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.

Susan Bartlett said she did not throw a reporter out of a meeting of the Senate Appropriations Committee, which she chairs, because “there was no meeting.”

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.