"Scribblings": An Occasional Newsletter from the Legislature
By Rep. Thomas F. Koch, Barre Town

These are dangerous days in the legislature. We are hoping to adjourn today, and on the one hand, the sooner we get out of town, the safer it will be for the people, especially those among "the people" who pay taxes. On the other hand, in the rush to adjourn, a lot of pet projects and bad ideas can get inserted into conference committee reports and passed into law before most legislators figure out what’s happening. 

When a conference committee report is submitted to the House or Senate for consideration, we are always provided with a written copy, but not always with enough time to read it. That’s a real problem; sometimes we don’t know for sure what we are being asked to vote on, and sometimes that lack of knowledge is a result of a deliberate effort to take advantage of the time constraints. Conference committee reports cannot be amended, and the only vote is YES to accept the report or NO to reject it and ask for another conference committee. In the press of time to adjourn, conference committee reports are only occasionally rejected.

All of this has been known to result in bad decisions, unintended consequences, imprudent compromises, and generally bad legislation. 

We seem to have a penchant for litigation. We have passed two bills within the past week that are likely to end up in court, and we are working on a third.

In 1997, I was one of 17 representatives who voted against a bill placing strict limits on campaign contributions and expenditures. I did so for several reasons. First, I have a basic philosophical disagreement with the idea of legislatively controlling campaign finances. Second, I was certain that the 1997 bill was an unconstitutional violation of freedom of speech, as enunciated by the U.S. Supreme Court in the 1976 case of Buckley v. Valeo.

Predictably, the 1997 act was challenged in court, principally by Vermont Right to Life, the American Civil Liberties Union, and the Republican Party. The case worked its way through the United States District Court in Vermont, the Circuit Court of Appeals for the Second Circuit, based in New York City, and the United States Supreme Court. In the end, the Supreme Court declared the 1997 act unconstitutional, as a result of which the State of Vermont owes "loser fees" (attorney fees, expert witness costs, etc.) to the plaintiffs in an amount of nearly $1.5 million. And this is in addition to what it cost the state itself to defend the act—costs which, for some unfathomable reason, the Attorney General has to date been unable to add up!

So along comes the legislature in 2007 and passes a new bill, one which does not contain expenditure limits, but does still contain contribution limits. The limits are not as strict as the 1997 law, so the legislature seems to think that they will be found "reasonable." The fact remains, however, that there is no standard for judging what is "reasonable," and it seems to me that the committees that wrote the bill are just throwing numbers at the wall to see if they stick. The Supreme Court made it clear that restrictions on free speech (and that’s what contribution limits are) can be justified only if the state can show that they are needed to eliminate corruption or the appearance of corruption. When the Supreme Court asked Attorney General Sorrell last year to document such corruption or appearance of corruption in Vermont, he was unable to do so, and I submit that nothing has changed since then. This is a law that is not needed and is likely to be challenged once again. We could be signing up for another $1.5 million in loser fees, but that doesn’t seem to bother anybody!

I offered an alternative with a totally different philosophy of regulation. Instead of making the rules in Montpelier, with the legislature deciding how much is "reasonable" to contribute to your favorite candidate’s campaign, I suggested that we have no limits on contributions and no limits on expenditures, but that all contributions and all expenditures be promptly and publicly reported and disclosed. I would establish strict civil and criminal penalties for the failure to report, and intentionally falsifying a report would be a felony. Then the voters could decide whether a candidate had taken too much money, taken money from the wrong source, or spent the money improperly. Somehow, voters know exactly what to do when they don’t like what a candidate is doing, and my amendment was based on the belief that all the regulation needed can be provided by the voters at the polling place. Moreover, it is clearly constitutional and will not need to be defended in court. However, this idea of trusting the voters appears to have been too simple; my amendment was rejected on a voice vote.

A second piece of litigation bait is a bill to outlaw or regulate the practice of "data mining" pharmaceutical information for commercial purposes. People engaged in this business purchase data about physicians’ prescribing patterns (usually from pharmacies), remove any personal identifying information, and then sell the compiled and analyzed information to drug manufacturers and marketers.

I find this practice offensive and objectionable, because it inevitably involves examination of confidential medical information, even if confidentiality is ultimately preserved. However, New Hampshire recently passed a bill prohibiting data-mining, which was promptly challenged in court. Last week, just as the House Health Care Committee was about to report its nearly identical bill to the House for action, the United States District Court for the District of New Hampshire declared the New Hampshire law unconstitutional as a violation of commercial free speech. In response to that decision, the committee made some relatively minor revisions to its bill and brought it out onto the House floor anyway.

Despite warnings that the Vermont bill, if enacted, will certainly be challenged in court, the House passed it anyway. Topper McFaun, who had initially supported the bill (in part because it contains other provisions that make sense), fought valiantly to remove the data-mining provisions from the bill until the New Hampshire case has been finally resolved—most likely by the Supreme Court—but the litigation lovers among us insisted on passing this non-urgent piece of legislation anyway. Even if we eventually win a challenge to this law, it will still cost the state a lot of money. No problem—there’s more where it came from! The taxpayers won’t mind!

But I’ve saved the worst for last.

Since we began the biennium with three weeks of seminars on global warming, it might seem prudent to show something for our efforts. Thus S. 94, a bill relating to energy conservation and reducing greenhouses gasses, now combined into H. 520, an act dealing with electrical energy, electrical generation, and renewable resources.

The basic premise of the bill is good. We need to do what we reasonably can to use as little energy as possible. And this is true regardless of whatever one might think about the issue of global warming. The aim of the bill is to encourage energy conservation, largely by expanding the generally successful Efficiency Vermont to work not only on electrical efficiency, but also on conservation of other fuels.

But that’s about as far as the good sense goes in this bill.

--To accomplish its aims, the bill authorizes the Public Service Board to design and create a new bureaucracy, referred to as an "efficiency utility."

--The bill establishes the new efficiency utility as a monopoly, no competing ideas or methods desired!

--The bill grants a major tax break to industrial wind farms, which are already heavily subsidized about four different ways.

--But most offensively, it triples the tax on Vermont Yankee nuclear power, putting out a huge "BUSINESS NOT WELCOME IN VERMONT" sign. Senator Shumlin began this attack on Vermont’s largest supplier of electricity as an "excess profits" tax, on the grounds that Entergy Vermont Yankee has proven to be "more profitable that anyone had ever imagined." When that went over like a lead balloon, he changed his tune to a tax on Vermont Yankee for the privilege of storing its nuclear waste on its own property in Vermont. When that didn’t sell, the House conferees offered to change the tax to an "electrical generation" tax of $0.003 per kWh. No matter the name, it accomplishes the same goal—confiscate $25 million per year from a single source to fund the global warming agenda of a few politicians. There is one message in this for any business that hopes to be successful: Vermont is not the place you want to be!!

On top of all that, the money raised by the tax isn’t even committed to energy conservation! Forty-two percent of it is devoted to the education fund, and 58% will go into the general fund. Whether it will remain unspent until needed by the new efficiency utility is anybody’s guess, but past experience would suggest that money like that never gathers much dust laying around unspent by the legislature.

As this is written, the bill has just passed the House 85-61. This could be the one bill the governor vetoes this month, and I will certainly vote to sustain the veto. This could have been a good bill, but in our passion to save the world, we got carried away with creation of more government and more taxes.

In all of this, one needs to recall Senator Shumlin’s real agenda: when its current license expires in 2012, Vermont Yankee needs approval of the legislature to continue operating. Senator Shumlin wants to pull the plug in 2012! Since Vermont Yankee provides 34% of all the electricity used in this state, and since its rates are the lowest of any of our power sources, what will happen when he gets his wish????

Enough ranting (for now). Let me end on a good note. This Sunday, one of our House members will celebrate his 85^th birthday! Rep. Dave Clark of St. Johnsbury came to the House in 1996, having just retired as St. Johnsbury Town Manager after more than 35 years of service. He still runs a 20 acre/900 tree apple farm, drives back and forth between Saint J. and Montpelier every day during the legislative session, and consistently exhibits good, old fashioned, Vermont common sense. I think the term "good people" must have been coined just for him. We’d be better off it there were a lot more people like him these days. Happy birthday, Dave!