This will be a somewhat abbreviated post because the News Guy moderated a debate among Northeast Kingdom legislative candidates last evening and there is only so much one fellow can do in one day.

Oh, all right. Full disclosure. In addition to this public duty, the News Guy herewith admits another factor. As revealed in an earlier post (the one about Centennial Field and the Lake Monsters Take Us Out To the Ball Game? July 3, 2009)  among the News Guy’s private passions is that exotic past-time known as baseball, to which he devoted the latter part of the evening.

So for today, just a correction or two, a little mopping up, and then a tale, a true story that may or not be cautionary.

Wednesday’s post reported news of an “inter-active map showing poverty rates by state and county in 2009 when the poverty reached its highest levels in 51 No big surprises.”

Obviously that should have been the poverty rate which reached its highest levels in 51 years, period, end of sentence.

A few paragraphs later, the post listed the poverty rates for Vermont’s counties, but left out two of them. Thanks to the reader who pointed out the omission, and for those who read the post early, scroll down. All 14 counties are in there now.

And to the reader who asked what the under-five-year-old poverty rate is by county, stay tuned. The search is on.

Another reader had a good point on that post, and this time it was not just any reader but Doug Hoffer, the Democratic candidate for Auditor. Read Hoffer’s full comment (just go down to the bottom of Wednesday’s post and click on “3 comments,”) but his main point was that it isn’t good enough for Vermont’s poverty rate to be lower than in most other states; ten percent in poverty still too high and we’re all too willing to accept that state of affairs.

An interesting comment which deserves a full treatment soon.

Later in that same post was the report of a poll showing that “45 supported the idea, 36 percent opposed it, and 19 percent were undecided.”

No doubt you all figured this out for yourselves, but just for the record, that’s 45 percent.

The October 11 post, Ethical Quandary, reported that Lt. Gov. Brian Dubie was once a member and chairman of the school board in Essex. It was Essex Junction. Apologies to both municipalities and to Dubie.

OK, now to the tale, in which the names shall be changed to protect the innocent. So let’s call them Mr. and Mrs. Jones. They live in Charlotte, in the same house they had built more than 40 years ago. It isn’t a big house. Fifteen hundred square feet, Mr. Jones said.

The Joneses are not young. He’s 81. She’s 75. They’re not rich either. Last year, they said – and emailed tax records to back it up – their taxable income was $44,000. Because they own their home free and clear, they no longer have to make mortgage payments. They just have to pay their utility bills, buy food and fuel, whatever clothing they might need, and some incidentals.

Oh, and of course property taxes on their house. This year, their property tax bill is $11,252.

No, that’s not a typographical error. The Jones pay more than $11,000 – one quarter of their taxable income – for property tax.

Wait a minute. Doesn’t Vermont’s property tax system include an “income sensitivity” provision that protects middle-income homeowners from sky-high property taxes?

Yes, but earlier this year the Legislature passed a bill (H 783) effectively abolishing income sensitivity  when “the equalized value of a housesite (is) in excess of $500,000.”

That covers the Jones’s 1,500-square-foot house that they had built in 1967 for $22,000. It is now assessed at $1.4 million

No, neither of those was a typo, either.

The Joneses have made some improvements to their house over the years. But that’s not why its assessment shot up. It was, said Mrs. Jones, the much larger houses built all around them over the last several years that raised the assessed value of all the homes in the neighborhood.

The Legislature acted after some news stories in the Burlington Free Press and the Valley News (for some reason unavailable on its web site) that some residents of opulent homes were paying modest property tax bills based on their incomes.

The Legislature acted out of a combination of opportunism and controlled panic. The lawmakers were scrounging for all the revenue they could find. And they worried about being attacked for coddling the “wealthy,” even if these supposedly wealthy people earned average incomes.

It was not an unreasonable decision. Like the others so targeted, the Joneses will not suffer economically. They can sell their home, probably not for $1.4 million in the Recession, but for several hundred thousand dollars, which will allow them to live out their lives in comfort.

But they don’t want to move.

“This is our home,” Mrs. Jones said. “It’s where we raised our three boys. At my husbands age, moving will be hard on him.”

Surely this is not what the Legislature intended. But nobody has repealed the law of unintended consequences. And legislating on the basis of a few “horror stories” is a good way to activate that law.

The fight is on, and it promises to be a humdinger.

Attack and counter-attack. Quick response. Thrust and parry. Jab and hook. Give no ground or quarter. The best defense is…well, you get the picture.

All of which is lots of fun, but threatens to obscure the meaningful substantive differences between Republican Brian Dubie and either Peter Shumlin or Doug Racine.

In fact, “obscure,” may understate the case. “Pervert” could be more appropriate. The barbs each side is throwing at the other seem designed to convince voters that the opposition is extremist: that the Democrat would raise everybody’s taxes; that Dubie would permit the poor to starve on the sidewalks.

Not hardly.

As mentioned here the other day, the winner will be governor, not emperor. Even if Shumlin/Racine wanted to raise everybody’s taxes, the Legislature would not. Nor would it allow the poor to starve on the sidewalks.

Besides, the Democrats, who are prudent, do not want to raise everybody’s (or anybody’s) taxes, and Dubie, who is decent, does not want the poor to suffer at all, much less starve on the sidewalks.

“People who depend on vital state services are not going to be abandoned by state government,” said Dubie campaign spokesperson Kate Duffy.

Even the semi-defensible attacks are a bit over the top. There is some justification for Shumlin to argue that Dubie’s economic policies would lead to “deficits, unending deficits, tax cuts for the wealthiest Vermonters and budgets that don’t balance.”  Dubie’s determination to cut taxes and his vagueness about what programs he would cut do complicate the budget-balancing task.

But in addition to redundancy (deficits are “budgets that don’t balance”), the attack ignores Dubie’s pledge that tax cuts “won’t happen in one big step or one year,” but would be “incremental.”

Similarly, Dubie may not be dead wrong when he claims the Democrats have “only two solutions for the challenges we face: more government spending and higher taxes.” Both Shumlin and Racine are on record in the past favoring new programs and higher spending. But while they still favor  some new state initiatives, they are not for higher taxes.

Besides, there’s another candidate who proposes new government spending: Brian Dubie. The jobs plan in his “Pure Vermont” document calls for the state to “increase support for (Vermont Economic Development Authority’s) highly successful interest rate subsidy program,” “ increase public investment in the new Technology Lending Program,” “add support for (Small Business Development Center) counseling,” and create an investment tax credit.

All that costs money. Yet the heart of Dubie’s campaign is to hold the state budget to spending increases of  two percent a year. Because revenue is projected to rise at a higher rate, a Dubie Administration could then cut income taxes by a total of $240 million over four years.

This means, said  Duffy, that Dubie’s plan “is not making any cuts.” State spending, she said, would continue to rise, just more slowly than it has been rising, and more slowly than revenue would rise.

Dubie’s arithmetic is correct, except that he first pledges to close the projected $112 million deficit for the coming Fiscal Year (2012). That would require a spending cut of more than 9 percent, creating a new base. Increasing spending by two percent a year for the next four years on top of that new base would mean that spending would fall by an annual rate of about three-quarters of a percent over a five-year period. Extend the same policy out another five years, and spending does go up, but only at an average annual rate of slightly more than one percent.

That might be the smallest growth rate of state spending in decades, if not a century, raising questions about how realistic the plan is. Dubie claimed that in the early 1990s, Gov. Howard Dean actually level-funded (no increase) spending over a three-year period, a harsher reduction than Dubie’s proposed two percent growth.

Not really. Check the esoteric document available from the Joint Fiscal Office web site’s “Appropriations” page,called “Budget History FY 83-present.” It shows that while the General Fund budget actually went down for one year under Dean, it then started up again, and over a five-year period it rose by an annual rate of 3.4 percent a year.

That document provides other interesting information, both casting doubt on the assertion that Dean really “level-funded” spending and confirming that budgeting is a creative art. In those same recession years that Dean was spending less out of the General Fund, some new expenditures are recorded in the Transportation Fund.

Could it be that the state was using Transportation Fund money (financed from gasoline taxes, auto registration, etc) for non-transportation purposes? The document suggests, but does not prove, that the answer to that question is in the affirmative.

If so, it would not be unusual, in Vermont or elsewhere. One reason for that $112 million projected shortfall for the next Fiscal Year, for instance, is that the Legislature and Gov. Jim Douglas have been effectively filching from the Education Fund by not transferring into it as much General Fund money as the law required. (Legislatures and governors, who make laws, can change them as an alternative to obeying them). Reached at home where he did not have access to his records, Joel Cook, the executive director of the Vermont National Education Association, estimated that the shortfall was at least $50 million.

If the Legislature doesn’t repay that (as it said it would) or come up with enough money again this year, the Education Fund could be short tens of millions of dollars. That would require either deep cuts in school spending or substantial increases in local property taxes.

This poses a potential political problem for Dubie. He wants to cut everybody’s income tax rate by about a third, reducing the top rate from nine to six percent and the lower rates comparably. That’s good politics; everybody likes lower taxes.

But the Democrats will try to convince voters that the result would be higher property taxes, which are the taxes Vermonters really dislike. Democrats are already making that argument as well as claiming that, in Racine’s words, Dubie’s “numbers just don’t add up.”

“He wants to add money for various business promotion efforts…but he wants to cut taxes,” Racine said in a telephone interview. “This sounds like the federal budget discussion. Make promises of higher spending for business and lower taxes for everybody. That’s Washington. We don’t do that here in Vermont.”

That’s harsh, but standard political rhetoric. What came out of the Dubie campaign late yesterday may have crossed the line from standard to…well, to  false. In a statement released yesterday afternoon, Dubie said Racine had wanted to use money from the state’s “Rainy Day Fund” to “expand government-run services,” and that he opposed the “Challenges for Change” plan to make government more efficient.

The first of those accusations is simply incorrect. Racine has suggested dipping into the reserve funds, but only to support existing social service programs, not to “expand” government service. The second charge is minimally defensible, but a stretch. Racine supported “Challenges for Change” during this year’s legislative session, voting for it at least twice,  though he voted against the final Fiscal Year 2011 budget which incorporated “Challenges.”

“Fundamentally, Brian is a decent man,” Racine said. “If he wants to disagree with me, that’s fine. But don’t be deceitful.”

It could be a long two months.

Then let’s start today’s exercise calmly. The two (apparent) violations of state law about to be detailed do not portend the approach of a police state in Vermont. Jack-booted thugs are not combing the Green Mountains, nor are undercover agents listening to our innermost thoughts through transmitters placed in our tooth fillings.

Furthermore, the two incidents are in many ways not comparable. In one, nobody got hurt. In the other, somebody did.

Yet neither are they entirely unrelated. The thread that runs through them jeopardizes a free society.

Let’s first deal with the lesser offense. Earlier this year, the Legislature ordered the Education Department to prepare detailed budget-cutting recommendations to each of the state’s 283 school districts, and to have them finished by August 1.

That was Sunday. On Monday, a reporter for the Vermont Press Bureau (Rutland Herald and Barre/Montpelier Times-Argus) asked to see the report detailing the recommendations. Education Commissioner Armando Vilaseca refused.

In refusing, he almost surely violated 1 V.S.A. § 318, which states, “upon request the custodian of a public record shall promptly produce the record for inspection.”

Unless one of the 39 exceptions in 1 V.S.A. § 317 applies, and then “the custodian” (Vilaseca in this case) must stipulate which exception he is citing in his refusal.

He did not.

Vilaseca did not dispute that the report was a “public record.” In an interview Tuesday, after the Rutland and Montpelier papers had run the story, he argued that the report “hadn’t been finalized” and was “still in working form.” Furthermore, he said,  the law only “requires me to release (the report) promptly,” a standard he said he would meet by releasing it Wednesday at a press conference.

But according to the Legislative mandate, the report was finished, and the dictionary defines “prompt” as “without delay.” A two-day wait is a rather good example of a delay.

From an administrative and policy perspective, what Vilaseca did made good sense. He wanted to send the report out to the schools to make sure there were no errors in it, as there were, he acknowledged, in a report on standardized test scores his department sent out last year which mistakenly described two schools as among the lowest-scoring in the state.

In other words, he didn’t want to embarrass himself or his Department.

Under those circumstances, what’s wrong with keeping the information secret for another two days?

Only that it was against the law, which in this case has two disadvantages. One is that a law-breaking Education Commissioner does not set a good example for the kids. The other is…well, hold that thought while we describe – briefly, because it’s been in the newspapers – the other incident.

Over Memorial Day weekend, police in Hartford were alerted about a possible burglary at a home. They entered the house (the door was apparently unlocked), and found in a third-floor bathroom one Wayne Burwell, a 34-year-old Dartmouth graduate, athletic trainer, and, perhaps not incidentally, an African-American.

Burwell was naked. He was sitting on the toilet. He was apparently unresponsive, perhaps due to a blood sugar problem that has caused him to lose consciousness on occasion.

Not exactly the picture of a dangerous desperado. But the police unleashed enough pepper spray to make both Burwell and some of the officers require treatment later. Then they handcuffed him, covered him with a blanket, and either dragged or led him outside “to wash his eyes,” in the words of Town Manager Hunter Rieseberg, who acknowledged that “some pepper spray had been discharged.”

While Burwell was still inside, one of his neighbors, Bob McKaig, a 71-year-old retired police officer from New Jersey, had come over to the house to warn the police that Burwell was ill. When Burwell was brought out, apparently under arrest, McKaig tried to tell them that Burwell had not been robbing the house. He owned it.

At which point, McKaig said, a “female officer” threatened to have him arrested for interfering. Burwell was taken to Dartmouth-Hitchcock Hospital where, among other treatment, he needed stitches in his hands where the handcuffs had cut him.

At this point, a touch of uncertainty must be acknowledged. Only the police and Burwell (to the extent he was conscious) really know what happened in Burwell’s house. Rieseberg said when all the facts come out, “there will be some red faces, and they won’t be ours.” Perhaps something happened inside the house that gave the police reasons to be wary of Burwell.

But rarely does a burglar sneak into a house, make his way to an upstairs bathroom, take off his clothes and sit on the toilet in a semi-conscious state. Concluding that the police were  incompetent, or, as the Vermont ACLU director Allen Gilbert suspects, guilty of “racial profiling,” may be premature. Strongly suspecting it is not.

So what’s the connection between the Burwell case and the Ed Department report?

Under the same public records law, Anne Galloway, who runs the VT Digger web site, asked Hartford police for the arrest report. Police Chief Glenn W. Cutting and then Town Manager Rieseberg refused, as they had refused a similar request from the Valley News newspaper. The town argued that it has asked the State Police to investigate the incident,  triggering an exception to the public records law.

Yesterday, with the help of the ACLU, Galloway sued. The ACLU notes that the law specifies that “’records reflecting the initial arrest of a person’ are public and not exempt.”

(Full disclosure: As regular readers may know, the News Guy occasionally writes for VT Digger [see the link to it above] and knows, likes and admires Galloway as a first-class journalist).

The town’s response is that Burwell, handcuffed and pepper-sprayed though he may have been, was never arrested.

“No one was taken into custody. No one was transported to jail,” Rieseberg said. Nancy Sheahan, the Burlington lawyer who will represent the town, noted that “it is possible to detain someone without arresting him. In this particular case, there was not an arrest.”

Obviously, the courts will decide whether it was an arrest. At least some Vermont case law indicates that the Town may find it hard to prevail. Research undertaken out of the goodness of his heart by a prominent Vermont defense attorney found a 1990 Caledonia County case in which the court ruled that “the public interest clearly favors the right of access to public documents and public records (and) the exceptions listed in { 317(b) should be construed strictly against the custodians of the records and any doubts should be resolved in favor of disclosure.”

The lawyer also found a 1992 Supreme Court decision reversing a Chittenden County court decision denying a plaintiff “a list of names and addresses of taxpayers subject to a business gross receipts tax adopted by an ordinance of the City of Burlington.”

Needless to say, every case differs, and this one might have a different outcome. But the legal details really aren’t that important, because, while as acknowledged above, we can not know with 100 percent certainty what happened in Burwell’s house that day, we can know with about 98 percent certainty.

The cops messed up. And they want to keep the details secret because they fear that the details will provide powerful evidence that they messed up. That’s the main – if not quite the only – reason that officials want to keep records secret: to hide their misdeeds, or at least their foolishness. If the arrest report would make the Hartford police look good, reporters would have been invited to read it in comfort with coffee and muffins provided by the town.

And here’s why this is important: If police anywhere in Vermont  can handcuff and pepper-spray Wayne Burwell in his own house with impunity, then police somewhere in Vermont can do the same to you and to me. And the more they can hide the records of what they did, the more are they likely to do the same to you or to me.

Just as – though Armando Vilaseca’s offense was benign by comparison – if a high-ranking state official can ignore the public records law for 48 hours to make sure a few minor errors don’t embarrass him, another such official on another occasion may be emboldened to ignore it for 48 days or 48 weeks in an effort to cover up real malfeasance.

That’s why there’s a public records law to begin with, and why it ought to be enforced.

Can they do that?

Or, to be strictly grammatical,  the doer in this case being a single entity, if composed of several individuals, can it do that?

The “it” is the Executive Branch of the government of the state of Vermont, commonly known as the Douglas Administration. And the thing that it did was fire a state worker after the Legislature specifically told it not to fire that state worker, an instruction that Gov. Jim Douglas seemed to accept.

As with the grammar, the above description is imprecise. The Administration did not officially “fire” Jens Hawkins-Hilke, the scientist who provided expert advice to local planners involved in the Community Wildlife Program.

It just eliminated his position.

It did so even though the budget bill passed in late May stipulates with no apparent ambiguity that “(i)t is the intent of the general assembly that the fiscal year 2011 budget… funds two (2) limited service Fish and Wildlife Scientist II positions… The Scientist II positions shall continue to implement the landowner Incentive Program and Community Wildlife Program. “

A separate “Statement of Legislative Intent” filed by Appropriations Committee chairs Martha Heath (House) and Susan Bartlett (Senate) asserts that “the policy goal” of the provision is “to have continuity…for the wildlife related local municipal and regional planning…assistance these positions provide including wildlife crossing of roads in developed areas to improve planning for sustaining critical habitat for wildlife preservation.”

Douglas signed the bill on June 3. The next day, Jonathan Wood, the Secretary of the Agency of Natural Resources eliminated one (1) of those “two (2) Fish and Wildlife Science II positions, Hawkins-Hilke’s, the one that “implement(s) the…Community Wildlife Program.”

Could he do that?

Obviously he could because he did, though Hawkins-Hilke and the state employees union have filed a grievance. Until the grievance procedure runs its course, then, it’s premature to conclude that the termination (reduction in force, or RIF, in government jargon) was completely on the up and up.

But it isn’t too early to conclude whether the Executive Branch has the power to terminate a position even after it agrees (as at least implied by the Governor’s signature on the bill) not to terminate that position.

Apparently it does.

“The Legislature can put in language that says ‘you shall’ or ‘you shall not,’” said David Coriell, Douglas’s spokesman. “But when they say what the intent of the Legislature is, that’s a little fuzzier. Intent is not a mandate.”

Coriell, of course, works for the Executive Branch, and could be expected to interpret law and constitution in its favor. But Steve Klein, the head of the Legislature’s Joint Fiscal Office, a lawyer as well as a numbers whiz, agreed that in general “I don’t think legislative intent has the force of law,” and Paul Gilles, the Montpelier lawyer who is recognized as one of the state’s leading constitutional lawyers, said statutes are often “not implemented the way (legislators say) they’re supposed to be,” but courts are reluctant to intervene in jurisdictional disputes between the other two branches.

At any rate, the Legislature does not plan to take this case to court.

“We’re just urging the governor to follow the full intent of the law,” said Tom Cheney of Speaker Shap Smith’s office.

When one side in a legal dispute decides not to go to court, it’s usually because it doubts it can win.

So Hawkins-Hilke’s termination, while perhaps less than noble, arguably even dishonorable, appears to be within the Administration’s constitutional discretion.

Whether it violates the state’s contract with the Vermont State Employees Association is yet to be determined, and Hawkins-Hilke, not surprisingly, asserts that it does, and is therefore illegal.

“According to the union contract, (the RIF) has to be on economic grounds and has to be in compliance with the law,” he said. “The budget bill is law. It was signed June 3, and on June 4 administration continued with the RIF. So it is not in compliance with statute. Nor is it an economically driven cut.”

Yes, it is, insists ANR Secretary Wood, even though it saved only $16,000, the state’s half of Hawkins-Hilke’s pay. The other half came from the federal government.

“I would love the people who are saying that to live a little bit in my shoes,” Wood said. “The agency has had to reduce almost 100 positions…in the last couple of years. Unless you’re in state government it’s a little annoying to cavalierly talk about amounts of money as though they’re insignificant. This has been the largest reduction of state government in history. Every dollar is important.”

But Hawkins-Hilke and others suspect that the Administration wants to weaken environmental planning as much as it wants to save money. After all, it increased spending on some of its preferred functions, such as economic development.

And one email released by Administration Secretary Neale F. Lunderville’s office indicated that at least one Administration official, Human Resources Commissioner Caroline Earle, was “very concerned about this move in the light of the legislative language.”

Other officials, though, were confident that Wood had the authority to terminate the position.

Hawkins-Hilke pointed out that he is not the only environmental planner whose job has been eliminated.

“The only planner in Forest, Parks, and Recreation was RIFFED last year,” he said. The head planner for the Agency of Natural Resources was RIFFED  last year. The Basin Planning Program (part of the Water Quality Division) has taken a substantial hit.”

Dana Farley, president of the Vermont Planners Association, had a similar assessment.

“The planning community’s a little bit perplexed by it all,” she said. “Resources for planning have been cut for many years. We aren’t getting the kind of technical and funding support we used to. The loss of this position really tipped over the cart.”

Wood insisted that ANR would continue to help localities plan for wildlife conservation, though he acknowledged that the service “may not be quite as robust without having an individual dedicated to it.”

Evidence as to whether the position was terminated solely to save money might be found in the emails the VSEA is seeking from the Department under a Freedom of Information Act filing. According to Hawkins-Hilke, Lunderville’s office has complied with the request, and the Agency of Commerce and Community Development replied that it has “no communications whatsoever” on the matter, an assertion Hawkins-Hilke does not doubt.

But ANR is balking, arguing that though the VSEA does not want copies of the emails, only the opportunity to look at them, it must pay for the staff time required for the search.

This, too, could simply be because the hard-pressed agency needs to find all the money it can. On the other hand, just as a decision not to go to court usually indicates a weak case, a reluctance to turn over documents often means that the reluctant party does not want the documents in question to see the light of day.

The weapon, according to his mother, Ge Wu, a professor in the University of Vermont’s Department of Rehabilitation and Movement Services, was left in the field for Aaron by another Essex High School teenager.

This other boy, Ge Wu said, was both a friend and a tormenter to her son. The other youth, she said, “frequently coerced Aaron, spread rumors about him, and threatened him.”

Essex police would not precisely confirm Ge Wu’s account of where Aaron got the gun, but did not dispute it, either. Captain Brad LaRose of the Essex Police Department said that because the investigation remains “open,” and concerns a juvenile, “the laws are very strict on releasing any information.”

But he did report that “the gun did not belong to (Aaron) or to his family.”

According to Ge Wu, the friend-tormenter actually left two guns, which had belonged to his late father, a State Police officer until his death some five years earlier. The boy also left ammunition for the weapons, she said.

In their grief, Ge Wu and her family did what parents who have lost children often do. They decided to memorialize their son by trying to prevent similar tragedies in the future. In their research, they discovered an ugly little fact about Vermont: its high teenage suicide rate.

As explained in Wednesday’s post (scroll down) Vermont has a relatively high suicide rate for people of all ages. But at least in comparison with most of its sister states in New England and neighboring New York, Vermont’s teen suicide rate is strikingly high.

According to statistics from the Centers for Disease Control, between 1987 and 2006,  2.12 of every hundred-thousand Vermonters under the age of 19 shot themselves to death. Maine’s rate was almost as high, but in the other New England states and New York, the rate was substantially lower. New Hampshire’s was 1.71. The others were less than one per  hundred-thousand. The rate in Massachusetts was only 0.42.

Ge Wu thinks she knows why: guns. Not only are they plentiful and all but unregulated in Vermont, but Vermont and Maine are the only two states in New England without a Child Access Prevention (CAP) law, requiring firearm owners to lock their weapons away from children when they know minors might have access to them.

So she decided to try to get one passed. With the help of professionals dealing with youth suicide, she formed Citizens for Safer Vermont Children and drafted proposed legislation labeled “Aaron’s Law.” One of her legislators, Linda Waite-Simpson, a Democrat of Essex Junction, introduced a bill last February, H. 737

It promptly went nowhere.

Well, it went to the Judiciary Committee, from where it went nowhere, and the committee chairman, Democrat William Lippert of Hinesburg, understands why, and how difficult further progress is likely to be.

“It would take grass roots organizing,” he said. When she came before the committee, we heard very powerful and emotional testimony. But I said to her, if and when this is taken up, it’s not a slam dunk. It’s filled with controversy because it touches on the issue of firearms, even though it is not a gun control bill. Those are the political realities as I see them.”

Lippert is right to see powerful opposition to “Aaron’s Law” from the influential gun lobby. Ed Cutler of Westminster, the chief legislative director and past president of Gun Owners of Vermont, said his organization has “serious problems with that bill.”

First, he said, “the lack of suicide and violence in this state” made the legislation unnecessary.

Worse, he said, “even kids should be able to defend themselves,” and passage of a CAP law could prevent people from getting to their weapons if they were attacked in their homes.

The only example he gave was Kimberly Cates, the Milford, N.H. woman who was murdered in her bed last October. Her 11-year-old daughter was tormented and seriously injured. The family had guns, Cutler said, but the woman’s husband, who was away on business, “had (the weapons) locked up and nobody could get to them.”

If this is Cutler’s best argument, he doesn’t have much of a case. According to the story in the Manchester Union Leader, Kimberly Cates was slain in her bed at 4AM by intruders who snuck into the house. There’s little reason to think that had her husband been home he wouldn’t have been just as fast asleep at that hour. Only taking a loaded gun to bed would have saved them.

This doesn’t mean that the case for a CAP law is airtight. In New Hampshire, which has such a law, the teen suicide rate by firearms was slightly higher than in Pennsylvania, which does not.

Furthermore, a case can be made that CAP advocates are overstating the extent of the danger. Nationally, suicide rates declined among 10-to-24 year-old males from 15.43 suicides per 100,000 in 1991 to 11.39 suicides per 100,000 in 2006, according to the CDC.

And while Vermont’s teen suicide rates are high, the actual numbers are small. IN 2007, the last year for which final statistics are available, four young Vermonters committed suicide, at least two of them with firearms.

The question is whether any of them might not have killed themselves had they not been able to get their hands on a gun. The answer, not from gun control advocates but from data-driven scientists, seems to be yes.

Daniel Webster, a health policy expert at Johns Hopkins University in Baltimore, said an article that he and others published in the Journal of the American Medical Association “examined effects of CAP  (laws) on teen suicide, and found that they did indeed lower suicide risk for teens.”

It may be true that, as Cutler of the Gun Owners of Vermont said, “if (teens) really want to commit suicide, they’re going to find a way.” But studies show that most suicide attempters decide to kill themselves on impulse, an impulse that often fades before they complete the task. Most of those people don’t end up dying from suicide.

“Given these facts,” an article in New England Journal of  Medicine noted, “access to guns likely turns an impulse into a final decision.”

But those are only scientific facts. They may not prevail in the Vermont Legislature, where power – or perhaps, in this case, perceived power – often trumps mere data.

Note: There will be no post next Monday.

Before embarking on the promised history lesson explaining how the state got to have two legislative houses (which is no more “natural” than one, and is decreed by no higher power), a brief comment on the comments by the commentator who called himself simply “A Nebraskan” (which can be read by clicking on “comments” at the end of Wednesday’s post).

William Wirt: Vermont's favorite

“A Nebraskan” thinks the unicameral legislature in his state is a disaster, and he seems to have a good case. But the problems he mentions stem less (if at all) from the Legislature’s unicamerality (if that’s a word) than from two other peculiarities of the system there: non-partisanship and term limits.

Without a party structure in the Legislature, “A Nebraskan notes,” not only the state lawmakers but also its “representatives in Congress are unfamiliar with a body run on party lines, and we end up with weak back benchers getting lost in the highly partisan system in Washington.”

And thanks to term limits, he said, the Legislature has little “institutional memory” and “the balance of power has shifted to lobbyists and department heads appointed by the governor.”

Neither problem would bedevil Vermont, where partisanship is vigorous and relatively civil, and where term limits, surely one of the worst political ideas of the last millennium or so, has never had much of a following.

As mentioned Wednesday, Nebraska may now be the only state with one legislative house, but it isn’t the only one in history. From its creation in 1777 until 1836, Vermont had a unicameral legislature, and even though State Archivist Gregory Sanford warns that discussing the details could make one “the most boring guest at a cocktail party,” there’s a lesson to be learned in how and why the state switched to two houses.

Way back before the slogan “one person-one vote” was common, each of Vermont’s 246 towns chose one member of the General Assembly’s single house, in a September election, for a session which met every October and ended sometime in November.

The governor, at least until after 1800, had no veto power. But he was also the head of a twelve member Council, and together, the Governor and Council could either “concur with, or propose amendments to, bills passed by the house (or)  suspend passage of a bill until the following session,” in the words of a speech Sanford made in 1999.

The Council, then, though part of the Executive Branch, had quasi-legislative powers. It was a semi-Senate. And its 12 members were elected at large, meaning none of them represented any particular part of the state.

The upshot, Sanford said, was “a lot of tension,” especially because the Legislature was “fragmented among multiple parties,” including Whigs,  Democrats, and the anti-Masonic Party, which was briefly powerful in Vermont, the only state to give its electoral votes to the party’s 1832 presidential candidate, William Wirt. (No Republicans, yet; they came along later).

Complicating matters further, Sanford said, was the “unofficially but rigidly adhered to ‘Mountain Rule,’” requiring that a governor from one side of the mountains would be succeeded by someone from the other side.

All this turmoil came to a head in 1835 when the governor’s race was won by…nobody. Then as now, a candidate for governor needed a majority, and when the divided electorate did not provide one, the election went to the unicameral General Assembly.

Which couldn’t provide one, either, not even after casting 63 ballots over a three-day period starting October 9. In desperation (or something) the lawmakers finally installed Lt. Gov. Silas Jenison as Acting Governor, the first governor, Sanford said, to have been born in Vermont.

At this point, apparently even the General Assembly was embarrassed enough by itself that it “resolved to create a senate, a deliberative body to check on the exuberance of the House.” To provide greater local representation than the Governors Council, the Assembly opted for a 30-member Senate, half elected by county, the other half at-large.

But there were only 13 counties, meaning substantially less than half the senators would be elected from districts. Looking at the map, and no doubt the politics, the movers and shakers of the day apparently couldn’t figure out how to create two new counties. So they settled on one, and created Lamoille county. Now there could be 14 senators representing counties and 16 elected at large.

It took a Constitutional amendment in 1836 to create the Senate, with the lieutenant governor as presiding officer. As is true in other states which follow the same model, a little confusion about executive-legislative power remained. To which branch does the lieutenant governor belong?

To the executive, said Lt. Gov. David Camp in his opening address to the first senate.

“It seems very obvious that a body, which does not choose its presiding officer, cannot with propriety assign him the power of appointing its committees and officers,” he said.

So he didn’t, and the lieutenant governor still doesn’t.

(Nor does the vice president of the United States, though Dick Cheney once tried to argue that he was not subject to certain executive branch rules because he was really part of the legislative branch. The argument was not convincing).

What all this history has to do with today’s situation is that it has nothing at all to do with it. The turmoil that prompted the General Assembly to create a senate – many parties, the Mountain Rule, the Governors Council with a foot in both branches – no longer exists, so present no arguments against Vermont considering a return to unicameralism.

But why stop there? Check the third comment to Wednesday’s post, not from a Nebraskan, but from a Vermonter who wondered what would happen if the state adopted a Canadian-style parliamentary system (“minus the Queen,” he said) where a legislative (parliamentary) majority would choose a prime minister rather than a governor.

This reader thought such a system would lead to “the formation of third parties and coalition governments.”

Maybe and maybe not. And that might or might not be a desirable outcome. But it’s worth a little musing. Continued anon.

Nebraska's Capitol

The bottom half of  today’s post will be a tad whimsical, not to be taken 100 percent seriously. But first, a serious suggestion.

That’s “suggestion,” not “proposal.” This site does not customarily take sides in policy disputes, and none will be taken here. But now that Burlington has done away with its Instant Runoff Voting (IRV) system, political activists there (and elsewhere in Vermont) might want to take a look at yesterday’s election in Port Chester, N.Y.

There, under pressure from the courts and the U.S. Department of Justice reacting to an obvious case of electoral maldistribution (Hispanics: 46 percent of population; zero percent of village board) the community of 28,000 people used a “cumulative voting” system in yesterday’s election.

In cumulative voting, each voter can vote for as few or as many candidates as he or she chooses. In Port Chester, six trustee seats were up for election. A voter could cast one vote for each candidate, six votes for one candidate, or any other combination.

In theory, cumulative voting (also used in Amarillo and other Texas cities, as reported by Fairvote )  could increase (or, in this case, originate) minority representation. If enough Latino voters cast all six of their votes for a Latino candidate, that candidate has a better chance of being elected.

But, again in theory, cumulative voting could also help elect political minorities, which is one of the purposes of IRV or any other system of proportional representation, and do so without the inherent perversities of IRV, which only counts the second choices of the voters who supported the least popular candidates.

Under IRV, the second choices of the two candidates who get the most first-choice votes – meaning the second choices of the majority of the voters – are never counted. Even if the top two candidates get 80 percent of the first-choice votes, a common outcome, the second choices of this large majority are irrelevant.  The second choices of the folks who voted for the candidate who did worst are the first ones counted, and those second choices could determine the winner.

Thus the possibility of a candidate getting elected thanks to being the second choice of the voters whose first choice was an extremist wacko.

That, of course, is not the intention of IRV supporters. In Vermont, the real purpose of IRV is to serve as a Progressive Party Protection Act, saving the Progs from the “spoiler” label when they effectively elect a Republican by siphoning off votes that would otherwise have gone to the Democrat.

But there is a legitimate political purpose to some kind of proportional representation system. It is to render more likely the election of political minorities, thus granting representation for voters who are outside the political mainstream. That’s why the system is used in many countries in Europe.

In Vermont, though, some proportional representation system might lead to great representation for voters unquestionably inside the mainstream. All six Chittenden County state senators are elected at large. The result is five Democrats and one very moderate Republican. But there are conservative Republicans in the county, who, under a proportional rep system, might elect a senator they could call their own. That would hardly endanger Democratic control of the Senate (now 23-7 Democratic), while saving conventional Republicans from feeling shut out.

OK, now let’s get whimsical.

Wanna cut a million dollars or so out of the state budget? How about doing away with the State Senate entirely?

It’s not a bizarre thought. Nebraska has a unicameral Legislature, 49 representatives who, perhaps to impart additional dignity, are called “senators” (though their leader is known as the “speaker;” go figure).

Nebraska’s one-house legislature, often just called “the unicameral” dates from the 1930s, when it was championed by Sen. George Norris, the pro-New Deal Republican.

“The constitutions of our various states are built upon the idea that there is but one class,” Norris said. “If this be true, there is no sense or reason in having the same thing done twice.”

Just how much money Vermont could save by “going uni” is hard to figure out. The Legislative Council and the Joint Fiscal Office estimate that it costs $270,000 a week to operate the entire Legislature. Assuming the usual 17 week session, that puts the total cost at $ $4.6 million a year.

Only 30 of the 180 lawmakers – about 17 percent – are senators, meaning their cost during the session is some $782,000. But of course the Senate has year-round costs, too – a central office and committee staff. Altogether, the Senate probably costs Vermont at least $1 million.

What about checks and balances? What about avoiding abuses of power?

No problem, according to Norris, as long as the state had a governor to veto bills and an independent judiciary. Sanford Levinson, the University of Texas law professor and prolific writer on constitutional matters, agrees, making the same point in a recent letter to the editor of the New York Times.

On the face of it, there seems little reason why Vermont should not look to Nebraska for guidance. Like Vermont, Nebraska is a rural state. Like Vermont, Nebraska has one dominant city. Like Vermont, Nebraska has a highly regarded state university (although the one out there has a football team of some renown, whereas the one here has none at all.)

Abuses of power and lack of checks and balances do not seem to have bedeviled Nebraska these last 70 years. That doesn’t mean everybody is happy with “the unicameral,” which is officially non-partisan.

The combination does not make for good governance according to Vic Covalt, perhaps not the most objective observer considering that he is the chair of the Nebraska Democratic Party, which (and here Nebraska is quite unlike Vermont) is decidedly in the minority.

There are 32 Republican senators and 17 Democrats, Covalt said, but because there is no official  party structure within the legislature, “there is no organized opposition.”

As a result, he said, Nebraska ends up with a weak legislature in relation to the governor, who is effectively “the second house.”  When the governor is a Republican (as incumbent Dave Heineman is) the Democrats have less power than they might in an officially partisan legislature. What keeps the minority from being totally powerless, he said,  is that “we do get chairmanships of committees, and the committee system is very powerful,” with five votes needed for a bill to be approved by the nine-member committees.

But getting rid of the Senate would not require Vermont to ban partisanship in a unicameral legislature. In this state, a well-led one-house legislature might end up being more powerful vis a vis the governor than is today’s two-house version. Even though both houses are overwhelmingly Democratic, the Republican governor has occasionally exploited their differences for his own ends.

Again, the point here is not to advocate; it’s to start a conversation. Besides, while Nebraska is now the only “uni” state, there was once at least one other. That state was…Vermont, and how and why it switched is interesting enough to deserve a post of its own. Soon.

She did, she acknowledged, ask Louis Porter of the Vermont Press Bureau  (The Times-Argus and the Rutland Herald) to leave the room one day the week before last while she and the other Democrats “consulted with legislative council.”

Two House members, Democrat Jason Lorber of Burlington and Republican Oliver Olsen of Jamaica, were also asked to leave.

The consultation, Bartlett said, was originally going to be held in the Legislative Council’s offices, but the space there was cramped, and she suggested they’d be more comfortable in the committee room.

“We can do that,” she said.

Obviously they can, because she did. Whether senators may, under their own rules, hold closed sessions inside their committee rooms is less certain. Because an official meeting had not been convened, holding a private session might not have violated those rules.

Or maybe it did. It seems to be a matter of interpretation.

The place to start looking, suggested State Archivist Gregory Sanford, is the Vermont Constitution,  specifically Chapter 2, Section 8, which states that, “(t)he doors of the House in which the General Assembly of this Commonwealth shall sit, shall be open for the admission of all persons who behave decently, except only when the welfare of the State may require them to be shut.”

According to Sanford and others, this section applies to committee rooms as well as the legislative chambers, the exception for “the welfare of the state” refers only to emergencies, and being a reporter is not proof of indecent behavior in and of itself.

That would seem to indicate that the session in the committee room –whether or not it was a “meeting” — should have been open. Bartlett acknowledged that five committee members – a quorum – were present.

Bartlett said the committee was also gong to discuss “personnel” matters, therefore it could meet “executive session.”

It can, but only after voting to do so in open session, by a two-thirds majority, and even then only for certain designated reasons, one of which is to discuss personnel. None of that happened the day Bartlett closed the meeting.

But Allen Gilbert of the Vermont American Civil Liberties Union, himself a strong advocate of open meetings, acknowledged that Senate rules might be unclear as to whether a gathering “is a meeting unless it’s convened.”

At any rate, Gilbert said, there is no remedy for this violation, if it was a violation. The only redress is to “complain to the (Senate) Committee on Rules” because the Senate is “not covered by the Open Meeting Law,” so there is no “statutory violation.”

There also appears to have been no harm done. Privately, some senators from both parties were unhappy about Bartlett clearing the room. But no one suggested she was trying to pull a fast one. She just wanted to meet in more comfortable surroundings.

But in the first place, it’s not certain that under Senate rules a reporter (or anyone not misbehaving) didn’t have the right to be at the meeting no matter where in the Statehouse it was held. Or maybe even if it was held out of the statehouse, though Sanford pointed out that lawmakers have sometimes held closed meetings elsewhere, apparently (though perhaps mistakenly) believing that as long as they were in a different buildings they could bar press and public.

Gilbert said the Open Meeting Law draws no distinction between meetings in official or unofficial venues. Should two members of a three-person school board or select board bump into each other at the grocery store, he said, they are forbidden from discussing board business.

It’s unclear whether the Senate rules are quite that strict, but it would seem that Bartlett at least violated the spirit of Vermont’s open government tradition.

To be sure, a case can be made that the tradition is too strict. Maybe people have to get together in private sometimes to hash matters out. Banning such sessions in public (or even in the grocery store) could just push officials into more clandestine locales, such as the back table of the local saloon. (No, come to think of it, that’s too public). But if the system should be changed, officials should argue for changing it, rather than simply breaking the rules.

If there is any price Bartlett will pay here, it’s political. She’s one of the five Democrats running for governor. Getting a reputation for acting surreptitiously (which in general she does not seem to deserve) is not likely to be a political plus.

But when it comes to tension between public officials and members of the Fourth Estate, Bartlett cannot compete with State Auditor Tom Salmon.

Salmon apparently dislikes Seven Days political reporter Shay Totten. Disliking Totten, an unusually pleasant and easy-going fellow, is not easy, but presumably if a reporter keeps catching a politician doing stuff he shouldn’t do, the pol might start taking it personally.

A couple of weeks ago Totten caught a member of  Salmon’s official staff  sending a political email from a state computer during business hours. The email “welcomed” as an opponent (perhaps prematurely) State Sen. Ed Flanagan into the Auditor’s race. Flanagan, who once served as auditor, is thinking about running for his old job against Salmon, who was elected as a Democrat but switched parties last year.

Responsibly, before writing a story, Totten emailed Salmon for response and comment.

Which arrived promptly and…well, let’s just say bluntly. No, on second thought, let’s say obscenely. This web site, determined to persist in its policy of (outward) respectability, will not quote Salmon’s reply (but here’s the link). Suffice to say that it was as far from respectability as one can get.

There is a term for a politician who not only talks this way to a journalists, but actually puts it in writing, meaning he can’t later claim to have been misquoted.

No, make that two alternative terms: (1) A person of dubious judgment; (2) a dope.

At least one Republican, sort of defending Salmon, suggested in a Statehouse corridor last week that Totten was “nitpicking” because sending the email on state time and state equipment was a minor infraction.

Maybe, but you know what? Reporters are supposed to be nitpickers. The Auditor’s office is about a five minute walk from Republican headquarters, and Salmon’s aide could have gone over there at lunch time or after the business day to send the email all legal and proper on a GOP computer. Campaign finance laws, like open meeting laws, exist for a reason.

For the Vermont voter, the political prospects for the Auditor’s race seem especially dismal. For reasons that will be dealt with another day, Flanagan’s judgment isn’t all that reliable, either. In fact, perhaps the most puzzling political question of the day is why Democratic leaders haven’t by now found an attractive accountant – or at least finance-savvy businessperson – to oppose Salmon, who would seem vulnerable if opposed by a minimally competent candidate.

OK, who won?

Now that the palavering, posturing, and pontificating of the 2010 session of the Legislature is over, it’s time for at least a preliminary evaluation as to who did and did not come out ahead.

Not just by the measurement of raw politics, either. This assessment will also taka a look at whether the day-to-day lives of regular folks were affected by what the lawmakers and Gov. Jim Douglas wrought these last four-and-a-half months.

The short – and possibly welcome – answer is: not too much. A large majority of Vermont citizens who are neither rich nor poor will note little if any change in their bank accounts, their job security, their children’s education, their retirement benefits, their recreations, or their passions because of any legislation passed and signed into law this year.

Welcome news indeed to those who remember the old phrase about how “no man’s life, liberty or property are safe while the Legislature is in session.”

But there were exceptions. No one should be shocked by this news, but in general, the very wealthy came out ahead, while the poor and near-poor did not, especially the poor and near-poor who are ill or otherwise in need of social services.

And some 7,700 middle and upper middle-income households will face higher property taxes, quite a bit higher in some cases.

The results do not mean that impoverished Vermonters are going to be begging in the streets, their open sores exposed to the elements. Legislative sessions, especially as they wind down are: (1) dramatic; and (2) insular. The drama takes place in an enclosed space in which the same relatively small number of people – legislators, lobbyists, reporters, administration officials — constantly interact with one another.

What happens then is that all disputes become magnified and the disagreements are assumed to be more polarizing than they really are. Had Douglas gotten all the spending cuts he wanted – and he did not – the state’s social services would not have evaporated, no more than business investment would have dried up had the Democrats blocked all those tax reductions.

The last dispute resolved, for instance, was over whether the capital gains tax would be cut by $1.5 million or $3.2 million. Not an inconsequential sum, but a tiny fraction of a $3.77 billion budget.

But let’s get to the raw politics, because it’s easy and it’s fun.

Douglas won.

Not everything, but a lot. For a lame duck governor, he showed that he still has a fair amount of clout. He did it by being stalwart (or stubborn, depending on one’s political preferences), betting that the Democratic leaders wouldn’t risk a repeat of last year’s budget veto and subsequent veto override vote.

Last year, they won that vote. This year, they might not have won it in the House of Representatives. And even if they had won it, they feared it might play into Republican political hands, allowing Lt. Gov. Brian Dubie to paint them as big spenders who raise taxes.

Which he’s going to do anyway, but a budget confrontation might have strengthened his case.

Under some circumstances, Douglas’s strategy might have been risky for Dubie and the Republicans, giving Democrats the chance to portray them as friends of the ultra-rich but indifferent toward the needy.

But those circumstances would exist only if a leading Democrat started making that argument a few weeks ago. There are five Democrat running for governor, but none of them stepped forward to make that case. That left Douglas and his allies free to set the parameters of the discussion.

That Douglas “won” does not really mean that the Democrats “lost.” In the final bargaining, they gave up more points to him than he to them. But first of all, this isn’t really a game. Besides, they held firm on education financing. There will be no mandatory school district consolidation, nor a required change in the student-teacher ratio.

In addition, both sides could claim “victory” in that they passed a budget despite starting the year facing more than a $150 million projected deficit. They did so in a collegial manner, and they could claim that the budget was “balanced.”

It might be.

Celebrating the agreement and his success, Douglas said that “while other states are cutting programs and raising taxes in response to the fiscal crisis, Vermont, I am proud to say, is moving in a different direction.”

Sounds good. Except that what he and the Legislature did this year was cut programs and raise taxes. They didn’t eliminate programs or raise the key income, sales, or property tax rates. But they raised some people’s taxes (while reducing others) and effectively reduced the quantity – and almost surely the quality – of many public services.

By how much? Impossible to say, because the “challenges for change” concept grants the Administration broad powers to cut spending. One of Douglas’s victories occurred when the Democrats gave up on their proposal to allow the state to dip into its “Rainy Day Fund” if the “Challenges” process did not save enough money.

It won’t (for reasons to be explored in a post coming soon). The result will be more cuts in services for the poor, the sick, the mentally ill. It was not a liberal Democrat, but Republican Rep. Anne Donahue of Northfield who said (in Thursday’s Times-Argus), the lawmakers are “pretending that we are restructuring services when in fact we will be cutting services.”

The higher taxes will be the result of some tinkering the Legislature did with the formulas for deciding who is eligible for how much “income sensitivity” in determining their statewide school property tax bills. The tinkering means that more people will benefit less from income sensitivity.

According to figures from the Legislature’s Joint Fiscal Office, some 7,700 households will pay an average of $662 more a year in property taxes, a total of more than $5 million.

The hardest-hit will be 423 households earning between $85,000 and $95,000 a year. Their property taxes will rise an average of $1,639 each. But some households with incomes of $40,000 or even less will pay a few hundred dollars more a year.

The money will go into the Education Fund, holding down the statewide school property tax rate. The beneficiaries here are households with incomes too high to qualify for any income sensitivity, and who pay solely on the basis of the value of their property.

Upper-income taxpayers will also reap most of the benefits from the partial restoration of a capital gains tax break. Under the new law, someone with, say, a $10,000 capital gain from the sale of business assets with a Vermont connection would pay taxes on only $6,000. Douglas wanted the exclusion to apply to all capital gains including stocks, bonds, and homes.

In the end, he accepted a partial victory, and the Democrats agreed, in the hope that lower taxes on Vermont-related capital gains would provide an incentive for more business investment which in turn would lead to more jobs.

The evidence for this assumption – or hope –is…is…well, it may not exist, a mystery worthy of detailed examination next week.

“Everything is resolvable at the end. Unless it isn’t.”

This time, it seems, it isn’t.

The words came from Shap Smith, heretofore known not as a Buddhist philosopher but merely as the Speaker of the Vermont House of Representatives

But it was that kind of day at the Statehouse Tuesday, a day of policy and politics; a day of hope and worry; a day, one might say, of now and Zen.

Occasional spurts of activity were followed by long periods of waiting around. The talk in the corridors was sometimes theoretical, sometimes practical. Optimism clashed with pessimism.

Oh, and Democrats clashed with Republicans.

Politely, to be sure. Everyone from Republican Gov. Jim Douglas to Democratic Senate President Peter Shumlin made sure to tell reporters that their discussions were courteous and friendly.

But by the time Smith uttered his mystical mantra, at about 4 PM, they had not resulted in agreement between Douglas and the Legislative leaders on the Fiscal Year 2011 state budget, nor on the taxes Douglas wants lowered. Without those tax cuts and more budget reductions, the Governor has implied, he might veto the budget bill as he did last year.

Nor was there any agreement by mid-evening, and Smith had made clear that with or without a deal with Douglas, the lawmakers would vote on a budget this week. Hence the possibility that Democrats would pass the budget they prefer, taking the chance that Douglas will veto it.

That’s what he did last year, only to have his veto over-ridden. This year, both sides said they wanted to work together, and at least they have behaved more civilly toward one another. In fact, negotiations continued into the night, both sides clinging to the hope that an agreement would be announced Wednesday morning.

Later in the night, though, negotiations broke down without agreement. It’s not quite the end. In theory, talks could resume Wednesday morning. In theory, everything remains “resolvable.” But the “isn’t” outcome seems more likely, as does a veto and a possible veto override session next month.

All day, in fact, there was conjecture, not all of it by Democrats, that Douglas actually wants to veto the budget bill to provide a political boost to Lt. Gov. Brian Dubie’s campaign for governor. According to this theory, a veto would dramatize the GOP argument that without a Republican in the governor’s office, Democrats would just keep spending more money and raising more taxes.

The fact that in its two-year life this Democratic-controlled legislature actually lowered income taxes – albeit minimally – on a large majority of Vermont taxpayers seems not to diminish the potential force of this argument. In modern America, myth and image outweigh mere fact.

The conjecture about Douglas’s political strategy was, of course,  surmise. But it gained some currency by the fact that all day long (actually, for the past several days), the Democrats kept giving ground to the Governor.

Who kept taking it. And asking for more.

By early afternoon, the Democrats had made so many concessions that one Republican lawmaker crowed, “the Democrats are caving on all the taxes,” and some liberal Democrats were grousing about their own leaders.

One of those Democrats said…well, his precise words are too indelicate for this web site. Suffice to say that he suggested that his party’s leaders were acting as though they were the Governor’s concubines.

But some of those Democratic concessions might have been more symbolic than substantive Take the capital gains tax dispute. Last year, over Douglas’s objections, the Democrats reversed a capital gains preference enacted in 2002. That change is expected to raise some $10 million in revenue in the coming fiscal year.

Smith said he thought a compromise could be reached by restoring the preference, but only on capital gains from investments in companies based in Vermont. Anyone who knew much revenue would be lost by such an amendment (Smith indicated he did) wasn’t revealing it. But probably not much. Wealthy Vermonters (and most capital gains taxes are paid by the wealthy) no doubt invest in diverse portfolios on the advice of financial consultants whose job is to make their clients richer, not to play in-state favorites. One of the great things about capitalism is that it is heartless, with devotion to neither person nor place, but only to money.

Nor would the Democrats be giving up much if they repealed the higher estate taxes they enacted last year. In a few years, the federal estate tax, the terms of which Douglas wants the state’s version to follow, might actually take in more money from wealthy estates (the only kind that are taxed) than Vermont’s. So if the Democrats can find a way to delay the revenue loss for a year or so, they might be willing to compromise.

And there seemed little doubt that the Democrats eagerly – if not desperately – want to compromise, while Douglas and his advisors appeared  willing to accept another veto confrontation. This could be because Smith isn’t sure he has the 100 votes needed to over-ride a veto. (Shumlin has a bigger majority in the Senate, and should have no problem). Perhaps significantly, the Speaker never claimed to have commitments from 100 representatives.

On the other hand, as long as today’s topic is political conjecture (not to mention meditation), here’s another possibility. Remember, Shap Smith knows how to play this game, too, as he proved last year when his House overrode two Douglas vetoes. If he has a problem this year, it would seem to come from a handful of his less liberal members. Continuing to give way on these liberal positions (the two taxes), only to have the Governor continue to rebuff him, might be just what he needs to shore up those votes for the veto override.

Again, conjecture, but, again, perhaps given some currency by another development. Most of those less liberal Democrats are from rural areas, where many influential voters are big landowners who oppose the changes to the Current Use system called for in a bill which has passed both houses, but in different versions.

Smith has been in no hurry to bring an amended bill back to the House floor. He could be holding it as a possible bargaining chip, dropping one or more of its most controversial provisions to placate those rural Democrats.

Log-rolling to please the forest industry. Something Zen there.