Money changes everything. Especially in politics.
Just yesterday, Democratic U.S. Sen. Jeanne Shaheen joined Republican Gov. Chris Sununu on the tarmac at MHT to welcome 91,000 pounds of desperately needed personal protection equipment (PPE) arriving for first responders and healthcare workers in the Granite State.
“This plane is delivering lifesaving personal protective equipment which will be immediately distributed to the brave Granite Staters who are on the frontlines of this crisis,” Shaheen said.
Less than a month ago, Democratic Speaker of the House Steve Shurtleff and Senate President Donna Soucy stood beside Sununu — literally — as he issued an edict shutting down thousands of New Hampshire businesses and putting tens of thousands of Granite Staters out of work as part of the state’s strategy to slow the spread of the coronavirus.
When asked by NHJournal if they saw any role for the legislative branch to oversee Sununu’s emergency powers, they both said no.
“I would just say that the governor is using powers granted to him under the Emergency Powers Act,” Shurtleff said at a March 18 news conference with Sununu. “They say a picture’s worth a thousand words, and I think this picture of the leadership — both Democratic and Republican, from the House and Senate — standing with the chief executive sends the message that we are united and committed to work in solidarity for the best interests of the people of New Hampshire.”
Soucy, who was also in attendance, agreed saying, “the governor does have power as the executive which he is exercising here today, and we are here to support and inform those decisions as much as we can.”
But after weeks of praising Sununu’s actions confronting the coronavirus outbreak and deferring to his use of emergency powers — including his unprecedented act of issuing a stay-at-home order covering every citizen — New Hampshire Democrats have found a hill to fight on.
And it’s made of money.
On Monday, legislative leaders filed an emergency motion asking a New Hampshire court to “enjoin Governor Sununu… and all persons acting on behalf of the executive branch from spending unappropriated state or federal funds without approval from the Joint Legislative Fiscal Committee during this state of emergency.”
It’s the latest round in an ongoing fight over the $1.25 billion in federal emergency funds the Trump administration and Congress are pouring into New Hampshire to deal with the COVID-19 crisis.
Legislators who sat quietly as the lockdown drove New Hampshire’s unemployment up 5,000 percent are now accusing Sununu of abusing his power and acting like a “king” for not cutting Democrats in on handing out the emergency cash.
“Unfortunately, Governor Sununu has chosen to disregard the legislative branch, which represents the voice of the people. His refusal to compromise led us to the judicial branch today, where we are seeking an expedited court ruling to resolve this constitutional crisis,” said Joint Fiscal Committee chair Rep. Mary Jane Wallner (D-Concord).
“Our constitution demands co-equal branches of government to ensure a thriving republic and we will do everything we can to maintain that balance of power — for the good of the people,” Shurtleff said in a statement defending the request for an injunction.
NHDem state party chairman Ray Buckley went farther, accusing Sununu of a “shocking grab of $1.25 billion to use as a slush fund, naming himself king and ignoring the NH constitution.”
“No [governor] in NH history has been so brazen,” Buckley tweeted.
These “maintain the balance of power” arguments might have more weight if the Democratic-controlled legislature had invoked them when Sununu was shutting down businesses and ordering law-abiding citizens indoors. Instead, it appears that Democrats were willing to let Sununu get out front on controversial issues like quarantines and public health — until there was cash on the table.
Defenders of the legislature argue that spending money is at the center of its constitutional duties, which is why the state has a Fiscal Committee in the first place. While lockdown orders may in fact be more far-reaching than fiscal decisions, the latter fall more directly under the governor’s emergency powers than spending decisions.
Therefore, they say, the governor has crossed the constitutional line when he appropriates money without authority.
But as attorney Bryan K. Gould notes, the Fiscal Committee is an extension — not a replacement — for the legislative branch. He was one of several New Hampshire legal experts who pointed out that courts have already restricted how much of the legislature’s fiscal authority it can cede to the Fiscal Committee. It is, they say, an unsatisfactory replacement for the co-equal branch’s powers.
Gould, who practices state constitutional law and has served as special counsel to both former Gov. Craig Benson and the state’s Executive Council, tells NHJournal the legislature has weakened its own case.
“The fact is that the governor has — pursuant to his statutory authority in a state of emergency — already taken many steps that would otherwise be unconstitutional,” Gould said. “The legislature will have to explain to a judge’s satisfaction why the suspension of many constitutional and statutory rights and duties is consistent with the governor’s authority, but the expenditure of federal funds appropriated to redress the state of emergency is not. ”
Former state Attorney General Greg Smith says he believes that New Hampshire’s tradition of political pragmatism will win out in the end.
“The first thing to note is that New Hampshire has been well served by the spirit of bipartisan cooperation we’ve seen thus far during this difficult period,” he told NHJournal. “And from a legal standpoint, that reflects the approach our legal system requires for resolving legislation that appears to be in conflict. The first rule is, if there is any way to reconcile the two statutes, then the resolution must be to find that reconciliation,” he said.
Thus far, however, Sununu seems content with the executive power status quo, issuing a statement in response to the Democrats’ request for an injunction that is simultaneously polite and pointed:
“Our office will continue to follow the law as was passed in 2002 granting the Governor authority to take immediate action during this statewide crisis. It is the legislature’s prerogative to check in with the courts and we will always maintain a collaborative relationship with them. Ensuring New Hampshire families receive immediate emergency relief is paramount and the Governor remains committed to that goal.”
So what happens if the two sides don’t work for reconciliation and the courts can’t impose it?
“Only after all other avenues for a resolution have been exhausted do you turn to other common law principles of interpretation like the more specific statute superseding the more general one. Or the more recent law superseding a previously-passed statute.”
In other words, Sununu stays in charge.