Election Alert for October 9, 2012
28 Days and Counting…..
New Hampshire needs you – please be sure to vote on Tuesday, November 6.
Ballot Question 2
O’Brien’s Excellent Adventure to the Colonial Era – Taking Back the Courts!
In
an attempt to erase decades of statutory and judicial work on
separation and balance of powers, the whiz-kids of the current
legislature muscled through a constitutional amendment that will appear
as Question 2 on your ballot as follows:
2.
“Are you in favor of amending article 73-a of the second part of the
constitution to read as follows: [Art.] 73-a [Supreme Court,
Administration.] The chief justice of the supreme court shall be the
administrative head of all the courts. The chief justice shall, with the
concurrence of a majority of the supreme court justices, make rules
governing the administration of all courts in the state and the practice
and procedure to be followed in all such courts. The rules so
promulgated shall have the force and effect of law. The legislature
shall have a concurrent power to regulate the same matters by statute.
In the event of a conflict between a statute and a court rule, the
statute, if not otherwise contrary to this constitution, shall prevail
over the rule.” (Passed by the N.H. House 242 Yes 96 No; Passed by State
Senate 19 Yes 5 No) CACR 26 Yes No
Be Afraid, Be Very Afraid!
The
O’Brien legislature has taken a number of actions with very dangerous
consequences for our citizenry. Underfunding our court system has caused
delays in our citizens’ ability to obtain justice. They have also
created a competing mechanism, the Committee of Redress, that reviews
court decisions filed by petitioners (without the bother of such little
things as court procedures, equal protection for all parties, or even
hearing the other side of a case). To date, the Committee of Redress has
recommended the impeachment of four justices on virtually the sole
testimony of a petitioner who claims to have been wronged (or otherwise
simply didn’t like the verdict). The concept of due process seems hopelessly lost on this crowd.
Ballot
Question 2 will give over to the legislature complete and final
authority over our judicial system, turning it into little more than
another political body. Although, as you can see from the question
above, the ability to write rules will still reside with the judicial
branch, the legislature will be able to concurrently change statutes
relative to these rules and the latter will “shall prevail.” Does
anyone really doubt that a legislature wedded to the extreme ideology
of the current one will fail to turn our courts into an extension of
themselves?!
Scholars
who argue for a well-functioning judiciary, one that functions
objectively and in the pursuit of the rule of law, without undue
influence of the political climate, cite the critical need for a clear
separation of powers. G. Alan Tarr, professor at Rutgers University and a
scholar in constitutional law, state constitutions and the courts and
judicial process, puts forth four principals that should form the
foundation of any reform of our judicial system. These include: judicial
independence from political institutions, interest groups and the
general public; judicial autonomy with the power to govern and manage
its own affairs; effective delivery of judicial services with access for
all citizens and expeditious administration of justice; and,
accountable to the rule of law and to the people and their
representatives (we already have a process in place when a justice
violates his/her position in any way and that is the impeachment
procedures). For more information on this topic, see G. Alan Tarr, The State Judicial Article, http://camlaw.rutgers.edu/statecon/judicial.pdf
Ballot
Question 2 violates every one of these principles. The first two are
self-evident. Violation of the remainder stems from the fact that by
underfunding and interfering with the judicial process hobbles our court
system’s ability to effectively deliver its services and makes it
difficult to appropriately hold it accountable.
Nothing New Under the Sun
For
those who may have imagined that with the writing of the US
Constitution, and subsequent state constitutions, the establishment of
three branches of government was a settled matter, a reading of history
on this topic immediately disabuses one of that notion. As it turns out,
there has been a protracted battle between the legislative and judicial
branches of government for decades and longer following independence.
New
Hampshire’s own history in this regard is instructive of the desire of
past legislatures to exert significant control over the judiciary. Our
legislature once had a participatory role in dispensing of justice
through an archaic device called the Committee of Redress
(yes, similar to the one mentioned above!). This legislative body heard
complaints by our citizens and ruled on those. It didn’t take long,
however, for our forebears to recognize that there was a bit of a
conflict of interest in having those who wrote the laws also interpret
the laws and dispense with justice – not to mention write the laws to
settle cases. It was a rather circuitous way of administering justice
fraught with a host of problems for both public policy and
justice. (Consider just one example of someone who has a complaint
against the state, one that might result of in an injured party being
awarded a judgment against the state. And, all of this being heard by
the a unit of the same body that formulates a budget for the state.)
Even
after the establishment of a separate judicial system, however, past
New Hampshire legislatures grappled with the concept of a judiciary over
which they had little control. Consequently, at least twice over the
course of our history, “New Hampshire legislated out of office all
justices of its supreme court by repealing the statute the created the
tribunal and establishing another court in its place.” (G. Alan Tarr,
“Contesting the Judicial Power in the Statest,” http://www.harvard-jlpp.com/wp-content/uploads/2012/03/TarrFinal.pdf
For
those interested in an in-depth discussion of the tensions between
legislatures and the judiciary, Tarr’s 19 page article on the topic
provides a great overview of the topic.
Just Say No!
If you want to defeat Question 2, you must cast a “No” vote. Passage requires two-thirds approval by those who vote on the Question. Please
help to spread the word of the dangers of this constitutional
amendment. Encourage your friends, family and neighbors to make plans
now to vote and also to vote “no” on this question.
Update on Ballot Question 1:
Hold onto Your Seats – Here Comes the Money
As
you may recall, the previous Election Alert covered Question 1, a
constitutional amendment banning an income tax for “natural” persons and
concerns analysts have expressed over the potential passage of this
amendment. I warned about a last minute push for passage of Question
1. Sadly, almost immediately after the send button was hit on the
Election Alert, the news broke that a new PAC has been set up to do
precisely that.
The
“No Income Tax” PAC is headed up by former gubernatorial candidate and
former Executive of Cornerstone Policy Group, Kevin Smith. The PAC is
chaired by three former Governors, Steve Merrill, John E. Sununu and
Craig Benson. The PAC can take unlimited amounts of contributions from
individuals and organizations. You can count on this being a very well
financed effort to get voters to approve the passage of this very
dangerous constitutional amendment.
For some additional updated information on Question 1, visit the podcast of Attitude with Arnie,
October 5, 2012, Hour 1 starting about 31 minutes in to hear the
interview with Jeff McLynch of the NH Fiscal Policy Institute: http://www.nhnewsviewsblues.org/podcasts/Attitude_with_Arnie_Podcasts.xml Jeff responds to a number of questions about this ballot initiative that you may find of interest.
NOTE: Remember that it takes two-thirds of those who vote on the question
for it to pass. If you want to defeat Question 1, you must vote “no” on
it. Moreover, with the influx of influence and money to push for
passage, it is now more important than ever that you spread the word
about the pitfalls of this constitutional amendment and get your
friends, family, neighbors and co-workers to the polls to vote on
November 6.
Voting Tip of the Day:
Unregistered
voters may register to vote on General Election Day and will be allowed
to vote in that election. If you wish to register before the General
Election you can do so up until October 27. That is the last day to
register until the General Election.
As mentioned in the last Election Alert, you will be asked to present a valid photo ID (see http://sos.nh.gov/ for list of acceptable forms of ID). NOTE: If you do not have a valid photo ID you will be permitted to vote after executing a “challenged voter affidavit.”
Opinion Piece of the Day:
OP-ED COLUMNIST
Buying the Election?
Fred R. Conrad/The New York Times
By JOE NOCERA
Published: October 09, 2012
….Not all that long ago, the ability to partake of public financing was a sign that you had arrived as a serious candidate; today no candidate in his right mind would want to be so constrained….This election season, Mitt Romney and President Obama could end up spending more than $1 billion each. They seem to spend more time fund-raising than pressing the flesh with voters.
And that doesn't even account for what's truly different about this election: the rise of the "super PACs" and 501(c)4s, which are essentially a form of campaign money-laundering, allowing wealthy people to contribute millions toward supposedly "independent" spending on campaign advertising, polling and other expensive campaign goodies…
Although individual contributions to a particular candidate remains severely restricted - no more than $5,000 - the amount someone can pour into a super PAC is limitless. The means by which the country finances its campaigns is utterly broken. In a recent cover story in The Atlantic, James Bennet, the editor, traces how that happened. He focuses on a man named Jim Bopp Jr., a lawyer from Terre Haute, Ind., who has largely devoted his life to freeing the nation of campaign spending limits…What is astonishing is the way Bopp makes unlimited spending seem actually democratic. "Most people don't even know who their congressman is," Bopp tells Bennet. If there were more spending on campaigns, voters would be more educated about the candidates. The Supreme Court majority, meanwhile, has essentially said that, by definition, campaign spending that is independent of the candidate cannot be corrupting.
What we also know in the real world is that unlimited spending will not serve to enlighten voters. It will deaden them to political argument - as is happening in just about every swing state, where the ads are running with such frequency that people are tuning them out. Finally, we know from hard experience that the money that comes into politics has the potential to corrupt.
"This can't be good for Democracy," Bennet told me in an e-mail. It's not.
For full article see: http://mobile.nytimes.com/2012/10/09/opinion/nocera-buying-the-election.xml
Buying the Election?
Fred R. Conrad/The New York Times
By JOE NOCERA
Published: October 09, 2012
….Not all that long ago, the ability to partake of public financing was a sign that you had arrived as a serious candidate; today no candidate in his right mind would want to be so constrained….This election season, Mitt Romney and President Obama could end up spending more than $1 billion each. They seem to spend more time fund-raising than pressing the flesh with voters.
And that doesn't even account for what's truly different about this election: the rise of the "super PACs" and 501(c)4s, which are essentially a form of campaign money-laundering, allowing wealthy people to contribute millions toward supposedly "independent" spending on campaign advertising, polling and other expensive campaign goodies…
Although individual contributions to a particular candidate remains severely restricted - no more than $5,000 - the amount someone can pour into a super PAC is limitless. The means by which the country finances its campaigns is utterly broken. In a recent cover story in The Atlantic, James Bennet, the editor, traces how that happened. He focuses on a man named Jim Bopp Jr., a lawyer from Terre Haute, Ind., who has largely devoted his life to freeing the nation of campaign spending limits…What is astonishing is the way Bopp makes unlimited spending seem actually democratic. "Most people don't even know who their congressman is," Bopp tells Bennet. If there were more spending on campaigns, voters would be more educated about the candidates. The Supreme Court majority, meanwhile, has essentially said that, by definition, campaign spending that is independent of the candidate cannot be corrupting.
What we also know in the real world is that unlimited spending will not serve to enlighten voters. It will deaden them to political argument - as is happening in just about every swing state, where the ads are running with such frequency that people are tuning them out. Finally, we know from hard experience that the money that comes into politics has the potential to corrupt.
"This can't be good for Democracy," Bennet told me in an e-mail. It's not.
For full article see: http://mobile.nytimes.com/2012/10/09/opinion/nocera-buying-the-election.xml
