As well as a prepared floor speech about an amendment to HB1459, "AN ACT relative to the board of trust company incorporation and relative to political advertising and advocacy advertising and relative to the taxation of certain income accumulations."
additional commentary by Timothy Horrigan; July 29, 2010
During the 2010 legislative session, I co-sponsored a resolution which would rescind any and all outstanding requests from our state legislature for a federal constitutional convention. The law related to federal constitutional conventions is very unclear thanks to the fact that no such convention has been held. At least, no such convention has been held since 1789, when a runaway convention decided to write a whole new constitution instead of merely amending the existing Articles of Confederation. It is clear, at any rate, that New Hampshire had at least one outstanding request still in place (dating from May 15, 1979) and that Article V of the US Constitution states that the Congress shall call a federal Constitutional Convention when 2/3 or more (currently, 34 or more) of the states submit requests. These requests are usually limited to a particular topic, but such a convention, once called, is an entirely self-governing body (much like Congress) which sets its own rules. A ConCon can pass any amendment it pleases (although these amendments still have to be ratified by the states.)
There is always some political issue which people are in a panic about. Right now, for those of us on the left there is the shocking "Citizens United" Supreme Court case. (I actually read the case, and sadly I think Justice Scalia and Chief Justice got the constitutional issues right and my side, the liberals, got them wrong. But I understand why my fellow liberals are appalled by the decision.) For those of us on the right, there is gay marriage. In 1979, the New Hampshire General Court was in a panic about the federal budget deficit (a perennial issue!) and wanted a balanced budget amendment. These panic-button issues often lead to calls for a constitutional convention. But I believe we should not tamper with the constitution.
My cosponsors were four of the more conservative members of the House and I was one of the more liberal ones. All five of us shared a commitment to both the federal and state Constitutions, and also to our nation's liberties. HCR 28 passed (in amended form) on May 10, 2010. Because it is a concurrent resolution and not a regular bill, the Governor cannot veto it and our 1979 ConCon request has been repealed.
We saw an example why a ConCon could be a bad idea when the New Hampshire State Senate got hold of a basically innocuous bill about the incorporation of trust companies. The chair of the Senate Commerce Committee felt a sense of panic and decided to do something about Citizens United. Therefore, a sweeping election-law amendment was belatedly tacked onto HB 1459. There was a process of some sort, but it took place in secret and the Republicans were excluded as were any potentially rebellious Democrats (like me, for example.) The flawed process was reason enough to kill the bill, but it also turned out to be an unworkable and blatantly unconstitutional bill. Happily, the revised HB1459 died when it came back from the conference committee: basically, about 40 pro-constitution Democrats (including more than one committee chair) crossed the aisle to send the bill to a 184-135 defeat. I spoke briefly on the floor, but my remarks were much shorter than the prepared speech at the bottom of this page.
(House Federal-State and Veterans Affair Committee)
Rep. Timothy Horrigan (Strafford #7); Thursday, January 28, 2010
The United States may be in a state of political crisis, but we are not facing a constitutional crisis. The Constitution is in fact one of the few institutions which every American supports. It is one of the few things which hold us together as a nation. The centrality of the Constitution was demonstrated last night when President Obama began his State of the Union address by saying the following to a deeply divided Congress and a deeply divided nation:
Our Constitution declares that from time to time, the President shall give to Congress information about the state of our union. For two hundred and twenty years, our leaders have fulfilled this duty. They have done so during periods of prosperity and tranquility. And they have done so in the midst of war and depression; at moments of great strife and great struggle.
Our federal government may be dysfunctional, but not because anything is wrong with our Constitution. We don't need to fundamentally change the United States Constitution: we just need to start following it. The founders got it right in 1789. That Constitution is still serving us well today, even though the United States of America of 2010 is very different from the United States of America of 1789. Our Constitution has been amended only 17 times since the Bill of Rights was passed in 1794, and the last fundamental change was 90 years ago, when Amendment XIX guaranteed women the right to vote.
Although I find it strange to use the adjective "responsible" to describe the U.S. Congress, I will say that the Congress has been very responsible when it comes to amending the Constitution. With the single exception of Prohibition, they have never used the Constitution to impose a passing political fancy on the American people. And even then, the Congress and the states did eventually repeal Prohibition.
Article V of the U.S. Constitution allows the states to call for a Constitutional Convention. No federal Constitutional Convention has ever been called, however— unless you count the original convention which transformed the Articles of Confederation into the Constitution. It is unclear what the rules would be for such a Convention. It is unclear who would be a member of the Convention, or how many delegates each state would be entitled to. The states could try to limit the Convention to certain topics, and the Congress would presumably have to pass enabling legislation to set the rules for the Convention— but there would be no way to prevent the "ConCon" from tossing those rules aside to make its own rules. The Constitutional Amendment could pass any amendments it wanted, although the states would still have to ratify them. It is even unclear how the ConCon's amendments would be ratified. The uncertainty caused by a Constitutional Convention would be dangerous at any time in our nation's history, but it would be especially dangerous in a time of crisis— and we are in a time of crisis.
(Senate Election Law Committee)
Rep. Timothy Horrigan (Strafford #7); Tuesday, April 6, 2010
The United States may be in a state of political crisis, but we are not facing a constitutional crisis. The Constitution is in fact one of the few institutions which every American supports. It is one of the few things which hold us together as a nation. We value it so highly, we often assume that it forbids everything we disapprove of and mandates everything we approve of. For example, last month a local candidate for national office was was incensed by the fact that Congressional Democrats used some unusual parliamentary maneuvers to get the controversial recent healthcare legislation passed without the 60 Senate votes needed to end cloture. That candidate issued not one but two press releases claiming it was unconstitutional to pass that legislation with less than 60% of the Senate supporting it. The Senate's cloture rules were in fact not actually mandated by the Constitution.
Article V of the U.S. Constitution allows the states to call for a Constitutional Convention. Healthcare is just the latest issue to lead to misguided calls for such a convention. In the 1990s, there were calls for a convention to deal with unfunded mandates. In the 1970s and 1980s, there were calls for a convention to draft a balanced budget amendment. In the 1960s, the twin issues of voting rights and states rights led to calls for a convention. Most of these issues could be and were ultimately addressed without amending the Constitution at all, let alone amending it through the dangerous and never-used convention process.
New Hampshire has passed at least one request for a "ConCon": in 1979, both Houses of the General Court passed HCR 8, calling for a constitutional convention to draft a balanced budget amendment. Since then our legislators have killed bills calling for a convention to deal with unfunded mandates, while also killing bills rescinding the 1979 request.
No federal Constitutional Convention has ever been called— unless you count the original convention which transformed the Articles of Confederation into the Constitution. It is unclear what the rules would be for such a Convention. It is unclear who would be a member of the Convention, or how many delegates each state would be entitled to. The states could try (as New Hampshire did in 1979) to limit the Convention to certain topics, and the Congress would presumably have to pass enabling legislation to set the rules for the Convention— but there would be no way to prevent the "ConCon" from tossing those rules aside to make its own rules. The Constitutional Amendment could pass any amendments it wanted, although the states would still have to ratify them. It is even unclear how the ConCon's amendments would be ratified. The uncertainty caused by a Constitutional Convention would be dangerous at any time in our nation's history, but it would be especially dangerous in a time of crisis— and we are in a time of crisis.
Our federal government may be dysfunctional, but not because anything is wrong with our Constitution. We don't need to fundamentally change the United States Constitution: we just need to start following it. The founders got it right in 1789. That Constitution is still serving us well today, even though the United States of America of 2010 is very different from the United States of America of 1789. Our Constitution has been amended only 17 times since the Bill of Rights was passed in 1794, and the last fundamental change was 90 years ago, when Amendment XIX guaranteed women the right to vote.
Although I find it strange to use the adjective "responsible" to describe the U.S. Congress, I will say that the Congress has been very responsible when it comes to amending the Constitution. With the single exception of Prohibition, they have never used the Constitution to impose a passing political fancy on the American people. And even then, the Congress and the states did eventually repeal Prohibition.
Floor Speech Against HB 1459
Timothy Horrigan; June 2, 2010
Thank you, Madame Speaker. I rise in reluctant but strong opposition to the Conference Committee report on HB1459.
I have no problem with the original bill: HB1459 passed this House unanimously on the consent calendar. The Senate Commerce Committee made only a few changes to the basic bill. But, one Senator, a Senator from Exeter who is not even a member of the Senate Election Law Committee, took it upon herself to add a sweeping campaign-finance amendment to the bill without any public hearings. She didn't write it all herself, and there was supposedly a quote-unquote "process" in which a variety of people were involved. But there were nevertheless no hearings specifically on this amendment. Madame Speaker, most of my fellow representatives are probably looking at the amendment for the first time right now. I never saw a clean copy myself until this morning, although I did take it upon myself to attend the Committee of Conference hearings and I did grab a copy of a preliminary draft.
I am speaking of the Amendment in the singular, but there were in fact basically two Senate Amendments to HB1459. The first version, as passed by the Senate, tried to totally ban all "soft money" from the political process in New Hampshire, not just during elections but even during the rest of the political cycle. It was blatantly unconstitutional: it was an affront to the right to free speech and to the right to petition the government. It would have made it virtually impossible for our friends in the orange badges to do their work. It would have made it risky for citizens to exercise their free speech rights.
The amended amendment is less blatantly unconstitutional— but it is still unconstitutional. Amendment I to the US Constitution says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Our state
constitution provides even stronger protections. The version of
HB1459 in our seat pockets violates (at a minimum) Articles 1, 10,
22, 30, 31, and 32 of Part First of our Constitution, the Bill of
Rights. The secretive process by which it was crafted additionally
violates Article 8 of the Bill of Rights.
The rationale for rushing this amendment through in an irregular fashion is that an emergency was created by the US Supreme Court's decision on the case of Citizens United vs. the Federal Election. Those of us on my side of the political divide have heard that this was an outrageous decision which granted personhood to corporations. I actually read the decision, and I was surprised to find that it was not an outrageous decision at all. I hate to admit this, but the Roberts Court actually made the right decision. Justice Kennedy and the other concurring Justices were right when they said it was unconstitutional to ban corporations from political speech. I hate to agree with Chief Justice Roberts, but he was correct when he stated "The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer."
And even if the decision was wrong, "Citizens United" is the law of the land. HB 1459 as amended tries to overturn this decision, at least on a state level. And aside from being a bad idea, HB 1459 is unconstitutional.
I am by the way not a big fan of "corporate personhood." Although, I do think corporations should be held to the same standards as "natural persons." I would for example, love to send BP to Guantanamo Bay for their acts of ecological terrorism. But even though corporations should not be given the same rights as human beings, they do have the right to speak out on political issues.
We will hear that this amendment merely calls for disclosure of who is speaking. But that still has a chilling effect on free speech: the right to free speech includes the right to speak anonymously or pseudonymously. It also includes the right to speak collectively. The organization Citizens United, by the way, was not at all anonymous or pseudonymous: although their name was misleading, they were quite open about who they were and what they were up to.
We will hear that we need to have a study commission, which is provided for in this amendment. I say we don't need a study commission to look into how best to restrict free speech. We should be protecting free speech, not restricting it.
We have heard that we needed to move quickly on this issue to have something in place for November 2010, hence the irregular process. The "Citizens United" decision came down on January 21, 2010, not long after we reconvened. And there was nothing unexpected in the "Citizens United" decision. There was plenty of time to have hearings on the issue of campaign finance reform. There were several bills already in the hopper which could have been used as a vehicle to address the issues raised by "Citizens United." Ironically, the Senate tabled a House bill, HB 1367, which addressed those issues without violating either the state or federal constitutions.
We certainly do need to do something about campaign finance reform: we just don't need to do something so blatantly unconstitutional.
I am expecting a tough election this fall for my party, but HB 1495 does not help my party at all. And even if it did, the people of New Hampshire are paying me $100/year to uphold the state and federal constitutions. My loyalty to the people and their constitution comes before my loyalty to my political party. I cannot vote for HB 1459 as amended.
Even if you have doubts about my constitutional arguments, I think we have to agree that this is a major piece of legislation. This is not an incremental change to the existing law. We should not be voting for major pieces of legislation sight unseen after no public debate. Even if you think you like this piece of legislation, you owe it to the people to kill HB 1459 now.
See Also:
Video of Tim Comerford & Dan Itse addressing a State House rally on March 4, 2009
My appearance on NH Capitol Access a few days before the rally
My 2010 testimony in favor of repealing the Sunday Closing laws
My 2009 testimony and letter to the editor in favor of mandatory seatbelts
A rather contentious BlueHampshire.com thread: "Accountable Advertising, Corporate Democracy and HB 1459" (New Hampshire Democrats were deeply divided.)