they have won the war.  More specifically, the Republican Party in New Hampshire has moved so far to the left that the Concord Monitor has endorsed Boutin.

In other words, the political divide in New Hampshire is no longer about small government versus big government, which I believe is the essence of the conservative versus liberal divide.  It’s about who can run big government better.  From the Monitor endorsement:

During his Senate tenure, Boutin frequently exhibited a willingness to cross the aisle and work with his Democratic colleagues – an important and increasingly rare quality. …

Boutin is a strong supporter of full-day kindergarten and believes it should be fully funded. He … supports Medicaid expansion, and is adamant that the state’s “alcohol fund” should receive the full 5 percent of liquor profits that it was promised. …

To ensure “full transparency and accountability,” Boutin believes the Division for Children, Youth and Families should be broken off from the Department of Health and Human Services and become its own agency, with its own commissioner.

Before I get into the Monitor’s endorsement, a few words on how I define “conservative.”  To me, a conservative is someone who supports policies that push decision-making to the lowest possible level.  So, decisions that can be made by State government should be made by State government and not the federal government.  For example, we could not effectively fight a war with 50 different commander-in-chiefs, so we need to have one commander-in-chief, the President.

On the other hand, we don’t need a national education policy.  It’s better to allow the States to set their own education policies because a mistake in education policy will not have national ramifications, as would be the case with a national education policy, while successful policies can be adopted by other States.

Similarly, decisions that can be made at the municipal level should be made at the municipal level, not the State level.  For example, State government needs to be responsible for a state highway system because it is unlikely, to say the least, that municipalities would be able to effectively work together in this regard.  On the other hand, municipalities can and should adopt their own education policies for the same reasons that it is preferable for States, not the federal government, to set education policy.

And whenever decisions can be made by the individual, they should be made by the individual.  I don’t need the City of Manchester or any other municipality to protect me from Uber.  I don’t need the State’s help to choose who cuts my hair.  And if I am going to be taxed to pay for educating the public, I should get to choose where my kids go to school, including a private, religious school.

Now on to the Concord Monitor’s endorsement of Boutin.

When a liberal media outlet like the Monitor praises a Republican for a willingness to cross the aisle and work with his Democratic colleagues they are talking about same-but-less Republicanism: expanding government but just not to the degree that the Democrats would expand it.

When the Monitor praises Boutin for  supporting fully funding full-day kindergarten and the so-called “alcohol-fund,” they are praising him for thinking like a Democrat does – that more government spending automatically means better results.

[S]upport[ing] Medicaid expansion is the antithesis of small-government conservatism.  From Guy Benson at Townhall:

Medicaid was initially designed for the truly indigent, pregnant women, children and the disabled.  The Medicaid expansion population is by definition less poor, and is disproportionately comprised of able-bodied childless adults.

Medicaid Expansion, along with “stabilizing” the insurance markets, represents Obamacare’s glide-path to single-payer.  By supporting Medicaid Expansion, Boutin is supporting moving people from private health insurance to government health insurance.  By increasing the income eligibility for Medicaid Expansion over time, more and more able-bodies adults will become government-dependents.

And Boutin’s solution for the incompetent bureaucracy at DHHS is more bureaucracy: To ensure “full transparency and accountability,” Boutin believes the Division for Children, Youth and Families should be broken off from the Department of Health and Human Services and become its own agency, with its own commissioner.  That’s how Democrats think: the solution to a government program that is not working is another government program.

To be clear, I am not saying that there are no meaningful differences between Boutin and his opponent, Manchester Alderman Kevin Cavanaugh.  Boutin opposes the unconstitutional no-free-speech zones around Planned Parenthood clinics.  I don’t know where Cavanaugh stands on the issue, but because Planned Parenthood supports him I assume he stands against free speech for opponents of abortion.  Boutin also, I believe, to some degree supports school choice.  Cavanaugh, I would venture to guess, opposes any choice for parents.  And, of course, there is the issue of Sanctuary Cities.  Boutin, I understand, opposes.  Cavanuagh supports.

But philosophically, they both believe in big government.

The New Hampshire GOP celebrated the Monitor’s endorsement.  Apparently, all that matters now is that the candidate with the “R” after his or her name wins.  Sad.

Cheer up Democrats, while you may lose this particular battle, you have won the war.  Both parties in New Hampshire are now the parties of big government.

Sununu and His Attorney General Hang Secretary of State Gardner (and the President) Out to Dry

This is the third in a series of posts about a lawsuit the ACLU-NH has brought against Secretary of State Bill Gardner that is intended to prevent New Hampshire from participating in President Trump’s Presidential Advisory Commission on Election Integrity.

In the first post, I demonstrated that neither the ACLU-NH nor any of the other named plaintiffs have a legal basis to sue Gardner:

… the law in New Hampshire is that in order to bring a lawsuit the persons or entities brining it (the plaintiffs or petitioners) must have “standing.”  That is, they must be able to show that they will suffer a definite, personal injury from the unlawful conduct alleged in the lawsuit as opposed to suffering in some indefinite way in common with people generally.

The petitioners in this lawsuit are State Senator Bette Lasky, State Representative Neal Kurk and the ACLU-NH.  None of them have standing.  Indeed, none of them even allege they have standing.  The lawsuit, therefore, is total bullcrap and should be dismissed.

In the second post, I discussed my concern that Governor Sununu and his Attorney General would not vigorously defend the lawsuit:

… even though there is a significant chance that the lawsuit will be heard by an activist judge who will ignore the law and rule in the ACLU-NH’s favor, Sununu has already taken an appeal off the table.  The appeal would be to essentially the same supreme court that relatively recently vacated a similar attempt by the ACLU-NH to set policy (the Duncan vs. State of New Hampshire case) for lack of standing … .

I hate to say I told you so, but I told you so:What’s wrong with Sununu’s Attorney General agreeing to postpone the case in light of the Presidential Advisory Commission’s request that the States hold off on submitting voter information?  What’s wrong is the message that the Attorney General is sending by not demanding that the case be dismissed because the plaintiffs lack standing.  From my first post:

In terms of standing, this lawsuit is no different than Duncan v. State, where the petitioners, which included the ACLU-NH, claimed that a law which allowed businesses to take a tax credit for funding scholarships to private schools -including religious schools- violated the Blaine Amendment provision of  the New Hampshire Constitution: “no money raised by taxation shall ever be granted or applied for the use of schools or institution of any religious sect or denomination.”

… the supreme court order the case dismissed because “the generalized interest in an efficient and lawful government, upon which the petitioners rely … [is] not sufficient to meet the constitutional requirements necessary for standing to exist.“ 

The petitioners in the lawsuit against Secretary of State Gardner, like the petitioners in Duncan v. State, merely claim that State government is acting in an unlawful manner.  …

But even if one were to engage in the absurd fiction that a law that allows the information in question to be sold to political parties, political candidates and political organizations -and then disseminated or resold by these purchasers- is intended to protect the privacy of voter information, the petitioners do not allege any definite, personal injury that they would suffer that the rest of the voting public would not suffer if Gardner provides the information in question to the commission.  Thus, the petitioners lack standing and the case should be dismissed.

By not taking the position that the lawsuit immediately be dismissed for lack of standing, the Attorney General is leading the public to believe that it is legitimate for the ACLU-NH to sue the State whenever the ACLU-NH disagrees with the way the executive branch is executing a law.

This is not the way that our system of government is supposed to work.  The State Constitution does not give the judiciary the power to act as the overseers of the other two branches.  In other words, the Attorney General, and Governor Sununu who endorsed the Attorney General’s decision, are implicitly agreeing with the notion of government of the elites, by the elites and for the elites.

This helps explain why the Attorney General got the votes of the two ultraliberal  Democrats on the Executive Council.

The Attorney General’s decision also hangs Secretary of State Gardner, as well as President Trump, out to dry.

Gardner, who agreed to serve on the Presidential Advisory Commission, has defended providing the information:

Gardner has been defending the request for detailed voter information from the Trump administration’s commission on voter fraud. Gardner, a member of the commission, plans to provide publicly-accessible information, though critics argue state law allows the entire database to be provided only to political parties, political committees and candidates. …

By agreeing with the ACLU-NH to kick the can down the road, the Attorney General has fostered the impression that he is not on the same page as Gardner.  This needlessly hangs Gardner out to dry, by among other things implying that Gardner does not understand the law he is charged with administering.  Sununu did not help matters, in this regard, by subsequently publicly endorsing the Attorney General’s decision.

Sununu has gone from enthusiastically supporting the Presidential Advisory Commission to pretty much washing his hands of it, hanging the President out to dry as well.

The ACLU-NH Lawsuit Versus Secretary of State Bill Gardner: Is Sununu Just Playing “Matador Defense”?

The phrase “matador defense” refers to basketball players who do not put much effort into playing defense.  Defense is played with your feet in basketball.  Matador defense occurs when the defensive player makes a great show of waving his arms, but doesn’t move his feet and the offensive player dribbles right past.

These tweets have me concerned that Governor Sununu and his Attorney General are planning on putting on only a “matador defense” against the ACLU-NH’s lawsuit against Bill Gardner, which as I discussed in detail here is intended to prevent New Hampshire from participating in President Trump’s Presidential Advisory Commission on Election Integrity:
So apparently, without even seeing the decision, Sununu has already ruled out an appeal.  This is significant because the odds highly favor the case being heard by a Democrat-appointed judge who will not rule based on the law -which as I discussed here requires that the lawsuit be dismissed because the plaintiffs lack standing– but based on his or her political inclinations -that is, in favor of the ACLU-NH.

Stated slightly more succinctly, even though there is a significant chance that the lawsuit will be heard by an activist judge who will ignore the law and rule in the ACLU-NH’s favor, Sununu has already taken an appeal off the table.  The appeal would be to essentially the same supreme court that relatively recently vacated a similar attempt by the ACLU-NH to set policy (the Duncan vs. State of New Hampshire case) for lack of standing – discussed here.

If this is the plan, it is strikingly cynical.  Sununu would get to tell the GOP grassroots that he tried to work with President Trump’s commission, while at the same time give the GOP establishment who hate Trump an I’ve-got-your-back wink-and-nod, while at the same time disposing of a potential Democrat line of attack against him in the 2018 election.

Watch the Attorney General’s response to the lawsuit for more indication of whether Sununu and the Attorney General are playing “matador defense.”  If the Attorney General does not press the standing issue and seek to have the case dismissed, then it’s:

The ACLU’s Lawsuit Against Secretary of State Bill Gardner is Total Bullcrap

The New Hampshire Democrat Party has brought a lawsuit against New Hampshire’s Secretary of State, Bill Gardner, which effectively would prevent New Hampshire from participating in President Trump’s Presidential Advisory Commission on Election Integrity.  (Yes it was nominally brought by the New Hampshire chapter of the ACLU, but the ACLU-NH is as a practical matter a surrogate for the Democrats.)

As I will discuss in more detail below, the law in New Hampshire is that in order to bring a lawsuit the persons or entities brining it (the plaintiffs or petitioners) must have “standing.”  That is, they must be able to show that they will suffer a definite, personal injury from the unlawful conduct alleged in the lawsuit as opposed to suffering in some indefinite way in common with people generally.

The petitioners in this lawsuit are State Senator Bette Lasky, State Representative Neal Kurk and the ACLU-NH.  None of them have standing.  Indeed, none of them even allege they have standing.  The lawsuit, therefore, is total bullcrap and should be dismissed.

*****

In terms of standing, this lawsuit is no different than Duncan v. State, where the petitioners, which included the ACLU-NH, claimed that a law which allowed businesses to take a tax credit for funding scholarships to private schools -including religious schools- violated the Blaine Amendment provision of  the New Hampshire Constitution: “no money raised by taxation shall ever be granted or applied for the use of schools or institution of any religious sect or denomination.”

The trial court, more specifically liberal-activist judge, John Lewis, ruled in favor of the petitioners.  As I discuss here, Lewis’ decision is a text-book example of political-judging.  On appeal, the New Hampshire Supreme Court, no bastion of judicial conservatism (see here for an explanation of a judicial liberal and a judicial conservative), unanimously vacated Lewis’ decision and remanded the case with instructions that he dismiss it because the petitioners lacked standing.

More particularly, the supreme court order the case dismissed because “the generalized interest in an efficient and lawful government, upon which the petitioners rely … [is] not sufficient to meet the constitutional requirements necessary for standing to exist.  The supreme court explained that:

The text of the State Constitution nowhere suggests that the framers intended the judiciary to exercise a role of general superintendence over the whole of the State’s government — to function, in effect, as a body akin to the council of revision proposed at the Federal Convention of 1787. See J. Madison, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America 25 (Gaillard Hunt & James Brown Scott, eds., int’l ed. 1920) (proposing a “Council of revision,” comprised of “the Executive and a convenient number of the National Judiciary,” to “examine every act of the National Legislature”). “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws)” is the function of the legislative and executive branches. Lujan, 504 U.S. at 576; see Merrill, 1 N.H. at 204 …

The petitioners in the lawsuit against Secretary of State Gardner, like the petitioners in Duncan v. State, merely claim that State government is acting in an unlawful manner.  More particularly, they claim that New Hampshire law contains “privacy protections” for voter information that would be violated if Gardner provides certain voter information to the  Presidential Advisory Commission on Election Integrity.

But even if one were to engage in the absurd fiction that a law that allows the information in question to be sold to political parties, political candidates and political organizations -and then disseminated or resold by these purchasers- is intended to protect the privacy of voter information, the petitioners do not allege any definite, personal injury that they would suffer that the rest of the voting public would not suffer if Gardner provides the information in question to the commission.  Thus, the petitioners lack standing and the case should be dismissed.

It is important to understand that dismissing this lawsuit does not mean that Secretary of State Gardner does not have to follow the law.  The State constitution provides that the Governor is “responsible for the faithful execution of the laws. He may, by appropriate court action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right, by any officer, department or agency of the state.”  If the Governor believes that Gardner is violating the law, he has the authority to prevent that violation.

But as noted above, no neutral person could look at the law in question -which allows the information in question to be sold to political parties, political candidates and political organizations, which in turn can disseminate or resell the information- and claim it is intended to protect voter privacy.

Some Takeaways From the New Hampshire Center for Public Policy Studies’ Recent Study on Education Spending in New Hampshire

The New Hampshire Center for Public Policy Studies recently released a study titled Education Finance in New Hampshire – Headed to a Rural Crisis.  The Center is decidedly left of center, but the study is well worth the read because it contains a lot of useful information.  Here are some takeaways, albeit probably not the takeaways the authors intended.

First, by way of background, as I demonstrated ten years ago here and here, the Claremont decisions are political decisions.  That is, they are inconsistent with the text, the structure and the history of the New Hampshire Constitution and represent activist judges setting policy under the guise of interpreting the law.  In other words, the judges didn’t neutrally apply the law; they decided to write their policy preferences into the constitution and attempted to make it appear that they were merely interpreting the constitution.

The policy objective of the Supreme Court was to transform the way public education was financed and delivered in New Hampshire or, in the presumptuous words of Justice Horton in dissent in 1997’s Claremont II decision, to “effect needed reform”:

HORTON, J., dissenting: I agree with the majority that a proper education, beyond the basics, should include “[a] broad exposure to the social, economic, scientific, technological, and political realities of today’s society.” I also agree that the current financing matrix for education is far from desirable, for many of the reasons expressed in the majority opinion. My problem is that I was not appointed to establish educational policy, nor to determine the proper way to finance the implementation of this policy. Those duties, in my opinion, reside with the representatives of the people, the Governor, the legislature, and the respective magistrates and legislative authorities in the respective school and taxing districts. … I write separately to explain to the students and taxpayers of this State why I am unable to effect needed reform.

With respect to financing public education, which is the focus of the Center’s study, the goal of the activist judges was that the representative branches would impose a redistributionist tax, such as an income tax or a sales tax or a statewide property tax or some combination of these taxes, to pay for the cost of an “adequate education,” which they presumably expected would be close to average per pupil spending, which in 1999 (when the representative branches folded and implemented legislation to comply with Claremont) was about $5,500.00 per student.

In other words, the court wanted a sea change.  Local property taxes would no longer be the primary source of financing for public education.  Instead some State tax or taxes would be used to collect approximately $1.1 billion (assuming around 200,000 students at $5,500 per student), which the State would then distribute on an equal per pupil basis. Only at that point, according to the court could the State “target aid,” that is send additional money, to poorer communities.

Didn’t happen that way.  The representative branches, outsmarted the court.  The cost of adequacy was set materially lower than average per pupil spending (around $800 million), and while a statewide property tax was imposed the rate was set low enough to minimize transfers between towns.  Then a package of other taxes was cobbled together (approximately $400 million) to fund the remainder of the “cost of adequacy.”  This graphic from the Center, which doesn’t count the statewide property tax, shows the true amount of State funding (funding not from taxing property in the municipality) on a per pupil basis over time:Another way that the representative branches outsmarted the court was that over time the formula to determine the cost of an adequate education was tweaked so that true adequacy funding (funding not from taxing property in the municipality) is mostly targeted.  Consider the following table from the Center’s study:The Center offers the table to show the anticipated effect of demographic changes on the amount of adequacy funding a municipality receives.  But it also illustrates that education financing looks far different from what the court envisioned.

Rather than every municipality receiving adequacy funding -that is something close to average per pupil spending-  from the State and then the State providing additional money to poorer communities, adequacy funding is being targeted.  For example, Bedford receives $2,000 per pupil while Berlin receives over $9,000 per pupil.  This clearly is not what the court had in mind.

To be clear, it is bad policy to provide any State education funding to towns like Bedford that can easily pay their own way.  But the system we have is far better from a policy standpoint than the system the court sought to impose.

Another takeaway is that education spending has skyrocketed since Claremont II was handed down.  Consider this table from the Center’s study (only partially reproduced here):
Per pupil spending has more than doubled and in some cases nearly tripled.  But would anybody claim that the quality of public education has doubled or tripled?

That brings me to the final takeaway, the Center does not even discuss whether all this additional spending is increasing the quality of public education.  It is of no moment that, for example, Manchester has increased spending from $4,668.00 per student to $11,034.00 per student.  What matters is that other towns have increased spending more.

In the private sector the goal is to spend less and deliver a higher quality product.  The producer and the consumer both profit.  In the public sector, the goal is just to spend more.

Chris Sununu Sounds Like and Sides With the Democrats on Obamacare

Earlier this week Governor Chris Sununu released a letter to Senate Majority Leader Mitch McConnell regarding the Senate GOP’s health-care legislation, the Better Care Reconciliation Act, advising that, “the current version of the BCRA goes beyond addressing Obamacare’s flaws. This is not an approach I can support, and I am opposed to the BCRA as currently written.

But when one reads Sununu’s letter it quickly becomes clear that Sununu’s actual problem with the BCRA is that it does not spend as much on Medicaid as Obamacare: Continue reading

Sununu’s Silence on Religious Bigotry in New Hampshire

I previously posted about Senate Bill 8 here.  The bill was a response to the Department of Education’s and the Attorney General’s jihad against the Town of Croydon’s policy of using tax revenues to send some of its public school students to private schools in other school districts.

While well-intentioned, as I explained here, Croydon’s policy was not authorized under State law and a legislative fix was needed.

Senate Bill 8 was intended to be that legislative fix.  However, the State’s attorney general and certain RINOs in the New Hampshire House amended Senate Bill 8 to expressly discriminate against religious schools. Continue reading

Public Utilities Commission Says – More Green Pork

This past Friday, the New Hampshire Public Utilities Commission (PUC) lifted the so-called cap on net metering.  I explained net metering, and the “cap'” in a prior post, which I partially reproduce below.  In a nutshell, net metering forces electricity consumers who do not use solar to subsidize electricity consumers who use solar: Continue reading

Sununu’s Supreme Court Pick – Even Worse Than We Feared

I previously posted about Governor Sunna’s nomination of Bobbie Hantz Marconi to the New Hampshire Supreme Court here and here.  In brief, I was of the opinion that Sununu was playing identity-politics along the lines President George W. Bush played when he nominated Harriet Miers to the United States Supreme Court because Marconi has no experience in or interest in constitutional law.

I truly hate to say I told you so, given how rare and crucial supreme court appointments are, but I told you so. Continue reading

Questions the GOP Executive Councilors Should Ask Harriet Miers, er Bobbie Hantz Marconi, But Won’t

I previously posted about Governor Sununu’s nomination of Bobbie Hantz Marconi to the New Hampshire Supreme Court, likening it to President George W. Bush’s nomination of Harriet Miers.

The Executive Council, which must confirm the nomination, will hold a “public hearing” on the nomination.  Unlike hearings before the United States Senate, where a finite number of witnesses are called by each Party, the “public hearing” held by the Executive Council allows any member of the public to speak.

This makes hearings on judicial nominees before the Executive Council essentially a farce.  Judges should not be nominated based on their popularity with the public, but based upon criteria I discussed in a prior post: (1) Judicial Philosophy (2) Intellectual capacity (3) Experience (4) Integrity and (5) Demeanor.

Here are two questions the GOP Executive Councilors should ask the nominee, but probably won’t. Continue reading