Cook On Concord: Senate returns and wades into complex bills

The Legislature came back from vacation the first full week of March, and the House proceeded to a very full schedule of three “session days” during which members dealt with committee recommendations on a large number of bills.

The House and Senate also continued to hold hearings on bills that have not yet been considered in committee and to consider those which had been passed by the other body already.

In the Senate Public and Municipal Affairs Committee, House Bill 203 – which seeks to prohibit the use of certain “tracking devices” on merchandise and establishes a commission to study this complex issue which is largely the result of changes in technology.

The House considered the bill as a “retained bill” for quite a while and made changes to it. A large number of industry groups — including bankers, credit card companies, manufacturers, retail merchants and cell phone companies — realized after the House passed its bill that they would be affected by it were it to pass. Therefore, testimony on the bill was extensive, drew “experts” from around the country on technology and commerce, and the senators on the committee had a lot to consider.

While many of the opponents of the bill would rather have it defeated, certainly the concept of a study to get to the bottom of all of the ramifications of the technology and proposed regulations was preferable to the bill as written.

Many people wondered if the bill was not a reaction to perceived possible threats which might come about in the future if this technology was used incorrectly rather than a present danger.

Around the corner at the Senate Finance Committee, senators considered a number of bills, including a proposed tobacco tax, SB 406, ostensibly proposed to produce $30 million of revenue. It was not just a straight tax increase on cigarettes. It involves taxing all of the manufacturers of cigarettes, and giving those who already pay a credit against the tax collected. The credited payments involved would be those made by certain manufacturers under the Master Tobacco Settlement entered into some time ago and approved by the courts and the Legislature.

Concerns about the complexities of the bill were raised, with lobbyists asserting that the bill was illegal because it violated the settlement. Attorneys who had been involved in the settlement and who represented tobacco companies alleged that it would be violated, and therefore courts would invalidate the law in its entirety.

Proponents of the tax, namely Senate President Theodore Gatsas and Majority Leader Robert Clegg, said this was a tax bill, did not have any effect on the master settlement, and offered to change it so that the credit in the master settlement would be removed or at least there would be a “severability” clause put in the bill so that if that credit section were found illegal, the rest of the tax could remain.

Interestingly, representatives of a few small tobacco companies appeared in support of the bill. Observers not familiar with the tobacco tax settlement or the tobacco industry’s internal tensions could not discern readily why different manufacturers were on different sides.

The entire assertion of legality in the tobacco tax hearing was followed by a hearing on immigration regulation, found in SB 407, which would make those employers in the state who employ alien workers register with the state and then, should they be found to be employing illegal aliens, pay a $2,500-a-day fine.

Again, the question that was not answered in the hearing was whether this was a real problem in New Hampshire or whether it was a reaction to concerns about a perceived national problem.

The issue of legality came up again when it was asserted by immigration attorneys that the entire matter was “pre-empted” by federal law, which governs the same subject and provides a national plan for documenting aliens when they are employed.

Brad Cook is a partner in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups.