NOTE: Today’s post wasn’t planned to be the first of two parts, but the subject ended up being too complex and too intricate to deal with in one sitting. Oversimplifying a bit—today the theory, Monday the down and dirty politics.´

Remember Ashley Ellis?

Don’t beat yourself up if you answered in the negative. Neither, it seems, do most Vermonters.

Ellis was the 23-year-old woman who was serving a 30-day sentence in the Northwest Correctional Facility in St. Albans last August when she died because she didn’t get the medicines she needed.

Her death was a story in the newspapers and on the air for a few days, until Franklin County States Attorney James Hughes decided not to press criminal charges. Then the whole affair faded away.

In an interview Thursday, Hughes said he found no evidence of criminal activity on the part of “any individual.” Prosecutors may bring criminal charges only against individuals. But Hughes’s answer implied that he wasn’t convinced that nobody had done anything wrong.

On the face of it, some person or organization did something fatally wrong. Ellis was not blameless. The auto accident she caused put a man in a wheelchair for the rest of his life. But her offense was a misdemeanor. She was sentenced to 30 days, not death. Even the most cursory examination of the details indicates that somebody – a doctor, a nurse, the Department of Corrections or Prison Health Services (PHS), the private company hired to provide health care to inmates – did something very wrong. Perhaps something inexcusably wrong.

From one perspective, it makes no difference. As quietly as possible, the matter has been dealt with. Conveniently, the state’s $16.4 million contract with PHS expires next month, and the company decided not to try to get it renewed. And according to reliable (if unidentifiable) sources, the nurse who didn’t get Ellis her medicine has been fired.

But the public will probably never know the details. Nor are the policy implications of Ellis’s death likely ever to be discussed. Absent criminal charges, Vermont’s authority to investigate such occurrences is effectively non-existent

The Corrections Department could scrutinize itself, were that not a contradiction in terms. The Secretary of State’s office regulates “professional conduct,” but the head of that division, Christopher Winters, said it could impose only “administrative penalties,” at most revoking a nurse’s license. Winters said the law barred him even from saying whether his agency was looking into the circumstances surrounding Ellis’s death.

But what about the legislature? In many states, as well as on the federal level, committees of the legislature or Congress can and do investigate the workings of the executive branch. In neighboring New York, for instance, the Senate has a committee on Investigations and Government, the Assembly (what New York calls its “lower” House) a committee on Oversight, Analysis, and Investigations, both of which regularly monitor the behavior of state agencies. In Virginia, the Joint Legislative Audit and Review Commission of the General Assembly “assesses the performance of the agencies and programs (the Legislature) creates.”

Vermont doesn’t do any of that. In fact, by both culture and law, Vermont’s legislature appears to be one of the weakest in the country in its capacity to find out about what’s going on in the executive branch, much less to monitor it or to probe into possible incompetence or misconduct.

That’s one reason the administration of any capable governor of Vermont – and Jim Douglas fits that description – has substantial leeway to follow the policies it pleases and ignore those it dislikes, sometimes perhaps even to ignore laws it dislikes (details Monday). It isn’t exactly that nobody is standing guard over executive over-reach; it’s that the guard is not heavily armed.

The Legislature’s impotence in these matters seems perfectly illustrated by the Ellis case, because one of its few permanent oversight committees is a joint House-Senate committee to monitor the Corrections Department..

Its chair, Rep. Alice Emmons , a Democrat from Springfield, said the committee “looked into (the controversy over Ellis’s death) as it was occurring. We’ve had conversations.”

But conversations are about all the committee can have. It is designed, Emmons said as “an interim committee,” which only meets six times a year when the Legislature is not in session. Its only staff, she said, “is one legislative person, and (investigation) would be beyond his capacity.”

Emmons was not criticizing the staffer’s ability, merely his authority, which does not extend very far. Neither does the Legislature’s in general, at least not when it comes to looking into the goings-on in the executive branch.

To begin with, it’s not even certain that the Legislature (or General Assembly, to use its formal, legal, name) has subpoena power. Emily Bergquist, the Director and Chief Counsel of the Legislative Council’s Office, said the Legislature has “the authority to inform itself about issues,” and because “it’s been said that subpoena power goes with the power to inform,” subpoena power would be “sort of inherent.”

But only the Legislature as a whole has that power, she said. Individual committees do not. In fact, if a committee of either house wanted subpoena power, resolutions from both chambers would probably be required before the subpoenas could be issued.

All that rigmarole creates such a disincentive to use the subpoena power that it might as well not exist.

Legislators are aware of the situation, and increasingly dissatisfied with it. Earlier this year, the Senate passed a bill that would grant each committee the power to issue subpoenas. The bill was referred to the House Judiciary Committee.

House Speaker Shap Smith acknowledged that the Legislature was so “constrained by some of the tools we have” when it comes to its oversight function that it sometimes seemed to be “at the mercy of the executive branch, which can say, we don’t want to provide that information so we’re not going to.”

Smith, a Morrisville Democrat, said lawmakers “sometimes have questions about whether you’re getting everything that you should.”

Vermont is not the only state that does not give committees the right to issue subpoenas. Brenda Erickson, a senior research analyst at the Denver headquarters of the National Council of State Legislatures, said rules and procedures vary widely from state to state. But in many if not most states, legislative committees can issue subpoenas.

Erickson said that even where committees are authorized to issue subpoenas, they rarely do. Still, it requires expertise in neither political nor behavioral science to understand that a witness will provide more complete answers knowing that the committee asking the questions has the power to compel testimony if it is dissatisfied with the answers it first gets.

Then there is the question of which branch of government decides who will provide the answers to begin with. If, for instance, a Legislative committee heard reports of incompetence or corruption at Frogwart Hollow State Park (a hypothetical example; there is no such park) and wanted to question the director of that park, nothing now requires the Department of Forest Parks and Recreation or its parent Agency of Natural Resources to produce that director. It could send the Department head, or the Agency Secretary.

Or increasingly, a public relations spokesperson said House Majority Leader Floyd Nease, a Democrat from Johnson.

According to Anthony Iarrapino of the Conservation Law Foundation, the above hypothetical example about the park isn’t all that hypothetical. Iarrapino, an environmental lobbyists, said that in his experience lawmakers too often “get who the (Natural Resources) Agency wants to give them (at a committee appearance) instead of saying, ‘this is who I want to speak to.’”

Like most discussions in Montpelier, this one is at least partly political. The Legislature is run by Democrats, this administration by Republicans. Some Democrats say they think the Douglas Administration is more secretive and less straightforward than its predecessors, making vigorous legislative oversight more important than ever.

Grading administrations on how cooperative or evasive they are with legislative committees is close to impossible. And it may be that a Democratic administration would be no different. The modern political world – more professional, more formal, more communications (or maybe just “spin”)-oriented, more influenced by money and lobbyists – is invading Vermont.

All of which would tilt the balance of power in the direction of the executive even if the Legislature had more clout than Vermont’s.

MONDAY: Monitoring the Douglas Administration.

The speech-making went on long enough to drive a normal person to “spiritual liquors,” in the soon-to-be-immortal words of Rep. Ronald Huber, a Milton Republican.

When it finally ended, the Legislature overrode Gov. Jim Douglas’s veto of the Fiscal Year 2010 budget bill, giving the Democratic majority a victory and giving Douglas a (perhaps temporary) political black eye.

But first 24 House members, most though not all of them Republicans, droned on and on. Much of what they said was irrelevant, some of it was inconsistent, and some may even have been “duplicious,” which Rep. Duncan Kilmartin, a Newport Republican,  proclaimed was “the one word in the English lexicon,” that could describe what the Democrats were saying.

There is no such word.

But give Kilmartin a break. He is no fool. Thanks to the tension in the room – all the members in the Chamber, the spectator seats full, cameras, reporters, Marselis Parsons himself in the back of the room — Kilmartin may have gotten a bit carried away.

Besides, he was trying to keep talking,  not because he was carried away but because the Republicans were killing time while Douglas invited a few Democratic lawmakers for one-on-one sessions in his ceremonial office, trying to convince them to cast the one vote he’d need from their party to sustain the veto.

According to Democratic sources, Douglas told those Democrats that his aides and Legislative leaders were close to a budget compromise, the details of which he outlined to them, and that if one of them would vote against the override, the two sides could easily reach agreement.

“That was a lie,” said one Democrat.

Whatever it was, it didn’t work. All 94 Democrats voted to override, as did all five Progressive Party House members and one of the three independents. All 48 Republicans and two independents voted against the override resolution, making the final count 100-to-50, just enough to override.

An hour or so later, the Senate, as expected, voted 23-to-5 to override the veto.

In their effort to delay the vote, and perhaps even to convince one Democrat to switch, the Republicans had three basic themes. One was that instead of trying to ram through this budget, lawmakers should continue to try to compromise with the Governor. Another was that the $26 million in higher taxes would “tax our people into servitude,” as Kilmartin put it.

The third, repeated by several Republican lawmakers, was that the tax increases on alcohol and tobacco would hurt small businesses. especially those “on the east coast of Vermont,” as Hartland’s Steven Adams put it, right near low-tax New Hampshire. It was while making that point that Rep. Hubert assailed the increased tax on what he probably meant to call “spirituous liquors.”

As a concept, though, the way it came out sounded  much more intriguing.

The Republican problem here was that the “budget alternative” proposed by Douglas would raise cigarette taxes even higher. The Republicans tried to avoid, or evade, that problem by effectively pretending that the Douglas plan didn’t exist, that the only business before the House was the override of the budget bill.

Rep. Patricia McDonald of Berlin even raised a point of order when one Democrat mentioned the Douglas alternative.

“We are talking about the proposal before us,” she said.

Speaker Shap Smith ruled her point of order “not well taken.”

As the debate droned on, it seemed clear that Douglas might have done better had he never proposed his alternative plan. Even several of the Republican speakers started their remarks by noting, “I don’t like the Governor’s budget, either.” And try as they might to contend that it was irrelevant, it obviously was not. If the budget bill veto had been sustained, Douglas’s alternative would have been central to the negotiations that would have followed.

Douglas’s last-minute , slightly desperate, attempt to switch a Democratic vote or two did not prevent him from claiming, after the override, that “by definition, a veto-proof super-majority” could always get its way.

Then why was he trying, even during the final debate, to persuade some of that “supermajority” to vote with him?

Anyway, the Democrats have no supermajority, whatever that may be. A theoretically “veto proof majority” (which, by the way, U.S. Senate Democrats will not really have even when Al Franken of Minnesota is seated as the 60^th Democrat) would require 100 House Democrats, enough to override a vote without the support of any non-Democrats.

But there are only 94 Democrats in the House, where party leaders know they can’t always count on all (or sometimes any) of the Progressives, or on the independents.

Douglas, who invited reporters into his ceremonial office after the Senate vote, was firm, calm, and forceful. But he also looked a bit stunned, rather like a fighter who has taken a hard punch and knows he has to make an effort to stay on his feet.

Like such a fighter, Douglas fell back on routine. He kept throwing the same punches, continuing to assail the budget as though the override were still at issue. He said the budget spent too much (though too little on economic development), taxed too much, was  ”unsustainable,” and “does nor reflect reality.” The veto override, he said would “energize the Republican Party.”

Pretty much what politicians usually say after getting the stuffing knocked out of them. Whether there’s enough of a Republican Party in Vermont  left to energize is perhaps the relevant question.

Staggered though he might be, Douglas is still the political champ in this state.  Overridden twice in less than two months, he’s weaker now than he was after winning his fourth term last November. That doesn’t mean he’s a pushover if he runs for a fifth term a year from next November. He’s the guy in the corner office, and he’s the guy to beat.

Asked whether he felt weakened by the vote, the Governor said, “I’m going to keep fighting.”

No doubt he will. He’s good at it. If yesterday was any guide, he’s not likely to change either what he says or the way he says it. The Legislative session (after an anticlimactic mopping-up operation scheduled for today) is over.

If there is some doubt about how badly Douglas lost, there is none at all about who won. Speaker Shap Smith won, and he won big. Winning support from 93 other people on anything is difficult. Doing it from 93 other Democrats is close to impossible, especially in a structure with no patronage to speak of, or any other obvious lever of political coercion. He had to do it all by persuading, cajoling, and coaxing.

OK, and maybe a little horse-trading. That “Companion Bill” scheduled to be voted on today contains provisions that eased the concerns of some middle-of-the-road Democrats. And according to one knowledgeable source, Democratic leaders agreed Monday to support a summer “sales tax holiday” weekend even though they agree with economists that it’s a very bad idea.

“It was traded for one vote,” the source said, but would not say whose.

The secret to Smith’s success seems to be patience, an apparent diffidence that hides sturdy determination, and a quiet sense of humor. His size and appearance could help, too. He’s short, slight, and looks younger than his 44 years. In fact, he might have let his chin-whiskers grow because without them he’d look about twelve. This “anti-boss” image is just what a political boss needs.

Whatever the reason, Smith is good. He’s shepherded two veto overrides through the House. Right now, he’s not running for anything else. He has time.

But the end of this budget fight is not the end of this budget fight. Douglas made it clear that he plans to use it against the Democrats. Not starting next year. Starting now.

It could be an interesting battle. It could even be informative. But that depends on the substance of the debate. And substance there is. Today’s post centered on the politics of the override. We’ll deal with the substance tomorrow.

(NOTE: There were two conflicting critiques of one item in yesterday’s post. In noting that the number of Vermont millionaires went from zero in 2000 to 531 in 2007, the News Guy called that “a 531 percent increase.”

No, said one commentator: “a 0-to-531 increase in $ million earners is a 53,100 percent increase – not 531%.

But another reader said that “going from zero to any number 1, 531, or 20 million, is an infinite increase.”

I think he’s right. Any of you math whizzes want to weigh in?

Gentle Readers: The wry and somewhat theoretical examination of government budgets and their discontents originally scheduled for today will be postponed until Monday because yesterday the folks in Montpelier committed a new.

Which is to say, they made news, news of some magnitude as it turns out, and this being a news site, such news ought to be dealt with here.

Speaker Smith

For details, however, you are advised to consult your conventional print or electronic news source. Most of them employ quite competent if not excellent reporters, some of whom were actually on hand when this particular news was committed, as the News Guy, alas, was not.

Nonetheless, there is some advantage to being free from the constraints of the conventional news sources. If you can get more detail there, perhaps you can get more (or at least more free-wheeling) explanation here.

What happened was that the Democrats who run the Legislature announced some changes in their own $4.5 billion budget bill, the one that Gov. Jim Douglas has said he would veto.

The new provisions seem unlikely to persuade the Governor to do otherwise, though in some ways they move the total package slightly (perhaps minutely) closer to his point of view. One provision in the budget “Companion Bill” for instance, would encourage state workers to retire as a means of reducing the state work force, one of the Governor’s major goals.

Douglas opposes the budget bill because he says it spends too much and cuts too little. The changes made by the Democratic leaders, House Speaker Shap Smith of Morrisville, Senate President Pro Tem Peter Shumlin of Putney and some of their committee chairs, actually adds a little more spending.

But it’s the pro-business, pro “economic development”  kind of spending the Governor likes-new research and development tax credits for business, more money for expanding internet and cell phone service. The Democrats also agreed to cap unemployment compensation benefits (a Douglas position), and to postpone for another year the plan to limit the capital gains exemption in the state income tax.

That means they scaled back one of their proposed tax increases (though in a “revenue neutral” manner), also a small dip in the Douglas direction.

But perhaps more to the point, a dip in the direction of some of their own members. The capital gains preference is of special importance to some farmers and to folks in the forestry business. Farmers and folks in the forestry business have political clout in this state, and some of them are constituents of Democratic members of the House, all 95 of whom will probably be needed if Douglas’s veto is to be overridden.

Later, Speaker Smith said the changes were not made out of “a concern that we would lose votes on the override.” But then he acknowledged that the changes had not lost him any votes either. Asked if he was more confident of winning the override vote than he’d been the day before, Smith said, “these things are so fluid.”

Earlier, he’d been even blunter, saying, “I know it’s hard to take at face value, but I actually think this isn’t about shoring up votes or anything like that.”

Who would even suggest such a thing? Obviously, these Democrats leaders, votes to override safely in hand, simply sat around yesterday pondering how to make their budget even more brilliant and transform Vermont into a Utopia, until one of them just popped out with something like, “say, why don’t we put more R&D tax credits into the budget?”

Or maybe not.

As Smith sort of acknowledged in a statement he and Shumlin released, in which Smith said, “I’ve heard a lot of constructive feedback from small business owners, farmers, hi-tech innovators and working Vermonters about steps we can take to set the state on a more solid footing for the future”

Republican Leader Patti Komline of Dorset certainly thought there was as much politics as policy in the Democratic announcement.

“Despite the fact that they have a supermajority in the House and Senate, they did not have the votes, and so this is just meant to cherry pick and get those so they can override,” she said (on WCAX-TV, Channel 3, which had the best early coverage of the story)

Komline’s statement appeared both triumphant and submissive, asserting first that the Democrats didn’t have the votes then, but acknowledging that they may well have them now.

As usual, the truth may be more complicated than either the cynicism or the naiveté outlined above. Senators, representatives, members of the Joint Fiscal Office staff and even a few officials of the Douglas Administration have been talking for days. No one should be surprised that the lawmakers decided to tweak their budget.

It is possible to tweak and count votes at the same time.

Besides, if the Democrats are at risk of seeming a bit sly, Douglas is in danger of seeming downright irrelevant. The Governor has not had a good spring. The Legislature overrode his veto of the same-sex marriage bill. It probably would have overridden his veto of the renewable energy bill or he wouldn’t have let it become law without his signature earlier this week. Now he is about to become the first governor in Vermont history to veto a budget bill, perhaps the first to have that veto overridden.

He could spring back, of course. First of all, it’s still possible, of not likely, that the House will sustain his budget veto. Or maybe he won’t veto it. He could announce that these latest revisions moved the whole package just far enough in his direction to render it acceptable.

Not likely, either. Because the Companion bill says nothing at all about what seems to be the issue about which the Governor feels strongest – school costs. Douglas wants the schools to spend no more per pupil next year than this year. To persuade (or force?) them to do so, he wants the legislature to finance the annual  contribution for teacher retirement from the Education Fund rather than from the General Fund, from which the payments have always been made.

That switch would increase property taxes unless schools make the deep cuts Douglas has called for.

On this issue, the Democratic leaders did not move a bit in Douglas’s direction. They didn’t have to. Smith said not a single member of his caucus had taken the Governor’s side in this matter.

Neither, it seems, did many members of the Republican caucus. Republicans in the House have backed Douglas’s general fiscal conservatism, his insistence on deeper budget cuts and fewer tax increases. But if there has been any support for his contention that the current school financing system is ” fundamentally broken and beyond repair, it has been so muted as to be unnoticeable.

Jim Douglas is still a relatively popular governor who will be favored to be re-elected should he run for a fifth term next year. Right now, though, at least on this issue, he gives the impression of being a leader who proclaimed a crusade, buckled on his armor, mounted his steed, and looked behind him to see…effectively nobody in the ranks.