Report from Concord, Gov & House in conflict over NH Constitution may 2020

Ken Wells' Report from Concord              April 15, 2020


The customary title of this column, “Report from Concord”, seems peculiar to me now, since I’ve been unable to go to Concord for the past month. Just days after the all-night House session I described in the previous issue in the Beacon, the Governor locked down the State House and all the related government offices, due to the rising pandemic. Roughly a week later, after the State House was locked down, the Governor issued his stay-at-home order for the rest of NH citizens - a wise and necessary measure to quell the exponential rise in COVID-19 cases across NH.


But what does closing the State House mean? It is not merely a building that has been shut down.  Because the Senate and the House are unable to meet, there can be no quorum, so no votes, and their standing committees cannot hold any public hearings to advance legislation. The Executive Council, a powerful and unique NH entity which approves or rejects every major purchase or contract with the State, is also barred from meeting in the State House, so no new state contracts can legally be entered into.


Many are raising serious concerns about whether our representative democracy will be able to function under these emergency conditions, especially since the COVID-19 emergency will likely continue much longer than any of us would like. As long as the emergency ban on meetings is in effect, and until virtual government meetings by teleconferences can be recognized as legally acceptable, a serious obstacle exists to the constitutional functioning of our state government. Unfortunately, we have not quite figured out how our representative system can work during the current pandemic, which rightly demands physical distancing, because the legislative bodies cannot meet to discuss and modify their own rules to respond to the crisis, nor can they update existing laws.


History tells us repeatedly, times of crisis are times when autocrats have tried  to increase and consolidate their power. Not to draw a direct comparison to NH, but as a worst-case cautionary tale, recall that in 1933, Hitler cemented totalitarian control of his country’s government with an emergency decree he issued the day after the German legislative building, the Reichstag”, was totally destroyed by a mysterious nighttime fire. Unopposed, Hitler was free to do what he did. Let’s learn from history. 


With the State House shut down, all the co-equal branches of NH government face a significant obstacle to their function, and our constitutional democracy faces a number of risks. The guard rails imposed by the NH Constitution’s “checks and balances” provide a dynamic and productive struggle among 1) the “General Court”, composed of the House & Senate Legislative bodies, 2) the Executive Council, who must approve the State’s contractual expenditures 3) the NH judicial courts, and 4) the Governor’s Executive offices. 


How does the venerable NH Constitution envision government? Your interests, as citizens of NH’s Merrimack District 1, are primarily represented by your elected officials in the Legislature. (That is, myself, David Karrick and Senator French.)  The courts, presided over by judges appointed by this and previous Governors, make sure that everyone is playing according to the “rulebook” embodied in the NH Constitution and in statute. The Governor, as chief executive, is granted vast and sweeping powers he can wield with agility in the face of a sudden crisis like COVID-19, but his emergency measures are subject to review in the slower, but powerfully deliberative processes within the Legislature and the Courts. 


The NH Constitution is a brilliant document, crafted and refined over many years to consider past and future circumstances, and even such an emergency as this current pandemic was planned for. In the case of emergency spending, the Legislature’s  “power of the purse” was delegated in RSA 9:13(d) to a small bipartisan “dream team” called the Joint Legislative Fiscal Committee, who has the power to approve or nix any emergency expenditures on behalf of the full Legislature. (It’s called “joint” because its members include both House Representatives and Senators of both parties.) Especially important these days, the Joint Fiscal Committee is constitutionally permitted to conduct its business via telephone or internet teleconferences. 


What does the NH Constitution say we are supposed to be doing, to quickly and constitutionally distribute federal emergency aid to NH people when it arrives this month? Yeah, that’s not what’s happening right now. The Governor has created his own, different “dream team” which he calls “GOFERR”. This body supposedly has oversight, but possesses no constitutional power to reject or halt expenditures of the $1.25 billion dollars in federal funds, to whomever, by the Governor. GOFERR seems aptly named, because its only power, it seems, is to rubber-stamp the Governor’s decisions on what happens to the money . Now, I trust that the Governor means to do right by the People of NH, but could anyone stop him if he decided to send part of NH’s $1.25 billion in federal emergency funds to say, bailout the out-of-state industries that are his political supporters? The NH Constitution says the existing Joint Fiscal Committee must be the body empowered to stand in the way of such questionable decisions, and that the Joint Fiscal Committee is already constitutionally empowered to make sure that the People get the monies intended for them. 


The problem of the day (yesterday, as I write this, two weeks before press time) is that the suit challenging GOFERR brought by the Legislature will take some time to grind through the courts, and in the meantime, the federal money might already have been spent improperly. Good luck getting any of that money back to NH people after the check clears, especially since it would be hard and slow to get the money back if it was cashed by an out-of-state entity. (If you would like more information about what state & federal aid might be available to you, your children or your small business, see the information posted at AndoverBeacon.com, or call me.)


I’m convinced that GOFERR isn’t in the best interests of the People of NH, and bypassing the Joint Legislative Fiscal Committee is not consistent with the NH Constitution I swore an oath to protect.


Ken Wells     
735-5756     
kenwells3@gmail.com