Marijuana Legalization – Post Mortem

Senate Bill S.214

The General Assembly’s consideration of whether to regulate and legalize marijuana started in the Senate. After considering the issue for a year, the Senate passed S.241, a bill that would have created a detailed regulatory system for licensed cultivation, retail, and testing establishments. It would also have legalized the possession of up to an ounce of marijuana and the sale of up to a half-ounce for residents (a quarter-ounce for nonresidents). Legalization would have begun in January 2018 and would have been restricted to individuals 21 or older.

Under the Senate bill, the Department of Health would have promulgated rules addressing a myriad of details, including the creation of a marijuana education and abuse prevention program, the establishment and operation of marijuana dispensaries, and marijuana advertising. The Agency of Agriculture, Food and Markets would have been tasked with adopting rules on cultivation and testing. The bill would also have established a commission to review and recommend action on such matters as the sale of edibles and allowing home-grown marijuana. It would have raised funds through license fees and a 25% tax on the sale of marijuana; changed current laws on medical marijuana; invested in highway safety, including increasing the number of Drug Recognition Experts (DREs); and created a committee to study the use of marijuana in the workplace.

House Attempts to Amend the Senate Proposal

The House Judiciary Committee took testimony for nearly four weeks then passed out a significantly scaled-back bill that did not legalize activities related to marijuana. Rather, the amendment addressed concerns related to marijuana use in Vermont and laid the groundwork for eventual marijuana legalization. Next, the Ways and Means Committee considered the Judiciary Committee’s bill and offered a further amendment that would legalize the possession of an ounce of marijuana and up to two marijuana plants. As the Senate bill and these amendments lay dormant at their next stop, the House Appropriations Committee, the Senate attached the language of S.241 to an unrelated bill, H.858, that it sent to the House.

House Rejection of Senate Version

Late in the session, the Senate version of marijuana legalization had its day on the House Floor when H.858 was considered. The House rejected the Senate version on a 121 to 28 vote. The vote in part reflected the sentiment held by many representatives that there had not been sufficient time for the House to vet the complicated issues involved in the initiative. Nor had enough time passed to understand the costs and benefits of marijuana legalization in states that have recently legalized marijuana. In addition, a number of representatives were concerned about creating a commercial market for legal marijuana, particularly if Vermont were the only state to do so within a day’s drive of some 40 million people. The Senate approach also frustrated those who wanted to see the legalization of home-grown marijuana.

House Rejection of Decriminalization of Possession of Two Plants

After overwhelmingly rejecting the Senate proposal, the House considered an amendment that would have decriminalized the possession of up to two marijuana plants. (Decriminalization is not the same as full legalization. If possession were decriminalized, it would not be a crime, but the possessor would still be subject to a civil penalty.) The amendment sought to address the current inconsistency in Vermont law whereby individuals who possess up to one ounce of marijuana are subject to a civil fine (such possession is currently decriminalized), but in order to obtain that ounce of marijuana they must engage in a criminal transaction. The House defeated this amendment on a 70 to 77 vote.

House Passage of Amendment Addressing Education and Highway Safety and Creating Marijuana Advisory Commission

The House did pass another amendment, however. This amendment recognized that Vermont is not addressing problems caused by current use of marijuana in the state, primarily health risks to youth from use of marijuana and highway safety. In addition, it recognized that marijuana legalization in Vermont and neighboring states is likely inevitable, and our state needs to prepare for that eventuality.

First, although youth usage of marijuana has remained steady, fewer young people believe that regular use of marijuana causes them harm. In fact, youth use of marijuana does raise a serious risk of harm. The medical community has articulated the deleterious effects of regular marijuana use on the developing brain. Addiction specialists have explained how youth are particularly prone to develop addictions if they start using marijuana in their teens. To address this issue, the House amendment would have directed the Department of Health, in collaboration with the Department of Public Safety, the Agency of Education, and the Governor’s Highway Safety Program, to develop and administer an education and prevention program focused on the use of marijuana by those under 25 years of age.

A second concern relates to the safety of our roads. Vermont lacks the infrastructure to mitigate highway safety risks from those driving under the influence of marijuana, which is particularly dangerous when combined with alcohol consumption. Although the number of crashes involving fatalities or serious bodily injury has gone down overall in Vermont, the number where a driver had THC (the psychoactive ingredient in marijuana) in his or her blood has been going up. Law enforcement does not have the tools or resources at present to address this growing problem.

The House amendment would have directed the Secretary of Transportation and the Commissioner of Public Safety to work collaboratively to ensure that funding is available for two programs that would assist enforcement of impaired driving laws statewide. In one program, law enforcement officers would receive training in the Advanced Roadside Impaired Driving Enforcement (ARIDE) program. In the ARIDE program, officers learn how to observe, identify and articulate the signs of impairment related to drugs, alcohol or a combination of both. The other program would involve training additional Drug Recognition Experts (DRE). DREs are officers who receive more intensive training on recognizing impairment in drivers under the influence of drugs. The funding for both of these programs would be obtained through existing grants from the National Highway Traffic Safety Administration, as administered by the Governor’s Highway Safety Program. A separate transportation bill would have established a new impaired driving violation to account for the heightened traffic safety risk from poly-substance use – the combined consumption of alcohol and marijuana. It would also have allowed the use of road-side and evidentiary saliva tests to detect the existence of THC in a person’s blood.

Third, the House also recognized that a neighboring state will likely legalize marijuana in the near future and that Vermont will eventually also end marijuana prohibition. Thus, the amendment would have established a Marijuana Advisory Commission to guide the administration and the General Assembly. The Commission would advise on issues relating to the national trend toward reclassifying marijuana at the state level and the possible emergence of a regulated adult-use commercial market for marijuana within Vermont. In addition, a Workforce Study Committee would have been created to examine the potential impacts of alcohol and drug use in the workplace.

Senate Rejection of House Actions

The Senate did not pass the House amendment described above. It failed to support the provisions on youth education and highway safety and the establishment of the advisory commission. Nor did it agree with the House’s provision in the transportation bill that would have created a poly-substance impaired driving violation and would have permitted the use of saliva tests to detect THC.

Conclusion

No law addressing recreational marijuana made it out of the legislature this year, despite the fact that many representatives in the House were sympathetic to the arguments in favor of legalizing or decriminalizing possession. Proponents of marijuana legalization have argued that prohibition and the war on drugs have failed. Marijuana is already widely used by Vermonters, and in order to obtain marijuana, users must confront the dangers associated with the black market, including product with pesticides or other additives and exposure to dealers selling other more harmful drugs. Proponents assert that individuals should have the same right to moderate use of marijuana that they do for alcohol without being subject to criminal penalties so long as they are not causing others harm. But the House majority was not yet ready to legalize or decriminalize. Nevertheless, many in the House recognize that legalization is likely going to occur more broadly in the region, and potentially in Vermont in the future. The work done by the House in examining the issues will help the State to prepare for that eventuality.

Advertisements

Difficult Decisions

During the course of this legislative session, I have had to make many decisions on how to vote, both in the Judiciary Committee and on the House floor. Many of those decisions have been relatively straightforward. Most of the bills have passed out of the Judiciary Committee on unanimous votes, and many have passed the House unanimously or nearly so.

Decisions on other votes, however, have been more difficult. Two such votes occurred this week, one on a bill to allow voter registration on the same day as voting and the other on a bill to eliminate the philosophical exemption for vaccination for children entering school.

Proponents of the same-day voter registration bill argue that voting is a fundamental right and any barriers to the exercise of that right should be eliminated. Easing the way to vote should bring more people to the polls, and a strong democracy depends on citizen participation. But others are opposed, claiming that same-day registration would make it too easy to register and vote, resulting in increased voter fraud. Elections tainted by voter fraud would undermine the very democratic ideals that free and open elections are supposed to serve.

The bill to eliminate the philosophical exemption for vaccination has been one of the more divisive of the session, as it involves the competing rights of individuals to make health care decisions and rights of a community to be protected from infectious diseases. Proponents and opponents of the philosophical exemption are passionate about the issue.

Proponents of the exemption allege that vaccines are risky and can harm children; it is too difficult to obtain a medical exemption from vaccination; vaccine manufacturers are not liable for the damages they incur and have little incentive to ensure the safety or effectiveness of their vaccines; and the state already has a high vaccination rate (94-98%) and a low rate of invocation of the philosophical exemption. They also assert that removing the exemption takes away the freedom and rights of parents to make educated decisions for their children in a situation where there is no imminent threat that requires the government to intervene.

Opponents of the exemption argue that scientific evidence overwhelmingly supports the safety and favorable risk-benefit ratio of vaccine administration. They reason that philosophical exemptions are associated with clusters of unvaccinated children and outbreaks of vaccine-preventable diseases; our current Vermont law not only contributes to rising rates of under-vaccinated children, but also puts others at risk, including children and adults with diseases or treatments that impact their immune system and those too young to be vaccinated; children, elderly, and immuno-compromised patients deserve to live in a place made safer by higher vaccination rates; parents do not have a right to put other children at risk by not vaccinating their own children; and once-vanquished diseases such as pertussis and measles are resurging as a result of declining vaccinations. In short, they assert that achieving high rates of vaccination in schools is a public health imperative to which individual choice should give way.

The decisions I had to make on these bills provide an opportune time to elaborate on my decision-making process in the legislature. There are many factors that go into my thinking when I decide how to vote.

One consideration is certainly the input that I receive from constituents. I do take into consideration the views that constituents express when they contact me or meet with me at my weekly sessions at the Panera on Shelburne Road. When I receive input from constituents, I do not simply count the pros versus the cons on the issue. I do not let the squeakiest wheel control my deliberation. Rather, I consider the arguments that constituents make and review the facts and supporting materials that they refer me to in order to arrive at my own conclusions.

Nevertheless, what my constituents might or might not think about an issue can only go so far in influencing my vote. It would not be possible for me to cast every vote in the legislature as the majority of my constituents might want me to in part because I simply cannot determine what that majority might think on each issue. Doing so would require me to poll District 7-1 each time a decision has to be made, which, of course, would be extraordinarily difficult if not impossible. Occasionally, however, a state-wide poll may be available on an issue, which can give a sense of where the broader community falls on a particular issue.

When considering certain bills, I also reach out to community members who I know have an interest in or expertise on an issue. For example, I spoke with Tom DiPietro, South Burlington’s Deputy Director of Public Works, to learn more about the city’s interests in the water quality bill the House considered earlier in the session. I also spoke with Donna Kinville, the South Burlington City Clerk, about same-day voter registration. I do not necessarily follow all of the advice that I receive from these community members, but I rely on them to help me make an informed decision.

On bills before the Judiciary Committee, I have the opportunity to gain detailed knowledge on the issues involved. The committee takes testimony from witnesses with various expertise, experiences, and viewpoints and committee members have the opportunity to ask them questions. We review materials that witnesses provide and that we locate through our own research. We receive guidance from attorneys of the Legislative Council and economists from the Joint Fiscal Office. In short, we become well versed in the issues related to the bills over which the Judiciary Committee has jurisdiction.

Because the issues that the legislature addresses are so varied, complicated, and numerous, it is not possible to delve as deeply into those bills that come through other committees. Accordingly, I must exercise a certain amount of deference to the judgment of the committees that investigate in depth the issues within their jurisdictions. This does not mean that I simply accept their judgments, although unanimous support for a bill from a bi- or tri-partisan committee does carry weight as to whether I will support its conclusion. To the extent possible, I seek to verify other committees’ conclusions and weigh the counterarguments. In doing so, and when I feel I need more information on the issue, I will also consider the viewpoints of experts and other witnesses from whom the committees have heard.

Typically, by the time a bill reaches the House floor and we are called upon to vote, my position on a topic has solidified. On other occasions, the debate on the House floor may crystalize an issue on which I am still wavering.

An additional factor that may influence my decision is politics. As a freshman legislator, I am still learning how this factor plays out. To date, I have not felt direct pressure from the leadership of the House or the Democratic Caucus to vote in a particular manner. But I also know that if I constantly vote against the majority, my ability to accomplish work on behalf of my constituents will be diminished. This session, I have voted against the party line on occasion. I sponsored an amendment to ban strikes and imposition in the context of teacher collective bargaining, despite the general opposition to this idea by the Democratic Caucus. But this has been one of the few instances where my own views have run counter to the party.

My votes this week on the bill that will allow residents to register to vote on election day and the bill that will eliminate the philosophical exemption for vaccination for children entering school provide examples of how I reach my voting decisions. I did not hear from any constituents on the same-day voter registration bill. I did, however, hear from the South Burlington Town Clerk, who opposed the bill. Primarily, she was concerned about the increased chances of voter fraud that she believes the bill will create. To alleviate this concern, she urged that individuals seeking same-day registration have an ID or other evidence of their residence.

I considered her input in my deliberations. The Government Operations Committee had also considered her input, which she had delivered in testimony, along with the input of other town clerks and the Vermont Municipal Clerks and Treasurers Association. The Committee sought to address these concerns by pushing off the effective date of the bill to January 2017 and requiring a study that would consider, among other issues, how other states with same-day voter registration address what type of proof of residency should be required by individuals seeking to register on election day.

In considering how to vote, I reviewed the rules related to voter registration in Vermont and the voter registration form. That form requires an individual to affirm that he or she meets the requirements to vote in the district: a United States citizen, a resident of the town in which he or she wishes to vote, and at least 18 years old. The individual must also take a voter’s oath. The form makes clear that giving false information as to one’s qualifications to be registered to vote in the town can result in penalties of up to $10,000 or imprisonment for not more than 15 years. I felt that the requirements and warnings set forth in this form would act as an adequate disincentive to most individuals who might consider trying to register fraudulently. I also reviewed reports and other evidence that had been provided to the Government Operations Committee and were available on its website that indicated the very low incidence of voter fraud.

From this review and from listening to the debate on the House floor, I was satisfied that the minimal risks of an increase in voter fraud did not outweigh the benefits of removing barriers to an individual’s ability to exercise his or her fundamental right to vote. I accordingly voted for the bill, which passed the House. In many states, Republican-controlled legislatures are introducing, not eliminating, barriers to voting, with the likely result of disenfranchising many impoverished and under-represented citizens. I’m proud that Vermont is taking a different approach.

In considering how to vote on the bill to eliminate the philosophical exemption, I considered the viewpoints of and facts offered by constituents, experts, and the Health Care Committee, and points made during the floor debate and in a packed public hearing. On this issue, I received more emails and calls from constituents than any other issue that has come before the legislature this session. All but one of these constituents urged me to vote to remove the philosophical exemption. I received emails from many other Vermonters including South Burlington residents outside District 7-1, many who sought to keep the exception in place. I also noted that a state-wide poll shows that over 70% of Vermonters support eliminating the exemption.

I reviewed materials that individuals referred me to and those that were available on the Health Care Committee’s website. On the one hand, I did empathize with many of the points that proponents of the exemption advanced, including their desire to make individual decisions that they viewed as in the best interest of their children. I was most troubled by the apparent difficulty that individuals face when they try to obtain medical exemptions to vaccinations.

On the other hand, I accept the scientific consensus that vaccines are safe and effective, a high vaccination rate is necessary to obtain so-called herd immunity in order to protect vulnerable individuals who are unable to be vaccinated, and the risks of harm from vaccinations are outweighed by the risks from infectious diseases that vaccinations protect against. I also was influenced by the fact that Vermont has one of the lowest vaccination rates in New England and that other surrounding states without the philosophical exemption have higher vaccination rates. The testimony of Vermont Health Commissioner Harry Chen and from a number of respected doctors supporting elimination of the exemption carried significant weight. Also, the bill modifies the provision relating to obtaining medical exemptions, making such exemptions easier to obtain. Moreover, by eliminating the philosophical exemption, doctors will need to consider patients’ requests for the medical exemption instead of simply advising them to exercise the philosophical exemption. Finally, during debate, I felt that those who supported eliminating the exemption were able to effectively answer all of the arguments in favor of keeping the exemption in place.

Ultimately, I was swayed by the view that individual liberties must be balanced against the responsibilities that individuals have toward the community in which they live and so I voted for the bill to eliminate the exemption, which bill passed the House. Having one’s children vaccinated before they enter school, unless one receives a medical exemption or invokes a religious exemption, is part of the responsibility that parents should undertake for the sake of the community’s public health.

These decisions were not easy, but in the end I think that they were in the best interest of my South Burlington constituents and Vermont.

I believe that voters gave me the honor of representing them because they expected that I would use my best judgment on the issues that are important to South Burlington and Vermont. They expect that I will evaluate the facts and policies that lie beneath the problems the legislature is asked to resolve, consider the proposed solutions and the consequences of those proposals, listen to and understand the input I receive from constituents, and use my experience and intelligence to arrive at what I believe to be the best outcome.

Reporting out an amendment to prohibit strikes and imposition

The following is the script that I used in reporting out an amendment today to prohibit strikes and imposition and to form a task force for considering further changes to collective bargaining.  I ad libbed a bit, but this captures most of my talk.  Here is a link to the House Journal for the day.  My amendment starts at page 980.  The amendment was defeated 73-70.  Here is a link to an article on the issue in the Burlington Free Press.

*************

My experience as a member of the South Burlington School Board informs my view point on this amendment, which I have cosponsored.

A little over four years ago, the South Burlington School Board voted to impose contract terms on the district’s teachers. As a member of the Board, I voted against imposition. I won’t go into the details of my reasoning, but I believed that in order to justify imposing contract terms a school board had to have no other choice. Given the turmoil imposition causes, it should be used rarely, if at all.  There are other options.

Many of the community members the Board heard from during that time four years ago agreed and said it better than I can.

One community member wrote the following:

“The members of the school board and the teachers taking on negotiations have an opportunity to model to our children that when things get tough, it is best to sit down and talk it out.       Teachers often say, “Use your words.”      Please practice this.       Sit down and talk some more and if that doesn’t work   . . .   get creative by sharing more ideas.”

Another community member said the following:

“The faculty in your schools spend their days teaching, among many other things, children to have discussions when they have problems with each other.  They work with students so they develop skills to be able to sit down and talk things out.  What a poor, poor example you are setting for the youth in South Burlington.”

And another:

“By imposing a contract on the South Burlington teachers you are sending a message to our community that you are unwilling to communicate and work towards a mutually acceptable resolution to the current labor and budget crisis.”

Many other community members made similar points. I think they are correct. There are other ways to resolve disputes between teachers and school boards that don’t involve imposition or the threat of imposition.

At the same time, there are other ways to resolve disputes between teachers and school boards that don’t involve strikes or the threat of strikes.

This past fall South Burlington endured a five-day strike before settling a contract. We heard similar input from the community then.

The following message was sent to both the teacher’s Association and the School Board:

“I plead with you, please find a way to seek a reasonable, logical, sustainable contract negotiation that keeps our children the main focus and for our community members who are raising them. We personally are prepared to wait however long that may take.”

Another community member said the following:

“I can’t help but wonder what the poor behavior and negotiation tactics are teaching our youth.  They certainly are watching and learning.  Is it okay to push around another group of people?  Is it okay to threaten others?  To storm out if you don’t get your way?”

We also received many emails and comments from individuals expressing the emotional impact the strike had on them and their children, and the bitterness and enmity that it caused.

In the end, what did the strike accomplish? It definitely caused a serious drop in community support for the district’s teachers. I and other school board members heard from many individuals who expressed their anger, not at the board, but at the teachers.

What else did the strike accomplish? Before the strike, the board had a proposal on the table that provided a bit over 7% in new money over three years. After the strike, the teachers had managed to raise this figure to a bit over 8%. The enmity of the community for a one percent gain over three years.

Last fall was not the first teachers’ strike that I have lived through. My father was a teacher and a member of the Michigan Educators Association, part of the NEA. He was in a leadership position and was the spokesperson for the Union when it struck back in 1970. Unlike today, that was a time when teachers made far less than the median income in the communities in which they worked. The strike did improve that situation. But the cost was great. As my mom has told me, for years afterwards people would avoid her in town because her husband had gone on strike. It took years for the community to recover.

This bill, H.76, wisely eliminates both the right of school boards to impose contract terms and the right of teachers to strike.

By doing so, it would improve the collective bargaining process. It will require the parties to engage in meaningful dialogue. Currently, with the threat of imposition and strike, too often the parties talk past each other or don’t talk at all. Instead of compromise, the parties cling to their positions and brandish their threats of imposition or strike. The Board has the incentive to say, if we don’t get our way, we will impose. The teachers have the incentive to say, if we don’t get our way, we will strike. That mind set needs to be changed, and this amendment does that.

I have spoken about my experiences in South Burlington. But I have had the opportunity to speak to many other school board members from across the state, and they share this view. The threat of strikes and imposition are not productive and, indeed, impeded compromise.

So, at Section 1 of the bill, we find the heart of the matter – strikes and imposition shall be prohibited. The Effective Dates provision of the bill, Section 5, provides that the prohibition on strikes and imposition applies to negotiations beginning on or after July 1, 2016.

Sections 2 and 3 of the bill repeal two provisions that with the prohibition on strikes and contract imposition would cause the statute to become internally inconsistent.

Section 4 establishes a task force on dispute resolution in labor relations for teachers and administrators and requires a report from the task force. It is in section 4 that the changes from the amendment in the calendar appear. I’ll point those out momentarily.

This section replaces the dispute resolution mechanism that was in the amended bill voted out from the education committee. It represents the primary change to what the education committee passed out of committee and what the House General committee has considered.

The education committee felt that the dispute resolution mechanism was appropriate. Also, testimony was provided in House General from labor lawyers who said that the mechanism would work. Nevertheless, members of House General had serious and legitimate reservations about the mechanism. Accordingly, this amendment establishes a task force to consider further the rules for teacher collective bargaining when strikes and imposition are prohibited.

Let me note here that 38 states prohibit teacher strikes. All of the New England states with the exception of Vermont prohibit strikes. The vast majority of New England states are able to reach timely settlements without strikes or imposition being an option. With few exceptions, these states are doing fine and are reaching finality in contract negotiations. Indeed, all but one of these states are paying their teachers higher wages than in Vermont, despite those teachers not having the right to strike.

This amendment allows additional consideration of what is and is not working with these states. And the fact that strikes and imposition would be prohibited as of July 2016 would add incentive for the task force to come back with a timely, thorough analysis.

One might ask, but what if we can’t come up with a new way to get to finality? I submit that the current collective bargaining system would work fine, even without the right to strike or impose. Under current law, the parties may mediate, go to fact finding, or even agree to binding arbitration. If the system stays the same except for the elimination of strikes and imposition, it will still be an improvement that should lead to more creative problem solving at the negotiating table. It is better than having the end game of negotiations be a strike or contract imposition.

Let me point out one change from the amendment as it appears in the calendar. The amendment did not allow the task force to consider mandatory binding arbitration as an option. We wanted the task force to focus on finding a solution that does not entail binding arbitration. Given concerns that we heard expressed, we have struck the language that prohibited consideration of binding arbitration.

End of Section 4 (a) and (c)

I note that only one New England state mandates binding arbitration.

My opposition to binding arbitration is that it is fundamentally undemocratic. It puts in the hands of an unaccountable third party, rather than the elected school Board, decisions related to 80% of a school’s budget. It puts in the hands of an unelected third party the decision that will impact the property taxes that the community must pay for education. The third party would have no fiscal responsibility or accountability to the community, nor would he or she necessarily be familiar with community issues. That is not a solution that the legislature should support.

In addition, binding arbitration is not a means to find the creative, cooperative solutions that we now need to find through the negotiations process. We are facing continued spending pressures in education, particularly now with the cap put in place H.361. We are facing rising health care costs. With binding arbitration, school boards and the teachers association will not have the incentive to find creative ways to address the rising costs of health care, or to address increasingly difficult funding issues.

Having said that, the amendment does not preclude consideration of mandatory binding arbitration.

Walk through Section 4

Section 4(a) creates the task force.

Section 4(b) establishes the membership of the task force – representatives of the Vermont NEA and the Vermont School Boards Association. Here is where there is another change from the amendment in the calendar. Rather than having the Executive Director of the Vermont Labor Relations Board on the task force, section (b)(5) provides that the VLRB will appoint an individual with labor relations experience as chair of the task force.

Section 4(c) charges the task force with evaluating possible statutory changes to improve the process for resolving a dispute or impasse during teacher or administrator labor negotiations. It establishes what the task force should consider.

Section 4(d) provides that the task force has to consult certain other interested parties.

What was previously Section 4(e) in the calendar version has been struck.

The new Section 4(e), previously 4(f), provides that on or before November 15, 2015, the task force shall submit a report to certain House and Senate committees.

Section 4(f) provides certain rules regarding meetings of the task force. Here, again the amendment on your desk modifies this provision.

In Summary, eliminating strikes and imposition will

*          Avoid the adverse impacts to a community, to schools, and to children who would otherwise have to go through a future strike or imposition.

*          Improve the negotiations process by taking away the threat of strikes and imposition, which discourage compromise.

Appropriations and Revenue Bills

I have found the Vermont Statehouse to be largely nonpartisan. This is most evident within committees, which for the most part put politics aside and try to derive the most workable solutions to the problems they face. The Judiciary Committee, on which I serve, has so far this session passed twelve bills out of committee, each on 11-0 votes.

This past week, the Appropriations Committee on an 11-0 bipartisan basis voted out of committee the budget bill for fiscal year 2016 (H.490). The nonpartisanship abruptly ended. However, once the whole House took up this bill along with a revenue/tax bill (H.489), which had passed out of the Committee on Ways and Means on a party-line 8-3 vote.

Before the third reading of these bills, a group of Republicans offered amendments plainly aimed solely at scoring political points, not at trying to resolve the underlying issues facing the legislature. They sought to cast themselves on the side of lower- and middle-income Vermonters by suggesting a reduction in taxes on those making less than $60,000 and an increase in spending on low income heating assistance. They did not, however, provide offsetting additional taxes on those earning higher incomes or realistic spending cuts.

In any event, the budget and revenue bills did eventually pass with some bipartisan support and without the Republicans’ amendments. And despite the political game playing that occurred, I do recognize the benefits of having a minority party that acts as a check on the majority. Further, through trying to reach compromise among the parties – the Democrats, Republicans, and Progressives – the legislature as a whole can achieve a better solution. In order to reach compromise, though, each party is likely going to have to accept some outcomes or positions that they find disagreeable.

Indeed, this was certainly the case with both the revenue and budget bills. I initially found aspects of the bills to be objectionable, but those aspects were the price of passing bills that, overall, are steps in the right direction for fiscal sustainability in Vermont. Also, as I delved more deeply into the explanation of those aspects of the bill, what I found alleviated my concerns enough so that I was comfortable voting for the bills.

As to the revenue bill, I disliked its apparent potential disincentive to charitable giving. Among other changes to the tax code to raise revenue, the bill caps itemized deductions, including for gifts to charitable organizations, at two and a half times the standard deduction amounts (a couple filing jointly, for example, could still deduct $31,500). Because these deductions provide an incentive for giving, a number of nonprofit organizations objected that scaling them back would hinder their fundraising.

As I learned, though, the actual impact on charitable giving would likely be very limited. Most of the tax benefit from a charitable contribution comes from the federal deduction, which is two to three times more valuable than the state benefit. It would make little financial sense to stop contributing to charities because of the limitation of the state deduction while foregoing the more valuable federal deduction.

People donate for a variety of reasons, not simply to receive a tax deduction. In fact, only 30% of Vermonters itemize their deductions but many more than that contribute to charities. The cap on deductions will affect a small group of taxpayers, resulting in a tax increase for slightly more than 6% of filers.

In effect, the cap on deductions, as well as other aspects of the revenue bill, results in a more progressive income tax. Given that the income growth for the top two income brackets in Vermont has grown significantly over the past several years, while middle class income has for the most part stagnated in the state, adding progressivity to the tax system made good sense to me.

I had a number of issues with the cuts proposed in the budget bill, but my major concern related to a $6 million cut in funding to the Low Income Heating Energy Assistance Program (“LIHEAP”). During the floor debate, however, I learned that the effect of this cut should not be dramatic. LIHEAP is a federal program. Up until recently, Vermont supplemented the program by providing state dollars through the Emergency Board, which would consider the need for additional funding in the fall after federal dollars for the fund had been designated. Two years ago, the legislature instead appropriated money for LIHEAP up front rather than waiting until it understood the extent of the federal investment in the program. The budget bill will return the state to the previous procedure.

Further, as the economy has improved and as fuel costs have decreased, the pressure on LIHEAP’s resources have decreased. As of the end of February, LIHEAP still had $3 million available if it needed a crisis grant, which is an additional benefit provided to households experiencing a heating crisis. This amount, if unused, will roll over to next year’s program. Finally, an amendment was approved that will designate up to $5 million of any general fund surplus at the end of this fiscal year to LIHEAP. In short, low income Vermonters are not at risk of losing the LIHEAP assistance that they may need next winter.

Having largely addressed my major concern with the budget bill, I was able to focus on its more positive features. First, in conjunction with the revenue bill, it closes the $113 million budget gap that the state was facing in the next fiscal year. Second, the FY 2016 budget is not an end point but part of a long term process of fiscal change to achieve a balance between the state’s spending and its expected revenue growth rates. Spending was projected to grow by five percent annually, while the state’s domestic product is projected to grow by only three percent annually.

As the Appropriations Committee has explained, to meet this balancing goal, the budget bill:

1) Reduces reliance on one-time funding. In the last fiscal year, the budget relied on $53 million in one-time funds. This budget includes $25 million in one-time funds and next year’s budget is projected to include just half that.
2) Reduces the rate of spending growth. To this end, the budget includes a number of efforts to reduce long-term spending in corrections, public safety, buildings, and other areas.
3) Sets forth two additional longer-term goals: to move toward budgeting for less than 100% of projected revenues and to explore a two-year budget, allowing time in the second year to focus on results-based accountability, evidence-based budgeting, and structural reforms.

Slower than anticipated economic growth, continued federal reductions in programs, and a growing demand for state services have created a difficult budget environment. The FY 2016 budget that was passed on to the Senate starts a multiyear process that will bend the spending curve toward long term sustainability. For more on these bills, I would suggest reading April Burbank’s recent article in the Burlington Free Press.

False Claims and Young Dems

It has been a busy week in the legislature after returning from the Town Meeting Week recess. The House passed a bill, H.40, that sets a renewable energy standard for Vermont, with emphasis on utilities meeting goals for renewable energy and efficiency. The Judiciary heard extensive testimony on enforcement provisions included in the water cleanup bill, H.35. In addition, Judiciary passed out of committee three bills: H.95, which makes incremental progress toward having cases against juvenile offenders brought more often in the family rather than the criminal division of Superior Court; H.105, which makes it a misdemeanor to disclose sexually explicit images without consent (so called revenge porn); and a committee bill that strengthens the ability of the Attorney General to bring cases against contractors for home improvement fraud.

Today, the House passed a bill, H.120, that I helped report out on the House floor yesterday.

Reporting Out H.120

The bill proposes to create a Vermont False Claims Act — an anti-fraud law modeled on the Federal False Claims Act (“FFCA”). The FFCA was first enacted in 1863 to combat fraud by suppliers of goods to the Union Army during the Civil War. Since that time, the FFCA has been amended several times to broaden its scope and enhance its ability to combat fraud against government funds in all sectors. Starting in 2009, the federal government has used the FFCA to recover over $23 billion in cases related to government programs.

The Vermont False Claims Act would provide for penalties for anyone who knowingly submits false or fraudulent claims to the State’s government. It would also authorize a person who has evidence of fraud, called the relator, to bring action on behalf of the State against those who commit fraud against government programs. Any recovery is refunded to the State, and in certain circumstances such as those involving Medicaid, to the federal government. Relators are eligible to collect a percentage of the funds recovered as an award for having rooted out such fraud.

The federal government has had such success in combating fraud and abuse with the FFCA that it created incentives in the Deficit Reduction Act (“DRA”) of 2005 for states to enact anti-fraud legislation of their own. These incentives relate specifically to recovery in cases of Medicaid fraud. The Medicaid program is funded jointly by the federal government and each state’s governments. Normally any recovery of funds fraudulently obtained under the Medicaid program are returned to the federal and state governments proportionally to the shares that each pay into the program. States that enact DRA-compliant legislation are qualified to receive a ten percent increase in their share of any amounts recovered under these laws. As a result, the majority of states have enacted some form of a False Claims Act.

If H.120 is ultimately enacted, Vermont’s share of Medicaid fraud recovery will increase from 46% to 56%. The financial incentive would allow Vermont to compensate Relators, while ideally detecting, enforcing, and recovering a greater percentage of the fraudulent claims filed in the state.
Enactment of the bill would have a positive impact on revenue for the State. The Joint Fiscal Office estimated that, through the law, Vermont could recover at least $280,000 dollars annually.

Earlier this week, we were visited by members of the South Burlington High School Young Democrats. I introduced the group from the floor of the House and the four South Burlington representatives chatted with them about our work. Here we are with the Young Dems.

Young Dems Visit the Statehouse

Reporting out H.86, and other week six highlights

When a bill is first introduced in the House, it is called the first reading, even though the bill is note actually read aloud. At that time, the clerk of the House reads out just the title of the bill and the Speaker assigns it to a committee. Not all bills assigned to committees are acted upon during a session. If and when it does decide to take the bill up, the committee will hear from the sponsor of the bill and will take testimony from witnesses. The bill may still die in committee. Alternatively, the bill may be voted out of the committee, with or without amendments to the bill’s language as introduced. It will then go before the full House for the second reading, again not actually a reading. At the second reading, a legislator from the committee that has considered the bill will report it out, which entails explaining the bill on the floor of the House – its purpose, its provisions, why it should be passed, etc.

On Wednesday of this past week, I had my first opportunity to report out a bill, H.86, which is an amendment to the Uniform Interstate Family Support Act (“UIFSA”). Here is a photo of me reporting out the bill.

martin on the House floor 2 11 2015 rotated

As I explained to the rest of the representatives, H.86 amends UIFSA, originally enacted in Vermont in 1996. UIFSA establishes uniform rules for interstate enforcement of both child support and spousal support orders. The law has two overall goals: first, there should be one support order between parties that is controlling at any given point in time, and second, the terms of the support order should be readily enforceable in any state.

It is important to have uniform laws in this subject area because families move. UIFSA helps to ensure that children are being supported when a noncustodial parent owing support resides in a different state than the child. There are roughly 15 million child support cases nation wide and about half of these involve parents in different states or countries.

Increasingly, it is important to have more uniformity not just among states, but also among countries. To that end, in November 2007, the United States signed a treaty establishing uniform procedures for processing international child support cases. The Uniform Law Commission, a non-partisan organization that drafts uniform laws in areas of state law where uniformity is important, incorporated the requirements of the treaty into proposed amendments to UIFSA. In order for the treaty to go into effect in the United States, all 50 states must enact these amendments. They must do so or risk losing federal funds that support state child support programs. Failure to enact these amendments during the 2015 legislative session could result in Vermont’s annual loss of $56 million in federal funds. Enacting the UIFSA would not only ensure continued receipt of federal help for Vermont’s child support enforcement efforts, but would also improve the enforcement of Vermont child support orders abroad and ensure that children residing in Vermont will receive the financial support due from parents, wherever the parents reside.

After I explained this in my reporting out of the bill, other members had the opportunity to “interrogate” me by asking questions about the bill, or could make statements in support of or in opposition to the bill. In the case of H.86, no one interrogated me or made statements. It was a noncontroversial bill, plus a significant amount of federal funds rides on enacting the UIFSA amendments. After the opportunity to interrogate, the House voted unanimously to approve the bill for a third reading. After the vote, as I learned is traditional, a number of legislators had pages deliver notes to me congratulating me on my first opportunity to report out a bill – another example of the collegiality of the House.

Between the second and third reading, legislators have the opportunity to seek amendments to the bill. There were no amendments to H.86, and on Thursday, the third reading was held and, again, the bill was passed unanimously and has been moved to the Senate for its consideration.

Although preparing for reporting out H.86 took up quite a bit of my time last week, I was also involved with other matters. The Judiciary Committee took testimony on a number of bills, but spent most of its time considering a State False Claims Act, which provides incentives for individuals to report fraud or false claims of companies in their dealings with state government. It also took testimony on bills related to “revenge porn,” and whether cases involving minors should be filed in the family or criminal division of state court (see last week’s post for more information regarding these latter two bills).

In addition, I tried to keep up on other areas of interest. I attended the climate caucus, which is an informal gathering of legislators from all parties and from both the Senate and House who are interested in this particular topic. I also attended a gathering of legislators interested in rural economic development. Finally, I spoke with the chair of the House General, Housing and Military Affairs Committee, which is considering the bill that I introduced related to teacher collective bargaining. We discussed the status of the bill and a related bill and what additional testimony might be helpful. See my most recent article for The Other Paper, which I posted yesterday, for more information on this bill.

On a lighter note, the Friends of the Vermont State House, a citizen’s advisory committee, held a fundraiser during the week. They sold Valentine’s Day cards with Statehouse themes and provided the services of a calligrapher to write notes in the cards. I believe Anne, Griffin, and Tess each enjoyed receiving the beautifully inscribed cards today along with chocolate hearts that I purchased at a top-notch chocolatier in Montpelier. Happy Valentine’s Day.