Brad Cook, Sheehan Phinney Capitol Group 

The New Hampshire Legislature was under the gun this past week as "cross-over" looms next week. That is the date that all bills considered by the House or Senate have to be handled and, if passed, sent to the other body for consideration.  In this even-numbered year, a non-budget year, a disproportionate number of ideological bills have been considered, as the legislature has not had to fashion a spending plan. Several actions by the House are instructive as examples of facts of legislative life, strategy and process.

First, to the surprise of many observers, the House overwhelmingly defeated a bill aimed at repealing same-sex marriage in New Hampshire. In the most conservative House in years, many expected the bill to pass. The proposal, HB 437, would have repealed same-sex marriage which was passed in 2009, would have instituted "civil unions" in a different form than existed here prior to 2009, and would have mandated a referendum on the issue on the November ballot, in a non-binding poll to gage the opinion of the voters on the issue, assumedly to help the next legislature know whether the repeal should be kept or same-sex marriage restored.  This bill had been the subject of criticism by proponents and opponents of same-sex marriage, the press, candidates for governor, and legislators on both sides of the issue as confusing, inconsistent in calling for a referendum after repeal, and defective in that the form of civil unions restored was deemed confusing. What is the lesson? If bills are to have a chance, they should be clear, understandable, and not subject to attack for a number of reasons that various legislators can use as a reason to oppose the bill. HB 437 failed that test, and failed to pass. Whether a simple repeal on the one hand or call for a referendum without more, on the other, would have passed, is impossible to know.

Second, two actions by the legislature show the efficacy of the rule that says in certain circumstances, bills have to be considered by more than one committee to pass the House and be sent to the Senate. HB 1659 is a bill that would have required notice of certain alleged medical ramifications of abortion and, as passed originally by the House, would have imposed a criminal penalty for failure to provide the information. Since there was a criminal penalty, and the House passed the bill without its having been considered by the Criminal Justice and Public Safety Committee, as required by the rules, later it was sent to that committee which, after examination, stripped the bill of the criminal penalty. Whether the amended bill is a good idea or not, following the rules had a substantive effect on the bill.

Similarly, the bill to eliminate the office of Chancellor of the University System of New Hampshire, reduce the number of trustees, and reduce the size of the System office, controversial with many as based on inaccurate "facts" and interfering with the oversight function of the USNH Board of Trustees, HB1692, passed the House preliminarily and was required to be referred to the Finance Committee as it had fiscal ramifications (indeed, the fiscal note claimed it would increase costs by millions of dollars due to duplication on individual campuses of functions of the System Office that would be eliminated). At the Finance Committee, as of this writing, amendments to the bill have been proposed that would substantially change it by deleting the elimination of the Chancellor, the reduction in trustees and changing the bill in a number of other respects, while keeping certain provisions claimed to help keep tuition under control. If the amended bill is the resulting one, it will show the effectiveness of additional consideration by a second committee, although the House and/or Senate probably should consider defeating the bill in any form.

Finally, the House passed a couple of bills affecting hospital construction in New Hampshire. One, HB1642, that would allow small, specialty hospitals to be built without review by the state's Certificate of Need Board, gives such for-profit entities an advantage no other such healthcare facilities enjoy and was criticized by Democrats and some Republicans as unfair, aimed to help one provider only, unconstitutional, and a threat to New Hampshire's Medicaid reimbursement. The other, a repeal of the Certificate of Need Board and process itself, passed the House earlier, an action opposed by business organizations as a threat to increase healthcare costs. Both bills should be watched carefully as the Senate considers them.

Watch for more action as cross-over looms.