Gangster Tactics

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If you live in New Hampshire and enjoy wine, there’s something you should know (besides how approach a tasting). Your own state government, which sells wine, wants to be your primary supplier. Really, it wants to be your only supplier, but the Legislature won’t allow that. So to satisfy its impulse to smash all enemies, it’s rigging the wine market to kneecap upstart competitors.

The New Hampshire Liquor Commission both sells — and regulates the sale of — alcohol. This blatant conflict of interest gives it the power and incentive to limit its competition. Naturally, it uses that power.

After Prohibition, the Liquor Commission was the state’s only alcohol retailer. In the decades that followed, it aggressively fought the private-sector sale of beer and wine, changes that were proposed and ultimately ordered by legislators, who have grocers and drinkers as constituents.

Today, the commission is fighting a new competitor — direct wine retailers. The Liquor Commission is this week acknowledged that it has been systematically banning the direct-to-consumer sale of wines that are also sold in state liquor outlets.

The National Association of Wine Retailers this week called the commission’s actions “gangster tactics.”

During Prohibition, gangsters controlled the production and distribution of alcohol and snuffed out competitors. Ironically, the Liquor Commission, which was created to control alcohol distribution after Prohibition ended, wound up operating like a more lawful version of La Cosa Nostra. It pursues competitors relentlessly and does what it can to eliminate, or at least handicap, them.

Using the word “gangster” to describe the behavior of New Hampshire officials might call to mind images from a Weird Al parody. But where the power to whack competitors exists, it’s used.

Occupational licensing laws often grant specific industries the power to restrict competition. Licensing boards, made up of practitioners of a particular trade, are empowered to both practice and regulate that trade. Not surprisingly, they tirelessly suppress competition and seek legislative authority to further restrict entry into their field.

Public schools succeeded sank an Education Savings Account bill that would have expanded the definition of what constitutes a public education. It would have allowed families to spend the state portion of their public education dollars at non-public schools (local dollars would remain with the local public school district).

Perceiving this as a competitive threat, public school administrators, some local school boards, the teachers’ unions, and their political allies fought hard to maintain their advantage. They successfully turned enough Republicans against the bill to kill it in the House.

Even preppy suburbanites do it. Municipal officials and voters regularly approve ordinances to limit new business and home construction, reducing competition and raising prices.

It’s not that institutions granted such power attract people with a lust for blood and conquest. It’s that the combination of incentives and opportunity leads inevitably to anticompetitive behaviors.

So if you wondered why you could no longer order your favorite wine online, wonder no more. The Liquor Commission’s been taking a lead pipe to the knees of your favorite winery.

This was originally published in our weekly email newsletter, for which you can sign up here.

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Why Education Savings Accounts should not trigger property tax hikes

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A report by the Josiah Bartlett Center for Public Policy and EdChoice shows that New Hampshire public school spending and staffing increased much more rapidly from 1992-2014 than student enrollment did, and the staffing increase came overwhelmingly in non-teaching positions.

The study also calculates that of the $16,205 in per-pupil revenue New Hampshire public schools received in 2015, $11,716 (or 72.2 percent of total per pupil expenditures) can be classified as variable rather than fixed costs.

Together, these data show that there is no reason to believe Education Savings Accounts (ESAs) will trigger local property tax increases should families choose ESAs to provide educational alternatives for their children. On the contrary, ESAs can be expected to save school districts money.

School choice opponents always claim that losing a student won’t save a school money because the remaining students must continue to be taught, so the school can’t fire the teacher. These data show that the spending increases of recent decades have been concentrated in non-teaching positions and have far outpaced student enrollment growth. As such, schools have options for finding savings that need not include cutting teachers.

Study highlights:

•     Between the 1992 and 2014 fiscal years, real spending per student in New Hampshire public schools increased by 56 percent, even though student enrollment grew by only 4 percent.  In that same time, teacher salaries rose by only 2 percent.

•     From 1992-20015, the number of full-time-equivalent personnel increased by 56 percent.  These were mostly non-teaching positions. The number of teachers increased by 29 percent, while the number of non-teaching staff positions increased by an eye-opening 89 percent — 22 times the rate needed to accommodate student growth.

•     The student-to-staff ratio in New Hampshire fell from 8.6 students per full-time staff member in 1992 to 5.8 in 2015.  The national average in 2015 was 8 students per full-time staff member.

•    New Hampshire has a lower student-to-staff ratio, student-to-teacher ratio and student-to-non-teaching staff ratio than the national average. Nationwide in 2015, there were 16.1 students for every non-teaching public school staff member. In New Hampshire in 2015, there were 10.8 students per non-teaching public school staff member.

“The claim that Education Savings Accounts will cause property tax increases is just not borne out by the data,” Josiah Bartlett Center for Public Policy President Andrew Cline said. “With an 89 percent increase in non-teaching staff from 1992-2015 and a 56 percent overall increase in spending, there are opportunities to find savings on the non-teaching side of the ledger should schools lose some revenue from families choosing Education Savings Accounts.”

“Furthermore, as a previous Bartlett Center and EdChoice study showed, school districts can expect to keep more than 98 percent of their budgets should ESAs become an option for New Hampshire families. Looking at the numbers, there is no basis for the claim that ESAs will somehow decimate school districts. In fact, studies show that school choice programs tend to improve educational outcomes for students who remain in traditional public schools.”

Find the full policy brief here: Public School Staffing in New Hampshire

 

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How Medicaid expansion immediately raids the general fund

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The bill reauthorizing Medicaid expansion passed the state Senate on Thursday when half of the 14 Republicans joined all 10 Democrats in voting to extend the Obamacare entitlement program for five years. This is why the #Headdesk Twitter hashtag was invented.

One of the Republican selling points was that the bill pays for for Medicaid expansion while protecting state taxpayers.

It doesn’t, though.

Some readers (the old, boring ones, you know who you are) might remember the ongoing fight to fund the state Alcohol Abuse Prevention and Treatment Fund (Alcohol Fund) established in 2000. State law long required that 5 percent of the state Liquor Commission’s gross profits go into the Alcohol Fund. Only once — in 2003 — have the people’s elected officials followed that law. Typically they write a suspension of the law into the state budget.

New Futures created this handy chart to show the difference between the law’s required deposits and what was actually put into the account.

The Senate’s Medicaid expansion bill follows this grand 18-year bipartisan tradition and raids the Alcohol Fund.

The raid starts by first requiring that the Alcohol Fund at last be fully funded at 5 percent of gross Liquor Commission profits. (No sense in raiding an empty fund, right?)

This Liquor Commission money is then transferred to a new account created to pay for Medicaid expansion. It’s called the New Hampshire Granite Advantage Health Care Trust Fund. (One dedicated fund is being raided to finance another dedicated fund.)

The bill assures us that this transfer will happen only “provided” the programs financed through the Alcohol Fund “shall be paid for with federal or other funds available from within the department of health and human services.”

To provide a portion of those “other funds,” the bill lets the Alcohol Fund accept “gifts, grants, donations, or other funding from any source.” This magic money is directed to the substance abuse programs the Alcohol Fund can no longer finance because Medicaid expansion just swiped all of its Liquor Commission money.

Yeah, it’s Indiana Jones’ bag of sand trick. But with dollars.

What are the odds that those “other funds” will be made up of gifts and donations vs. state general funds?

Wait, don’t answer that question.

Sorry, Harrison.

The important point is that the Senate bill takes Liquor Commission funds and replaces them with whatever the Department of Health and Human Services has lying around. Like, say, lottery tickets, Funspot tokens or, we don’t know, maybe state general funds.

Even if the department finds bags of federal money in an old vault somewhere, the Senate bill still shrinks the general fund. Think back to what we wrote nine paragraphs and two stupid gifs ago (we know, but try).

The Senate bill first addresses the Alcohol Fund by ensuring that it finally receives its full 5 percent of Liquor Commission gross profits. For 15 years, legislators have been taking for the general fund the difference between that full 5 percent and whatever they decided to put into the Alcohol Fund.

Under the Senate bill, those general fund appropriations will no longer happen. They will go instead to fund Medicaid expansion.

Those are some pretty neat tricks to take general fund money via the Alcohol Fund. They could make for an interesting reception when the bill lands in the House.

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Why a constitutional amendment is needed to restore taxpayer standing to challenge illegal spending

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Why a constitutional amendment is needed to restore taxpayer standing
to challenge illegal spending

By Andrew Cline

On Sept. 1, 2015, Manchester’s Board of Mayor and Aldermen approved a contract with the city’s teachers union that included a pay raise. Three aldermen with immediate family members employed as city teachers voted for the contract, in direct violation of the city charter’s conflict of interest provision. (1)

Just five years earlier, taxpayers would have been able to challenge such an illegal vote at the state Supreme Court. For 147 years, New Hampshire taxpayers had the right to petition the court for opinions on the legality of alleged unlawful government expenditures.

As the court put it in Clapp v. Jaffrey (1953), “it is plain that every taxpayer of a town has a vital interest in and a right to the preservation of an orderly and lawful government regardless of whether his purse is immediately touched.” (2)

In Green v. Shaw (1974), nine members of the Portsmouth City Council had sought a judgement against the mayor and 291 municipal officials for numerous alleged violations of law that included the illegal expenditure of taxpayer funds. After making the initial complaint, six of the nine petitioners went off the council, so they brought the case to the court as taxpayers. (3)

“It is well settled in this State that plaintiffs, as taxpayers, have standing to seek redress for the unlawful acts of their public officials,” the court ruled in allowing the petition.

But in a 2010 case called Baer vs. New Hampshire Department of Education, the state Supreme Court summarily threw out a century and a half of established practice and its own legal precedents. It declared that ”taxpayer status, without an injury or an impairment of rights, is not sufficient to confer standing to bring a declaratory judgment action” under the state statute that had long authorized exactly what the court suddenly decided it no longer authorized. (4)

After Baer, legislators amended the statute to clarify that it allows taxpayer standing, but in 2014 the court ruled in Duncan v. State of New Hampshire, struck down that amendment, arguing that it violated Part II, Article 74 of the New Hampshire Constitution, which states that the court can issue advisory opinions to other branches of government. Though that provision doesn’t forbid the court from issuing those opinions to individuals, the court interpreted it as allowing opinions to be given only to the Legislature, governor and Executive Council. (5)

That interpretation, however, ignores the plain language of Part II, Article 4, which grants the Legislature the “full power and authority to erect and constitute judicatories and courts of record, or other courts, to beholden, in the name of the state, for the hearing, trying, and determining, all manner of crimes, offenses, pleas, processes, plaints, action, causes, matters and things whatsoever arising or happening within this state.…” (6)

The Legislature clearly has the “full power and authority” to “beholden” the courts for hearing “all manner of…things whatsoever….” That is not ambiguous. The Legislature can task the court with hearing any case, plea, action, etc.

Consistent with the Legislature’s constitutional authority, RSA 491:22 tasks the court with hearing taxpayer petitions for relief from illegal government acts. It states that “any taxpayer in the jurisdiction of the taxing district shall have standing to petition for relief under this section when it is alleged that the taxing district or any agency or authority thereof has engaged, or proposes to engage, in conduct that is unlawful or unauthorized, and in such a case the taxpayer shall not have to demonstrate that his or her personal rights were impaired or prejudiced.” (7)

RSA 491:22 is a remarkable statute. In it, legislators voluntarily checked their own power. They granted taxpayers a means of holding state and local government officials accountable should they break the law.

With the Baer and Duncan decisions, the New Hampshire Supreme Court eliminated a vital check on government power that had been used numerous times over the course of nearly1.5 centuries.

Just a few weeks ago, Hillsborough County Superior Court Judge Charles Temple cited the Duncan case in ruling that Nashua taxpayers didn’t have standing to challenge a city action that violated the tax cap. (8)

Legislators have proposed restoring the original understanding of taxpayer standing by passing a constitutional amendment, CACR 15. (9)

It would amend Part 1, Article 8 of the New Hampshire Constitution by adding the following language:

“The public also has a right to an orderly, lawful, and accountable government  Therefore, any individual taxpayer eligible to vote in the State shall have standing to petition the Superior Court to declare whether the State or political subdivision in which the taxpayer resides has spent, or has approved spending, public funds in violation of a law, ordinance, or constitutional provision.  In such a case, the taxpayer shall not have to demonstrate that his or her personal rights were impaired or prejudiced beyond his or her status as a taxpayer.  However, this right shall not apply when the challenged governmental action is the subject of a judicial or administrative decision from which there is a right of appeal by statute or otherwise by the parties to that proceeding.”

This clarifying language is not radical. It would restore the constitutional status quo that existed from 1863-2010 and gave taxpayers the ability to challenge illegal government expenditures.

Without a constitutional amendment to restore taxpayer standing, the public will have no recourse when the state or a local government spends money illegally. A vital check on government abuses of power will remain lost, and illegal spending will become more common as government officials learn that they can break the law with impunity.

Andrew Cline is president of the Josiah Bartlett Center for Public Policy.

 

Endnotes

  1. Manchester City Charter, Section 9:03 (e): “Conflict of interest.  No city official shall participate in the decision-making process of any matter in which the official or a member of the official’s immediate family has a direct personal or financial interest. Any official who believes such an interest exists shall disclose such interest and shall not participate in the matter further.”
  2. Clapp v. Jaffrey, N.H. Supreme Court, Oct. 9, 1952.
  3. Green v. Shaw, N.H. Supreme Court, April 30, 1974
  4. Baer v. New Hampshire Department of Education, Sept., 24, 2010.
  5. Duncan v. The State of New Hampshire, Aug. 24, 2014.
  6. “How the Supreme Court got the Duncan case wrong and eliminated taxpayer suits — part 2,” New Hampshire Trial Bar News, Fall 2017.
  7. RSA 491:22
  8. “Judge declares plaintiffs in Nashua spending cap suit have no standing,” New Hampshire Union Leader, Feb. 13, 2018.
  9. CACR 15, 2018 Session, New Hampshire General Court.
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