ACLU End-of-Session 2007 Legislative Review
This session was marked by politicking that some might say represented the best traditions of compromise, while others would say represented an abnegation of principle and good public policy-making.
For civil liberties, there were some positive achievements. But there were also some setbacks that are troubling – troubling because they show a disregard for core constitutional rights.
Here are highlights (click the link for details):
Innocence protection bill passed (S. 6 ). Passage of this bill must be considered one of the biggest wins of the session. Vermont has been one of only nine states not to have a post-conviction relief DNA access bill. DNA can be a powerful exoneration tool, as has been shown time and again by the national Innocence Project. This is the sort of bill that seems like it should have been a “slam-dunk.” Exonerated individuals even came to the state to testify about the mistakes that had been made in their cases. Their stories were riveting. But the bill was slowed by questions from law enforcement and criminal justice about details of the bill – retention of evidence, the conditions under which a convicted person can file for DNA testing, etc. In the end, however, the argument that mistakes can be made in criminal convictions won out.
Real ID shelved for now; fight continues in Congress with consideration of replacement bill (S. 183). Real ID is the federal law requiring states to standardize driver’s licenses, essentially creating a national ID card. We’d all have to go to a DMV office to have our identities proven by providing a birth certificate and Social Security card. These documents would be scanned and kept on file. All licenses would be required to have photos. License information would be shared among states. Early in the session, the House passed a resolution opposing Real ID. A similar resolution was introduced in the Senate, too, backed by a majority of senators. But the Senate Transportation Committee quickly pulled together – upon the request of the motor vehicles commissioner -- a bill not to oppose Real ID, but to take steps to begin its implementation. This was despite the fact that everyone, including the motor vehicles commissioner, agreed that Real ID is a bad idea. Thanks to some calls to legislators from civil liberties advocates, the Real ID bill sat for the rest of the session in the committee. Meanwhile, opposition to Real ID began growing in Washington as Congress members saw opposition building in the states. Sen. Patrick Leahy is one of the sponsors of an alternative bill that would solve many of the problems Real ID creates. We offered testimony before the Senate Judiciary Committee in early May in Washington detailing opposition in Vermont. Bring this issue up with your local legislators, or our members of Congress, if you see them at events this summer. Tell them Real ID should be scrapped and the Leahy-Tester-Sununu-Akaka bill substituted for it. Real ID is a federal mandate that’s expensive, intrusive, and could make national security worse by aggregating so much personal data in one place – a mother lode of information that would be irresistible to identity thieves.
Parental notification measure introduced following U.S. Supreme Court abortion decision, but is turned back. The U.S. Supreme Court’s decision on “partial birth” abortions was much anticipated. When the decision – banning “partial birth” abortions – came down this spring, abortion opponents quickly sprang into action to try to take advantage of the wedge created by the court. Here in Vermont, Rep. Duncan Kilmartin tried to have a “parental notification” measure tacked on to another bill. The effort failed, but it’s likely only the first salvo in what are likely to be new attempts to diminish women’s reproductive freedom rights. We’re working with a “choice coalition” to map out strategy to oppose those attempts in next year’s session.
State accepts court determination of right of discrimination investigations in prisons (S. 97). Earlier this year, the Vermont Supreme Court ruled that the Vermont Human Rights Commission has the authority to investigate claims of discrimination in the state’s prisons. The Department of Corrections opposed this authority, and even tried to convince the Legislature to rewrite statutes to exempt jails from discrimination investigations by the HRC. The Senate approved a bill stating that HRC has a right of investigation as long as other avenues of investigation have been pursued. The House, however, felt strongly that the Department of Corrections should abide by the court decision regardless of whether other investigations have been done. Other portions of S. 97 outlaw all tobacco in jails, and create a “no-contact” list for inmate communications such as mail. We were successful in limiting the authority of prison officials and others in adding names to an inmate’s no-contact list, arguing that restrictions on family communications require a court order. A last-minute effort by the Department of Corrections to add a $5 co-pay to certain prison medical services was turned back.
Campaign finance bill crafted to meet constitutional standards, but governor considers veto (S. 164). Last year the U.S. Supreme Court overturned Vermont’s campaign finance law. The Senate took the initial lead in crafting a replacement law, trying to structure new limits that would meet constitutional muster. Since the ACLU was a plaintiff in the campaign finance lawsuit, we spent a fair amount of time following the bill and explaining the grounds for the successful challenge – in hopes that the Legislature could avoid another court fight over the constitutionality of limits. The Senate Government Operations Committee pulled together a comprehensive bill that took our concerns into consideration – although I was careful to point out that there no firm guidelines or tests as to what is constitutional when campaign finance limits are imposed. Limits on candidate spending were eliminated, and an inflation adjustor to contribution limits was added – two actions the Supreme Court said were necessary. After Senate passage, the House Government Operations Committee dug into the bill, taking extensive testimony and allowing advocates to remain actively involved in discussions as the committee finalized the bill. Although both chambers passed the final version, the governor threatened a veto. The limits are complicated; you should refer to the bill itself for details. Public financing is not included; that was felt to be too big an issue to consider this year.
Medical marijuana use expanded; nursing home use protection statement dropped (S. 7). The first bill passed out of theSenate Judiciary Committee this session expanded the state’s medical marijuana law, and ultimately the House concurred. The quantity of marijuana a registered user can grow and possess is raised, the fee for registering as a certified user is lowered, and the definition of illnesses for which medical marijuana may be used is broadened. Stripped from the final version was language we had been successful in having added to the original bill stating that patient use of medical marijuana was not a violation of state nursing home regulations. Our concern in this area was spawned by the case of an MS patient in a Burlington nursing home who was registered to use medical marijuana but was prohibited from doing so by nursing home officials. State officials didn’t like this language, and lobbied senators, when the bill went to the Senate floor, to delete the language. I testified before the House Human Services Committee and asked that the language be restored. Once again, nursing home operators raised the specter of federal funding placed at risk – despite no evidence that federal authorities have ever sanctioned a nursing home for allowing a patient with a state license to use marijuana for pain purposes. Unfortunately, conflict between federal and state laws ensures that difficult situations for patients are likely to continue.
Discrimination based on gender identity outlawed (S. 51 ). This bill was fine-tuned and resubmitted after a gubernatorial veto last year. The law adds “ gender identity” to the list of classes protected from discrimination (the other classes are “race, color, creed, religion, age, disability, sex, sexual orientation, or national origin”). “Gender identity” is defined as “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth.” A second veto is not expected.
“Civil commitment lite” sneaks through conference committee at session’s end, and passes after House rules suspension (H. 148). The passage of the Senate Judiciary Committee’s “civil commitment lite” bill was perhaps the biggest disappointment of the session. Nothing about this bill was pretty – its flouting of usual constitutional liberties, its limited testimony in the Senate and virtually no testimony in the House, its pressure politics that included attachment to an unrelated bill, a conference committee face-off, no approval from the House committee of jurisdiction, and an adjournment eve suspension of the rules to push the measure through. What made Rep. Bill Lippert (House Judiciary chair) change his mind on the bill, he told the Democratic caucus, was the addition of a provision creating a new position in the Defender General's office to watch for due process violations of the system; money for the position is to be considered by next year's Legislature. The only good news about the bill is that legislators say this puts full civil commitment to bed in Vermont. The bad news is that constitutionally the “civil commitment lite” law is likely worse, constitutionally, than full-blown civil commitment. In actuality, it's a bill of attainder -- it targets a select group of people (“40-odd,” according to Senate Judiciary Chair Dick Sears) for special punishment. And the potential punishments are far worse than anything an offender received for the underlying crime. For example, a maxed-out released offender could be sentenced to life in prison for something as simple as going to college and not telling the Department of Corrections within 24 hours that he's done so. In the end, 14 brave House members voted against the bill. As Rep. Betty Nuovo said in explaining her vote, “When we take away the rights of some, we infringe on the rights of all.” A court challenge of this law, under both the federal and Vermont constitutions, is very likely.
End-of-life choices advanced, but defeated in emotional House vote (H. 44). Despite polls showing strong voter support for an individual’s right to make his or her own end-of-life choices, the Legislature again blocked protection of that right. The bill advanced further in this session than in any other session – out of committee and to the House floor. But the lobbying by opponents was fierce, and debate on the floor was intense. Since this wasn’t a “caucus” bill – meaning the parties didn’t pressure their members to vote one way or the other – votes were very mixed. In the end, the strength of the defeat was unexpected. The hope is that in time legislators will overcome their fear of a constituent backlash and vote the bill through. But that possibility will have to wait until the next biennial, in 2009.
Education finance reform bill skirts equity issues but will make school budgets tougher to pass (H. 526). This was the bill that became the focal point of the end of the session, and it’s the one that commentators, editorialists, school board members, administrators, and the general public are still trying to figure out. We followed the bill because we were concerned the equity provisions of the Brigham decision might be threatened. The final version doesn’t compromise equity, we believe, but it certainly creates a school financing system that’s more confusing than before. Details are still being worked out. Budgets of schools spending higher than the statewide average will require double votes – one for spending considered necessary because of inflation, and a second vote for anything beyond that. The law doesn’t take effect until 2009. It’s likely modifications will be made in the next session because so many questions about how the law will actually work were left unanswered by the conference committee members who worked out the compromise version. This was truly “back-of-the-envelope” legislating.
Prescription drug pricing bill shields confidentiality of prescription records but could face court challenge (S. 115). The main purpose of this bill is to “ensure confidentiality of patient prescription records.” But it contains a controversial provision that brought pharmaceutical company representatives to committee rooms to oppose it. The provision uses an “opt-out” mechanism to effectively restrict companies’ access to prescription drug records. Pharmaceutical companies spend about $70 billion a year marketing their products to doctors. The marketing is highly sophisticated, with the main goal to convince doctors to prescribe their companies’ drugs – often brand-name drugs that are more expensive than generics. A New Hampshire law that directly prohibited pharmaceutical companies’ access to prescription records was recently struck down in federal court on commercial free speech grounds. The Vermont law was retooled at the last minute to try to “immunize” it from a similar challenge.
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