While many in Concord are clamoring over language for an educational-funding constitutional amendment (CACR 12), what’s being lost in the final debate of the 2011-2012 session is a constitutional amendment proposal far more important to the people of New Hampshire as they work to regain control of their government.

CACR 26, a constitutional amendment proposal that would remove the Chief Justice of the Supreme Court’s rule-making authority by repealing Part 2, Article 73-a of the constitution, is probably the most important effort still up for consideration this year. By passing CACR 26 and repealing Article 73-a, the Legislature, which is directly elected by the people each biennium, would regain sole authority to write the laws, rules and general policies of the state as our founders intended.

Since 1978, when Article 73-a was adopted under a description of the measure that called it a “housekeeping effort,” the language has given the Supreme Court the power to write court rules that have “the force and effect of law.” This language has severely upset the balance of powers in government to the benefit of the unelected five-member Supreme Court. Since 1978, the court has been using the language of Article 73-a to order the Legislature and the people of this state around, in effect creating the likes of an old-world oligarchy.

Making this analogy far too real is the language in Article 73-a that says the Chief Justice of the N.H. Supreme Court is “the administrative head of all the courts.” Because the Legislature is known in the Constitution as the “General Court,” some have interpreted Article 73-a as a constitutional change that gives the Supreme Court and the other courts it controls unrestrained authority over the Legislature, and by extension, the people. Such an understanding is intolerable in a free Constitutional Republic and it is also inconsistent with the rest of the N.H. Constitution, which makes CACR 26 that much more important to pass.

The court originally advocated for Article 73-a as a way to control the internal procedures of the courtroom, but it has since used the language to go much further than that.

Article 73-a is the language that has given the court hubris to think that it can legislate from the bench, such as it did with the Claremont decisions in the 1990s when it said that the constitution’s imperative that individual “legislators… cherish … public education” means that the Legislature must define and fund an adequate education. CACR 26 would put the court back in its place as an interpreter of law for individual cases—its traditional role—and not as a definer of the constitution and law that must be applied in all situations—a power it has stripped from the Legislature.

The family court has perhaps the longest history of apparent abuses of the constitutional language. The court has used its rules, including a particular rule that allows all court rules to be waived, in cases where it has ordered children removed from fit parents on mere accusations without a finding of abuse or neglect or due process of law. Some parents have been separated from their children for months or even years, and because the courts are the only way to get their children back, they live with the injustice with no recourse.

District court judges have used court rules to throw citizens in jail for contempt on minor decorum issues, and they have used their office to send journalists to jail for simply asking questions about their decisions.

Just last year, a Superior Court judge used court rules to prevent two innocent citizens who were not accused of any crime from engaging in a legal activity or face the penalty of contempt of court, which would have resulted in jail time. The same judge also ordered the citizens to post his order on a Web site, a violation of their free speech rights.

By passing CACR 26 and repealing the court’s rule-making authority, the people of New Hampshire would be restoring the Legislature’s authority to pass statutory laws governing court administration. Currently, under RSA 541-A, the Legislature already governs how Executive Branch rules can be made. It should do the same for Judicial Branch rules. This change would restore the balance of powers as well as the independence of the three branches of government. But more important than that, by passing CACR 26, the people would be restoring their own role as self governors through their elected representatives and senators in the Legislature.

CONCORD, N.H.—The Republican Liberty Caucus of New Hampshire is deeply troubled by a Senate Committee Amendment to HB 1704 that would make it harder for political organizations such as the RLCNH to criticize elected state senators and state representatives, an activity at the very heart of our Republic that is protected by our state and federal constitutions.

The Senate Amendment, which the RLCNH is calling the “Incumbent Protection Act,” would essentially put a gag order on political committees by preventing them from spending more than $500 criticizing members of the Legislature without disclosing the expenditure within 24 hours. Also under the amendment, political organizations, including 501(c)(3) and 501(c)(4) organizations, would be required to disclose the names of all donors to the Secretary of State prior to the primary election.

“I’m stunned that Senate Republicans would advance an amendment that is so clearly motivated out of political self-interest,” said Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire. “We expect this type of power-grabbing bill from statists and Democrats, but we expect Republicans in the Senate and in the House to put the rights of the People above their own political ambitions.”

It’s important to note that Section 12 of the bill under the Senate Amendment would not require reporting when political groups express support for legislators. Reporting would only be required when these groups’ expressions are “critical” of senators and representatives. For groups such as the Republican Liberty Caucus of New Hampshire on the right, and yes, even groups like Granite State Progress on the left, this amendment language would effectively silence political criticism.

“Nonprofit, issue-based groups on both the right and the left—groups for limited government and groups that want a powerful central government—are formed to help keep elected officials accountable to their campaign promises and to the people they represent,” McKinney said. “Stifling our voices using onerous government regulation is not in the public interest. It is purely in the interest of incumbent politicians who don’t like the criticism that their own actions bring about.”

It’s also important to note that groups such as the RLCNH are driven by volunteer efforts from activists who spend their own time and money advocating for what they truly believe in. A requirement to report donors within 24 hours of a campaign against a poorly performing legislator will take limited human resources away from the core mission of the organization and will simply limit these activists’ right to speak freely against the problems in their government.

It’s incredible, also, that this Senate amendment goes much further in its restriction of political speech than any federal requirements. With all of its extensive reporting requirements and its history of going too far with its initiatives, the federal government does not require nonprofit, issue-advocacy organizations to disclose their donors, but the Senate amendment would require disclosure of donors who give as little as $25. The RLCNH urges defeat of this amendment.

The incumbent Republican Legislature has competently delivered on promises to balance the state budget, reduce the size of government and encourage private-sector economic growth, but in the area of educational funding reform, this Legislature has unfortunately wavered in its commitment to local control of education and must reverse course for the good of the families of New Hampshire.

The Legislature is now considering “compromise” language for an educational funding amendment to the state Constitution (CACR 12). But the language being considered risks permanently damaging the founders’ intended relationship among children, parents, local communities and the state by firmly establishing a centralized, one-size-fits-all system that will ensure no child’s education is ever more than “adequate.” This runs completely contrary to the spirit of the state of New Hampshire.

Granted, the Supreme Court in its infamous Claremont decisions has already sent New Hampshire down the path to centralized control of education, but the Legislature was never bound by the court’s erroneous opinion that the word “cherish” in Part 2, Article 83 of the Constitution somehow means “pay for.”

After all, the Constitution is very clear about when the Legislature must pay for something, as it is in Part 1, Article 15 when it says the people have the right to counsel “at the expense of the state.” The Constitution is also very clear that the Legislature has the authority to set state education policy when it says in Part 1, Article 12 that New Hampshire citizens are not “controllable by any other laws than those to which they, or their representative body, have given their consent.”

Thus, the Legislature should act without hesitation on education statutes that slowly restore a system in which local communities pay for their own schools and set their own educational standards, just like Part 1, Article 6 now says: “the several … [local] bodies … shall at all times have the right of electing their own teachers, and of contracting with them for their support or maintenance, or both.” The Legislature could always decide to supplement the cost of education for local bodies—or not.

If the state were to continue to set standards for education, those standards should be recommendations rather than requirements, which would allow parents, working with local communities, to adjust those standards as they see fit to ensure their children receive an excellent education, and not just an adequate one. Parents and local communities are much better equipped to deal with the needs of local children than bureaucrats in Concord.

If any constitutional amendment is needed, it is one to give the Legislature “full power and authority to mitigate local disparities in educational opportunity and fiscal capacity” so the Legislature could provide more local aid to communities that need it and less or none to those that don’t. CACR 12, this term’s constitutional amendment on educational funding reform, should be used solely for this purpose. A resulting funding formula could be based on any number of policies, but in any event, those policies should be set by the Legislature.

Additionally, the Legislature should present a constitutional amendment to the people that cleans up the language of Part 1, Article 6 to clarify that parents, working with local communities, are responsible for the “support and maintenance of teachers and schools … and of defining and establishing their own curricula.” CACR 8, a constitutional amendment still alive in the House, could be used to advance this language.

Unfortunately, the current compromise language for CACR 12 would permanently enshrine the Claremont decisions in the constitution, giving the Legislature “the responsibility to maintain a system of public elementary and secondary education” (emphasis added). If the Supreme Court can bend the meaning of the word “cherish” to mean “pay for,” what will it do with the phrase “responsibility to maintain”? This language will certainly lead to higher taxation to make sure none of the state’s public schools ever fall below their current level of funding.

But that’s not the worst of it. The compromise language also gives the Legislature “full power and authority to make wholesome and reasonable standards for elementary and secondary public education.” This change to the constitution could remove parents and local communities from the educational decision-making process, and the state Legislature would take total control over what children are taught at school. To anyone who cherishes the traditional role of parents to raise and educate their own children, sometimes in partnership with local communities, this would be a troublesome development.

CONCORD, N.H.—Today, the Republican Liberty Caucus of New Hampshire announces that it has acquired the political assets of the New Hampshire Republican Volunteer Coalition and has added NHRVC Co-Founder Steve MacDonald to its 10-member RLCNH Board to lead a merger effort and help carry on the mission of the NHRVC within the RLCNH organization.

“By merging the NHRVC into the RLCNH and adding Steve MacDonald to the RLCNH board, we are adding new vigor to our now substantially larger political action organization and ensuring the ongoing success of principled Republican activism in New Hampshire,” said Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire. “During the last few election cycles, the RLCNH and the NHRVC groups had been duplicating efforts to elect liberty-minded Republicans. It simply makes good common sense to merge our efforts so that we can motivate our now larger group of activists to pursue one effective mission.”

The NHRVC was founded in the wake of the November 2008 elections as a grassroots coalition of highly motivated activists working to elect principled Republicans who stand for low taxes, fiscal responsibility, free enterprise, individual liberty, and the U.S. and NH Constitutions. Founded by Kevin McHugh and Steve MacDonald, the NHRVC grew from just a handful of people trading e-mails to more than 4,000 members working to spread liberty through the Republican Party.

The RLCNH was launched in December 2004 to promote the ideals of limited government, individual liberty, personal responsibility, free enterprise and adherence to the N.H. and U.S. Constitutions among Republican Party officials and throughout the state by identifying and supporting candidates sympathetic with the organization’s ideals, and by supporting, through public education and outreach, initiatives in the N.H. Legislature that further these ideals.

Both RLCNH and NHRVC have operated on the Facebook, Twitter and Yahoo Groups social media portals and have a Web site with a blog. The NHRVC social media portal sites and blog have been shut down. As part of the merger, NHRVC members will be migrated into the RLCNH social media sites (Facebook | Twitter) where members discuss political ideas and candidates, and they will be invited to sign up to receive the RLCNH Report of state legislative action items as well as to visit the RLCNH Web site and blog.

“Beginning today, I am inviting all former NHRVC members to continue their involvement in pursuit of the same aims, to whatever degree suits them, under a new banner,” Steve MacDonald said. “We will be able to engage in the same  debates on Facebook and start thousands of new ones, share important links and commentary on Twitter, and use our ‘boots on the ground’ mentality in the RLCNH Yahoo Group and beyond to connect our principled ideas with principled Republicans in New Hampshire and across the nation.”

Leading up to the merger decision, NHRVC Co-Founder Kevin McHugh handed the reins to MacDonald and resigned from the organization to focus more of his time on his work and family. It was at that time that MacDonald determined that the mission of the NHRVC could be more effectively fulfilled within the structure of the RLCNH. The merger plan was developed by MacDonald and members of the RLCNH Executive Committee during the past week, and today’s announcement seals the deal.

CONCORD, N.H.—The Republican Liberty Caucus of New Hampshire applauds the New Hampshire House for upholding the state’s precedent that it will not participate in a national identification system by opposing the national E-Verify System with two votes today.

This afternoon, the House passed HB 1549, which would prohibit the state’s participation in the E-Verify system, with a nearly unanimous voice vote. The House also killed HB 1492, which would require employers to verify an employee’s eligibility to work in the United States using the E-Verify System, with a 226-59 vote.

E-Verify is essentially a national identification system that requires employers to verify all job applicants’ citizenship in a national database system before they can employ them. If the state agreed to participate, all citizens would have to be listed in this national database as a U.S. citizen in order to get a job.

“We agree that illegal immigration is a serious problem in this country, but it’s a problem that should be solved by the federal government, it is not a problem that the federal government should force private businesses to solve for it,” said Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire. “E-Verify is a system that treats every person in the country as guilty until proven innocent, a principle that flies in the face of the American ideals that citizens are innocent until proven guilty.

“In 2007, the House almost unanimously prohibited state officials from enforcing the REAL ID system and, working with other states, effectively prevented that federal law from taking effect,” McKinney added. “The Legislature’s strong stance today against another national identification system is consistent with its strong stance in 2007 to support the U.S. and New Hampshire constitutions.”

In 2007, the Legislature prohibited state officials from participating in a national identification system with a unanimous vote in the Senate and a bipartisan 268-9 vote in the House. HB 685, which prohibited the Department of Safety from expanding the motor vehicle records it shares with other states, found that the REAL ID Act of 2005 was “contrary and repugnant to Articles 1 through 10 of the New Hampshire Constitution as well as Amendments 4 through 10 of the Constitution for the United States of America. The E-Verify system is ostensibly the same constitutional violation with a different purpose, and the current Legislature has upheld the 2007 nullification with its actions today.

CONCORD, N.H.—The Republican Liberty Caucus of New Hampshire applauds the 10-6 vote of the N.H. House Commerce Committee to pass HB 1297, which would prohibit the state from establishing a state health insurance exchange under the terms of Obamacare, and the RLCNH also urges the full House and Senate to pass this health care freedom bill for the good of all U.S. citizens.

“By passing this bill, the State of New Hampshire will be standing with the majority of states opposing Obamacare, which is an unconstitutional power grab that will ironically raise the cost of health care, decrease the quality and accessibility of care and destroy the liberties of people to control their own lives,” said Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire. “Due to a flaw in the federal law, the more states that opt not to create a state health insurance exchange, the more necessary it will be for Congress to reopen the law for amendment, and that gives liberty-minded Republicans the opportunity they’ll need to remove unconstitutional elements of the law and draft free market solutions for reducing the cost of health insurance.”

So far, 28 states are suing the federal government to prevent Obamacare’s implementation, and the courts have said these states would strengthen their case if they refused to implement a state exchange. The Supreme Court is due to rule on Obamacare’s constitutionality this Spring. So far, New Hampshire has not joined the lawsuit opposing Obamacare because Attorney General Michael Delaney brazenly said he would refuse such an order from the Legislature. However, by passing HB 1297, the New Hampshire Legislature would be doing more to repeal Obamacare than the lawsuit could ever do.

In fact, the fate of the Obamacare lawsuit may actually be irrelevant to the act’s repeal. If enough states refuse to create a state health insurance exchange, the Congress will be forced to reopen the law. Obamacare currently says states that do not create a state insurance exchange will default to a federal exchange. And here’s the rub: the law provides subsidies for insurance companies involved in a state exchange, but not in a federal exchange. Thus, to make the law work without putting the gigantic price tag for insurers on the law like everyone feared, it would have to be reopened and amended. That process would invite many more changes than a simple fix, and the law would likely be repealed and replaced, a resolution that Republicans and 63 percent of the population supports.

“Doing everything we can in New Hampshire to repeal Obamacare remains a top priority of the Republican Liberty Caucus of New Hampshire, and passing HB 1297 will absolutely help us achieve this end,” McKinney said. “Obamacare is at the heart of an incredible assault on liberty by the current Administration. Our health care touches every part of who we are and the decisions we make. If we allow the government to control to this extent such an intimate, integral part of our lives, we have totally succumbed to tyranny.”

Ultimately, implementing a state health insurance exchange in New Hampshire would voluntarily bind the state under the control of the U.S. Health and Human Services Department while sending New Hampshire taxpayers the bill.

Contrary to arguments from some insurance regulators, insurance companies and industry groups, creating a state exchange will remove New Hampshire’s local control and ensure Obamacare is fully enacted in New Hampshire, whether the federal law is repealed or not. In addition, establishing a state insurance exchange under Obamacare requires the state to pay for the full cost of implementation starting in 2015, which could cost New Hampshire taxpayers anywhere from $10 million to $47 million a year, according to HTMS, a North Dakota health care consulting company.

“If Republicans act now to definitively reject a state exchange, the Republican Legislature stands a great chance of fulfilling the mandate of New Hampshire voters and leading the way toward true health insurance reform,” McKinney said.

For more information on why state exchanges are a bad idea, please read the following reports from the Josiah Bartlett Center for Public Policy Studies, the Cato Institute, the Goldwater Institute and the Idaho Freedom Foundation.

On behalf of the Republican Liberty Caucus of New Hampshire, I would like to testify in favor of HB 1720, a bill to restore the right to a Trial By Jury as intended by the New Hampshire Constitution in Part 1, Article 20. In this section, the constitution clearly states that the right to a Trial By Jury in civil cases “shall be held sacred” when a value in any controversy exceeds $1,500.

The framers of the New Hampshire state constitution understood how the right to be judged by a jury of one’s peers was essential to maintaining the liberty of the people, protecting the people against overreaching state power, and securing justice among the people. It is the security of the people’s liberty and justice that made Trial by Jury a central tenant of English Common Law and of our own American legal system for centuries. Unfortunately, over the years that right has been undermined by the New Hampshire courts.

For example, in a recent case; namely, Hair Excitement v. L’Oreal, a N.H. Superior Court judge denied a N.H. small business a Trial By Jury in a civil case between the N.H. business and the multinational corporation. The New Hampshire Supreme Court ruled that since the case involved an action brought under the Consumer Protection Act, which was a statue they said created rights that did not exist in New Hampshire common law when the constitution was adopted, the constitution did not apply and it was the Legislature’s responsibility to provide a specific statutory jury trial right in this case, and they had not.

It is time to do just that. HB 1720 corrects the flaw in RSA 358-A by ensuring that either a plaintiff or a defendant in a controversy can request a Trial By Jury in cases involving the Consumer Protection Act. This right is especially important in the case of defendants, who often face claims that could cost millions of dollars. We think that, at a minimum, a party in that situation should be able to choose between a trial before a judge or a Trial By Jury.

This bill represents an important opportunity for the Legislature to recover for the people of our state a right the framers of our constitution intended us all to have. The Republican Liberty Caucus of New Hampshire strongly urges you to support HB 1720. Thank you.

Carolyn McKinney

Chairman, RLCNH

CONCORD, N.H.—The Republican Liberty Caucus of New Hampshire rebukes the idea that Republicans should remove uncertainty by establishing a state health insurance exchange under the terms of Obamacare, as such a move would voluntarily bind the state under the control of the U.S. Health and Human Services Department while sending New Hampshire taxpayers the bill.

Contrary to arguments from some insurance regulators, insurance companies and industry groups, creating a state exchange will remove New Hampshire’s local control and ensure Obamacare is fully enacted in New Hampshire, whether the federal law is repealed or not. In addition, establishing a state insurance exchange under Obamacare requires the state to pay for the full cost of implementation starting in 2015, which could cost New Hampshire taxpayers anywhere from $10 million to $47 million a year, according to HTMS, a North Dakota health care consulting company.

“The bottom line is that the federal government has created uncertainty by passing an unworkable federal law that depends on states to put in the time and money to fix all of its faults,” said Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire. “The cloud of uncertainty created by President Obama and the Democratic Congress won’t go away just because we accept Obamacare by creating a state health insurance exchange. In fact, these exchanges will distort the market, which will make for even more uncertainty.”

Those arguing for a state insurance exchange have clamored for predictability, but by establishing a state insurance exchange, the only predictable outcome will be that the state will be voluntarily implementing the terms of the Obamacare law that voters soundly rejected in 2010. The mammoth state bureaucracy created would only serve as a nominal state organization, but it would take all of its orders from Washington bureaucrats, who would set the rules for selling insurance plans within the state, thus reducing real competition and increasing the costs of providing health insurance.

What makes matters worse, under SB 163, the N.H. Senate bill that establishes a state exchange, “poison pill” language would eliminate only those sections found unconstitutional by the Supreme Court or repealed by the Congress, but it would leave everything else in place. If the bill passes, it would keep a state health insurance exchange in place even if the federal government fully rejects New Hampshire’s proposal, thus leaving us with a federal exchange plan funded by New Hampshire taxpayers.

The better approach is HB 1297, which would prohibit the state from enacting an exchange and make it harder for the federal government to implement the law. In fact, the more states that opt not to create a health insurance exchange will then send the federal bureaucrats scrambling to come up with one, without the time or funding to create one that will work. If New Hampshire and other states around the country say no to a state health insurance exchange, it all but guarantees that Congress will have to repeal or replace Obamacare, which is what the people want.

“Creating a state exchange voluntarily accepts Obamacare in New Hampshire,” McKinney said. “If we do that, this Republican Legislature will be directly opposing the voters who sent them to Concord to stand up against this federal overreach. These Republicans, and not the Obama Democrats, would be responsible for the consequences of Obamacare in New Hampshire.

“If Republicans act now to definitively reject a state exchange, however; the Republican Legislature stands a better chance of fulfilling the mandate of New Hampshire voters and leading the way toward true health insurance reform,” McKinney said.

For more information about the conclusions reached by RLCNH about state health insurance exchanges under Obamacare, please refer to these studies by the Cato Institute, the Idaho Freedom Foundation, and the Goldwater Institute.

Thanks to your efforts last week, the House of Representatives supported the RLCNH Report position on the following bills:

• The House passed HB 628, the TSA Transparency and Accountability bill, which will create a public database that records citizens’ complaints against TSA officials and clarify that citizens may record their interchanges with TSA officials.
• The House passed HB 383, which advances simpler Right to Work language for state public employees only. The RLCNH will be tracking and supporting this legislation hopefully all the way to its adoption.
• The House overrode the governor’s veto of HB 542-FN, which means parents will be able to use alternate class materials to instruct their children when they object to certain materials used in public schools.
• The House passed an amendment to HB 309-FN that added an additional mandate to repeal, which will help reduce the cost of health insurance for small businesses and their employees.
• The House passed HB 160-FN, helping to revive the short-term credit market in New Hampshire. Likewise, the House overrode the governor’s veto of SB 57, which will allow the return of title loan lenders to New Hampshire, opening the credit market further.
• The House passed HB 334 and HB 536-FN, which would respectively prohibit local governments and public colleges from regulating firearms and knives, and allow any law-abiding citizen to carry a weapon without a permit.
• The House Recommitted CACR 8 to committee, which will allow the Education Committee to reword the best constitutional amendment for educational funding and structure reform to date, which could give it a better chance to pass.
• The House tabled HB 591, giving lawmakers another chance to work on a bill to level the playing field and provide the same rights to divorced parents that are enjoyed by married parents, and HB 475-FN, potentially giving the House an opportunity to politely kill the bill that would create felonies for consumer protection act violations.
• The House left SB 133-FN on the Table to die. The bill would have continued corporate welfare for telephone companies; now these companies will be proportionally treated under property tax law as the constitution requires.
• The Senate amended HB 145 to restore its strength and clarify that citizens may videotape all public officials during the course of their duties without their consent, as long as they don’t get in the way.

Please keep up the great work in contacting your state legislators!

Keep up the Pressure — Further Action items

• Please e-mail Senators@leg.state.nh.us and ask them to support HB 628, HB 383, HB 309, HB 160, HB 334 and HB 536, using your own words to defend each of these bills.
• IMPORTANT: Please e-mail Senators@leg.state.nh.us and ask the Senate to support HB 145 as amended by the Senate Judiciary Committee. Also, please e-mail HouseRepublicans@leg.state.nh.us and ask House Republicans to support the Senate’s amendment to HB 145.
• Please e-mail HouseRepublicans@leg.state.nh.us and ask them to pass CACR 8 and HB 591 in a form not unlike their current form.
• Please e-mail HouseRepublicans@leg.state.nh.us and ask House Republicans to kill HB 475-FN.