By Andrew Prout (R-Hudson)
At the onset of the novel coronavirus pandemic, the New Hampshire House met for a marathon 16-hour session in House Chambers – with more than 350 members meeting in close proximity. With a little foresight into what may be coming, I introduced a Rules amendment that would allow members to participate remotely under certain conditions.
Only 58 members, including myself, voted for the amendment. With 269 voting against, the motion clearly failed. The Democrat majority – at the time – argued against remote voting options. One of their leaders, Speaker Pro Tempore Lucy Weber (D-Walpole) argued “our constitution requires us to be present.”
Not even a year later, Democrats, now in the minority, are suing the Republican Speaker for failing to allow the Democrat minority to participate in Session remotely.
We were promised a committee to look into ways to establish continuity. We were promised that it would be bipartisan. We were promised the committee would work diligently towards a solution.
No substantive meetings of the committee ever took place.
At our next session in June – more than three months later – a constitutional amendment was proposed by the then-Speaker of the House Steve Shurtleff. CACR21 required a supermajority vote of the legislature and therefore needed broad bipartisan support to have a reasonable expectation of passing.
The wording of the amendment was not drafted in consultation with any Republicans. It would have granted shockingly broad powers, including the ability to replace state and local elected officials by appointment and bypass the normal budgeting processes. These powers already exist in the constitution, in a cold war era amendment limited to responding to enemy attacks upon the state. Shurtleff’s amendment rightfully got zero Republican support.
In September, the Democrat majority posed a question to the New Hampshire Supreme Court regarding quorum at remote or hybrid sessions of the legislature. While nominally a follow-up to my March rules proposal, the question missed the mark.
The remote attendance I proposed in March was very limited, to only those with the most severe restrictions on their attendance – such as being actively infected with COVID-19 and under quarantine. This is similar to the lawsuit now filed by the democrats asking for only a select few, with abnormally severe issues, to be allowed to attend remotely. In both cases, the number of remote attendees was expected to be small, and an in-person quorum could be expected. The quorum clause of the constitution was not directly implicated.
Quite frankly, they asked the wrong question.
Other constitutional clauses are implicated by remote attendance. Open sessions of the legislature, the requirement for a public gallery, the numerous references to “in its presence” and even the constitutional requirement to meet “in one room”.
This was the debate I was hoping to trigger by introducing my amendment in March. Additionally, House procedures such as the “no abstaining” rule would need to be addressed: members may not leave in the middle of a vote or abstain on a vote. The Sergeant at Arms will stop you if you try. How does this rule apply to a member whose zoom call drops out mid-vote? That needs to be addressed, along with many other things.
Rep. Michael Sylvia and I attempted to offer amendments to the question being sent to the Supreme Court to ensure that all constitutional concerns about holding remote sessions were answered by the court. They were ruled out of order.
Sylvia offered an additional question to be sent to the court to address our concerns, this was rejected as well on a 178-158 vote, killed by the Democrat majority.
We have tried, time and again, to have a respectful debate on how to make this happen as an option to keep all House members safe. We tried to work through the process to have our concerns answered by amending or submitting additional questions to the Supreme Court to address our concerns. We were rebuffed.
Members have always missed House sessions due to illness, infirmity, or other commitments. It’s unfortunate, but part of the position that we ran for. There’s no principled and logical limitation on who would be allowed to attend remotely in the argument the Democrats are proposing in their lawsuit. This is nothing new.
I expect if they are successful in their lawsuit we’d soon have requests from nearly everyone to attend remotely. As nice as attending from a beach in the Bahamas sounds, it’s not conducive to getting the people’s work done, and not what we signed up for.
I had hoped that my proposed rules amendment last March would trigger an honest debate about operating in the looming pandemic. While it did trigger things, it was not the good faith debate I had hoped for. In the end, the current Republican House leadership is continuing the path established by the Democratic House leadership last term to keep members safe: moving sessions to a very large venue that allows for plentiful amounts of social distancing. This change of venue is a dramatic step for our historic legislature, but effective in keeping members safe. This is, I suspect, why no lawsuits were filed against the Democratic House leadership last term.
This larger space allows for many different special requests to be accommodated if needed, just as they were at the sessions under Democratic leadership at the Whittemore Center, where a separate seating section for medically compromised members was provided, with increased social distancing and separate restrooms.
If the members joining in this lawsuit want more protections now than offered by their own party’s leadership during the 2020 sessions, above and beyond public health expert recommendations, I don’t object to that. At the proposed meeting location of the NH Sportsplex, we have the space for it. 15 foot distancing for medically compromised members? Sure. Portable HEPA filters nearby? Ok, we can borrow the ones from the statehouse committee rooms for the day. A personal tent? Why not, if a clear umbrella helps a tent must be better. But this isn’t what the plaintiffs in the lawsuit want to hear.
They don’t want solutions. They want to achieve a strategic political goal. This is why their lawsuit deserves to fail miserably: ADA issues are never “my way or else!” They’re supposed to be a back-and-forth discussion about how to solve a problem with minimal disruption, and if there are multiple ways to solve it, it’s the institution’s choice which one to implement.
Solving problems is something New Hampshire democrats know little about.
From the beginning of this pandemic, Republicans looked for ways to continue serving the people of New Hampshire, while Democrats looked for how they could achieve a strategic political gain from the tragic circumstances.
This lawsuit is no different.
Representative Andrew Prout is a third-term Republican Representative from Hudson.