As the election approaches on Tuesday, you’ll hear many folks who love big government talk about their favorite bogeyman: The Free Stater.

You may recall SEIU President Diane Lacey called House Speaker William O’Brien a “Free Stater” on WMUR during his effort to pass a balanced budget that lowered the spending, taxes, fees and regulations that were stifling job creation. How dare she! Now, so many Republicans (and Democrats) running for office are “Free Staters;” even gubernatorial candidate Ovide Lamontagne. Oh no! They’re coming to give you your freedom, ha ha. They’ll let you keep your money, ha ha, hee hee, ho ho.

Folks, don’t let this type of “name calling” scare you–not even today. If you love limited government, individual liberty, personal responsibility and free markets, you’re a Free Stater, too. That’s right, folks. We’re all Free Staters now!

Who wouldn’t want to be a Free Stater, after all? And, what are the alternatives of those applying that label to Speaker O’Brien and many of the candidates running for a seat in our next Legislature? These are two very important questions to answer before considering whether the label should be taken as an insult or as a badge of honor.

But let’s back up a bit and focus on New Hampshire, a state made up of Yankee Republicans, Blue Dog Democrats and Independents who have always been tight with their money, self reliant and carefree about what other people do with their own property, so long as there’s a fence in between that clearly marks the boundaries. New Hampshire is a state without an income tax and general sales tax, and yet citizens here think people should pay their fair share toward our mutual protection based on the amount of land they have taken for themselves. We treasure our small businesses, our innovators and our adventurers, and we long to live deliberately, using our days to do the things we want to do, for better or for worse. What’s better outside of heaven?

Now enter the Free Staters, a group of people born in more intrusive states who wanted to move to New Hampshire so we could live our lives the New Hampshire way. After all, New Hampshire was already a state that more closely reflected our political attitudes. Free Staters abandoned the politics of their former states when they came here with a promise to restore New Hampshire to the New Hampshire way. In other words, they left their former states to come home. We know that many New Hampshire residents came here from other states for the same reasons, even though they weren’t officially part of the Free State Project. That’s why it was just plain common sense for Free Staters to pick New Hampshire. That’s why we’d like to welcome Bill O’Brien and others like him to join our ranks.

Unfortunately, a different group of out-of-staters now wants to make New Hampshire into the places they all left behind. You see, the politicos using “Free Stater” as a derogatory term are a group of people who simply don’t like the New Hampshire way. Many of these folks, such as the Democratic Minority Leader and former Speaker Terri Norelli, who is from New Jersey, brought her New Jersey politics with her to the “Live Free or Die” state. As Speaker, Norelli passed many of the Nanny State laws that assume government knows better than you do, whether you’re trying to start a business, get a job, raise and educate your children or take care of your own property. Consider Maggie Hassan, who brought her Massachusetts spending and taxing habits with her to the New Hampshire Senate. God forbid we let her do it to us again as governor.

Norelli and Hassan want to take more of your money and give it to their friends who work for the government, until they make more than the rest of us who work for ourselves and want to build our own future. Not only that, former Speaker Norelli and former Senate President Hassan want more people to work for the government, and they want these new officials to use their newly created positions to tell the rest of us how to live our lives. In these out-of-staters’ New Hampshire, the government knows best and the rest of us simply need to fall into line.

Voters rightly rejected this snake oil in 2010, and they shouldn’t want to take another taste. To this writer, the name callers’ New Hampshire looks a lot more like New Jersey or Massachusetts, and a lot less like the traditional New Hampshire that has always been a bit of an island of common sense in a sea of big government waste and centralized control.

Free Staters believe in New Hampshire, because we believe in the New Hampshire way of trusting each individual to be an adult who can make his or her own decisions, and then make the best life possible with the consequences. We believe in New Hampshire, because we believe in helping our neighbors through private charity and acts of compassion of our own choosing. We believe in New Hampshire because we don’t believe government is the answer to our problems, but rather a problem itself when it gets too big. We believe in New Hampshire because we know that “low taxes are the result of low spending.” We believe in New Hampshire, because we believe limited government governs best, and that the people are perfectly capable of governing their own lives when they are afforded their natural liberties and personal responsibility to pursue their own idea of happiness.

I have to think that everyone, except those who personally benefit from government control, would agree with what I’ve written here. And that’s why I will assert once more: “We are all Free Staters now!”

A meeting to discuss implementation of the Affordable Care Act in New Hampshire ended with Rep. Andy Manuse charging the state Department of Health and Human Services is abusing its authority.

The Joint Health Care Reform Oversight Committee heard testimony Wednesday from DHHS Deputy Medicaid Director LisaBritt Solsky that the department plans to implement an increase to PCP rates as mandated by the federal health care law, and take money from the feds to do it.

Manuse, who sits on the health care committee, reacted to the news saying DHHS is going against the constitutional system of government in New Hampshire.

“They’re making a policy decision to accept money to expand Medicaid when the Supreme Court ruled the Federal Government can’t force states to expand,” Manuse said. “They’re abusing their authority at the highest level.”

The Supreme Court ruling allows states to decide whether to broaden the Medicaid program to include more low-to-moderate income residents. As part of its duties, the health care committee will make recommendations to lawmakers next year about the pros and cons of expansion.

However, Solsky told Manuse they would have to “agree to disagree,” telling The Lobby that not only does the committee’s enabling legislation not give it jurisdiction over anything at DHHS but rules and waivers, but the PCP rate, which would pay more to PCP providers who participate in the Medicaid program, is a mandate not connected to Medicaid expansion provision of the ACA.

“The PCP rate is not optional, Solsky said. “It’s not clear to me if a state legislative committee can direct an executive department to violate federal law.”

Both she and Manuse agreed the issue is a gray area as far as who makes the final call [Actually, I didn't say this. I said the Legislature was the proper body to make the final call.] DHHS might have to go through the Legislative Fiscal Committee for approval or it may just be an order they put through to the federal government themselves. [It cannot go through to the federal government itself. We don't live in a dictatorship. The Legislature sets policy, not the executive branch.]

Source: The Lobby. Article by Jennifer Keefe

Families Now Free to Purchase Any Number of Chicks to Create Small Egg Farms in Their Own Backyards

DERRY, N.H.—Derry Republican and State Rep. Andrew J. Manuse encourages New Hampshire families to help create a sustainable local farming and food production market by taking advantage of a new state law he sponsored, which allows citizens to buy the appropriate amount of chicks for their own backyard egg-production needs.

HB 1231, effective July 22, repealed a state law that prohibited businesses from selling less than 12 chicks, ducklings or goslings to any one person at a time. Since roughly three chickens produce about a dozen eggs a week, many families held back from buying chicks and raising them into egg-layers because they feared the abundance of eggs that would come from 12 chickens. Others were forced to figure out how to split their purchase with someone else.

Because of the law change, families can now buy as few—or as many—chicks, ducklings or goslings as they want or need in New Hampshire without the hassle of dealing with a pointless state law. Additionally, people in cities such as Concord, which limits the number of chickens per household to five, can now buy the appropriate number of chicks for their community without worrying about what to do with the remaining birds.

“From my conversations with Derry residents and others, it’s clear that this law change will get more people involved with raising chicks for backyard egg production, and such local farming activity is a great way to help develop a healthy local food supply that will hopefully grow to sustainable levels,” Manuse said. “In fact, my family purchased our first three chicks thanks to this law passing, and we will now have a dozen fresh, healthy, organic eggs every week from a source that we know well. I hope other people take advantage of this law, which will help develop a culture for local agriculture and also help stimulate business at local feed stores such as Derry Feed or Dodge Grain.”

Derry residents Michael and Erica Layon, who have a small flock of chickens of their own, identified the problem with state law last year during a conversation with Rep. Manuse, who then decided to put in a bill to address their concern. Manuse recruited Bud Evans and Ann Evans at Derry Feed to help promote the bill, and the Layons were instrumental in recruiting feed suppliers, such as Jim O’Toole from Dodge Grain in Salem, to testify in favor of the bill in Concord. The Layons both took a couple days themselves to testify in favor of the bill.

“The process was very informative, and we had very good discussions with both the House and Senate committees,” said Erica Layon, a Derry chicken owner. “There was a lot of support for backyard chickens on both committees, with a handful of these legislators having their own flock and numerous others regularly purchasing eggs from backyard chicken owners. Because of the care taken to maintain laws that prohibit chicks from being colored during the holidays, there was no opposition from animal rights groups, and the farm bureau supported the bill, too.”

“When HB 1231 is combined with other law changes this past year, such as a new law sponsored by Rep. Guy Comtois of Barnstead that allows a home-based operation to process raw milk into cheeses, creams and butter for sale, and another new law sponsored by Rep. Jeanine Notter of Merrimack that prohibits government officials from seizing local livestock or other farming goods or equipment from families in times of emergency, New Hampshire is well on its way to restoring a true sense of liberty and personal responsibility that comes with land ownership,” Manuse said. “For the most part, this type of local agriculture is just plain fun, educational, healthy and rewarding. At the same time, these and other changes to state law can provide assurance to astute families that they will be able to weather some of the most troubling potential hardships on their own.”

Co-sponsors of HB 1231 included Rep. Kevin Reichard of Derry, Rep. Carol McGuire of Epsom, Rep. Dan Tamburello of Londonderry, Rep. Ken Kreis of Canterbury, Rep. Tammy Simmons of Manchester, Rep. Spec Bowers of Georges Mills, Rep. Laura Jones of Rochester, Rep. Lenette Peterson of Merrimack and Sen. Ray White of Bedford.

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About Rep. Andrew J. Manuse
Andrew J. Manuse, a state representative for the People of Derry, is serving in New Hampshire’s House of Representatives as part of the House Committee on Commerce and Consumer Affairs, the Joint Legislative Committee on Administrative Rules, the Joint Health Care Reform Oversight Committee, the State Transparency Website Oversight Committee, and the Task Force on State Procurement Policies and Procedures. Rep. Manuse, a husband, father and owner of a successful media-services business, passed several core pieces of legislation this session that advance his Common Sense for New Hampshire agenda of limited and accountable state government, individual liberty and personal responsibility, and spending and tax cuts to support free markets.

It has been one of my greatest honors to serve the people of Derry in the State Legislature during the past two years. I am grateful that you gave me an opportunity to be a part of one of the best legislative sessions in the state’s history and for taking me at my word that I would work full-time to bring restorative change to our great state.

I tried my very best to fulfill my promise to bring jobs and economic opportunity, better health industry and insurance laws, parental rights and community empowerment, and individual liberty and safety. I am confident that I have done so. The Legislature’s balanced budget, and the $1 billion spending decrease, deregulations, tax and fee cuts, and government downsizing that enabled the responsible budget we passed, will guarantee the state’s economic growth and development in the coming years.

At this time in my life, with a new child and a five-year old preparing for private school, my focus must shift to raising my family, sharing time with my wife and building my career. This decision, I believe, will benefit Derry voters as well. I believe a state representative or senator should be fully devoted to his or her office, and doing the work of the people who sent him or her there. While certainly I have given elected office my all within the last two years, I cannot devote my full attention to public life within the next two years. Therefore, I will not be seeking reelection this year.

My intention is to run for a seat as a delegate to the state convention, and my wife Jennifer plans to join me there. We will ask for your votes, for we are confident we can stay involved at the party level for now and bring our ideals of limited government, individual liberty, personal responsibility and free enterprise to that forum. We also plan to become more active in the community as our children grow, and we hope to meet many of you whom we haven’t met before. I will remain active at the state level to the best of my ability outside my current office. And, when the time is right, whether it is two years or ten years, I will ask for your vote again to represent Derry in the State Legislature.

Please note my accomplishments, as follows, during the previous two years:

• HB 1297, my bill prohibiting a state health insurance exchange, will advance the repeal or amendment of Obamacare at the federal level. Related to this effort, I was also involved with the creation of the Joint Health Care Reform Oversight Committee via HB 601 last year, which oversees the state’s interactions with the federal government regarding Obamacare. I have sat on that body since its inception. I was also instrumental in passing SB 148, which prohibits the individual mandate in New Hampshire.

• SB 266 prohibits certain Smart Meter gateway devices from being installed without a property owner’s consent. Smart Meter gateway devices are add-ons to Smart Meters that allow customers, utilities and potentially the government to remotely view the usage of certain appliances and also control that usage.
• HB 1231 repeals a law that forced people to buy no less than 12 chickens. This repeal will benefit Derry Feed as well as several chicken owners who like to buy a handful of chickens of a different variety at different times of the year. It will also help people get into the hobby by allowing them to purchase a reasonable amount of birds.

• HB 1448 requires administrators who write rules citing documents such as the NFPA Fire Code or Web sites to provide information about how the public can view those documents or Web sites free of charge. This transparency bill ensures the people will always have the right to know the law that governs them.
• HB 1644 deregulates individual home health care service providers. Previously, individuals providing home health care services had to seek the same type of licensing as major corporations. Now, they will simply have to pass a background check and register with the state to provide these services, which will help more small business owners get into the business.
• HB 1701 prohibits N.H. officials from taking drivers’ licenses away from N.H. residents who have failed to pay out-of-state taxes.
• HB 316 allows property owners to appeal a property assessment even if they have not let an assessment official in their home.

• HB 331 requires the state to post its checkbook online. This feature is now available online thanks to the work I did while serving on the State Transparency Web Site Oversight Committee this year. (I was part of another effort this year via amendment to HB 449 to make that committee permanent and rename it as indicated above.) Now, budget writers, activists and citizens can look at what their government is spending and where it is spending that money and make suggestions about where to cut spending in the future. This will help ensure our $1 billion budget cut this session will not be a one-time thing.
• HJR 3 prohibits the implementation of certain rules of the board of mental health practice regarding misconduct investigations.

• HB 1196 repeals the task force on state procurement policies and procedures, which means the state will be forced to hire the cheapest company with the best reputation to complete state contracts.
• Through the administrative rulemaking process, I also prohibited the implementation of rules to regulate corn mazes and rules that would have required expensive sprinkler systems in single and two-family homes.

Again, thank you for giving me the pleasure of serving you in Concord. I’ll look forward to the next opportunity, whenever that may be.

CONCORD, N.H.―When looking at CACR 12, there are a few nicknames we could use for it. We could call it the “Robin Hood Amendment,” we could call it “the Moderate Amendment,” we could call it “the Lawyer’s Amendment,” but really the true nickname of CACR 12 should be “the Giving into Claremont Amendment.”

If you’re willing to accept that Claremont was correct and that the people have a fundamental right to a state-run and state-funded public education, nothing we say is going to convince you otherwise. But if, like us, you think Claremont was wrong, and you are not willing to give up the fight for educational freedom and the natural right of parents to educate their own children, then read on because we are going to convince you why CACR 12 is not the right amendment for New Hampshire.

For reference, we begin our discussion with a response to the House’s FAQs document and then lead into a detailed analysis that explains why CACR 12 is wrong for New Hampshire.

FREQUENTLY ASKED QUESTIONS

Question #1: How does the new CACR12 overturn the Claremont decisions?

Answer: It doesn’t. It sets the stage for the next one to happen. By making the Legislature “responsible to maintain” a system of public education, we give the court everything they ever wanted. The lower court in the original Claremont decision specifically mentioned that our Constitution lacked the word “maintain.” Why are we giving it to them?

Question #2: Does the new CACR12 enshrine the Claremont decisions into the NH Constitution?

Answer: Yes. We will now have the “responsibility to maintain a system” for public education and to mitigate local disparities in funding, the two very things that Claremont was about. This has always been about the money. Follow the money. Who benefits from giving in now? Taxpayers are not going to see lower taxes, the courts get what they always wanted and even the proponents of CACR 12 admit that the Legislature gets nothing new. They say that all of our objections to the amendment are already accepted law anyway. However, those laws can be changed, while a constitutional amendment that enshrines these erroneous principles in the Constitution cannot easily be changed. Why are we giving up the war and raising the white flag of defeat?

Question #3: Does the new CACR12 affirm state control over local curricula?

Answer: Without a doubt. What is now largely a responsibility of parents and local communities will be fully assumed by the Legislature. Central control is not the New Hampshire way. It’s true, we’re not a home rule state, but we have a culture in New Hampshire of granting home rule in as many areas as possible. For education, the Constitution’s only mention of eduction in Part 1 gives authority to local communities to hire and form contracts with teachers. Arguably, during the time of the Constitution, teachers were equivalent to schools. Therefore, the Bill of Rights in New Hampshire gives an exception to education as a sole area of local control guaranteed by the Constitution.

Question #4: What effect does the new CACR12 have on homeschooling and charter schools?

Answer: We have representatives telling us that homeschooling is not public education and then we see these same people pass legislation claiming that it is and that the state has a responsibility to regulate it. Which is it? When the courts decide that homeschooling is public education, parents will be up in arms and wonder why yet again the Legislature sold them down the river.

Additionally, the cost to homeschooling parents and parents with children in private schools in increased taxes will likely make it unaffordable for them to keep their children out of public schools. And yet, depending on who is in the Legislature, we’ve seen homeschooling regulation that assumes that any standards set for public schools must be met by homeschoolers anyway, often with a higher degree of regulation and outright fear that parents aren’t meeting those standards, and that has always resulted in even MORE regulation to oversee them. These problems will increase with CACR 12 in place.

Question #5: Doesn’t having the word “Responsibility” in the amendment enshrine Claremont?

Answer: Absolutely. Our Constitution does not give the Legislature “responsibility” over public education at this time. CACR 12 adds that “responsibility.” We can argue how involved the Legislature should be―and we should have that argument―and we will find some middle ground that will vary and change over time. So why should we raise the white flag of defeat now and ensure that we will always have to maintain and fund our current, failed system at a minimum?

Question #6: Doesn’t “maintaining a system of public elementary and secondary education” enshrine Claremont?

Answer: Yes. See question five above.

Question #7: Why not pursue an absolute purist amendment?

Answer: This is a red herring. We’ve heard people proclaim: “We don’t have the votes to reverse Claremont.” “We’ve been fighting so long and this is our only chance.” It’s too late.” “This is the best we can do.” “We’ve already lost.” “The public will never support us.” “You haven’t been around as long as we have.” And many of these statements come from the representatives who wrote extensive arguments against Claremont years and years ago. They are weary of this battle. They are ready to raise the white flag of defeat. They are willing and ready to accede to most of Claremont’s results in the name of perhaps and maybe preventing a phantom broad-based tax, which is always threatened to be on the horizon, and a court made up of judges that even in Londonderry III did not all agree that it should be getting involved.

We tell you this: Putting CACR 12 into the Constitution ENSURES the very thing proponents of CACR 12 are worried about. The next court battle will not result in the court saying they can’t tell the Legislature what to do, it will result in the court telling the Legislature it has all the power to do everything because of CACR 12, and now it must do everything, because it is the Legislature’s constitutional responsibility to do so. And, because we will not be able to downshift any of the cost of maintaining that system, this, my friends, will guarantee a broad-based tax because a local property tax, as the court already said, is not a fair and equal system of taxation. So the Legislature post CACR 12 will become a Robin Hood State to mitigate disparity, robbing from the rich, to educate the poor. Future legislators may enact an income tax, a sales tax or a new business tax or some other method to take from those who have to give to those who don’t, and we will have forever lost the New Hampshire Advantage.

The State of New Hampshire will be better off if this Legislature does nothing, rather then give in to the Claremont judges. The Constitution doesn’t have any mention of anything but “cherish” right now, and look where that got us. Adding the language of CACR12 will not lead the way out of the mess, but it will lead us deeper and permanently into a bigger mess.

Question #8: What happens if the new CACR12 fails?

Answer: Nothing! A court decision that has yet to be written and threats that have yet to be made by an overreaching court will be dealt with by a future Legislature. We hope that Legislature is controlled by fiscal conservatives, but even if it’s not, any changes they make are reversible. Whether its in a year or five years, when the fiscal conservatives come back into power, as we know they will, they can reverse the damage. They will not be able to reverse a constitutional amendment. Don’t waive the white flag of surrender, for that future Legislature is depending on us to be the fiscal conservatives of today.

There are defensive lawsuits that no one has yet pursued, asking questions like “What about the rest of Art 83?  Do we have to fund that as well, since we have to cherish it?” The public has been fooled by “it’s for the children” arguments. Showing the public that the logic of Claremont makes no sense when applied to the rest of Art. 83 might help to educate people on the issue far better than sending them a flawed constitutional amendment that the lawyers insist nobody but them can truly understand.

DETAILED ANALYSIS

As a point of comparison, here are the three versions of CACR 12. The third “conference” version is what we’re left to vote on. Please keep this page as a reference for the rest of the analysis, because we will be referring to it often.

For this discussion, we will be mainly referencing the “Committee of Conference” Language, which the House and Senate must now give an up or down vote. In the House, 237 members voting in favor will pass this amendment. In the Senate, 15 Senators voting in favor will pass this. The governor does not have a vote.

The first part of the first sentence is crucially important, because it links all of the language of the new Article 5-c [Public Education] to Part 2, Article 83. The relevant half of Part 2, Article 83 is as follows:

For emphasis, please pay attention to one important detail in the above language: “…it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools…” For those of you not seeing the point yet, please review the definition of magistrate: “in modern usage the term usually refers to a judge.”

Thus, the Supreme Court does and always will have an interest to “cherish … public schools,” regardless of any language we propose. Now, we all know what the Supreme Court thinks the word “cherish” means; namely, “to fund an adequate education.” That is particularly relevant because of the first part of proposed amendment, which says:

We know “liberals/progressives” well enough to know that they can and will stretch words so far to mean the exact opposite of what they really mean. The Claremont decisions and the judges’ reliance on the word “cherish” should make that abundantly clear. We are giving the “liberal/progressives” and the court, no matter who is on it, fuel with this language; we are not pouring water on the situation, but gasoline. If we have the “responsibility to maintain a system,” then the system we have the responsibility to maintain will be the current one, as far as any court is concerned, let alone a “liberal/progressive” court. They will have a field day with this language; it will be a green light for the court to force all manner of new court-driven requirements on the Legislature, because our constitution will still give “magistrates” the power to “cherish … public schools,” which, again, we will now have “a responsibility to maintain,” and the definition of maintain will certainly include “fund.” Ending or even reducing existing programs will be seen as “failure to maintain,” so you can and should expect more lawsuits any time that any program is underfunded. And of course, all programs are underfunded, according to those who want those programs funded as fully as possible, and programs do not just include core education like reading, writing and arithmetic, but arts, music, sports and every other program that someone considers “vital” to a child’s “right” to be “properly educated.”

To those who say that mitigation could be minimal, the first lawsuit that decides the “responsibility” to “mitigate” means far more than “minimal” will forever establish a requirement for the Legislature to fully fund every program that they create via the “reasonable standards” that the Legislature has the “full power and authority” and “responsibility to maintain.”

Some have pointed out that the language of CACR 12 says “a system,” meaning we won’t have to support the current system. This is where the reference to Part 2, Article 83 is important. Since the Supreme Court also has a duty to cherish education, it will play a role in defining what “a system” means, and by way of precedent and other legal maneuvers, the court will conflate “a system” to mean “the current system.” Because of “liberals/progressives” history of distorting words, “a system” = “the system.” We will in fact be stuck funding education of the current system at the current levels, and the court may even decide that we must also account for inflation and cost of living adjustments setting a new bottom-line number that is far higher than what we pay now. In other words, because of this language, the court will be far more involved with the business of telling us how to fund education.

Who will lose control of education? Your local towns and school districts might be told their new default levels of funding must be at a minimum that they shall not drop below. And those towns that find they can no longer afford this increased cost will turn to the Legislature with their hands outreached, asking for us to “mitigate their fiscal capacity.” Hello donor towns, or worse, a broad-based tax.

The first sentence of CACR 12 is bad language that would degrade the situation for parents and local communities on a permanent basis, and it would set up a situation where the Legislature would be compelled to “maintain” (keep) at least level funding for public schools forever. Once the teachers’ unions recognize the true interpretation of CACR 12, they will be out in force supporting this language if they know what’s good for them. They won’t ever have another budget battle to worry about, and all of their energy can be devoted to increasing the level of funding that must be “maintained.” There’s no wiggle room in the clear English language in this amendment.

CACR 12 makes the Legislature “responsible” for funding education, which it has never been in the history of the state. We may have helped fund education, but we have never been responsible for doing so. If you believe as we believe, that the courts are wrong in their core opinion, and we have no obligation to do what the courts say, this gives up that battleground FOREVER. Like we say so many times, it raises the white flag of defeat.

The next section of the amendment is problematic, because it strips authority from parents and local communities currently maintained by Part 1, Article 6, despite the 1968 amendment, which gutted it, and in some views because of that 1968 amendment. First, here’s the proposed language in the “conference” version of CACR 12:

For our analysis, it is important to note that from 1784 to 1968, Part 1, Article 6 of the Constitution of New Hampshire read as follows (pay special attention to the text in bold):

As morality and piety, rightly grounded on evangelical principles, will give the best and greatest security to government, and lay in the hearts of men the strongest obligations to due subjection; and as the knowledge of these, is most likely to be propagated through a society by the institution of the public worship of the Deity, and of public instruction in morality and religion; therefore, to promote those important purposes, the people of this State have a right to empower, and do hereby fully empower the Legislature to authorize from time to time, the several towns, parishes, bodies-corporate, or religious societies within this State, to make adequate provision at their own expense, for the support and maintenance of public protestant teachers of piety, religion and morality. Provided notwithstanding, that the several towns, parishes, bodies corporate, or religious societies, shall at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance. And no portion of any one particular religious sect or denomination, shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect or denomination. And every denomination of Christians demeaning themselves quietly, and as good subjects of the State shall be equally under the protection of the law: and no subordination of any one sect or denomination to another, shall ever be established by law. And nothing herein shall be understood to affect any former contracts made for the support of the ministry; but all such contracts shall remain and be in the same State s if this Constitution had not been made.

In 1968, we amended Part 1, Article 6 to read as follows (the same section in bold):

Importantly, the original language of Part 1, Article 6―“electing their own teachers, and of contracting with them for their support or maintenance, or both”―gave the Legislature the power to delegate to local communities full authority over the governance (compare this to CACR 12: “authority to make reasonable standards for elementary and secondary public education and standards of accountability”) and funding mechanisms (compare to CACR 12: “to mitigate local disparities in educational opportunity and fiscal capacity” and “to determine the amount of, and the methods of raising and distributing, state funding for public education.”) of their schools.

Arguably, the 1968 amendment, by removing mention of the “Legislature” from the amendment, actually made the cities and towns MORE responsible for paying and running their own schools. In fact, we argue, combined with Part 1, Article 28-a, the 1968 amendment ensured a type of home rule for education in New Hampshire. In other words, the Legislature can’t tell local communities what to do unless it pays the price. We call that “local control” of schooling.

While the House version of CACR 12 would have restored the Legislature’s ability to delegate the responsibility to the cities and towns, by saying the Legislature shall have “full discretion to define reasonable standards for elementary and secondary public education,” the “conference” version does not. Again, the “conference” CACR 12 requires that the Legislature “maintain” public schools and grants that the “Legislature shall have the full power and authority to make reasonable standards for elementary and secondary public education and standards of accountability” Goodbye Local Control. Hello Part 1, Article 28-a court battles.

In effect, the “conference” version of CACR 12 takes parents and local communities completely out of the equation when it comes to defining “standards for elementary and secondary public education” and it gives that authority directly to the Legislature. Conservatives believe parents are in control of their children’s education and delegate some of that authority to their local schools, under the direction of local administrators, but parents still maintain most of that authority as their natural right and can reclaim that authority they have delegated at any time. The original Constitution shared that view of responsibility concerning the education of children and curricula among the people, local communities and the Legislature, and leaves that responsibility with the people and local communities. One could argue that because “Legislators” have a “duty … to cherish … public education,” they also play a role in this equation. However, by removing the Legislature from Part 1, Article 6, the Legislature should have less authority than local communities.

With the “conference” CACR 12 saying the Legislature has “full power and authority” over curricula, parents and local communities will have no authority over education, except the scraps that central control might leave them. That’s something that conservatives cannot and should not support, and compromising on this principle is unacceptable. We don’t care how tired you are of the fight, this is why we’re fighting. We cannot give in to those who wish the state to have more power over children’s education than their own parents.

Finally, the “conference” version of CACR 12 says this, relative to funding decisions:

the Legislature shall have the full power and authority … to determine the amount of, and the methods of raising and distributing, state funding for public education.

The lawyers driving this effort wrongly believe that this language will prohibit the court from making certain judgments, by changing the standard from “strict scrutiny” to “rational basis,” and that this language qualifies the earlier sentence and restricts the courts’ hand. We argue that the qualifying language is irrelevant, and that any court capable of upholding Claremont will agree with us. The basis for “strict scrutiny” is the Claremont decision that established that an adequate education is a fundamental constitutional right. Nothing in CACR12 challenges this, and so nothing can change that strict scrutiny standard. To paraphrase Thoreau: “They hack at the branches, but have not touched the root.” We keep being told that an amendment that challenges Claremont will not pass, but the Legislature keeps refusing to send THAT amendment to the people and striking at the true root of this problem. Here’s the resultant question: So are we, the opposition to CACR 12, failing to give the people a voice, or is it the proponents of CACR 12, who desire to put Claremont into our Constitution, actually denying the people a voice?

Let us be clear: the court has absolutely no authority to require any of the actions of the last 18 years. Please refer to Part I, Article 29 & 31 and Part 2, Article 2 & 5:

The answer to our current quandary is for the Legislature to exert its true authority to pass all manner of wholesome and reasonable orders, laws, statutes and etc. and ignore the court’s “strict scrutiny,” which has no basis in the N.H. Constitution.

An educational funding constitutional amendment not reflecting our values is simply not worth passing. An amendment reflecting our values is what we really should be sending to the people. We should exercise our Constitutional authority as we see fit, regardless of any court opinions that are as flawed and unenforceable as the Claremont decisions. If the Legislature wants to continue to do what the court says, that is its choice, but it is indeed a choice held exclusively by the Legislature. The Legislature should choose to ignore the court’s usurpations and do what the Constitution gives it due authority to do, with or without an amendment. Anything else is a violation of our elected officials’ oaths of office.

If we fail to rise to the occasion to stand up to the court, then it matters not if we pass this language. The court will still claim authority to say that we are not funding an adequate education because we are not “maintain[ing] a system of public elementary and secondary education” and nor are we adequately “mitigate[ing]  local disparities in educational opportunity and fiscal capacity.”

Again, it doesn’t matter if the court can’t say how or how much we need to fund education, the court will be able to generally say that the word “maintain” implies that we must fund current levels, plus inflation, plus cost-of-living adjustments, plus whatever else it might come up with, including but not limited to “an adequate education” definition. In summary, the “conference” CACR 12 language doesn’t get the Legislature or the people anywhere at all. It still leaves the court in a position to order the Legislature to fund an adequate education and to say that the Legislature is not doing it right. In fact, in our opinion, it makes it more likely, not less likely, for the court to do this, and on top of that, it removes any remaining authority that our parents and local communities now have.

What’s worse, with Part 1, Article 28-a in place, the court can and will make the Legislature fund all additional “reasonable standards for elementary and secondary public education and standards of accountability.”

Part 1, Article 28-a ensures that any, and we mean any, additional “reasonable standards for elementary and secondary public education and standards of accountability” that the Legislature passes will be challenged by local communities, and every time the court will rule that the standard must be funded by the Legislature. There won’t need to be any funding method or funding amount noted in the court’s decision, the Legislature will just have to fund the new mandate, period. With this new standard in place and a requirement to fund it, the Legislature will indeed have a new baseline to maintain from that point forward. The Legislature won’t be able to go below that level, even if it eliminates the standard later. The court cases will be piling up, and a broad-based tax will be waiting to happen. The courts won’t have to require one, they will just repeat, as they did in Claremont, that the Legislature is not meeting its “duty” to “cherish … public education,” which is now its “responsibility to maintain.” The court will insist that the Legislature use its “full power and authority … to determine the amount of” (no less than the minimum needed to “maintain”, of course), “and the methods of raising and distributing, state funding for public education.”

CACR 12 changes nothing about the current situation, which is what the proponents of the “conference” amendment promise us it’s supposed to do. They promise that these magic words will make the courts stop and leave us alone if only we cry “uncle” and agree the court was right; that we are “responsible” and that the state always was “responsible” to provide this fundamental right to “an adequate education,” which appears nowhere in the actual document.

As you digest all that we have told you about CACR 12 and why it is wrong for New Hampshire, please recall the winter of 1776 when George Washington was faced with the lowest troop morale of his tenure and his military coffers were dry. Soldiers were going home without hope of any success in the war and were resigned to be British subjects with no freedom. Did our finest president to be give up hope at this time and raise the white flag of defeat to the British? Well, we all know the course of history. Washington prayed to Almighty Providence to give him the troops, dollars and morale he needed to secure liberty in this land, and those prayers were answered because of his devotion to principles and his resolve. Are we going to be like our greatest founder, or are we ready to give in to our enemies?

We, the undersigned, urge you to keep up the fight for educational freedom and the natural right of parents to raise and educate their children as they see fit. We urge you to help defeat CACR 12 in any way you can.

Signed, Members of the Natural Rights Council Board:

Reps. Andrew J. Manuse (Derry), Seth Cohn (Canterbury), J.R. Hoell (Dunbarton), Laura Jones (Rochester), George Lambert (Litchfield), Mark Warden (Goffstown), John Burt (Goffstown) and Kevin Avard (Nashua).

About The Natural Rights Council
The Natural Rights Council, formed in 2010, is a bipartisan, principle-driven coalition within the New Hampshire House committed to supporting legislation that adheres to the state constitution, defends individual rights to life, liberty and property, and ensures equal treatment under the law. The Natural Rights Council is led by Reps. Andrew J. Manuse (Derry), Seth Cohn (Canterbury), J.R. Hoell (Dunbarton), Laura Jones (Rochester), George Lambert (Litchfield), Mark Warden (Goffstown), John Burt (Goffstown), Kevin Avard (Nashua), and Daniel Tamburello (Londonderry).

CHARLOTTE, N.C.—As a freshman attendant at the American Legislative Exchange Council Spring 2012 summit, I was assigned to the Commerce, Insurance and Economic Development Task Force, which aligns somewhat with my position on the N.H. House Commerce and Consumer Affairs Committee. We considered model legislation bills on insurance, occupational licensing, food safety and labor, several of which could have a future in New Hampshire law. Fellow N.H. Rep. Gary Daniels, who is chairman of our N.H. House Labor Committee, served as chairman of the Commerce Committee in Charlotte.

Strangely, ALEC assigned health insurance legislation to a Health and Human Services Task Force, so I felt torn between the two meetings since the entire reason I joined the House Commerce Committee in New Hampshire was to address health insurance issues, particularly with Obamacare. The way things turned out, however, I was able to straddle both conferences and learn from both, and I have some interesting things to report from my experiences today.

Before I get started, for those who don’t know, ALEC is a national organization of elected state legislators and private sector lobbyists who meet to advance the Jeffersonian principles of free markets, limited government, federalism and individual liberty through a series of periodic summits where members of the public-private partnership work to develop policies and model legislation for advancing these principles. I paid for ALEC membership out of pocket at the cost of $50 a year.

It’s also important to note that my trip expenses to the ALEC Task Force Summit today was reimbursed by private donors, and not by taxpayers. Nevertheless, I minimized expenses for donors as mentioned in my previous post by flying down and back on the same day without a hotel night’s stay and by splitting my cab with Rep. Daniels on the way back to the airport. Besides Rep. Daniels and me, N.H. Reps. Jordan Ulery, Ken Weyler, Andy Renzullo and Kris Roberts were also in attendance.

Morning Workshop

Before legislators went their separate ways into issue task forces to develop and approve model legislation, we attended a morning workshop featuring reports of three issues of imminent importance to the several states:

The EPA’s power grab

The first session focused on the report “Economy Derailed: State-by-State Impacts of the EPA Regulatory Train Wreck,” by Todd Wynn, available via www.RegulatoryTrainWreck.com. Wynn explained how the U.S. Environmental Protection Agency is trampling states’ rights with newly proposed Mercury and Air Toxics Standards, which violate a federal law that reserves such environmental regulation to the states. He noted an estimated $500,000 to $6 million annual benefit from the regulations at the cost of about $10 million per year. By driving up energy costs to this extent, the federal government is killing jobs and stripping hard-earned money from families that are finding it increasingly difficult to get by, he said.

Besides the newly proposed standards, Wynn noted several other federal programs that have killed jobs and economic opportunity by raising energy costs without any measurable benefit. These included the Utility MACT, Boiler MACT, the Cross State Air Pollution Rule, Cooling Water Intake Regulations, Coal Ash Regulations and Greenhouse Gas regulations, among others.

The weakest economic recovery ever

The second session focused on ALEC’s report, “Rich States, Poor States: A Guide to Economic Prosperity,” by Jonathan Williams, available via www.alec.org. Williams noted that the United States is currently experiencing the weakest recovery ever seen, largely due to excessive government spending, disproportionate public sector growth over private sector growth, a lack of transparency and accountability in government departments and agencies receiving taxpayer funding, unfunded pension liabilities that now approach $4 trillion nationally, and excessive taxes.

Williams said states such as California and Hawaii showed negative population growth despite their idyllic weather due to their excessive government regulations and higher tax burdens. New York and Pennsylvania lost more people than any other states due to their growing regulatory and tax burdens. States with smaller governments and lower tax and regulatory burdens, such as Texas, Florida, South Carolina, Georgia, Arizona and Utah, had positive population growth.

In the report, New Hampshire is ranked 34^th in economic health among the states and 28^th in its general outlook rank going forward, but it was positively mentioned for its “live free or die attitude,” particularly in regard to its success without a personal income or sales tax.

Williams said that states such as New Hampshire without a personal income tax fare better overall than states that have a personal income tax. For example, states without a personal income tax experienced 59 percent growth in Gross State Product verses 42 percent growth in GSP for states with a personal income tax. Likewise, states without an income tax had 81.53 percent tax receipt growth verses states with the tax that had 44.88 percent tax receipt growth. Additionally, states without an income tax showed 5.36 percent job growth verses the negative 1.68 percent job growth seen in income tax states.

The looming Obamacare disaster

The third session focused on the looming economic disaster headed toward the states from the passage of Obamacare. Christie Herrera covered a lot of ground with her presentation, “From the States to the Supreme Court: ALEC’s Health Care Freedom Initiative,” noting that 14 states, including New Hampshire, have already adopted ALEC’s model legislation, which was based on Arizona’s Proposition 106. Essentially, the law prohibits individual mandates that require citizens to buy health insurance as well as the taxes or fines imposed on citizens who don’t comply with the individual mandate. New Hampshire’s version of the initiative was passed into law last year as SB 148, a bill I vigorously supported. A total of 30 states are currently working on versions of the law, and only 6 states have not discussed it.

Herrera explained that Obamacare, technically called by the misnomer, “The Patient Protection and Affordable Care Act of 2010,” is bad for Americans because it forces individuals and businesses to purchase a government-defined insurance product or pay a fine equivalent to $95 or 1 percent of their personal income or $3,000 per year, per employee. She asked rhetorically what business would hire an additional person who would automatically cost it $3,000 for health insurance, or more?

Herrera also highlighted the act’s 20 new or increased taxes on families and businesses that would increase the cost of health insurance by $1,303 for the average family.

Next, she explained how 18 million more Americans would be forced onto the broken Medicaid system by the Act. Medicaid recipients are already the most prevalent users of emergency rooms for non-emergencies because they can’t find doctors willing to accept Medicaid and work for less than the cost of doing business. So in effect, Obamacare is going to make the problem with emergency room overuse worse across the country. The increased cost to New Hampshire taxpayers will be about 24.3 percent from the additional Medicaid users under the Act.

Finally, Hererra noted how the states’ best defense against Obamacare was to prohibit the implementation of a state health benefits exchange, which was the bureaucratic mechanism used by the federal Act to enforce many aspects of the new law, including the individual mandate. She mentioned my bill in New Hampshire, HB 1297, which would do just that. So far, 20 states, including New Hampshire, have either not acted on the implementation of an exchange, have actively killed exchange legislation or have prohibited the implementation of an exchange. Another 11 states are still talking about what to do. Only 19 states have actually implemented a state exchange.

Lunch Meeting: Government’s Driving Record

For lunch, the Commerce, Insurance and Economic Development Task Force featured David Hartgen’s report, “Are Highways Really ‘Crumbling’?: 20-Year Trends in Road Condition,” a study supported by the Reason Foundation. Hartgen’s latest public annual report can be read at the Reason Foundation’s Web site. In general, Hartgen supported the idea that highway access is essential for economic progress, but importantly, he noted that several keys legislatures should follow to ensure a better road system and lower costs:

• Ensure stable, adequate funds, with low diversion of costs or debt payments;
• Use professional management and oversight of highway systems with modern data systems that monitor how spending ties to real improvements;
• Focus on maintenance instead of new construction and devise realistic plans that can be achieved within the envisioned time frame;
• Monitor local roads and bridges;
• Complete projects based on a lifetime benefit/cost analysis; and
• Use a competitive bidding process and good engineers to get the most bang for the buck.

Over the last 20 years, Hartgen noted that national trends show improvement with rural interstate and primary highways, and that urban congestion problems are improving, while highway fatalities are down to 1.09 fatalities per 100 million miles from 2.16 fatalities per 100 million miles. However, locally owned bridges are in worse shape than state-owned bridges, he said, and local-level roads are deteriorating. During the period, New Hampshire’s highways improved on four measures, while the money dispersed for highways remained about the same.

Commerce, Insurance and Economic Development Task Force Meeting

The Commerce Task Force considered and adopted 11 pieces of model legislation during its afternoon session, and I personally contributed language to three of the model bills. Two of the model bills; namely, the “Election Accountability for Municipal Employees Act” and “The Public Employees Decertification Elections Act,” already passed the House in New Hampshire this year in a different form, but that bill, HB 1645, was referred to Interim Study in the Senate.

Four bills considered during the session are worth filing in New Hampshire next year:

• The Occupational Licensing Relief and Job Creation Act (ALEC version)
  “Occupational licensing increases unemployment by about 1 percent, raises prices by about 15 percent and offers no incremental consumer protection over a competitive market,” according to bill writer Lee McGrath at the Institute for Justice. “This Act ensures that an individual may pursue lawful occupation free from unnecessary occupational regulations, and protects against the use of occupational regulations to reduce competition and increase prices to consumers. When enacting future occupational regulations, this Act requires state legislatures to find real harm, and select the least-restrictive regulation to address that harm. The Act also protects entrepreneurs by shifting the burden to the government to show in court and administrative hearings that it is enforcing occupational laws for health-and-safety reasons, and not solely as a barrier to entry.”
• The Provisional Licenses for Ex-Offenders Act
  “This bill,” written by Mark Levin of the Texas Public Policy Foundation, “allows certain ex-offenders to obtain a provisional, or probationary, occupational license if they are otherwise qualified. Research indicates that a person who has been law abiding for at least five years is at a low risk of re-offending. Also, according to the Federal Bureau of Prisons, ex-offenders who are employed are three-to-five times less likely to reoffend.”
•  The Financial Accountability for Public Employee Unions Act
  “This Act,” written by Paul Kersey of the Mackinac Center for Public Policy, “increases transparency and accountability to taxpayers by requiring public employee unions to annually file an independent audit of all expenditures attributed to the costs of collective bargaining, contract administration and grievance adjustment.” While not the model legislation adopted by ALEC, this language, particularly the language in bold may be more comprehensive and potentially useful and appears to be the source language for the model legislation.
• Food and Nutrition Act
  “The Food and Nutrition Act,” written by Rep. Cheryl Grossman of Ohio, “preempts towns, counties and other political subdivisions from enacting regulation in regards to food service establishments based upon or regarding food nutrition information, customer incentive items, and a restaurant’s designation as quick-service, fast food, casual dining or sit-down service.” If New Hampshire were to adopt a law like this, it should also add the text of my effort in Section 3 of HB 1650 from earlier this year.

Health and Human Services Task Force Meeting

The HHS Task Force considered and adopted 5 pieces of model legislation during its afternoon session, and while I was not a member of this Task Force, I joined the meeting as soon as my own Task Force was completed and picked up a packet of the model legislation.

One of the model bills; namely, the “Health Care Price Disclosure Act,” written by Ariz. Sen. Nancy Barto as SB 1384, resembled a bill sponsored by N.H. Rep. Seth Cohn and me this year; namely, HB 1590, requiring the disclosure to patients and prospective patients of the charges for medical procedures. Perhaps Sen. Barto’s language and approach may help advance a New Hampshire bill next year?

Also of interest were the following pieces of Legislation, which should be filed in New Hampshire next year:

•  The Charity Health Care Tax Credit Act, by Georgia Sen. Judson Hill
  “This Act provides state tax credits for individuals ($1,000/year), families ($2,500/year), and nonprofit charity organizations (up to 75 percent of income tax liability) who provide health care services to the uninsured.” Clearly, since New Hampshire doesn’t have an income tax, this bill would have to be adopted for the state, but businesses that pay profits taxes and enterprise taxes may benefit from a law like this.
• The Zarephath Charity Health Care Act, by Alieta Eck of the Association of American Physicians and Surgeons
  “This Act provides full malpractice immunity for medical professionals who volunteer at least four hours per week, for four consecutive weeks, at a non-governmental free clinic that provides charity care to the poor.”

Afterward

After the Task Force meetings concluded, I attended a reception at the Nascar Hall of Fame, where I had interesting conversations with representatives and senators from South Dakota and Michigan. The South Dakotans noted that a good portion of the laws they pass are in response to federal rules and regulations in an attempt to preserve the state’s sovereignty and resist the federal takeover. The Michigan legislators spoke about Right to Work and other free market bills that they’ve been working on. Overall, it was interesting to discuss the various state systems of government around the country. I also had conversations with legislators from Arizona, Ohio, Washington State, Maryland, Oklahoma, Indiana and North Carolina.

My trip home that evening was uneventful, unlike the trip down that morning, and I moved through airport security with ease, sans backscatter scanners or pat downs. I wish all trips were that easy.

CHARLOTTE, N.C.—My wife told me that I’d be subject to more scrutiny at the airport today on my way to the American Legislative Exchange Council’s (ALEC) 2012 Spring Task Force Summit in Charlotte, N.C. Because I had bought my airline tickets less than a week before the event and because I chose to fly down and return on the same day to save on hotel costs and minimize the time away from my family, she said that I could expect the maximum level of scrutiny at the airport. She was right about her prediction, though I can’t say for sure if her rationale was correct.

As you may know, I am the co-sponsor of HB 628, an act relative to searches conducted for purposes of transportation-related security, which is a bill that would create a public database for complaints against the Transportation Security Administration’s (TSA) enhanced airline screening activities and require state law enforcement officials to take such complaints. I’ve always believed that when we shine a light on something, it encourages good behavior. That is the very purpose of the TSA Accountability Act, as I’ve called it.

The bill passed the House, but it was killed in the Senate by Derry Sen. Jim Rausch’s Senate Transportation Committee. Currently, I have attached the same language to Sen. Rausch’s senate bill, SB 332, which addresses a prohibition relative to auxiliary state troopers. To my knowledge, the TSA Accountability Act is still moving forward as part of SB 332, and I am hopeful the Senate will see the importance of this bill the second time. Perhaps this was the reason for my enhanced screening this morning?

Regardless of whether we pass the law to create the public TSA Accountability database; however, I still have the power of the pen, which they say is mightier than the sword. It is for this reason that I am now writing about my experience this morning with the TSA, which I would explain only as a gross violation of my constitutional rights with a smile. The experience was beyond inappropriate, however I must say to the TSA’s credit that its agents, whom are not law enforcement officials, were very professional and courteous.

Additionally, I have the power of passive resistance, which you will see, I fully exercised today without any trouble. I hope that more people will follow my example and do just what I have done as explained here, as I have followed the example of some of the most effective liberty activists before me. Please read my story below and take action as you believe you should.

When I entered the TSA screening area this morning, the TSA agent wrote three blue lines and the word “HAS” on my airline boarding pass, also in blue. He was pleasant and the interchange was brief. I removed my shoes, belt, jacket and all of my other personal belongings. I took my computer from my backpack and placed it in a separate container. I then sent two containers and my backpack through the belongings scanner.

I was directed twice toward the backscatter scanning machine, directions that I ignored. The majority of passengers were headed toward the scanner, largely because they were being herded that way by airport crowd-control ropes. The metal detector, directly next to the backscatter machine, was mostly roped off in front of it, but it had a 2-foot access area on the left. I walked away from the other 30 or so passengers headed toward the backscatter machine and weaved my way behind the ropes so that I was standing in front of the metal detector. I stood and waited there. The TSA agent standing on the other side of the metal detector took a moment to realize I was standing in front of him.

This TSA agent then inquired whether I was opting out of the backscatter scan, and I politely informed him that I was. He reminded me that I would be subject to a pat-down as a result of that decision, and that the backscatter machine no longer takes naked images but rather produces an avatar for TSA agents to see. I said I was aware that a pat down was required for me to go about my business and that the naked images were not my concern. At this point, I said I had health concerns about the technology, to which he replied that the radio waves I’d receive would be no different than any I’d receive using my cell phone. I replied that I’d rather not expose myself unnecessarily to any additional radiation and that I didn’t believe the technology had been properly tested.

In truth, the machines should be calibrated after each scan or they could emit harmful radiation. I am not aware of the TSA’s calibration policies, and I would rather not take any risks. This, of course, is beside the fact that the backscatter scan constitutes an illegal search that relies on consent under duress.

The agent then motioned me through the machine and inquired whether I would like a private screening. I informed him politely that I would prefer to stay in the open where everyone could see what was happening to me. He then took me around the baggage screening area to an open area on the other side and directed me to stand on a mat. He identified my belongings and then carried them over to a metal table near where I was standing.

At this point, he very professionally informed me what would be happening to me, and then he did what he explained. He asked whether I had sensitive areas, and I informed him that I didn’t. He then asked me to spread my arms and patted down all sides of my arms and areas that were covered, grabbing them with gloved hands. He then went along my back and legs with the same scrutiny and afterward patted down my rear. He used the back of his hands to feel my under arms and the inside of my thighs. He felt the inside of my waist band front and back, and patted down my tie.

At this point, I was informed that I had been flagged for further screening. Three TSA agents—one apparently a supervisor—were directly surrounding me. Apparently, something I had with me had residue from firearms on it, because when the TSA agent tested his gloves, it set off an alarm. He asked me whether I had been to the shooting range lately, and I informed him that I had (several months ago, actually). My guess is that the machine picked up residue from the inside of my suit pants, which are often in contact with my concealed carry weapon, for which I have a license. Of course, I had left my gun at home today.

The agent explained to me that he would be first going through all of my belongings to test whether any item in there had set off the alarm. He again noted that I could have avoided this additional screening by going through the backscatter machine. I simply acknowledged his statement. Upon searching my suit jacket pockets, he found and opened my Altoids box and briefly looked at my pens and business cards, and then he saw my state representative badge in my upper suit pocket and inquired whether I served in the State House. I answered in the affirmative. He then proceeded to inform me that his neighbor was Rep. Dick Barry, and that I should tell him that I was patted down by his neighbor the next time I saw him. I took the exchange as one of friendliness, but it was still unsettling to have someone who is in the process of violating my constitutional rights make light of the situation. I responded in kind, noting that Rep. Barry and I had sponsored a bill to repeal the Regional Greenhouse Gas Initiative together, information that seemed to please the agent. The agent proceeded to look through my entire computer bag, wipe down my computer with a small white cloth that resembled a gun cleaning cloth, and then wipe down several other items in my bag. All those items checked out.

At this point, I was informed that I would have to be patted down again, this time more invasively, and that it had to be done in a back room. I politely responded that I would prefer that any pat down be conducted in public regardless of how invasive. The supervising agent then intervened and informed me that I didn’t have that option. I repeated that I wanted the other people in the airport to see what was being done to me, and it was for that reason that I preferred not to go into the back room. The supervising agent informed me that I had to be screened in a private room per TSA policy and that if I didn’t consent, I would have to leave the airport and cancel my flight. He noted that I could bring someone with me if I wanted into the back room. I told him that I didn’t have anyone to bring. He then advised me that a second agent would be going to observe the pat down. While not comforted at all that I would then have two agents against my word should anything go wrong, I did not want to miss my flight, so I relented under duress and politely made it clear that was what I was doing.

I was taken into a small control room or utility closet, which had what looked like regular workplace equipment in it, an orange bag and perhaps even some janitorial equipment. My memory of what was in the room is vague, though I know for sure it was small and looked like a utility closet. The TSA agent who lived near Rep. Barry observed the pat down, while a second, younger agent conducted the same pat down as before, with no variation. When that was done, this second agent then used the front of his hands to feel all around my groin, albeit through my clothing. During this entire interchange, my demeanor was one of polite, passive resistance. I stood silent, with a stoic look, and allowed these agents to violate my rights. Apparently, for some reason, this second screening cleared me for travel, and I was told I could leave the room.

As I left, the supervisor came over to me and asked me again why I didn’t go through the backscatter machine. He said, point blank, “you could have avoided all of this today if you would have just gone through the scanner.” I replied that I understood the situation, but that I would not be using the backscatter machine at any point due to health concerns. I also informed him that I believed that my constitutional rights to be free of unreasonable searches and seizures would have been violated either way. He didn’t respond to my statement, but appeared to make a mental note of it. I was then on my way.

Upon reflection, I realized why what I did today was the right thing to do, and why I’d urge all of you whom have read to this point to do the same. Jesus Christ, my Lord and Savior whom I look to to advise my every action, said that if someone slaps you on the right cheek, to turn the other cheek; that if someone asks you to carry their equipment for one mile, for you to go an additional mile whether they want you to or not; and that if someone asks you for your coat, to also give him your undergarments (Matthew 5:38-42). This behavior our Lord advocated was nothing other than passive resistance, and it is the type of passive resistance that asserts your authority over the authority that has attempted to control you while still showing mutual respect (love) for that person. Yes, it is more invasive for me to have a pat down, but it is also uncomfortable for the TSA agent. The agents certainly made it abundantly clear to me that they’d prefer I chose to use the backscatter machine, because it would be easier for everyone involved. The fact that I chose the more difficult option made it clear to those agents that what they were doing was wrong. They need to get that message as often as possible if we are ever to restore our liberties.

Regardless of whether I chose to go through the backscatter machine or opt-out for the pat down, my rights would be violated: My right to travel freely without interference would be violated. My right to bear arms to protect myself from terrorists on the plane or anyone or anything else would be violated. My right to be free from unreasonable searches without probable cause and a warrant indicating the items that were the subject of the search would be violated. My right to be innocent until proven guilty would be violated.

Because my rights would be violated either way, simply so that I could legally travel to a conference in Charlotte, N.C., via a plane ticket I had purchased with money my family had earned, it made sense for me to use whatever passive, peaceful and direct approach left at my disposal to make it clear what was happening was wrong. It is such passive resistance that brought about the greatest religion in the world and the faith that will defeat all evil in this world through the death and resurrection of Christ Jesus. It is such passive resistance that freed India from the caste system. It is such passive resistance that brought light to the plight of former slaves in the Southern United States. It is such passive resistance that will help us restore our liberties today, if only more of us take a stand against the treatment we as innocent people are subjected to by TSA agents without any probable cause that we might be doing something wrong.

By choosing to walk the extra mile, to turn the other cheek, to give up my clothes when asked for my coat, to go for an invasive full body pat down when asked to step through a simple backscatter screening machine, we are asserting our own authority and taking control of a lose-lose situation. We are highlighting the abuses of the system and raising doubts in the minds of these very TSA agents conducting the pat downs that they are doing the right thing. It is for that reason that I will always opt-out of the backscatter scanner, or take any available opt-out procedure that I can, from this point forward. And I will always tell you what happens when my rights are violated. Never will I silently allow my rights to be stripped from me. I was born free as an American. And I will die free, too, as an individual sovereign man, under the authority of my Almighty God alone.

Fixing health care in NH: General Background: Government mismanagement of healthcare
By Andrew J. Manuse for the Republican Liberty Caucus of New Hampshire

What’s often lost in the debate about the cost of health care is the reason why there is a cost at all, and why that cost should be set by market forces instead of the government through regulations on health insurance providers. Another thing that’s lost is who should ultimately pay for health care goods and services. Isn’t it only fair that the person who receives a good or service in a voluntary exchange should then pay for that good or service?

Health care is delivered either as a good or service. It is a good when it comes in the form of a cardiac stent used to prop open clogged arteries, a bone growth stimulator used to help people who suffer from skeletal degeneration, or Aspirin, the simple painkiller that’s also known to prevent heart attacks. Health care is a service when someone has to implant that cardiac stent, when someone has to meet with a patient to determine whether his or her problem might be fixed by a prescription to that bone-growth drug, or when junior has his annual checkup to measure his height, weight and reaction time.

There are companies that make medical devices and others that make pharmaceutical drugs. These companies typically spend millions of dollars developing these devices or drugs, and many times, their efforts to follow through on what seemed like a good idea come up empty. When companies develop a successful product, they have to recoup all the money they spent on the previous three or four failed products as well as the money it spent developing the successful product, or else they go out of business. Thus, in an ideal world, they would charge a rate for their successful product that would allow them to recoup all that cost over time with enough money to spare for future development work. Employees at these companies are motivated to keep working on these products—yes, in part because they want to help people—but mostly because they want to take home a fairly large salary that rewards them for their work on the product. Such salaries are supported when these companies make profits.

In addition, there are other companies that provide health care services, such as medical tests, diagnoses and surgery. Again, the people providing these services want to help people, but they also want to take home a nice chunk of change to pay the mortgage, feed the family and maybe even buy a yacht. They can only do that if the company they work for continues to make profits. They make profits by selling their goods and services to other people who can pay enough for them to cover the company’s expenses and then some.

In both scenarios, the people who produce life-saving drugs or devices, or the people who use the drugs, devices and their skills to diagnose and treat others have spent a lot of time and money developing the knowledge and ability needed to do that job. In fact, the skills they’ve developed are more difficult to acquire than, say, the skills needed to scrub toilets or even the skills needed to write this paragraph. It is for that reason that these people tend to demand more money for delivering their goods and services than others who don’t have them. And they deserve that money, really—every bit of it, in fact.

Now for some reason, we’ve allowed government to step in and pass all kinds of regulations concerning the sale of health care goods and services, even though government arguably doesn’t even have that authority. In the last 68 years, government has created company structures to cover the costs of health care. Health insurance companies have never really been completely autonomous—not since 1932 anyway. Before that, maybe there was a decade when health insurance companies truly operated in a free market, and truly provided insurance. But since Herbert Hoover was president, health insurance companies really don’t provide “insurance.”

When you buy a car, most of the time you also buy car insurance for that car. Should you get into an accident, the insurance covers a certain amount of damage to your car and the medical expenses of people who might have been injured. But insurance doesn’t cover new tires, new brakes or new windshield wipers, because these things are considered maintenance that are part of the regular cost of car ownership.

When you buy a house, you’re pretty much going to buy home insurance for it. That insurance will most likely pay for the unlikely possibility of a tree falling on your house, a thief taking some of your more valuable possessions or something of the like. Separate insurance may cover flood damage. Another program might pay for damage if your house burns down. However, if your home insurance coverage doesn’t include fire insurance, you probably won’t have much luck securing your policy during or after the day your house catches fire. In addition, it should be common sense that you can’t get your insurance company to pay for a new paint job on your house or new kitchen cabinets.

Why should health insurance be any different?

The truth is, it really wasn’t different at first. Most people bought health insurance for that odd chance that they might fall down on a hike and break a leg or suffer from some serious type of pneumonia. They didn’t expect insurance to pay for their regular doctor visits or the Aspirin the doctor recommended to cure those headaches. They paid regular expenses out of pocket. It should still be that way.

But in 1932, government started getting involved with health insurance. Congress gave favors to some insurers over others, causing competitive imbalances in the market that have yet to be corrected. Then Congress created incentives for employers to offer health insurance as a benefit, which codified the idea that health insurance is some kind of right. With the urging of labor unions, Congress forced employers to start paying for regular doctor visits and the like, which increased the cost of coverage. Later, Congress created its own health insurance program for senior citizens and those folks arbitrarily deemed to be poor. As a result of that, Congress started setting prices for some health care services and not others. Even if the government prices were too high or too low when compared to the market price, the doctors, hospitals and suppliers had to accept those prices, which led to adjustments in how they charged for their goods and services to regular payers. Government also started to monitor the products that health care companies produced, preventing some from reaching the market that would have saved lives, allowing others to reach the market that might have significantly harmed lives.

In every way, government took over the free market system for health care and turned it into the regulated industry that it is today. In every way, government is responsible for the cost increases that stemmed from ever-increasing regulations and led to the current crisis.

Instead of recognizing its failures and reversing the onerous regulations that have caused health care prices to skyrocket, government has decided to make the American people believe that health care is a right that everyone should have access to, regardless of their willingness to pay for those goods and services. What incentive does such posturing give drug developers or doctors to continue working? Why should a developer spend 12 hours away from his kids trying to make the next breakthrough if the government is just going to tell him how much he can sell the final product for? Why should a doctor spend 12 years in school studying for a job that pays her a meager wage not much higher than the unskilled laborer who doesn’t attend college a day in his life? Goods and services cost money to produce, and the people who produce them quite simply deserve to be paid for their work. The current health care and health insurance industry, as it is regulated, is no longer providing much of an opportunity for health professionals. That needs to change.

Before we can explore the possible solutions for solving the problems of the health industry, we must first look at the history of government health industry interventions and their result, both in the United States and in New Hampshire.

A Brief History of [Federal] Government Intervention in Healthcare 
By Docs4 Patient Care (editing by Andrew J. Manuse) for the Republican Liberty Caucus of New Hampshire

Before we can discuss what state lawmakers have done to harm the health care and insurance markets in New Hampshire, or what state legislators can do to improve these markets and drive down the costs to consumers for both, it is important to know and understand the historic federal intrusions into the health market and how they have caused the problems we’re facing today. After reading the following summary, it will be clear that our health markets are not free and have not been free for a long time. It will also be clear that government regulations have not solved health insurance cost and health care availability problems; instead, these regulations have repeatedly exacerbated the problems they were supposed to address.

First of all, any federal intrusion into the health marketplace is unconstitutional since nothing in the Constitution allows the federal government to regulate this industry. Big government supporters cite the commerce clause (Article 1, Section 8, Clause 3) for regulation of industries, but the original intent of the constitution meant no such thing. The clause actually states that Congress has the power to “regulate commerce … among the several states.” According to Robert Bork and Daniel Troy in their “Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce,” the two gentlemen indicate “commerce” has no other meaning than “the act of trade” itself, as James Madison noted in The Federalist Papers. “Regulate,” as it was known by founders Madison and Alexander Hamilton, meant “to make standard.”

Thus, in common English, the commerce clause simply gives Congress the power to ensure trade between parties in different states is conducted in the same way across the nation. This understanding was commonly understood for the first 100 years of the American Republic. As the Supreme Court said in 1888, “the object of vesting in Congress the power to regulate commerce with foreign nations and among the several States was to insure [sic] uniformity of regulation against conflicting and discriminating state legislation.”

It wasn’t until President Franklin Delano Roosevelt threatened in 1937 to increase the number of Supreme Court Justices from 9 to 15 so he could stack the court with fellow progressives that any other understanding of the commerce clause took root. President Roosevelt’s “Court-Packing Plan” intimidated the court and encouraged its consent to the president’s unconstitutional New Deal laws that included some of the first government health care interventions.

Since the first federal government intervention into the health care and health insurance markets in 1932, which was actually during President Herbert Hoover’s Administration, the free market for the health industry has been slowly dismantled, resulting in many of the problems we face today. It is important to understand where the federal government went wrong so we can have a real conversation about what we can do as state legislators to restore a free-market for health care and health insurance. So here is a brief timeline of the history of America’s health care industry, followed by an explanation of what problems resulted from each intervention.

1932 – Blue Cross was established. The American Medical Association and the American Hospital Association lobbied Congress for their exemption from normal insurance regulations and taxes. When Congress capitulated, this gave Blue Cross an unfair competitive advantage in the marketplace.

Congress also established “cost-plus” and third-party reimbursement procedures, which developed “reasonable and customary” definitions for paying health care providers that were in conflict with the actual cost of health care services. This led to inflationary health care costs.

1942 – World War II government wage and price controls led to employer-paid health insurance to increase compensation.

After the income tax was established, the IRS ruled health insurance a “legitimate cost of doing business” and allowed employees to receive health insurance benefits tax-free. This action essentially institutionalized employer-provided health care, as more employees demanded the tax-free benefit or companies used the benefit as a way to attract better talent.

1948 – The National Labor Relations Board (NLRB) argued that health benefits could now be the subject of collective bargaining, which reinforced employer-provided health care and encouraged the growth of this behavior. The government further encouraged employer-provided health insurance increases via tax incentives to employers and employees.

The third-party payer system, usually an employer providing health insurance as a benefit to its employees, increased the prevalence of routine-care coverage. Previously, insurance usually only covered unexpected catastrophes, such as a broken limb or a serious condition. This led to rising health care costs because employers paid a bulk rate and didn’t manage employees’ individual health care decisions, such as how often they visited the doctor or the reason for their visits. Individuals didn’t manage their decisions either, since they had no idea how much their health care services were costing them or their employers. This also led to cost increases for those without employer-provided health insurance as the risk of covering one person is higher than the risk of covering many people.

1965 – Congress created Medicare and Medicaid, and the federal government became the largest single buyer of health care services. This extended the flaws of regulated private insurance because the reimbursements paid to health care providers were based on “reasonable and customary” fees, rather than the true cost of health care services. Patients still had no incentive to control costs and used health care more often for routine care rather than its original purpose to cover only catastrophic health incidents, such as a broken limb or serious condition. Around this time, new government regulations made it extremely beneficial for the medical industry to increase adoption of Medicare and Medicaid by hospitals.

Here’s some relevant statistics that resulted from government’s hand in health care in this era:

• The rate of increase in hospital spending averaged 8.8 percent from 1960 to 1965 and nearly doubled to 15 percent from 1965 to 1970.
• Personal health care expenditures rose from $82 in 1950 to $2,511 in 1990.
• Medicare spending in constant dollars rose from $25.2 billion in 1978 to $87.6 billion in 1988 to $111.2 billion in 1990.
• Medicaid spending in constant dollars rose from $18.9 billion in 1978 to $54.7 billion in 1988 to $75.2 billion in 1990.

1973 – Congress passed the Health Maintenance Organizations Act, creating HMOs “to address rising costs of health care.” This new law further distorted the private health insurance market by adding new layers to existing controls, incentives and restrictions that had caused the problems. The law required all companies with 25 or more employees to offer an HMO plan in addition to any other plan they offered. The HMO Act was repealed in 1993, but by then the market for affordable individual health insurance had essentially been eliminated because traditional health insurers couldn’t compete with the new government mandated industry.

1983 – Social Security legislation established a “prospective payment system” (PPS) for hospital reimbursement when dealing with Medicare, which basically set prices for hospitals based on the diagnosis of health care providers. Treatments were centrally planned, designated by 475 “diagnostic related groups” (DRGs). This system essentially encouraged hospitals to cost shift diagnoses not covered by the PPS to one of the diagnostic related groups, which inflated Medicare costs faster than the rate of inflation.

At the same time, many states started passing mandates—laws enacted as the result of lobbying from health care providers and advocates—that forced insurers to cover additional diseases. This led to cost increases as insurance companies worked to mitigate the risk of covering additional medical problems.

According to the National Center for Policy Analysis, the cost increases caused by state and federal regulations made health insurance too expensive for some people, and as many as one in four people were uninsured. Another set of state laws prevented competition and portability, because state lines determined which insurance carriers state residents could legally shop. Only insurance companies that covered the mandated diseases for a state could sell their plans in that particular state. Incidentally, the commerce clause to the U.S. constitution was intended to prevent this very type of state regulation.

1992 – The Resource Based Relative Value Scale (RBRVS) created a “relative value” of doctors in such specialties as family practice, internal medicine and obstetrics, and lower fees for surgeons and radiologists. The law also limited “balance billing,” or the amount doctors can charge above what Medicare allows. These types of price controls skewed the demand for various types of physicians. Because the law required higher payment for doctors in family practice, internal medicine and obstetrics, more students became family practitioners and fewer became surgeons. This led to a shortage in certain areas of the health care industry.

2010 – Obamacare passed despite an outcry from the majority of Americans, who fully opposed the plan. The behemoth law adds a federal mandate for individuals to purchase health insurance, among other mandates that are completely unrelated to health care. The law did nothing to remove government controls, regulations and tax code incentives that created the health care crisis, and it actually added new ones.

Now that the history of government health care interventions is clear and the resulting cost impact is unmistakable, it will be important for us to consider some general federal health care reforms that will actually lower costs and increase the availability of care over time.

In a free market, competition drives down costs and increases the quality of goods or services. Usually, competition also increases the propensity for other competitors to enter the market, which increases choices for consumers. Regulations that give advantages to one insurance provider over another decrease competition, because unsubsidized or nonexempt firms cannot keep up with the favored companies and often fail.

The federal government must act first to remove regulations that benefit one insurance provider over another, and create a level playing field for all insurance carriers under the law. State governments can remove state mandates that prevent insurance companies from offering insurance across all 50 states. Again, the actual purpose of the commerce clause was to prevent one state from creating barriers to businesses from other states. State mandates violate the commerce clause as well as force consumers to purchase products they don’t want in order to get the product they need—that’s government coercion at its worst.

Second, the government also has to level the playing field among businesses and individuals. Whatever tax incentives are given to businesses to purchase health insurance should be extended to individuals, or groups of individuals. This will increase portability, as one person’s health insurance plan won’t be tied to his or her job. This allows increased cost control as the individual is encouraged to keep an eye on the reimbursement the insurance carrier provides.

Third, states should allow insurance companies to sell and people to buy catastrophic care insurance with pay-as-you-go for routine care. Just like auto insurance doesn’t cover our oil changes or home insurance doesn’t cover paint, health insurance shouldn’t cover regular doctor visits or typical prescriptions. Perhaps it shouldn’t even cover the tests doctors order, which would reduce the instances that people actually decide they want to take a test. Simply making this fix would save a lot of money. In addition, states should allow direct pay between patients and doctors to further control costs as medical offices will bill actual costs versus “reasonable and customary” fees.

Fourth, the federal government and the states should phase out federally run Medicare and Medicaid. Each state should determine how best to care for its uninsured, even if it means some states leave such coverage up to charity. People would be much more charitable if they could keep more of the money they earn. Each additional level of bureaucracy increases cost without any increase to benefits received.

Fifth, the federal government must remove regulations that distort the number of providers in the various medical specialties. This will normalize availability of providers over an extended period of time, which will improve our availability of care.

Finally, Congress must repeal Obamacare, and if that doesn’t work, the states should use their 10^th Amendment authority to nullify the unconstitutional federal act. Another option is to encourage New Hampshire to join an existing federal lawsuit that is challenging the constitutionality of the law. This legislation only degrades the already overregulated and controlled health care industry, and the states must act to stop and reverse the ever-encroaching federal government.

Where there is a provider able to fill a need, a consumer willing to pay that provider and an absence of unnatural interference, the free market will see to it that the consumer’s needs are met. Since the inception of health care insurance, there have only been a few years in the late 1920s that it operated in a free market system. Since Blue Cross received its first favorable regulation in 1932, the free market ceased to determine how health care insurance is provided. Let’s give the free market a chance to solve the health care crisis, since it was never really given that chance. It would be our quickest path to affordable health care for America and the only Constitutional option.

Jeanne Shaheen’s Health Care Policy Disaster in New Hampshire
(The following article is published almost exactly as it appeared in the policy report, Destroying Insurance Markets, by Conrad F. Meier, senior fellow in health policy for The Heartland Institute, published originally by the Council for Affordable Health Insurance. (Editing by Andrew J. Manuse)) for the RLCNH

On January 1, 2004, key provisions of a reform measure aimed at deregulating New Hampshire’s small group health insurance market went into effect. The new law also affirmed reforms implemented two years earlier to the Granite State’s individual medical market, allowing insurers to refuse to write or issue coverage based on an applicant’s health status, medical underwriting for individual health coverage, and exclusion of pre-existing conditions for nine months (up from three months under previous law).

In testimony to the House Commerce Committee on April 23, 2003, Gov. Craig Benson (R) said, “SB 110 is a great step forward in the health care reform process. It will lower costs and give consumers choice by increasing competition among insurers.”

How the Granite State came to see deregulation as the solution to the problems of rising health care costs and declining choices for consumers is a story worth telling, particularly so the trend will continue as new lawmakers and policymakers take to the House and Senate floor in Concord and work to further reduce the chains of regulation on the health industry.

Biggest Insurer Cried for Help

Benson’s “great step forward” could also be described as a “great step backward,” back to the time before the national debate over the failed Clinton Health Security Act and the poorly crafted reforms that New Hampshire and other states adopted in response to that debate.

In 1993, Blue Cross Blue Shield (BCBS) of New Hampshire (acquired by Anthem in 1999) began suffering financially from the guaranteed issue and community rating practices it was required by law to adopt. BCBS was the “insurer of last resort” in New Hampshire, and as such was more heavily regulated by the state than other insurers. In return, BCBS was exempted from paying the insurance premium tax (set at 2 percent of net premiums) levied on the rest of the state’s private health insurance market. BCBS complained the guaranteed issue and community rating mandates made it unable to compete with firms permitted to use standard health insurance underwriting practices. Rather than seek freedom from the mandates, BCBS lobbied the New Hampshire Legislature to adopt rules that would force guaranteed issue and community rating on all state-regulated insurance companies.

“Despite having provider discounts no other carrier could match and favorable tax treatment to boot, BCBS was losing market share to other carriers,” said Lee Tooman, vice president of Golden Rule Insurance Co. “Why? Because we had better products, prices and service. But Blue Cross prevailed in the Legislature, convincing elected officials that the problem was with us ‘cherry pickers’.”

During the 1994 legislative session, Democrat Jeanne Shaheen, then a State Senator, responded to BCBS by sponsoring SB 711, which passed and went into effect January 1, 1995. Among other provisions affecting the state’s insurance industry, the measure:

• Required insurance companies to guarantee issue individual health insurance policies. Companies were prohibited from denying coverage to any person or eligible dependent;
• Imposed price controls, in the form of modified community rating, on individual health insurance premiums. Premiums could be modified or adjusted only for age, not health status; and
• Prohibited insurers from increasing premiums by more than 25 percent until January 2000.

Individual Insurance Market Imploded

Aimed primarily at easing the burden on BCBS by encumbering other insurers, Shaheen’s SB 711 had no positive effect for health insurance consumers. According to the U.S. Census Bureau:

• In 1995, when SB 711 went into effect, 10.0 percent of the New Hampshire population was uninsured. In 2003, the uninsured rate stood at 10.3 percent;
• In 1995, 80.1 percent of the New Hampshire population had private health insurance. In 2003, 79.3 percent did; and
• In 1995, 9.8 percent of the New Hampshire population “directly purchased” health insurance, primarily in the individual market. In 2003, 7.1 percent did.

While health insurance coverage was little affected by Shaheen’s reforms, consumer choice was badly damaged. By 1997, the number of commercial health insurers serving New Hampshire dwindled to five from a previous high of 12. Those remaining in the market reduced their insurance offerings to cover only high-deductible, catastrophic-type health insurance plans.

By 1997, even BCBS threatened to drop out of the individual health insurance market, complaining once again that its losses were unsustainable. The company followed through by quitting the state’s market altogether and terminating all in-force business in January 1998.

The announcement “that [BCBS] would no longer participate in the individual market that they had done so much to define, heightened the growing concern of the remaining five carriers,” testified attorney Paula Rogers on behalf of the Health Insurance Association of America at a hearing before the state insurance department on October 31, 1997.

“Since the Blue Cross Blue Shield announcement, we have seen our number of new policies issued in New Hampshire increase substantially,” testified Cecil Bykerk, executive vice president and chief actuary for Mutual of Omaha. “We have also seen a significant increase in our anticipated loss ratio and this appears directly related to the influx of former Blue Cross Blue Shield policyholders. Our individual block of business, and indeed the entire remaining individual market in New Hampshire, is not broad-based enough to Shield block of business.”

The New Hampshire Department of Insurance engaged the Washington-based Center for Health Economics Research to investigate the effects of the Shaheen reform. The group’s report, submitted on December 17, 1997, warned, “Blue Cross and Blue Shield’s withdrawal from the nongroup [i.e., individual] market could lead to a market collapse if nothing is done to avoid a disorderly migration of this high-risk book to other insurers.” Anthony Juliano, executive vice president of the Independent Insurance Agents of New Hampshire (IIANH), shared at the October 31 hearing the results of an IIANH membership poll on the availability of individual health insurance products after SB 711 was implemented. According to Juliano, “There was a significant reduction in the availability, and what was available was coming in with extra-high deductibles. It now appears that circumstances have not changed and are certain to worsen with the withdrawal of BCBS from the market.”

Back to the Drawing Board

On November 26, 1997, the Department of Insurance issued a “Findings and Final Order” with respect to the condition of the state’s individual health insurance market. Insurance Commissioner Charles Blossom found, among other things, that “the quality of products available in this market is worsening,” “the cost of available products in this market is increasing,” and “the loss ratios of the writing carriers has increased.”

Blossom imposed a temporary risk-sharing plan, developed by the industry, to subsidize the losses experienced by the individual health insurance carriers. Insurers actively marketing in the individual market were eligible for a subsidy, paid for by assessments on all commercial insurance companies and HMOs.

The plan was widely perceived as necessary, but acceptable only as an interim measure. William Sterling, vice president and senior associate counsel for group insurance carrier John Alden, testified at the October 31 hearing, “The inability of a guaranteed issue, community rated individual health market to provide a sufficient, internal spread of risk and cost is apparent.

“The imposition of a risk-sharing plan by regulatory action is an acceptable and necessary solution to the problem at hand,” noted Sterling. “However, at the earliest possible opportunity, a permanent solution should be sought through legislation.”

Movement toward a legislative solution began in 1998. In legislation that went into effect July 1, 2002, the guaranteed issue requirement was repealed and a high-risk pool for the medically uninsurable launched. The measure also allowed for more flexibility in premium rating:

• Insurers were permitted to use medical underwriting to determine eligibility for insurance coverage and initial determination of rates;
• Premiums could be surcharged up to 50 percent for health status; !Premiums could be surcharged up to 50 percent for smokers; and
• Premiums were permitted to vary for age by a factor of 4 to 1.

The New Hampshire high-risk pool, New Hampshire Health Plan (NHHP), is a cooperative state and private-sector insurance plan for the medically uninsurable. While eligibility under certain state and federal regulations immediately makes one eligible for NHHP, for the most part, enrollees must have been declined for private health insurance coverage and must have been diagnosed with one of 16 “pre-qualifying” medical conditions, among them HIV/AIDS, juvenile diabetes, multiple sclerosis and paraplegia/quadriplegia.

Two indemnity and two managed care options are offered through NHHP. Rates are higher for tobacco users than for those who do not use tobacco. Coverage is provided through private insurance companies at rates not higher than 150 percent, and not lower than 125 percent, of the standard market rate for the coverage offered.

Scot Zajic, a director for government relations at Assurant Health, said his company is a strong supporter of high-risk pools for persons who cannot get health coverage elsewhere. “Having a risk pool is a good way to provide access to health coverage for those who need it,” Zajic said. “We would, however, like to see the funding base broadened to include federal and/or state funding. Finding coverage for medically uninsurable persons warrants a societal solution.”

State of the Market Today

Zajic said two companies under the Assurant corporate umbrella serve the individual medical insurance market today: Fortis Insurance Co. and John Alden Life Insurance Co. “The recent reforms have allowed us to re-enter the New Hampshire market, and to offer more products that will benefit more consumers.”

Golden Rule Insurance’s Tooman disagreed with Zajic’s assessment of competition in the state. “In 1994, Golden Rule had a thriving business in New Hampshire. We insured a lot of people and paid millions of dollars of claims expeditiously and accurately. But Blue Cross complained that carriers like Golden Rule were doing great harm in New Hampshire. In fact, the only entity suffering harm was Blue Cross.

“Jeanne Shaheen’s 1994 reforms ended up freeing Blue Cross of its money-losing business and handed it a virtual monopoly in the individual market,” Tooman continued. “Blue Cross returned to the individual market, able itself now to ‘cherry pick.’ But it still has the provider discounts no one else can touch. “Ten years after ‘reform,’” he said, “the market has not recovered.”

(For more information on New Hampshire’s attempt to cripple private health insurance under Gov. Jeanne Shaheen and the ensuing part recovery, please read: “Health Insurance: So What’s the Problem?” and “Health Insurance: Treating the Problem,” by Sonia Pearsall, Advanced Benefit Design, in Natural Entrepreneur, and “How Shaheen Destroyed Insurance Markets in NH,” an article by the New Hampshire Tea Party Coalition, which is based on the study, “Destroying Insurance Markets,” by the Council for Affordable Health Insurance and The Heartland Institute.

Testimony for HB 1297, relative to health insurance exchanges
Rep. Andrew J. Manuse, R-Rockingham 5 (Derry)
N.H. Senate Commerce Committee | April 24, 2012

I have come before you today to introduce and support HB 1297, which would prohibit New Hampshire from implementing a state health benefit exchange under the so-called Obamacare Act, the federal “health care” overhaul enacted by Congress against popular demand in 2010.

A health benefit exchange is the mechanism the federal Health and Human Services Department would use to enforce the provisions of Obamacare, such as the individual mandate we already said could not be enforced in New Hampshire when we passed SB 148 last year, and the taxes, and penalties the act requires businesses to pay.

The federal health overhaul entices states with the choice to create a state operated exchange or rely on a federal operated exchange. In effect, they are no different; the federal bureaucracy would control either version.

Yet, a state exchange would cost the state an additional $10 million to $30 million a year to run starting in 2015—money we just don’t have—just to pay for state officials to follow the federal government’s orders. Even if we do end up with Obamacare, HB 1297 would save New Hampshire money.

The language of HB 1297 as amended by 2012-1786s is simple and comprehensive. It would be inserted in RSA 420-N, updating the responsibility of the Joint Health Care Reform Oversight Committee to guide the state’s executive branch in protecting New Hampshire from the federal law.

With amendment 2012-1786s, HB 1297 would give state officials guidance on how they should interact with federal agents in the event that the court does not overturn the federal act in its upcoming decision or if the federal act is not repealed by Congress. Specifically, the amended HB 1297 would direct state officials to maintain a free market for health insurance to the best of their ability under the federal law.

On top of this, the language of HB 1297 takes advantage of a flaw in the federal law that relies on states creating their own exchanges. The law did not provide for the contingency that states would refuse to set up exchanges, and because of this, by New Hampshire not creating a state exchange along with other states, it will be more likely that the federal health insurance overhaul would be repealed or amended.

If the court overturns the law or if the law is repealed, most of the changes we’re introducing today would be deleted, but the prohibition on creating a state-run exchange and a new general state policy favoring free-market health insurance would remain in place.

In Conclusion, this bill as amended provides for every possible outcome and maintains the state’s stance against the federal act; yet, it still ensures New Hampshire maintains its ability to regulate health insurance on its own, regardless of what happens next.

What’s wrong with Obamacare?

With my support for HB 1297 and the amendment before you today, I’m starting from the premise that Obamacare is bad public policy. Just two years past the federal law’s adoption, we are already seeing the president’s lofty promises fall apart, and that’s before the law takes full effect in 2014.

According to a report from the Congressional Budget Office released this spring, Obamacare will cost taxpayers $1.76 trillion by 2022 but still leave 27 million Americans uninsured, an increase in the number of uninsured from today. Of the 23 million who receive coverage through this monumental new expense, about 20 million people will be dumped onto the Medicaid program, problems unresolved.

Businesses will either pay a penalty for not covering their employees, or they will have to pay the cost of much higher premiums. In New Hampshire, a full time employee at minimum wage would cost an employer with family health insurance a minimum of $26,000. For anyone looking for work after Obamacare, these costs will mean fewer available jobs.

Additionally, many folks may not be able to find a doctor willing to accept their new Obamacare coverage, and many elderly people will face the harsh reality that there is a bureaucracy in Washington deciding whether they will be covered for that essential treatment or whether painkillers will have to do the trick.

For those of us who understand the true costs of the new health insurance overhaul—and above are listed but a few—there is some hope that the Supreme Court will rule in June that the individual mandate is unconstitutional or might even throw the whole law out. Waiting for that decision, however, is not in the best interest of the state. That’s why we must act to pass HB 1297, which provides the best protection for New Hampshire’s private health insurance markets while also preparing for any contingency.

Do you have a better solution than Obamacare?

It’s important that we don’t simply propose a repeal agenda as part of this effort. I’m hoping that the coming failure of Obamacare gives new life to the possibility that we might return to free market principles in health insurance—principles that have been missing for about 100 years.

I’d like the state to let insurance companies offer true insurance plans without all the mandates, so people have an option to pay for most basic medical services out of pocket, and the insurance would cover serious illnesses and accidents. A la carte add-on coverage should also be allowed.

Medical savings accounts, tort reform and out-of-state competition are certainly part of the equation, but also important is restoring a real sense of cost to the medical care and health insurance markets. When people have to pay for an elective MRI, for instance, just like they do corrective eye surgery, we might start to see expensive procedures performed only when they’re necessary.

But we must first act to stop the implementation of Obamacare before we can move forward with other, free-market reforms. That’s what HB 1297 is all about.

What is a state health benefit exchange?

As the Arizona-based Goldwater Institute puts it, state created exchanges are in fact “government-sanctioned cartels where only government-approved insurers can sell government-approved insurance.” In other words, a state exchange is the full implementation of Obamacare in New Hampshire. The only difference is that we get to pay for it, too.

A state exchange would be responsible for running an insurance program, running an 800 number hotline, developing a risk adjustment program, defining and monitoring network adequacy and service areas, monitoring marketing materials, determining whether any particular treatment or doctor’s visit should be covered, and funding and monitoring companies or other organizations performing public information and eligibility requirements, among other bureaucratic duties. It uses taxes, penalties and subsidies to pick winners and losers in the health insurance market. We simply don’t want to create a system like this. It is bound to fail, and cost us substantially in the process.

What can New Hampshire expect relative to funding a state health benefit exchange?

RSA 420-N, created through HB 601 last year, established the Joint Health Care Reform Oversight Committee and also sent back $666,000 of health insurance exchange planning grant funds. HB 1727 has been submitted this year to send back the remaining $333,000 of the grant, which the Executive Council recently rejected. That’s $1 million in federal money that would pay to plan a state exchange already on its way out.

Federal funds for the implementation and operation of a state health insurance exchange end as of Jan. 1, 2015. The law itself explains that whomever establishes exchanges must pay for them using state “assessments and user fees,” “provider taxes,” “state revenues” or “other sources.” Are we as a Legislature ready to raise taxes again for something we don’t want?

According to research conducted by HTMS, a North Dakota health care consulting company, a North Dakota state health insurance exchange would have cost that state $10 million to operate. The same firm found that the average estimate for state exchange operations is about $28 million a year. Some states have estimated a cost of $47 million. Vermont’s exchange would cost about $11 million a year. It’s reasonable to expect a New Hampshire exchange would cost the state somewhere between $15 million and $30 million a year to operate.

With spending interests in this state focused on roads, education, police, fire, state services, paying down debt, tax cuts and similar ideas, I ask you this: Where do we get the money to pay for a state exchange that we have no real control over?

Rejecting health insurance exchange money is already the well-established position of this Legislature, and for good reason. HB 1297 would make sure our department officials know that rejecting the money to study the establishment of an exchange also means that we do not want to establish one—for sure.

Does a state exchange protect state interests?

You may have heard from some officials that a state insurance exchange under Obamacare will protect state sovereignty and ensure our ability as a state to maintain “local control” over our health insurance markets. This position is dangerously wrong. According to the Idaho Freedom Foundation, federal law surrounding state exchanges contains the word “require” 628 times, “shall” 22 times, and “must” 439 times. Every single element of a state plan must be approved by the federal department of Health and Human Services, meaning that the state has no autonomy whatsoever. If New Hampshire’s exchange did not comply with federal guidelines, or even the mere whim of the HHS department, we would be forced to make changes.

According to the federal law, exchanges can be established “only as prescribed by the HHS Secretary.” States may adopt only those exchange laws and regulations that “the secretary determines implements the standards within the state.”

Besides the clear language of the Obamacare bill that gives the U.S. HHS authority to dismantle and rewrite our exchange to suit their needs, the law says this about state exchanges: “An exchange may not establish rules that conflict with or prevent the application of regulations promulgated by the Secretary of Health and Human Services. Further, the secretary of the general accounting office will have continuing oversight of changes.” An exchange must “support and complement rule-making conducted by the Secretary of the Treasury.” Not only that, a state exchange must follow defined “minimum essential benefits,” and the secretary of the federal HHS department may define more at his or her whim. In other words, the regulations can be changed at any time, and our state exchange would have to live up to them.

Does this sound like we will maintain any control over this process?

What do we gain by rejecting a state health benefit exchange?

So far, the judges in all of the court cases against Obamacare, even those that came out against the constitutionality of the law, have said that states that implement a state exchange but then ask to overturn the law are acting hypocritically and make it difficult to rule in their favor. In other words, how can the court rule Obamacare unconstitutional when the states are voluntarily signing up for it?

According to the Idaho Freedom Foundation, the states would do themselves a favor by rejecting a state exchange, which would force the federal government to draft new legislation to fix problems with the language drafted as part of the Obamacare law, or simply repeal the bill all together. Because of a flaw in the law that gives tax breaks only to individuals in a state that have a state exchange, by not creating a state exchange, we are ensuring unequal treatment under the law and thus another constitutional challenge against the law—and this is a good thing.

The Cato Institute’s Michael Cannon says: “States thus have the collective power to deny the Obama Administration the legal authority to dispense more than a half-trillion dollars in new entitlement spending, to expose the full cost of the law’s mandates and government price controls…—simply by not creating Exchanges.”

That means even if the Supreme Court upholds the law as constitutional, we can still exert leverage as a state to force the law’s change or repeal.

Let me leave you with a few thoughts in summary:

• A recent New York Times article said “the success of President Obama’s health care overhaul … depends on the creation of … health insurance exchanges.”

• Exchanges are critical to enforcing the individual mandate, which we already declared unconstitutional by passing SB 148. SB 148 provided that a resident of New Hampshire shall not be required to obtain, or be assessed a fee or fine for failure to obtain, health insurance coverage. In other words, it nullified the individual mandate.

• Even if you wanted to create a state exchange, and I think we assuredly don’t, it is still too premature to jump into this state exchange game. As I understand it, there really isn’t a deadline for creating a state exchange, because even the states which have moved forward can’t meet the deadline.

• With a state exchange, we would be on the hook to pay for it– some $15 million to $30 million a year. We wouldn’t have to pay this amount if we defaulted to a federal exchange. A federal exchange would be no different than a state exchange.

• Creating a state exchange entrenches the law in New Hampshire, regardless of whether it’s ruled unconstitutional or repealed. President Obama is cheering on the creation of state exchanges, because each state that creates one makes his dream of implementing Obamacare closer to reality. As the Cato Institute’s Michael Cannon noted, “It is easier to repeal a theoretical bureaucracy than a real one.”

• Cannon also notes: “creating an exchange is not a hedging-your-bets strategy but a sabotaging-your-bets strategy.” This is because by creating a state exchange, we voluntarily agree to Obamacare and the price tag that comes with it. If we don’t create a state exchange, yes, we push the can down the road, but we at least maintain our options to determine what is the best course forward for New Hampshire. More than likely, Obamacare will either be ruled unconstitutional, repealed or drastically changed. In any of those cases, we do not want to have volunteered to create a state exchange.

• Cannon also emphasizes that there is no such thing as a “market-friendly” government bureaucracy. To verify his point, Mr. Cannon illustrates Utah’s “market-friendly exchange” created in 2008. When Utah politicians saw that health insurance was more expensive inside their exchanges than on the open market, they imposed a series of taxes on consumers outside the exchange to prop up the health plans inside it.

• While guaranteed issue and community rating—two things we already have in New Hampshire—are a part of the Act, also critical to the Act’s implementation are the exchanges and increase in medicaid eligibility requirements, two unconstitutional factors.

• Finally, I’d mention to you that the House has asked our Attorney General to join the 26-state lawsuit against Obamacare, which is now pending in the Supreme Court. If we truly want to do this, we should not adopt a strategy that will make us complicit in the law we’re trying to overturn. The U.S. Supreme Court will rule on this case in June, likely at least throwing out the individual mandate, but possibly the entire law. Any consideration of a state exchange that entrenches the law in New Hampshire is a bad idea.

• HB 1297 as amended by 2012-1786s would give the Insurance Department and HHS Department guidance as to how to interact with federal agents should the law move forward, but definitively says New Hampshire will not create a state exchange on its own and saddle the state with millions of dollars of costs while entrenching the law into state statute before its fate is decided.

Please review the following research concerning the merits of this bill:

• Manuse Plan Would Protect N.H. From Obamacare Exchanges (Josiah Center for Public Policy Studies)
  
• A State-run Federal Exchanges is the Worst of Both Worlds (Josiah Center for Public Policy Studies)
• Josiah Center for Public Policy Studies General Research on the Bill
  
• New Hampshire Republicans Continue Fight to Repeal and Replace Obamacare (N.H. Republican State Committee)
  
• N.H. House Bans State Exchanges (New Hampshire Watchdog)
  
• No Obamacare Exchanges (Cato Institute)
  
• Should New Hampshire Create a Health Insurance Exchange? (Cato Institute)
• Just Say No to Implementing Obamacare (Cato Institute)
• States Must ‘Just Say No’ to Federal Health Insurance Exchanges (Goldwater Institute)
• States Should Return Obamacare Grants, Pursue Own Health Care Reforms (Heritage Foundation)
  
• Flaw Gives Rise to Reject Health Care Exchanges (Idaho Freedom Foundation)
• Fixing Health Care in New Hampshire (RLCNH)

Sen. White, Dist. 9
Rep. Manuse, Rock. 5
April 23, 2012
2012-1786s
01/09

Amendment to HB 1297

Amend the bill by replacing all after the enacting clause with the following:

This bill clarifies the implementation of certain provisions of the Patient Protection and Affordable care Act. This bill prohibits the state of New Hampshire from planning, creating, or participating in a state health care exchange. The bill also establishes guidelines for interaction with a federally-facilitated exchange created for New Hampshire.