Thursday, July 7, 2011

Remembering Steve Mount

The Williston Observer staff is deeply saddened by Steve Mount’s sudden passing on July 2. Our heartfelt condolences go out to Steve’s family and friends. We encourage our readers to send contributions to the college education fund set up for his three children. Donations can be made to Mount Family Education Trust, 325 South Union St., Burlington, VT 05401.

In his nearly four years as the columnist for “Liberally Speaking,” Steve stayed true to himself and our readers about his beliefs and dedication to the U.S. Constitution. He wrote timely, well-researched columns that helped everyone, whatever their political persuasion, to think more deeply about the issues facing our country.

He was also proactive. In May, when terrorist leader Osama bin Laden was killed by U.S. Navy SEALs, Steve discarded a column he already wrote so he could provide thought-provoking commentary on the monumental incident.

Thank you for reading and Steve, thank you for writing.

Thursday, June 16, 2011

In defense of the closed session

In defense of the closed session

This column originally appeared in the Williston Observer on June 16, 2011.

Recent reporting in the Observer brought to light the policy of our Development Review Board to go into closed session when deliberating about its decisions.

The policy, done in accordance with Vermont open government laws, pre-dates all current DRB members. Quoting our reporting, the closed sessions were "justified by [board] members as necessary to an effective discussion and decision-making process."

Government, in the final analysis, is us. We, the people, select our representatives to various governmental bodies, either directly or indirectly. The members are responsible for the public trust and responsible to the public at large. In a perfect world, all hearings, deliberations, and votes would be public.

Because our institutions are human ones, they are subject to the ill effects of bias, prejudice, and favoritism. The more open government is, the lower effect these human frailties will have on the decisions come to by the bodies. If a board member is actively prejudiced against an applicant, a pattern will emerge that any one can see, because any one can watch. Mitigating the effects of such human failings is one of the best aspects of open government.

However, openness can also affect frankness. As Burlington DRB Chair Austin Hart was quoted in our article, "It's a lot harder to say 'no' when they are sitting right in front of you."

And there's the rub. If the DRB should say no to a project or request, but board members just cannot quite summon the courage to do what they think is right ... well, that is where the benefit of the closed session comes in. The members of the DRB have to make judgement calls based on the evidence and testimony given to them. The members must then talk amongst themselves to decide if the project before them meets the town's plan.

When I think of how this process works, I think immediately of a judge or jury in court. It would be unthinkable for a new deliberation process to emerge, where the judge goes to chambers to make a decision and each step of the way, the lawyers, defendant, plaintiff, and even the public could weigh in.

Similarly, if a jury room was populated not only by the members of the jury, but also the parties in the case, the public, the media - no one would think that this was a good idea. The things a jury hashes out in its deliberations, the statements made by jurors, the arguments... these are not for public consumption.

I'm a big advocate of open government. I want to be able to access journals and minutes of deliberations quickly, easily, and freely. I want to be able to watch congressional hearings live on television or on the Internet. I want to be able to sit in the back of the room during a school board meeting. I want to see the testimony before the DRB live or on public access cable.

But I don't think that every single step in the process has to be open to the public as it happens. There is a practicality to a closed meeting that just makes sense to me.

That having been said, I think that closed meetings should have inviolable rules - and I should note that some of these rules are currently in effect, according to town bylaws. Minutes should be taken - not a word-for-word journal, but minutes that can be referred to by the board and the public in the future. Decisions of the board should be explained in writing - in the bylaws, this is referred to as a "record of decision that conveys the DRB's findings of fact and conclusions of law." Members of the board should be required to back up their closed-session vote in public, just as a jury may be polled following the announcement of its verdict in a case.

Open government is a crucial and important part of our democracy. However, government must, at the same time, be effective. If to be effective it must be closed for certain steps in the process, so be it.

Thursday, June 2, 2011

Time to Reevaluate the Patriot Act?

Time to Reevaluate the Patriot Act?

This column originally appeared in the Williston Observer on June 2, 2011.

In 2001, in the wake of the September 11 terrorist attacks on U.S. soil, the Congress worked to put new provisions into place in U.S. law, designed to combat terrorism. The result, the USA PATRIOT Act of 2001 (or just "Patriot Act"), was passed in the House with a wide majority and by an overwhelming 98-1 vote in the Senate. President George Bush signed the bill into law on October 26, 2001.

The Act was seen as necessary by many, but was condemned by others for overstepping constitutional bounds. Constitutionality, however, is often in the eye of the beholder.

The Act has ten titles, changing U.S. law in several different areas: domestic security, surveillance, money laundering, border security, terrorism, and intelligence gathering. There was also a title providing relief to victims of terrorism and their families, and a final title for miscellaneous provisions.

Some of the provisions make basic common sense. For example, the Act required various government bureaus and agencies to share information about immigrants and foreign visitors; it required the government to invest in technologies to improve background checks on incoming visitors; and an increase in the number of border patrol agents.

Some provisions, however, were not so widely supported.

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." This quote, often attributed to Benjamin Franklin (but with an uncertain provenance), was reproduced often as the Patriot Act was being voted on, and again as its provisions have been renewed.

Title II of the Act, in particular, ruffled the feathers of many civil libertarians. This title involved enhanced surveillance, authorizing and even requiring many new surveillance techniques, such as the loosening of requirements for wiretaps and broad requirements for Internet service providers to supply identifying data and logs to law enforcement officials. One provision, allowing a so-called "sneak and peek wiretap," was struck down as unconstitutional in 2007.

This topic is of interest now because last week, the Congress renewed, and President Barack Obama signed into law, some provisions of the Patriot Act that were scheduled to sunset. The three provisions of the Act were originally set to expire in 2010, but were temporarily renewed in February 2010.

The three provisions allowed: a roving wiretap that covered several phones with one warrant; seizure of records and property for terrorism-related cases; and surveillance provisions for "lone wolf" persons, non-U.S. citizens who might be involved in terrorism.

Without the renewal, the provisions would have expired, but most of Congress and the President agreed that that renewal should happen. The renewal, however, was not a rubber-stamp. One Senator, in particular, was not so keen on the renewal, and it is here that this Senator and I may have our only points of agreement.

Rand Paul, Republican Senator from Kentucky, used procedural tactics to force a delay in the Senate's vote on the renewal, a tactic I generally disagree with, but which in this case, forced the Senate to take a needed step back to think if these provisions were really necessary.

In a deal reached with Senate leaders, Paul did allow the vote to move forward. The deal wrote in some 2nd Amendment protections, and the three provisions listed above were renewed until 2015.

Now that we are nearly ten years out from the attacks, though, I think it is time that we take a close look at all of the provisions of the Patriot Act. The protection of 2nd Amendment rights is important, but more important to me are the protection of 1st and 4th Amendment rights.

Several provisions of the original Patriot Act have been struck down as being in violation of 4th Amendment rights. A full review of the Act should be undertaken, provisions that make sense should be renewed, and any that are on shaky constitutional grounds should be either modified or scrapped completely. It seems like a tall order, given the other priorities the Congress has, but the protection of civil liberties is, or should be, paramount.

Thursday, May 19, 2011

One Step Closer to a National Popular Vote

One Step Closer to a National Popular Vote

This column originally appeared in the Williston Observer on May 19, 2011.

The Electoral College is a unique feature of our system of electing a national leader. After two centuries, though, is it time to do away with the College?

The Electoral College is the body that actually elects the President and Vice President. When we, the people, vote for a presidential candidate, we are not actually voting for a single person. We are, instead, voting for a slate of electors. The chosen electors meet on Elector Day, sometime in December following the general election, and cast their votes for the two offices.

Each state has a number of electors equal to its congressional representation. With one seat in the House and two seats in the Senate, Vermont has three electors. Electors are selected by each party fielding a presidential candidate. The electors are typically party loyalists, pledged to cast their vote for the party's choice for President and Vice President.

The Electoral College was designed, in 1787, for an entirely different America. Time, however, revealed some fatal flaws in the Electoral College system, and though the most egregious flaws were fixed long ago, it may be time to take another serious look.

Originally, each elector cast two votes for President. The person with the most votes became President, and the runner-up became Vice President. This system would have worked fine if people did not begin to divide themselves into parties - but they did, almost immediately.

In the election of 1800, the Democratic-Republican party ran Thomas Jefferson and Aaron Burr against Federalists John Adams and Thomas Pinckney. Each dutiful Democratic-Republican elector cast his votes, toeing the party line: one for Jefferson and one for Burr. In the end, both Jefferson and Burr got 73 votes, even though the plan had been to elect Jefferson. Someone forgot to tell at least one Democratic-Republican elector to vote for someone other than Burr. The resulting fray, where the election was decided in the House by a Federalist majority, lead to the 12th Amendment, that specified separate ballots for the two executive positions.

The 1876 election of Rutherford Hayes was a partisan mess. Hayes's opponent, Samuel Tilden, won a narrow majority of the popular vote, but when it came time to count the electoral votes, the results were not quite so clear. Hayes and Tilden were both close to the needed majority, but many electoral votes were challenged. It took a congressional commission, and the end of military occupation in the post-war South, to assign enough votes to Hayes.

Most of us remember the controversy between George Bush and Al Gore in 2000. Gore had a narrow lead over Bush in the popular vote, beating Bush by just over half a percentage point. After much controversy in several states, and Florida in particular, the electoral vote went to Bush, 271-266.

The National Popular Vote movement, which aims to make the winner of the popular vote the President without concern for these electoral college vagaries, got a boost this year when the Vermont legislature threw its support behind the plan. The NPV movement looks not to amend the Constitution, but to work within its confines.

It seeks to create a compact of sorts, accumulating support one state at a time, until at least enough states to make up the majority of 270 electoral votes sign on. In states where NPV is enacted, the state's law would change to direct its electors to cast their votes for whichever candidate won the national popular vote, without regard to the candidate's vote tally in that state.

Including Vermont's three, NPV now has 77 electoral votes from eight states to its name.

I'm a fan of working within the system, and would like to see the NPV plan come to fruition. I am dubious that electors could be punished for not voting with the national popular vote (the Constitution gives the electors wide latitude in their votes), but it would not be difficult to avoid faithless electors with proper vetting.

I do think that losing the Electoral College would be a sad thing. It is quirky, uniquely American, and an avenue into learning more about where we came from as a nation. But despite the value of these things, having a simple, straight-forward, and predictable system, based on the popular vote, seems like the best way forward for our democracy. Hopefully, Vermont's support for the compact will nudge other states to support NPV, too.