Vermont Newsguy

by Jon Margolis

Is this any way to elect a Governor?

December 30, 2014

On January 8, the second Thursday of the New Year, the Vermont General Assembly, aka the Legislature, is scheduled to perform an unusual and somewhat mysterious act:

It will elect the governor.

Unusual and mysterious, but by no means unprecedented. The legislature has performed this task 23 times since Vermont became a state in 1793, most recently in 2011, when it did what it is likely to do this time: choose Peter Shumlin to be the governor for the next two years.

Then as now, Shumlin got more votes than any other candidate in the previous November's election. Then as now, he didn't get a majority, and according to Vermont's Constitution, when no candidate for governor (or lieutenant governor or Treasurer) gets a majority of the popular vote, the Legislature makes the final decision.

And the Legislature has been given this responsibility, this decisive role, this awesome power, because"because"well, no one is quite sure what's supposed to follow "because" here.

As the King of Siam might have told Anna, "is a puzzlement."

"No records were kept of the 1777 Constitutional Convention at Windsor." noted retired State Archivist Gregory Sanford. "So we are all left to speculate."

As Sanford noted, holding constitutional conventions behind closed doors and with no official transcript of the proceedings was not unusual in the late 18th Century. Some ten years later, the  federal constitutional convention in Philadelphia was also held in camera (not on camera; photography was just being invented) and with no official account of the event, a policy, Sanford suspects, "inherited from England's concept of parliamentary privilege."

(A challenge, one would think, to advocates of interpreting the U.S. Constitution according to the "original intent" of its drafters. Without knowing what they said, knowing their intent would seem difficult if not impossible).

That 1777 Constitution was not for the State of Vermont. There was no such thing. It was for the Republic of Vermont. That constitution actually referred to Vermont as a state, but it was not recognized as one by Congress until 1791. After Vermont was admitted into the Union, the constitution was re-written in 1793, with that peculiar provision for choosing a governor transplanted into the new version.

Peculiar does not mean unique, at least not quite. Right now, one other state has a similar provision for selecting a governor if no candidate gets a popular majority. That state is Mississippi, not one most Vermonters consider similar to their own.

The Mississippi system is not identical, though. Down there, only the House of Representatives makes the final choice between the two top vote-getters, by "viva voce vote, which shall be recorded in the journal, in such manner as to show for whom each member voted."

In Vermont, both houses, "by a joint ballot." (the Senate and House meeting as one) choose any one of the three leading candidates, and they do it by secret ballot. Legislators may " but need not " disclose for whom they voted.

As for where the 1777 Vermont drafters got the idea for this provision, the answer seems to be: Pennsylvania.

Such at least is the plausible assessment of Eric Davis, the emeritus professor of political science at Middlebury College.

"Needing a constitution for the new republic, and not wanting to write one from scratch, they looked at the new post-independence constitution of Pennsylvania and decided to copy many of its provisions." Davis said.

Though the precise motivations of the constitution-drafters in both states are lost in the mists of time, Sanford and Davis suggest two likely explanations.

One is that political parties had not yet developed. Ambitious, prominent (and usually wealthy) men (the non-men in those days couldn't vote, much less run and serve) would simply put themselves forward as candidates So it was common to have more than two major candidates for governor, making it less likely that one of them would get a majority.

The second reason was, as Davis noted, that in the late 18th Century, "Americans were very skeptical about executive power.  Executives were seen as carrying with them the potential of tyranny. The Pennsylvania-Vermont system of having the legislature elect the governor was thought to prevent a tyrannical executive from getting elected through demagogic appeals."

No wonder. Back in those days, "executive" was all but synonymous with "royal." The executives with whom 18th Century Americans were familiar were kings (or, between 1558 and 1603, a Queen, Elizabeth I). They ruled by divine right, and though, at least in England, their power was no longer absolute, it was considerable, and not infrequently tyrannical.

That fear of "demagogic appeals" indicates that the original drafters also feared too much democracy. That fear was also widespread in 18th Century America. In the 1789 Federal Constitution, U.S. Senators were elected by their state legislatures, not directly by the people. The Founders created a far more elitist version of democracy than the one Americans currently enjoy (and complain about).In most states, men (and usually only white men) could vote only if they had a certain amount of property.

Not in Vermont. Those guys in Windsor did not copy the Pennsylvania constitution word for word. The took out the property qualification. In Vermont, even the destitute could vote, and "at least in theory " so could the non-whites.

But that may have only enhanced the concern over demagoguery. Sanford said he suspected that Vermont's founders "had great faith in representative democracy, as opposed to pure majoritarian democracy." That could explain, he said, why 'they created a unicameral legislature with the representatives kept close to the people by, among other means, annual election."

As the two party system evolved in Vermont and elsewhere, fewer elections were won by mere pluralities. When that does happen, most states just stick with the plurality winner. But Georgia and Louisiana hold runoff elections if no candidate for governor or U.S. Senator gets a majority of the popular vote. And as a residue of the days when the Deep South was solidly Democratic and victory in that primary was 'tantamount" (a word almost never used in any other context) to winning in November, eight states (including Georgia and Louisiana) hold runoff elections if no one wins a majority in the primary. North Carolina and South Dakota hold primary runoffs, too, but only if no candidate breaks a 35 percent threshold.

Vermonters could, of course, amend their constitution. But that's not easy. It's probably harder than in any other state. The process can begin only once every four years, and it can only begin in the Legislature, where the Senate must pass a proposed amendment by a two-thirds majority, and the house concur by a simple majority.

Then both houses in the next Legislature (after an election) have to re-pass the amendment, by a simple majority in both houses this time, before it goes to the voters in a referendum.

No surprise, then, that amendments are rare.

In modern times, the Legislature has always chosen the gubernatorial candidate with the statewide plurality. The last time it did not was in 1853, which was, politically speaking, in another world. In almost every case in which there was no a majority winner, the runner-up has effectively dropped out and urged the lawmakers to choose the top vote-getter.

Republican Scott Milne has not, and continues to hope that the legislators will make him governor. Because plurality winner Shumlin is a Democrat, as are most legislators, and because he got the most votes, he is widely expected to prevail on January 8. But Milne's perseverance has treated (or subjected") Vermonters to another political theory debate.

Milne and his supporters argue that representatives ought to represent " to vote for the candidate who carried their districts. Shumlin and his supporters point out that more Vermonters chose him than any other candidate.

Obviously, legislators ought to take into account the wishes of their constituents. There is a powerful incentive for them to do so; elected official who regularly ignore the wishes of their constituents are likely to find themselves un-elected ere long.

But the governor does not govern one House or Senate district. He governs the whole state, making it appropriate for lawmakers to consider carefully who won the statewide plurality.

Then there is the argument that legislators ought to use their own judgment and vote for the candidate they think will do the best job. This point of view was most famously and most eloquently expressed around the time Vermont's constitution writers met in Windsor by the conservative Anglo-Irish political philosopher Edmund Burke.

A representative, Burke wrote, owes his constituents "his unbiased opinion, his mature judgment, his enlightened conscience,. ...Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion"

Once chosen, Burke said, the representative "is not member of Bristol, but he is a member of Parliament"

He meant Bristol in southwestern England, not the smaller one in Addison County. But the point holds, and the likelihood is that come January 8, the winners will be Edmund Burke and Peter Shumlin.

Does Vermont Really Need a Lt. Governor?

October 30, 2014
Three questions and answers about Vermont's lieutenant governor:

#1 - Who will it be

Incumbent Republican Phil Scott, Progressive/Democrat Dean Corren, or " theoretical possibility " Liberty Union's Marina Brown.

#2 - What does Vermont's lieutenant governor do

Not much. He or she becomes acting governor when the governor is out of state, presides over the Senate (voting only if the vote will be decisive), and serves on the Senate's Committee on Committees.

Oh, and imprudent though it is to say, waits around for the governor to die, resign in disgrace, or decide to leave public life and seek inner peace in a monastery or the wilderness.

#3 - Does Vermont need a lieutenant governor

Obviously not. Five states, including neighboring New Hampshire and nearby Maine, manage just fine without one. In both those states, the Senate President becomes governor should the office become vacant. In Oregon, West Virginia, and Wyoming, the Secretary of State takes over.
And in Tennessee and West Virginia the president (called 'speaker" in Tennessee) of the State Senate is the lieutenant governor.

In fact, if the state did abolish the office " unlikely a prospect though that may be " Vermonters would hardly notice. In an age of cell phones and the Internet, the governor can govern from afar. Any senator can preside over the chamber (in only about half the states does the lieutenant governor play that role), and there are various mechanism for finding that decisive vote or creating a Committee on Committees comprised solely of senators.

If Vermont got rid of its lieutenant governor, the state would save a little (very little) money, free up a spacious office on the first floor of the Statehouse, and have one less line on the ballot every two years.

Needless to say, this is not about to happen. And there are problems in systems that lack a lieutenant governor. New Jersey did not have one in 2004 when Gov. Jim McGreevey was forced to resign. As the Constitution then provided, Senate President Richard Codey (a Democrat like McGreevey) became acting governor.

But he also continued on as senate president, so he was "convening legislation in the morning and signing bills in the afternoon." said Julia Hirst, the Executive Director of the National Lieutenant Governors Association, creating constitutional complications. Two years later, New Jersey adopted a constitutional amendment creating a lieutenant governor.

In New Hampshire, though, the senate president has to leave the legislature on becoming acting governor. And Mane's constitution calls for holding a new election soon after the senate president fills a gubernatorial vacancy.

Another reason people would hardly notice the absence of a lieutenant governor is that Vermont's "lite gov." as the often is often called, is very weak.

No, that's not a condemnation of Phil Scott. It's a description of the office as designed by the Constitution. In some states, said Julia Hirst, either the constitution or statute grants the lieutenant governor "a dual duty, head of an agency, or a cabinet slot, or chair of a commission." Vermont's, she said, is one of the few states in which the lite gov has no role except"lite gov.

Not that lite govs in the other states are always considered necessary, either. In Rhode Island in 2010, a candidate who pledged to abolish the office got 40 percent of the vote. And the old vaudeville line that a lieutenant governor's job is to "get up, read the paper, see if the governor is dead, if not, go back to sleep," can get a laugh nationwide.

In this state, lieutenant governor is a part-time job. Lt. Gov. Howard Dean continued to practice medicine as Dr. Howard Dean. He was seeing a patient when one of his assistants told him that Gov. Richard Snelling had died, and Dean was now governor. That was in 1991. Dean hasn't seen a patient since.

Befitting a part-time job, the salary is $63,701. Higher than the typical worker's pay, but far below the governor's $150,067 or the $95,156 for the other constitutional offices. Even the state agency heads earn substantially more than the lieutenant governor.

Scott still helps run his company, Dubois Construction Company, often going to its Middlesex office early in the morning before starting his public duties, and returning in the evening. Sometimes, he said, he even mops the floor.

Corren said that if he's elected he"d still devote some of his time to Verdant Power Company, the New York based energy design firm he serves as chief technical officer, though he would have "no day-to-day responsibilities."

And then there's the staff. The lieutenant governor's office consist of the lieutenant governor and a staff of "(are you ready")"one (1). As an institution, Vermont's lieutenant governorship has limited clout. So limited that it seems plausible that the most outstanding "or at least the most visible " deed ever executed by a Vermont lieutenant governor was accomplished by Hollister Jackson during the great hurricane of 1927. He drowned.

Neither Scott nor Corren disagrees that the office one holds and both seek is constitutionally weak. Scott, in fact, jokes that he gets lots of mail from constituents "who don't know how much power we have."

Meaning, he acknowledged, how little power the office has. These letter-writers think he can handle their complaints because he has 'the Number two (license) plate."

Sometimes he can handle them, he said, but it's because of his personal relationships with agency officials, not the intrinsic power of his office.

To both candidates, though, the official weakness of the office is more of an opportunity than a shortcoming, an opportunity each would exploit in his own way.

The Constitution, Corren said, 'sets the basic minimal duties" of lieutenant governor, but "it doesn't set a maximum. So after you've discharged those minimal duties'the portfolio is really open.

The lieutenant governor, Corren said, "has potentially the freedom to do much, much more, and that's the kind of role that I would play, really stepping up the activity of that office"

Corren's stepped up activity would be as an advocate, most immediately in support of Gov. Peter Shumlin's universal health care plan, later moves to combat climate change and help create jobs.

How would he do that from an office that has little official power"

"The mechanism is hard work." he said.

Scott's approach to the job is less issue-oriented and more concerned with the procedural duties of the office, especially presiding over the Senate. As a former senator himself, Scott said, he finds that he can often help keep the body running smoothly.

"It goes along with the Senate environment at large." Scott said. "People tend to try to get consensus."

Because consensus-building comes naturally to him, he said, he's able to contribute to that process.

Vermont is one of only 18 states in which the lieutenant governor is not elected on a ticket with the governor. That means it is possible " and not that rare " that the two top officials will be from different parties, as they are now.

The downside here is that the voters could elect a governor with one set of policies but end up with one whose positions are quite different. That didn't happen when Dean replaced Snelling. Snelling was a moderate Republican and Dean (back then, if perhaps no longer) was a moderate Democrat. Were Scott to replace Shumlin, the difference would be a bit more pronounced. Though Scott is on the moderate side of the GOP spectrum, his policy positions are clearly to Shumlin's right.

Still, Shumlin has invited him to join cabinet meetings, and the two men, who served together in the Senate, often co-operate.

Whoever wins, Vermont will continue to have a lieutenant governor, for better and for worse. As Corren said, "The Constitution gives us one, and we"re not going to take it away. If you have a limb as part of your body, it behooves you to exercise it so it doesn't wither away.

Interview with Phil Scott. Republican for Lt. Governor

Interview with Dean Corren, Progressive/Democrat for Lt. Governor

Can Vermont's state colleges survive?

July 11, 2014

The Vermont State Colleges have a new chair of the Board of Trustees. Before the year is out, a new Chancellor will be occupying the Colleges (relatively) new Montpelier office, and with a little luck the system will have a new contract with its professors.

Now all they need is more students, more money, and a plan to ensure their survival.

And that's the easy part.

Because to devise that plan, the Colleges system (a single entity with five separate colleges and one plural name) first has to decide what it is, what it can be, and what it wants to be.

Or as the former (since July 1) chair Gary Moore put it, "we need to determine where the state colleges are going to go and what they"re going to do, and equally important, what things they can't do."

For all their troubles - falling enrollment, skimpy help from the State's treasury, uncertainty if not confusion about their mission - the State colleges will not die. They're too valuable, more valuable than most Vermonters probably realize, which is part of their problem. The State Colleges are where most Vermonters go to college. Right now, roughly 10,800 of them go to one of the three liberal arts colleges (at Castleton, Lyndon, and Johnson), Vermont Technical College, or the Community College of Vermont.

That's about two-and-a-half times more than the 4,200 or so Vermonters at the University of Vermont.

True, the majority of those State College students are at the system's fifth "campus," the Community College of Vermont, which has no single campus at all, but conducts classes at 12 locations around the state. Almost all CCV students are part-timers, as are all of their teachers (CCV is the only college in the country with no full-time faculty).

So as the term is commonly understood, these students are not "going to college." as are those who enroll at Castleton or Johnson State. They"re not living in a dormitory, hanging out at the college snack bar, playing (or rooting for) the school teams, or participating in other extracurricular activities.

They"re just taking a class or two.

But many of them end up transferring their CCV credits to one of the system's other schools, or to UVM, or elsewhere.

Those CCV classes cost $239 per credit, or $717 for a typical three-credit class. That's a lot cheaper than going to Johnson State, where a student taking a 15-credit load for the $9,600 in-state tuition is paying $640 a credit.

On the basis of tuition alone, UVM is actually cheaper than Johnson (or Lyndon and Castleton, where the tuition is about the same; Vermont Tech's is about $2,000 more). But many more students at the State Colleges can live at home or in inexpensive off-campus apartments. The State Colleges are the cheaper alternative, meaning they are not only where most Vermonters go to college, they are especially where most students from lower-income families go to college.

But still apparently too expensive for many students and their families to afford. That's one reason there are empty spaces at Johnson, Lyndon, and Vermont Tech, and Tim Donovan, the soon-to-retire Chancellor of the system, insists that this is no accident. Vermont, Donovan said, has "chosen as a state, maybe inadvertently." to keep tuitions high.

Tim Donovan, outgoing Chancellor of the Vermont State College system, talks with Jon Margolis about the status of higher education in Vermont

When the system began operating in 1962, he said, half the cost of educating the students came from state funds. Now the state puts up only18 percent, the 49th lowest percentage in the country. So low is the state's contribution, Donovan said, that if the Legislature increased it by half, Vermont's ranking among the states would rise only to 47th.

Vermont's "public policy choice." he said, "makes public higher education more expensive (to the student) than it is in most other states."

No problem, then. Just get the Legislature to funnel several million more dollars into the College system (up from this Fiscal Year's $24.5 million), reduce tuition, and all the colleges will be full to capacity.

Not hardly.

To begin with, enrollments are not falling just because there aren't enough students with money. There are not as many potential students at all, with or without money. Non-Hispanic white Americans are not having many children these days. And who else lives in Vermont, New Hampshire, northern Massachusetts, or eastern Upstate New York, home to almost all Vermont State College students"

"Throughout the Northeast, we are halfway through a projected eight-year decline in the number of high school graduates." said Chancellor Donovan.

Besides, despite passage of a bill calling for a study about increasing the state's share of higher education spending, the legislature is not going to funnel several more millions to the Colleges, and officials know it.

"We have to be realistic, 'said Martha O"Connor, the new chair of the Colleges Trustees. "The state has so many people looking for money for so many situations. We can't expect the state to bail us out of this. We can hope that they work with us looking for a permanent solution."

But neither O"Connor nor anyone else knows what the solution would be. Nobody at the Colleges pays much attention to the occasional suggestion that one college- usually either Lyndon or Johnson State, which are only 52 miles apart - could be shut down completely.

Without even getting into the political near-impossibility of such a move (one reason F. Ray Keyser became the first Republican in more than a century to lose the governorship was his plan to close Lyndon State), it would wreak economic havoc; all four campuses are vital to their local economies. Nor is there much reason to suppose that if one of them was eliminated, its students would switch to the other one. Many of those students would probably leave college altogether.

Cost-cutting doesn't appear to be a very productive option, either, because the Colleges seem not to be over-spending. Even the heads of the unions - United Professionals for the faculty and the Vermont State Employees Association for non-professional staff - don't claim that the Colleges are guilty of building up a bloated administrative bureaucracy.

The unions have their complaints. Castleton Professor Linda Olsen, the head of the United Professionals unit, said the union wanted the Colleges to "be hiring full-time faculty instead of relying heavily on part-time faculty." and that faculty salaries are "far below the national averages."

But nobody at the Vermont State Colleges is pulling in the big bucks. According to an article in the Chronicle of Higher Education last year, Donovan was the lowest-paid head of a public college or university system in the country in 2010.

Like many another public higher education system, the State Colleges could also try to increase the number of out-of-state students, who pay roughly twice the tuition that Vermonters pay.

But this would seem contrary to the mission of providing a college education to Vermonters who cannot afford the more expensive schools. Donovan said that a greater percentage of young Vermonters finish high school than in almost any other state, but a smaller percentage go on to any college.

Roughly 7,000 young Vermonters graduate from high school every year, he said, but only 60 percent of them go to college at all, and half of them leave the state to do so. He called that an extraordinary waste of potential human capital.

There is room for more students at the State Colleges, and Martha O"Connor thinks better programs will attract more students.

That seems self-evident, but some worry that if "better" simply means, "more marketable." that approach poses a danger to the Colleges. Because "more marketable" in turn often means "more vocational" - classes designed to train students for particular professions at the cost of a traditional liberal arts education.

David Plezak, an Associate Professor of Political Science at Johnson State, who once taught at Lyndon State, said he worried that 'short-term thinking" based only on the need 'to put tushes in the seats" could end up giving short shrift to classes in the arts, the humanities, the social sciences, and even the pure (as opposed to applied) physical sciences.

Gary Moore, who will remain on the Board until February, said he hopes that doesn't happen. "I strongly feel we need to have well-rounded, well-educated students." he said.

O"Connor did not seem as concerned, but said this factor - like all the other questions facing the Colleges - had to be examined in context.

"We can't just look at this piecemeal." she said. "We can't just pick one thing and say, that's the problem. We have to look at the whole picture."

She's looking forward to doing that. "I"m not despairing over anything." she said.


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