Guest Opinion: Benson’s legacy – What a short, strange trip it’s been

Now that Craig Benson’s term as governor is drawing to a close, an obvious question that comes to mind is: What is the Benson legacy?

Since the Claremont II decision was issued in 1997, one of the primary standards by which governors in New Hampshire have been and, for the foreseeable future at least, will be judged is education funding. Although no income tax or sales tax was enacted while Benson was governor, that should not be considered much of an achievement, given the Republican super-majorities in both houses of the Legislature. The Benson legacy on education funding is that the best, and probably last, opportunity to fix the Claremont mess through a constitutional amendment was squandered.

The conventional wisdom has been that a constitutional amendment is needed to fix Claremont. Indeed, Benson made passing such an amendment one of the cornerstones of his successful gubernatorial campaign. If there ever was a time when an amendment should have passed it was during Benson’s term as governor, as Republicans held majorities in both the House and Senate comfortably in excess of the 60 percent needed to pass an amendment.

Yet when a Claremont amendment was finally voted on in the House in January 2004, it barely garnered a majority. Benson was unable to deliver on his campaign pledge because by the time the amendment was voted on he had used up most of his political capital in a bizarre budget battle with his own party.

In June 2003, amid great fanfare, Benson vetoed the budget, giving as his reason that it spent too much, and calling Republicans who supported it “tax-and-spend income-taxers.” After convincing enough conservative Republicans to oppose their legislative leaders to uphold his veto, a mere two months later Benson cut and ran, by signing into law a budget that contained even higher spending than the budget he had vetoed.

Having been left in the lurch by Benson on the budget, it is not surprising that Republicans wouldn’t support the far more politically risky amendment.

Despite the failure to solve education funding, Benson’s record on education is not all bad. He did sign a law that exempted charter schools from a burdensome application process that had prevented a single charter school from being opened since charter schools were made legal in 1995. Unfortunately, this small success was offset by the defeat of school choice legislation.

Another important issue where the Benson legacy is poor is judicial appointments. Because Benson campaigned as a conservative, it was reasonable to expect that Benson would appoint judges who would interpret the law, rather than rewrite it. When Chief Justice Brock retired, Benson had the opportunity to fill that vacancy and to appoint a new chief justice to the Supreme Court. Benson’s appointments, however, look more like political payback to former Gov. Steve Merrill, who bailed out Benson’s floundering gubernatorial primary campaign in 2000, than an attempt to de-politicize a liberal, activist judiciary.

Benson chose Merrill’s close friend and former law partner, Supreme Court Justice John Broderick, for chief justice. Broderick was nearly impeached in 2000, and subsequently interfered in an ethics investigation of former Chief Justice Brock, which is hardly the kind of record that would restore public confidence in the judiciary. Broderick also was one of the most ardent proponents of the Claremont decisions, which is a peculiar choice for chief justice from a governor who said he believes that the Claremont decisions were wrongly decided.

To fill the vacancy left by Brock’s retirement, Benson chose another friend of Merrill, Superior Court Judge Richard Galway. Galway’s greatest claim to judicial fame is that, while a Superior Court judge, he issued a decision that would have forced the Legislature to impose an income tax to pay for public education. This activism was even too much for the Supreme Court which, despite a scathing dissent by Justice Broderick, overturned Galway. Again, a strange choice from a governor opposed to the Claremont decisions.

Benson does deserve credit for his nomination of Robert Lynn as chief justice of the Superior Court. Lynn is the intellectual powerhouse of the state’s judiciary and understands the proper role of a judge in our system of government. But while Lynn is proving to be an exemplary chief of the superior court, he was needed much more at the supreme court.

While Benson made a series of bad appointments to executive agencies, none was as bad as the appointment of Peter Heed as attorney general. Heed is a Republican-in-name-only, who true to form failed to mount a proper defense of a parental notification law when it was challenged in court. He also gave Benson bad advice on Claremont. His undoing, however, turned out to be not his liberal politics but his narcissism, as he resigned because of boorish behavior at, of all places, a conference on sexual harassment.

To be fair, Benson deserves credit for his support of the parental notification law. He also deserves credit for his appointment of John Stephen as Health and Human Services Commissioner. Stephen is intelligent, articulate, likable and conservative, and he is not afraid to rock the ship of state when necessary.

Perhaps the best way to sum up Benson’s term as governor is by twisting a phrase from that noted political philosopher, Jerry Garcia. What a short, strange trip it’s been.

Ed Mosca is a Manchester attorney and former chairman of that city’s Republican Party.

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