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Does "yes" really mean no?
This week, I overheard a legislator trying to explain to a group of elementary school students touring the State House that "yes" sometimes means no. The children looked puzzled; however, the point made perfect sense to me, particularly on that day when a vote of "yes" on SB 489 meant no, you do not support expanded gam(bl)ing (its name now depends on how you feel about it) in New Hampshire. Two hundred and twelve members of the House voted "yes" on a committee recommendation that the bill be killed, so that, indeed, is what happened to SB 489.
It was a wider margin than advocates on either side expected, in part because the Governor threatened to veto the bill just days earlier and in part because some members who might support expanded gam(bl)ing in some form did not support SB 489 because it included casinos, too many slot machines, too many locations and/or not enough oversight by the state.
Does "no" really mean maybe?
Whatever the reason for the wide margin, 54 votes was wide enough to put an end to this idea, correct? Well, maybe. Already, one legislator has come forward with a scaled-back version of expanded gam(bl)ing that he hopes will be added as an amendment to SB 450, the current legislative vehicle to deal with the state's budget woes.
The new proposal would include fewer slot machines at fewer locations, more oversight by the state including the use of state employees to run the operations, and a sealed bid process for selecting locations. There would be no full-fledged casinos and no dedicated funds, such as the $50 million dedicated funding stream to the Department of Health and Human Services that was part of SB 489.
A key factor for this initiative is the fact that the House did not vote to "indefinitely postpone" SB 489. When a bill is tabled or killed, its provisions can re-appear as an amendment to another bill that is still under active consideration. Often, inclusion as part of a larger package can change the balance in decision-making such that the idea is more favorably received the second time around. Indefinite postponement is a mechanism to help prevent this from occurring. Under House and Senate rules, a two-thirds vote (rather than a simple majority) is required to act on a question that has been indefinitely postponed. Senate rules go one step further and specifically state that "[a]ny bill which is indefinitely postponed shall not be reintroduced under cover of an amendment, bill, resolution, order, or committee of conference report" and "[n]o motion to suspend this rule shall be permitted." As with most things in the Legislature, however, even the rules regarding indefinite postponement are grey, the key being how broadly or narrowly the "question" that was postponed is defined.
It is too early to tell whether other proponents of expanded gam(bl)ing will regroup and try again to promote the idea. If not, or if so but they are unsuccessful, citizens should brace for additional budget cuts as the cuts made so far are not even close to closing a projected $200 million general fund shortfall in the state's biennial budget.
And, on another topic - Does "no" really mean yes?
Last January, the New Hampshire Supreme Court issued a 3-2 opinion rejecting the State's attempt to transfer $110 million from the NH Medical Malpractice Joint Underwriting Association (JUA) to the general fund as part of an effort to close the lingering budget gap. The court said a new state law authorizing the transfer was "a retrospective law that results in impairment of contract rights in violation of the New Hampshire Constitution" and was, therefore, impermissible.
The Court did not reach questions regarding whether the proposed transfer would be an unconstitutional "taking without just compensation" or be prohibited because the JUA is not a state agency. Nor did it order distribution of the surplus funds, leaving that to procedures contained in existing policy and regulations. Thus, despite the court saying "no" to the proposed transfer, one legislator heard "yes" and has come forward with a new proposal to do just that, on a smaller scale.
The new proposal, introduced as a potential amendment to SB 450, would allocate up to $25 million of surplus JUA funds to the general fund in exchange for release of remaining surplus funds to policyholders. Proponents characterize this proposal as voluntary on the part of policyholders and, therefore, free from the threat of further litigation and delay. Opponents characterize it as extortion by the state, rather than theft, since policyholders are dependent on "review and approval" of the Insurance Commissioner for release of funds. This could be just another ill-fated idea that will not proceed very far. But, with gam(bl)ing "maybe" - and most likely - off the table, perhaps the answer to this question will be "yes"?
With the legislative session nearing its end, this confusion will have to be resolved soon. So, once again, more to come...
Valerie Acres
Sheehan Phinney Capitol Group
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