CONCORD, N.H.—The Republican Liberty Caucus of New Hampshire reaffirms its objections to CACR 12, in spite of N.H. House Legal Counsel Ed Mosca’s op-ed in the Union Leader yesterday; namely, “Ed Mosca destroys RLCNH argument on ed funding amendment,” and would like to correct (for the record) the brazen inaccuracies that accompanied the attorney’s misguided hubris concerning the educational funding amendment that will be voted on tomorrow.

“The greatest weakness in Mosca’s argument is his failure to admit that CACR 12 would permanently enshrine the Claremont decisions in the state Constitution,” said Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire.

Mosca goes so far as to say the idea that CACR 12 enshrines Claremont is “bunk.” For evidence, he writes: “Under Claremont anyone can go to court and claim that the State has not met one or more of its court-defined duties…” He also says the court “forced” the Legislature to enact a statewide property tax in 1999, and if we don’t act now, “new state taxes” could be next.

“In these statements, Mosca misses the point of the whole debate entirely, which is this: The court does not have the constitutional authority to define duties for the Legislature, nor can it force the Legislature to institute a tax,” McKinney said. “Instead of recognizing that only the Legislature has the constitutional authority to create laws or new taxes for the People, he simply accepts the court’s attempt to unconstitutionally grab power from the Legislature. His perpetuation of the assumption that the court’s decisions were correct not only undermines every point that he makes in his rebuttal, but also runs contrary to much of his own legal scholarship on this issue over the past 18 years.

“And contrary to Mosca’s assurances otherwise, CACR 12 will enshrine Claremont because it forces the state Legislature to take on the very responsibilities that the Claremont decisions demand that it take on,” McKinney added. “These Claremont decisions are illegitimate and unconstitutional, but the state Legislature has so far been unwilling to point out this plain fact. Doing so should be its next move.”

Mosca also claims that the leadership of the RLCNH is “living in a fairy-tale world,” arguing that legislators must consider what “a real Legislature in the real world would do in response to ... a court decision.”

“I encourage Mosca to join me in the real world, where we consider all the consequences of constitutional amendments,” said McKinney. “Let’s also consider what future Legislatures will do in response to a gift of full power and authority over all educational funding and curricula standards. Suddenly when we consider the other side of the coin, the picture is not so pretty for advocates of limited government.”

Mosca also asserts: “The first sentence of CACR 12 cannot be read in isolation from the second sentence. ...The first sentence defines the responsibility. The second sentence defines the Legislature’s discretion in carrying out the responsibility.”

“This statement is not entirely accurate,” McKinney said. “The second sentence of CACR 12 actually modifies the first sentence of the amendment by reinforcing the centralization of power over educational funding and curricula decisions into the Legislature and granting entirely new powers to the Legislature that it never had before.

“The fact is that the first sentence of the proposed amendment puts in place, for the first time in New Hampshire’s history, a ‘responsibility’ for the Legislature ‘to maintain a system of public education’ and even ‘mitigate local disparities in education opportunity and fiscal capacity’,” McKinney added. “Any fair reading of that sentence indicates that the Legislature would be required to redistribute wealth.”

The second sentence of CACR 12, which Mosca argues will protect us from the extraordinarily harmful language of the first sentence, says: “the Legislature shall have the full power and authority to make reasonable standards for elementary and secondary public education and standards of accountability and to determine the amount of, and the methods of raising and distributing, state funding for public education.”

“In fairness to Mosca, the most generous reading of the second sentence may take some power away from judges, but activist judges would never be deterred by this language, and we cannot predict what a future court makeup will be,” McKinney said.

“However, it is madness to suggest that the second sentence will undo any of the damage caused by the first sentence,” McKinney said. “This amendment sets up a permanent ‘begging contest’ throughout the state, with cities and towns vying for more and more state dollars to satiate their perceived local demands. The continuous pressure will create ever more demands for spending at all levels, which paves the way for ever higher taxes.

“Ironically, a broad-based tax is the very thing the Republican leadership is trying to avoid, but inevitably this amendment will lead us there,” McKinney added. “To truly reverse the Claremont decisions, any constitutional amendment, however unnecessary, should devolve decisions about educational funding and curricula back to the districts, towns and parents of students, where they belong. Perhaps the best solution would be to simply tell the court to ‘pound sand’ the next time it attempts to invent constitutional law.”


About The Republican Liberty Caucus of New Hampshire
The Republican Liberty Caucus of New Hampshire, a state chapter of the national Republican Liberty Caucus, was launched in December 2004 to promote the ideals of limited government, individual liberty, personal responsibility, free enterprise and adherence to the N.H. and U.S. Constitutions among Republican Party officials and throughout the state by identifying and supporting candidates sympathetic with the organization’s ideals, and by supporting, through public education and outreach, initiatives in the N.H. Legislature that further these ideals. For more information about the RLCNH, please visit www.rlcnh.org.