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Dysfunction Junction

Fair Game


Published April 18, 2012 at 11:21 a.m.
Updated November 7, 2017 at 12:35 p.m.

Fair Game is Seven Days’ weekly political column.

Has the Vermont Senate become dysfunctional?

You could certainly get that impression watching the maneuvers taking place under the Golden Dome this year. Democratic Senate leaders have at times appeared ambushed by — and angry about — legislation brought up on the floor that hasn’t been properly vetted in committee. On that list are some heavy hitters: legalizing doctor-assisted death, decriminalizing marijuana and studying whether the state should purchase a $500 million stake in Vermont’s transmission grid.

A recent WCAX story by reporter Kristin Carlson recently posed the question with the headline: “Is declining decorum slowing work at Vermont Statehouse?” The story aired after a much-talked-about senatorial grilling of Public Service Commissioner Elizabeth Miller over a $21 million ratepayer bailout that’s part of a pending utility merger.

“Rude” and “Washington-style” were how some senior lawmakers described the politics at play in the Senate.

Here’s another word for it: democracy.

If the past few weeks have shown anything, it’s that some Vermont senators have a very low tolerance for dissent among the ranks. There’s been so much finger wagging from Senate leaders about “following the rules,” I’m tempted to go out and buy each of them one of those giant foam fingers. At least it would give their tired hands a break.

It seems that some senators — mostly brash freshmen and a few uppity women — are upsetting the order of things by calling for floor votes on tough issues that some lawmakers would rather not discuss in an election year.

Take last week’s showdown over “physician-assisted death,” legislation that would give terminally ill Vermonters with fewer than six months to live the option of receiving a fatal dose of medication. Supporters of an Oregon-style death-with-dignity law have been pushing for 10 years to get it passed in the legislature. They got it to a House vote in 2007 but the bill was defeated, 63-82.

Democrat Peter Shumlin supports the bill, as do 73 percent of Vermonters, according to a Zogby poll. But two bills introduced in 2011 — a House version with 44 cosponsors and a Senate version with 11 — were marooned in committee without so much as a hearing until March of this year. When the Senate Judiciary Committee finally got around to taking it up, the legislative clock for passing bills out of committee ran out; an absent senator left the committee deadlocked at 2-2, and the vote was canceled.

So Sen. Hinda Miller (D-Chittenden) found another, albeit creative, way to get right-to-die legislation to a floor vote: attach it to a tanning-bed bill and pass it through the Senate Health and Welfare Committee. Miller was determined to see the bill pass before she retires at year’s end. In a floor speech, she admitted she skirted the normal committee of jurisdiction — Senate Judiciary — but argued the legislation was more important than the “rules.”

“There’s something bigger than process here,” Miller said. “It’s about compassion and it’s about choice. As much as rules are made to follow, there are certain situations where rules are made to be broken.”

Sen. Dick Sears (D-Bennington), the chairman of the Senate Judiciary Committee, didn’t like that one bit. “To hijack a bill out of committee is breaking the rules, and if we want to continue to break the rules in this building, there will be consequences for all of us,” he warned.

Senate President Pro Tem John Campbell (D-Windsor) was equally critical. He said that if senators permitted Hinda Miller’s maneuver to stand, the process would be “forever broken.” Sen. Kevin Mullin (R-Rutland) complained that the process had been “subverted,” while Sen. Robert Hartwell (D-Bennington) repeated Sears’ claim that it was “hijacked.” Apparently, enough colleagues were persuaded; they voted 18-11 to quash the death-with-dignity amendment.

But as freshman Sen. Philip Baruth (D-Chittenden) pointed out, Senate “rules” allow for just the type of maneuver executed by Miller. It’s not common. But it’s written right there in black and white.

Baruth has been on the losing end of three such power plays this year. In one, Baruth and Sen. Joe Benning (R-Caledonia) say they were urged by Sears with “a wink and a nod” to bring a bill decriminalizing marijuana as a floor amendment, only to have Sears turn around and scuttle it.

Baruth suggests the current class of senators isn’t as obedient as leadership — and tradition — requires. He believes the ruling class has employed heavy-handed tactics to put down the rebellions.

“They’ve been at a loss for how to deal with [us], and I think the reaction has been an overreaction by the Senate leadership,” Baruth says. “They have become heavier in their tactics since last year and, as a result, people who are trying to move things are becoming more ingenious in their tactics.”

Sen. Alice Nitka (D-Windsor) has a different perspective. She believes some senators simply talk too much. “It’s like bags of wind sometimes,” she said after last week’s death-with-dignity debate. Nitka wouldn’t name names but said most of the pontificating pols were freshmen, before adding, “I don’t care if they’re freshmen. They don’t know when to shut up.”

Asked whether “decorum” was breaking down, Sen. Dick McCormack (D-Windsor), a liberal Dem who has served under five Senate presidents, chuckles. If anything, he says, the Senate’s problem is that it doesn’t disagree enough.

“We are a deliberative body by definition, and anytime we become deliberative, someone calls for a recess, and deliberations then take place in whispered tones in the corner of the Senate chamber,” McCormack says. “My view is that if people disagree, that’s not a bad thing. Nothing has gone wrong, and it’s nothing to be embarrassed about or ashamed of.”

As Fair Game went to press, McCormack was engineering what was sure to become another floor fight: an amendment to a labor bill that would allow Vermont’s childcare workers to unionize — legislation that Campbell has blocked from consideration. McCormack says the strategy of debating bills during recesses in the cloakroom rather than out in the open dates back to when Shumlin was Senate president pro tem and Campbell, as majority leader, was his No. 2.

McCormack says Shumlin worried that open disagreements among Democrats would give the impression that Dems were dysfunctional, or make his own leadership look weak. “Usually at some point in the whispered deliberations in the corner of the chamber, Shumlin would say, ‘One big happy family, people. We’re one big happy family!’” McCormack recalls.

Another freshman, Sen. Peter Galbraith (D-Windham), has been a thorn in leadership’s side. During last week’s debate, the former diplomat compared the right-to-die bill with the federal Civil Rights Act of 1964, which he said stayed “bottled up” in congressional committees for years because the chairmen at the time opposed it. Asked about that afterward, a visibly irritated Sears called Galbraith’s comparison “ludicrous at best” and “what you’d expect from a freshman senator.”

Before the right-to-die debate even began, Galbraith stood before his colleagues — and the TV news cameras that were there to catch the contentious debate — to rebut the notion that the Senate had devolved into “Washington-style politics.” Calling out the WCAX story, Galbraith said the questioning of Public Service Commissioner Miller wasn’t rude or abusive. It’s what lawmakers are sent to Montpelier to do.

Even Elizabeth Miller agrees with that.

“It’s perfectly fair for the legislature to ask questions — including hard questions — and to seek information,” she tells Fair Game.

Elizabeth Miller never accused any Senate leader of intimidation. But Hinda Miller did. After last week’s showdown over death with dignity, Sen. Miller, who actually serves in the Senate leadership as majority whip, penned an op-ed for the Burlington Free Press that accused Sears of trying to “bully and humiliate” her by posing a series of questions she couldn’t answer.

“The strategy to trip someone up because they do not know a fact is an old-school strategy of humiliation,” Miller wrote.

That may be. But that’s not what Sears did. He asked Hinda Miller legitimate questions that she was obviously unprepared to answer. Here’s just one snippet from what turned out to be a painful exchange on the Senate floor:

Sears: “I would appreciate if the senator could explain the rule of double effect.”

Miller: “I cannot answer that question but would be happy to get [the answer].”

Sears: “It is a well-established rule that permits the provision of medication to a patient at the end of life to ensure comfort, even if treatment unintentionally hastens death.”

Next question.

Sears: “What would be the impact on the rule of double effect if this legislation passed?”

Miller: “I do not understand the question, but look forward to when I do understand it, answering my colleagues.”

The interrogation wasn’t pretty. But given the stakes, such questions were hardly unfair or out of line.

Neither was Miller’s attempt to bring up death with dignity for a vote in the first place. She and the bill’s supporters didn’t break the rules to get it to the floor; they took a page, albeit a rarely used one, right out of the Senate rule book to advance a significant piece of legislation that a handful of senators had managed to hold up.

No one should be surprised by the jockeying on display this year in the Senate. It’s called politics. Democracy. To the winners goes the agenda; to the losers, a different big foam finger.