By GARRY RAYNO, InDepthNH.org
CONCORD — Curtailing a governor’s authority in a protracted emergency was largely supported at a public hearing Wednesday with some wanting lawmakers to go further.
House Bill 417 would require legislative approval for states of emergencies longer than 30 days, and for executive orders issued during the period.
The bill would also require Executive Council approval of expenditures and accepting federal money during the emergency and Joint Legislative Fiscal Committee approval for expenditures over $100,000.
The prime sponsor of the bill, Rep. Terry Roy, R-Deerfield, said the bill addresses the chief concerns raised during the current emergency.
“For the last year, we have had one branch of government making laws, enforcing them and adjudicating them,” Roy told the Senate Executive Departments and Administration Committee.
No one contemplated what has happened with the pandemic and the state of emergency lasting as long as it has, he said.
When the pandemic hit, Gov. Chris Sununu declared a state of emergency and with the advice of his legal counsel claimed, as governor, he had the authority to accept $1.25 billion in federal CARES Act money and to spend it as he saw fit without legislative or executive council approval.
His office cited RSA 4:45, III(e) which says the governor has the authority “To perform and exercise such other functions, powers, and duties as are necessary to promote and secure the safety and protection of the civilian population.”
The law was written in 2002 after the terrorist attacks on New York City and Washington, D.C. but the authority had never been used until last year.
Sununu’s claim he did not need legislative authorization was confirmed by a superior court ruling.
New Hampshire is currently under a state of emergency as Sununu has renewed it numerous times and said it will continue for some time.
While Sununu’s sole decision on the use of the federal money was one issue, other Granite Staters objected to his use of executive orders to restrict activities and shut down businesses during the height of the pandemic. A mask mandate Sununu issued in November drew protestors to his home in Newfields.
During the pandemic, the executive branch exercised absolute power, said Rep. Leah Cushman, R-Weare.
“As we know from history, power corrupts and absolute power corrupts absolutely,” she told the committee. “One person cannot have absolute rule of the state in perpetuity.”
Former state representative Andrew Manuse, who headed an effort to open up the state and end restrictions imposed by executive orders, said the state of emergency should have ended a year ago.
“Under current law, I never imagined abuse of power of this magnitude,” he said. “That we have handed over this authority to one man is terrifying to me, far more terrifying than any virus.”
He said the constitution requires three distinct and separate branches of government and does not give the governor the authority to make new laws or suspend current law which he did.
The checks and balances are needed and required, Manuse said ,and suggested the Senate change the bill to clarify how states of emergencies may be continued with legislative approval or if the legislature cannot meet.
That language in House Bill 2 is more concise, he said, for a governor who might want to repeat the autocratic power of the last year.
House Executive Departments and Administration Committee member Rep. Peter Schmidt, D-Dover, opposed the bill saying it is unnecessary, and in its current form, obstructive.
Instead he proposed a blue ribbon committee be formed for a deliberate and exhaustive study of a governor’s authority in a state of emergency.
“The idea that the legislature will get in and sit on the governor’s shoulder and micromanage everything he or she does is going to cause chaos and not work at all,” Schmidt said.
Others said the legislature’s involvement is needed saying the voices of the 424 legislators with the governor are representative of the state’s population, while just one voice is not.
Roy said he, like many other representatives, learned what was happening by reading about it or from a newscast.
“This will bring us into the position where we can actually represent our constituents instead of having to explain to them that we don’t know any more than they do,” he said.
At the beginning of a state of emergency a governor does need to move quickly and make critical decisions, Roy said, but after the initial period, the legislature needs to be involved.
House Executive Departments and Administration Committee Chair Carol McGuire, R-Epsom, said her panel did research and found that most normal states of emergencies for things like storms, last 30 days or less.
That is why the initial declaration would be for 30 days and then with legislative approval be in 21-day periods, she noted, adding there would be no changes in law for the first 30-day period.
Under the bill, if the legislature is unable to meet, the state of emergency would be extended in 14-day increments, but the bill requires the executive branch to help ensure lawmakers can make their way to Concord for a session.
Extending the state of emergency and approving executive orders under the bill would require a majority vote of both the House and Senate.
Sen. Suzanne Prentiss, D-Lebanon, asked Roy what would happen if the Senate and House disagreed.
Roy said it would be like the House and Senate voting differently on a bill, sometimes they don’t agree and the bill dies.
That would allow the governor to work to try to convince lawmakers of the need for his actions, he said, and nothing would prevent the governor from issuing the order again and seeking approval.
The committee did not make an immediate recommendation on the bill, which passed the House on a 328-41 vote.
Prentiss suggested she would like to hear from the governor’s office on the bill before the committee decides its recommendation.
Garry Rayno may be reached at garry.rayno@yahoo.com.