TOM KOCH: A GOVERNOR ABOVE THE LAW

(Note: This is a reprint of is a reprint of Rep. Tom Koch’s March 24 “Scribblings,” an occasional newsletter from the Legislature.)

For many years, I have believed what I was taught in ninth grade civics — that ours is a government of laws, not of people. These days, I have reason to worry whether that is still true.

In California and Virginia, we have seen state laws go undefended in court, because in the opinion of each of those states’ governor and attorney general, those laws were unconstitutional. On the national level, we have an attorney general who announced that he would not enforce some of our federal anti-marijuana laws, and recently he was heard to urge state attorneys general to pick and choose (my words) among the laws they would defend.

Now, the validity or wisdom of the particular laws in question is not the issue. Perhaps the laws forbidding same-sex marriage are, indeed, unconstitutional, and perhaps marijuana should be legalized; people can and do disagree on those questions. The issue is that those are laws legitimately adopted by state legislatures and by the United States Congress. They are supposed to be “the law of the land,” and the laws of those respective states. As such, they deserve to be obeyed and defended by the officials who are sworn to uphold the law. Does an oath mean anything?

Closer to home, but following the same trend of disdain for the law, we have a governor who is in complete and utter disregard of the law that requires him to produce financing plans for a single-payer health care plan by Jan. 15, 2013. I won’t do a complete repetition of what I wrote in my “Scribblings” of Jan. 27 on this subject, but I will note that as of that date, Gov. Shumlin was still promising to produce at least a preliminary plan during this legislative session. Now he has indicated his intention to break that promise as well. He says he simply isn’t ready.

It might be well to remind the governor that this is the bill he asked the Legislature to pass. This is the timetable he asked for. He signed the bill on May 26, 2011, giving him 20 months to meet the statutory deadline. He farmed out the project at a cost of $300,000 and then halfway through, pulled the plug on the financing part of the study so that all we got was an inadequate cost estimate with no proposed way to pay those costs. Then he said he would produce something of a plan before the Legislature adjourns this year, some 36 months after passage of the law creating Green Mountain Care; now he says he won’t do that either, but that his in-house consultant, Michael Costa, will have something for us to see next January. At that time, there will be less than 24 months left before the single-payer system is supposed to go into effect.

One problem with all of this is that it’s not really that much of a mystery. The simple fact is that the only untapped revenue source that we have that is capable of generating the $2 billion (or so) that will be needed is a payroll tax, undoubtedly shared by employers and employees. Of course, there will have to be some other taxes as well, in order to make sure that “everyone is in,” and that there aren’t any free riders. But you don’t have to be a financial genius to put a few ideas and estimates on the table to start a full and fair discussion prior to a rushed enactment of the largest tax increase this state has ever seen.

Many people have pressed the governor to come clean on this matter. The media has repeatedly asked questions, only to be rebuffed. Rep. Cynthia Browning, a Democrat from Arlington, filed a public records request for whatever work has been done to date, only to have the governor assert “executive privilege.” Liberal Democrats and Progressives who are anxious to see a single-payer system be adopted and work successfully have expressed their frustration with the administration’s recalcitrance.

The only crack in the governor’s resistance to giving some straightforward answers came when he was asked what, besides a payroll tax, might be taxed, and his snide answer was “bubble gum and lollipops.” Am I the only one who thinks that a governor owes the people who elected him more respect than to give an answer like that?

There’s a bottom line to all of this, and that’s that there are only two reasons why the governor has chosen the path of utter disregard for the law in this matter. Either he and his people have legitimately not been able to figure out a financing plan that will work, which throws the entire single-payer concept into great doubt. Or he has figured it out, and it’s so ugly that he doesn’t want the people to know about it until after this November’s election. Neither reason justifies his silence.

SCHOOL FUNDING

So while I’m beating up on the governor, I might as well keep going. Act 68, our education finance law, has been a mess for quite a few years. Initially, I thought it might work well, and indeed, it was an improvement over the law it modified, Act 60. But it didn’t take long for people to realize that Act 68 was a very expensive system with frequent perverse applications. Property taxes kept going up, even as school boards and voters struggled to keep budget increases to a minimum, and even as student population fell by over 10 percent since the enactment of Act 68.

For several years, Gov. Shumlin tried to push the blame off onto local school boards, urging them to level-fund their budgets, claiming that decisions made locally were the cost drivers that caused property taxes to rise. In his 2013 State of the State address, he lauded Act 68, saying,

“Together, we have done innovative and cutting edge bipartisan work with school funding in the past decade and a half that you deserve to be proud of. Vermont took a regressive property tax that funds our most important obligation in a democratic society

Actually, today it noted things and made it equitable and progressive, giving every child in Vermont an equal shot at resources while preserving local control.

“Now, some like it and some don’t, and we could debate it until the cows come home, and I’m sure you will. But in doing so, we ignore the next opportunities that will define our future prosperity.”

And on yet another occasion, he referred to the Act 68 school-funding system as “the most elegant in the nation.” Altogether, not much enthusiasm for change!

In years when only a dozen or so school budgets were defeated across the state, the cry for reform could easily be ignored. But level funding is a trick that one can use for only so long; eventually, some budget increases will be necessary. This year, 34 budgets were defeated, even though school boards had done their utmost to keep increases to a minimum. Perhaps the most striking demonstration of the perverse application of Act 68 came in the town of Underhill, where the school budget was actually slightly lower than last year’s budget, yet the estimated tax burden increased by 14 percent!

In the wake of those defeats, most if not all of which have not yet been settled by a revote, the governor announced that his administration will “redouble our efforts” to reform the system. Perhaps I’m just a little too cynical, but I do know that two times zero is still zero!

The fact is that there is little impetus in the current Legislature for any significant change in Act 68. Last year, a bill sponsored by Rep. Heidi Scheuermann of Stowe that would repeal Act 68 in its entirety, thereby forcing the next Legislature to work seriously on designing a responsible and workable alternative, was replaced by an amendment directing the House Ways and Means Committee to study alternatives to Act 68 and report back to the full House by March 15 this year. It’s March 24, and we haven’t seen a report. This year, Rep. Patti Komline of Dorset has put forth an online petition that requests the Legislature to adopt the “repeal and replace” idea. However, no matter how many signatures this petition gathers, don’t count on any change of heart on the part of the legislative majority. Meanwhile, despite some proposals to keep the residential property tax increase this year at a lower level than the previously anticipated seven cents, the projected increase next year is already an additional five cents!

And there are still some people who wonder why Vermonters are moving to more tax-friendly states.

LEGISLATIVE ETHICS

Finally, I cannot write without commenting on the matter of legislative ethics. I have long been a defender of what I perceive to be the most ethical legislature in the country. But the unseemly mid-session resignation of Rep. Tess Taylor of Barre City to take a job as executive director of a newly created political action committee whose purpose is to lobby the Legislature for single-payer health care is a game changer.

This is not the first time that a legislator has gone directly from the Legislature to lobbying his or her former colleagues, but it is probably the first time it has been done in the middle of a legislative session. Green Mountain Power has been known to employ former legislators — even those whose legislative work directly affected GMP. And at present, there are legislators who are employed by non-profit organizations that depend, directly or indirectly, on state funding or that have interests that may be directly affected by legislative action.

I don’t have all the answers, but this most recent incident is sufficient to make me change my long-held position that no additional ethics legislation is needed. The House and Senate should both consider appropriate rules changes, and I am a member of the House Rules Committee, so I bear some responsibility for making some changes. And additional legislation should be considered. I’m still not convinced that financial disclosure is needed for legislative candidates, but we really need to put a stop to the “revolving door.” I also believe that the concept of the citizen legislature is still viable, and in my view, states that have adopted full-time legislatures have come to regret it. In those states, being a legislator is one’s principal source of income, legislators are paid a “living wage” (and much more), and getting re-elected to one’s “job” is a legislator’s first concern. I don’t know if there is still time in the present legislative session to put any reasonable fixes in place, but if not, these concerns should be a first priority in the 2015 session.

Unfortunately, this is not the Vermont we all grew up to know and love.

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