80’s House Republican leader and former unsuccessful statewide candidate Michael Bernhardt has told VPR he is considering entering the race for Vermont Governor as an Independent.

There, I reported it. You all can discuss if you want.

There is one thing that does make me go hmm a bit about this – at least when you combine this news with the question the previous diary raises, which is why Auditor Tom Salmon is still running around in decidedly un-Auditor-ial arenas still trying to make himself into a teabagger hero, when he (and his pals) have decided that Brian Dubie is the gubernatorial candidate and de facto Party leader?

One wonders if the two stories suggest a common, underlying theme, as articulated by Bernhardt:

“While the lieutenant governor (Dubie) has a record, there are a lot of folks who haven’t heard him talk on how he’s going to handle (the economy). So it’s raised some concern.”

It’s still a long time to the full-on electoral season. Lots of things can still happen, especially if GOP insiders are feeling sketchy about their anointed (for now) candidate.

but at least not all the rest of the world approves.

[updated … I neglected to include part 1 … here it is]

President Obama … why are you standing up for all those good Nazis who were “just following orders”? Why are you defending those good Nazis who gave the orders?

Tweets from the IBEW Local 300 feed, recounting the end of the Unemployment Task Force public meeting Wednesday:

ibewlocal300: State Auditor Tom Salmon just hijacked end of unemployment hearing with cheap shots at working Vermonters. “Find new line of work.”

Wed, Nov 4, 2009 6:31 PM

ibewlocal300: Auditor Salmon told by chairwoman to sit down but he refused to relinquish floor. Several folks walked out in disgust.

Wed, Nov 4, 2009 6:36 PM

Salmon, riding high on his party switch (thank god) and his suggestion that the maximum unemployment benefit be dropped to $300 (a drop too draconian even for the Governor) apparently made a point of singling out blue collar construction workers for taunting in his soliloquy that was just too good to be bound by the rules of the meeting, I guess.

What a classy guy. A man o’ the people. And this is the born again teabagger guy who said the Democratic Party left him. Maybe he’s talking about one of these.

But hey, whatever he wants to tell himself is fine with me, as long as it keeps him away from my Party. So the question now, is – who’s gonna run against him? Volunteers? Suggestions?

Update: From the comments below, some readers were there:

ml: As the meeting neared its conclusion, Chairwoman Cummings asked if anyone else wanted to testify.  Salmon jumped out of his seat, dashed to the head of the room and declared he had something to say.  Sen. Cummings told him this was not a forum for public officials, but rather for citizens.  Salmon rudely cut her off and continued to speak.  He wasn’t exactly yelling, but his voice was definitely elevated.  He paced the room – almost as if giving a lecture or political speech – instead of sitting at the stand in front of the Task Force.  In total, his diatribe probably lasted 1-2 minutes.  Task Force members, as well as the audience, were visibly disturbed.  

Salmon glared directly at a group of labor representatives and workers from the granite and construction industries, and essentially told them if they can’t find steady employment, they should get a new line of work.  Some of these folks left the room in disgust, while those who remained watched in awe as this all unfolded.

watercloset: I talked with a few legislators afterwards, including Ann Cummings.  She was shaken. She and her comrades up there kind of lost control of the situation.  But they were pissed off at what he did.  He just had to get his say in, knowing the rules, knowing that he violated the protocol, and that this would earn him numerous enemies.  I chatted with one legislator for a while afterward who said, “what happened to him, he used to be such a nice guy.”

It’s hard to find lessons for Vermont in last night’s election results as each election was so different. Dramatically different electorates all voting under truly unique conditions. Social conservatives took it in the gut (NY), social liberals took it in the gut (ME), moderates took it in the gut (VA), and space aliens continued to thrive (NYC).

I do see one arena with a potential message for us, and that’s Virginia. The first lesson is obvious. If the 5 Democrats in Vermont’s primary gubernatorial race allow their electioneering to become the kind of scorched-earth nastiness that we saw in Virginia, they’re liable to cause the same effect; the candidates with the smarts and capability to actually run a statewide campaign could essentially cancel each other out, and the last one standing could be the lamest of all.

This is exactly the opposite effect that a healthy primary will have. If the candidates can keep it from getting nasty, rather than follow the path of Creigh Deeds, the winner will follow the path of Virginia’s Senator Jim Webb and others like him across the country.

The other lesson from Virginia is in the numbers, and its the most important lesson of all.  

It wasn’t that long ago that I was – once again – hearing from Democratic Party electioneers that the path to victory is always to run to the center (one person – who should really know better – even used the downright delusional example of Peter Welch to make the point. Say what you want about Welch, but he sure as hell ain’t a Blue Dog).

Elections are algebraic equations. They are about balancing several variables, where the known value of some of those variables vary from place to place, election to election. Those who dumb down electioneering to “take the center” either have a deeply dumbed down view of elections and the social psychology behind them in general, or – more often – they are simply being self-serving. Most of the folks who insist that elections are always won in the center are simply themselves centrists and don’t want to feel bothered to expend the brain power required to step outside their own comfort zone and engage in a more nuanced – more accurate – analysis of what exactly is going on in a given election.

I don’t doubt that in some elections, centrism will carry the day. But the biggest lesson provided by Deeds in Virginia is how – even in a close race – mindlessly aping that mantra and blindly acting on it can be a ticket to disaster, as it may or may not be the main dynamic in play in any given election.

In Virginia, it most certainly wasn’t, and the numbers bear that out with little-to-no room for alternate interpretation. From FDL (via dKos):

In Virginia this year, one poll showed the percentage of the likely electorate under the age of 30 falling 70% from 2008-and the African American share of the vote falling 39% from 2008! That’s why virtually every poll has shown today’s likely electorate as having voted for John McCain by double digits over Barack Obama in Virginia last year-despite Virginia having voted almost exactly the reverse.

Unfortunately for us, the Deeds campaign freaked out and read these polls wrong over the summer. Instead of attempting to energize more young and minority voters to the polls to make the electorate more representative of Virginia-they began running a campaign targeted to the people already planning to vote. Creigh began bashing federal Democratic priorities like “Cap and Trade” and health care reform to appeal to the conservatives that were headed to the polls.

And every time he did it, polls indicated turnout shriveled even further among Democrats and progressive voters-making the electorate even older, whiter, and more conservative. To which Creigh responded to by bashing federal Democrats more-which resulted in even more progressives becoming disengaged. Over and over, the cycle continued. Over the last six weeks, PPP polls indicated the share of the electorate that identified as Democrats declined from 38% to 31%. In other words almost one out of every five self-identified Democrats planning to vote on Labor Day has since then looked at Creigh Deeds and his conservative message, and decided they weren’t voting. Ouch!

Election realities can be inconvenient for those who want to cling religiously to simplistic preconceptions. And the reality is that just running rightward is way too simple. It always has been.

Grins

and

Guffaws

This is a tough topic to write about, but someone’s got to do it.  All those happy Holsteins cracking-wise in the California cheese commercials aren’t telling the whole truth.  Dairy has a darker side.

The only way that the more or less continuous milk production necessary for a profitable dairy operation can occur is if the cows calve frequently.  Female calves increase the productive herd, but male calves are routinely culled and end up as hot dogs and luncheon meats.  That’s the simple reality; and even if your diet is primarily vegetarian, if you drink milk or eat milk products (and I do) this is the system from which we derive our food.

That is why the news of repeated violations against the humane treatment of animals by Bushway Packing of Grand Isle, so very close to home, is  deeply and profoundly disturbing to me.  I could barely make it through descriptions of the abuses committed against infant cattle at the facility, let alone the video footage compiled by the Humane Society of the United States who investigated the plant.  If these animals must be killed so that dairy farms can maintain their already marginal profitability,  there is absolutely no excuse for mistreatment of the calves on their way to slaughter.  

I have no doubt that dairy farmers who care for the animals they raise find this as appalling as I do; but it does force the question once again of whether or not we are devoting too much of our resources to raising animals for food and not enough to growing sustainable food crops.   When our food systems get really far out of whack is it really so surprising that the ethical and social fabric of human decency begins to fray from neglect?

Anyway, visit the  Humane Society website for the full story…if you can bear it.  

[[Last update, 8:30 a.m., Nov. 4: From Vermont Freedom to Marry:

With 87% of precincts reporting, voters repealed Maine’s equal marriage law by a 52-47 margin, setting aside that state’s recently-enacted law allowing same-sex couples to legally marry.  (The law had not yet taken effect.)  We decry this hurtful and unjust outcome that harms Mainers in every community, in every family, and in every walk of life.

{heavy sigh} ]]

[[Update #3: 51.99% for repeal of marriage equality; 48.01%  for preserving marriage equality as of midnight with 75% of precincts reporting. I’m going to bed, and I’ll take another look in the morning. Aren’t we glad we don’t have a second-guessing referendum system here?!]]

[[Update #2:  Yes (for repeal) 51.58%    No  171171 48.42%; word is that the cities’ votes are in and it’s now the rural and absentee votes that are hanging. Not looking hopeful; likely recount with numbers this close.]]

According to the Bangor Daily News, Maine voters are following the script of 30 other states by supporting the repeal of the Marriage Equality law their legislators passed and their governor signed last spring. As of  10:20 pm, the margin is 51.83% for repeal to 48.17% against repeal and in support of keeping marriage equality.

[[Update 1: 28% of the precincts reporting at 10:20 pm]]

There are a LOT of precincts still to report their votes, including Lewiston & Auburn in Androscoggin County;  Caribou and Houlton (sharing over 10k voters between them) in Aroostook County (far north, inland, potato country), and not to mention St. Agatha with 666 voters;  much of semi-urban and urban Cumberland County including Portland, South Portland, and Brunswick precincts; Franklin County, with only three towns showing over 1,000 voters (New Sharon, Rangeley, and Strong); Hancock County (Bar Harbor and Ellsworth and surrounding areas, including Township 28 with 3 registered voters); Kennebec County, including the state capital Augusta, Waterville — home of Colby College, my alma mater — and a whole slew of towns with over 1000 voters apiece; Knox County (Camden area, mid-northern coast); Lincoln County (Damariscotta and Waldoboro being the two biggest towns not yet reporting, mostly coastal, includes Boothbay Harbor); Oxford County, home of Paris and Denmark and Peru and Sweden, along with Fryeburg, along the NH border inland; Penobscot County, including Bangor and Orono (University of Maine); Piscataquis County — northern and inland, devastated by the loss of manufacturing jobs over the last 40 years, especially in Dover-Foxcroft; Bath area, home of the Bath Ironworks, major shipbuilding, with recent layoffs announced — in Sagadahoc County, north of Portland; Somerset County, whose most recognizable town to those of us who don’t live there is Skowhegan; Waldo County, which includes Belfast (north of Camden, southeast of Bangor, if you’re following along); Washington County (we’re almost done here) where if you went further north along the coast, you’d be in New Brunswick, Eastport and Lubec right along the border, and Township 19 has 2 registered voters; and finally, York County, at the other end of the state, including Kittery (home of many mega outlet malls), and Biddeford, and Kennebunkport (home of you know who, at least in the summer); and Saco, and York Beach, York Center, and Ogunquit by the sea.

It’s gonna be a long night.

Three big elections today. The governor's race in New Jersey. The governor's race in Virginia. A special election for House across the lake in New York. If you've been reading the press reports, you know what these elections mean, right?

 Exactly. If the Democrats lose these elections it means that Obama is all washed up, the Democratic Party might as well close down and surrender, and the Republican Party is now on top again, probably permanently.

All from three data points.

This is obviously nonsense. We are looking at three different elections, with three different sets of issues and personalities, and at least three different sets of reasons for whoever wins winning.

Let's take Virginia first, since we already know that the Republican won there. Virginia is a traditionally Republican state, and last year was the first time a Democrat won the presidential vote there since 1964. Although he was looking to succeed a Democratic governor, Creigh Deeds apparently ran a weak campaign, and wasn't able to generate the kind of turnout that Obama generated just a year ago.

 Former DNC Chairman Howard Dean told TPMDC that Deeds “just did not run the kind of campaign we'd all hoped for,” in part because he was a surprise winner of the primary.

“He had a lot of ground to make up in terms of finances,” Dean said.

So Deeds lost, but nobody is surprised by that.

Next, let's look at New Jersey, the state where I grew up. Democratic incumbent Jon Corzine is trailing challenger Chris Christie, although there are a lot of votes yet to be counted, so Corzine could stll pull it out. the AP has called the race for Christie. Still, in this race that has been personally nasty, the outcome is much more likely to be determined by who voters dislike more, Corzine or Christie.

Finally, in the NY-23 House race, a three-person race has been reduced to a two-person race, with Republican Dede Scozzafava dropping out and throwing her support to Democrat Bill Owens, leaving the conservative field to Conservative Party nominee Doug Hoffman. This is a district that never elects Democrats, and might not elect one this time. What we see here in microcosm, though, is the meltdown of the Republican Party, and Dede Scozzafava the latest victim of the purge of the Republican Party by the right wing extremists. Whatever happens, it doesn't look like bad news for the Democrats.

 One final note about what this means for Obama. Exit surveys have asked voters what they think of Obama's performance so far. In Virginia, 50% of the voters say they disapprove of Obama's performance and 49% saying they approve, so he's basically breaking even there. In New Jersey, underscoring the impression that the election is being decided on personalities, 58% of the voters say they approve of Obama's performance, and even 25% of them are voting against the Democratic incumbent.

So are today's elections a referendum on Obama's performance? Like other myths that have been retailed as conventional wisdom lately (read: the public has rejected the public option) this clearly appears to be false. Instead, what we see is that neither Creigh Deeds nor Jon Corzine had the unprecedented combination of personal appeal, campaign organization, and a historic move for change that Obama was able to generate to put them over the top.

Maybe it's premature to measure Obama for his coffin.

( – promoted by odum)

No matter who you’re supporting in the upcoming governor’s race, I think we can all agree it’s going to be a spirited exercise in democracy.

This Saturday is the first chance you’ll get to pin them down on the issues facing our state. Five of the six announced (or nearly announced) candidates* will be at this Saturday’s Environmental Action Conference in Randolph.

Full disclosure: my day job is organizing for VPIRG, one of the groups putting the conference on. That being said, it’s not every day you get five Vermont gubernatorial candidates in a room a year out from an election.

To register go to vtenvironmentalaction.org.

Over 250 environmental activists attend this annual event – the largest grassroots training of its kind in Vermont. In addition to skills and issue workshops on everything from Vermont Yankee to public speaking to zero waste, this year you will have the opportunity to hear from and ask questions of many of the Vermont gubernatorial candidates. Senator Susan Bartlett, Matt Dunne, Secretary Deb Markowitz, Senator Doug Racine*, and Senator Peter Shumlin will each be in attendance to discuss their views on a wide range of environmental, energy, and conservation issues.

You will also have the chance to ask the candidates questions about issues that you think are critically important. What environmental issues do you want our next Governor to prioritize? Vermont Yankee? Renewable energy? Climate change? Land conservation? Water quality? Zero waste?

The Conference is being put on by the New England Grassroots Environment Fund, Toxics Action Center, VLCV, VNRC, Vermont Tech and VPIRG, and it’s a great opportunity to get plugged into the most pressing environmental campaigns happening around the state.

Hope I see you there!

*Senator Racine is unable to attend and will represented by Pat Parenteau  

It really does not matter whether you are for or against ATV trails in State natural areas. Whether the trails are a good idea is not an issue, at least at this point.  The issue is whether ANR has the legal authority to set aside State natural areas for ATV trails and the answer to that question is – it does not.

The Douglas Administration, through the agency of natural resources (ANR), has drafted and is proposing administrative rules that will create ATV trails on state land. The legislative committee on administrative rules (LCAR), which reviews new agency rules, will consider whether to approve the ATV trail rules at a hearing this morning.

There is no legal basis for LCAR to approve the proposed rules because the administration’s rules violate state law. LCAR needs to tell the administration that there are ways Vermont can establish ATV trails. Unauthorized adminstrative rulemaking, however, is not a permitted avenue.

LCAR needs to explain to the Administration that they are welcome to come to the committees on Natural Resources and Government Operations where they can request legislation allowing ATV trails and legislation that authorizes ATV trail rulemaking. After ANR takes this required first step and if the legislature passes legislation that gives ANR rulemaking authority, including the parameters of that authority, then we can talk about what is the best way to implement any legally granted authority.  

Why LCAR cannot approve ANR’s natural areas & State land ATV trail rules after the click —

ANR has no authority to propose natural area/State land ATV trail rules.  The General Assembly has not granted powers to ANR that enable unelected agency officials to adopt rules designating ATV trails on State land or in natural areas.

The only legal avenue to establish ATV trails on state land, in natural areas or any area under ANR’s regulatory jurisdiction, is for the legislature to do the following:

1. Give ANR authority to engage in rulemaking (an “enabling” act); which

2. Authorizes the use of specific land for ATV trails; and

3. Sets guidelines for determining what land is eligible, the process for establishing, maintaining and/or closing trails; and

4. Establish a state policy for ANR to follow in drafting, proposing and implementing authorized rules.

Nothing may legally happen until the General Assembly passes an enabling statute that authorizes ATV trails and authorizes ANR administrative rulemaking to establish ATV trails.

ANR’s actions are the result of the administration’s attempt to exploit an inartfully drafted prohibition against ATV riding in natural areas. The administration is contorting a statutory prohibition against ATV use into a grant of rulemaking authority that gives trail granting authority and creates a state policy/program that does not exist anywhere in the laws governing ANR. It does not exist anywhere in Vermont law for that matter.

ANR bases its proposed ATV natural area trail designation authority on a motor vehicle statute. 31 V.S.A. §3506(b) which says:

“An all-terrain vehicle may not be operated: . . .(4) On any public land, body of public water or natural area established under the provisions of section 2607 of Title 10 unless the secretary has designated the area for use by all-terrain vehicles pursuant to rules promulgated under provisions of 3 V.S.A. chapter 25.” (emphasis added).

Section 3506 is an overall prohibition against riding an ATV by certain people (kids, people who are intoxicated etc.) and a general prohibition against riding in certain places (natural areas, public roads, private property etc.).  This prohibition is in the Title containing Vermont’s motor vehicle statutes. It is not a grant of authority to ANR to make rules. Rather, it is a prohibition against riding ATV in certain places also recognizing that the prohibition might not apply if the Secretary of ANR does something in the future. It does not, however, authorize the Secretary to do anything. That is an entirely different subject and one the General Assembly has yet to address.

The first obvious problem with ANR’s approach is that the statute (§3506) references a potential loophole to ATV riding in natural areas but nowhere else in the statutes is there authority to adopt rules that will allow this loophole to come into play. Whether to let ATVs enter State natural areas was left for future legislation by the committees of jurisdiction (Natural Resources/Government Operations). Neither of these committees have written, nor has the General Assembly passed, legislation that gives ANR the authority to exploit this potential loophole. The legislature can remedy this situation by granting ANR this particular rulemaking authority if the Legislature so chooses. The administration cannot “remedy” the situation by just taking authority it does not have.  

The second obvious problem is this — Even if a statute that expressly prohibits an activity (ATV riding in natural areas) was actually intended to grant authority to allow it (which is ridiculous and which is NOT what it does), the statute directly contradicts itself and State policy if you read it the way ANR does.  The statute says “no ATV trails in natural areas.” Straightforward enough, right?  ANR’s reading of the statute is: “No ATV riding in natural areas unless ANR says it’s OK and with no guidelines or oversight.” This is also crazy.  A “natural area” is specifically defined under Vermont law as:

limited areas of land which have retained their wilderness character, although not necessarily completely natural and undisturbed, or have rare or vanishing species of plant or animal life or similar features of interest which are worthy of preservation for the use of present and future residents of the state and may include unique ecological, geological, scenic and contemplative recreational areas on state lands.

Land uses and practices in natural areas shall be subject to regulations . . . to manage or maintain the areas for the preservation of their natural condition.

ANR is suggesting that a section of the motor vehicle’s Title of the Vermont Statutes, which does not authorize rulemaking authority for ANR, is in fact a statutory enabling act that allows ATV trails in areas that are under ANR’s jurisdiction; and ANR is arguing that it has authority to unilaterally allow ATVs onto land that the legislature has already determined must be “managed for the preservation of their natural condition” because of its “unique ecological” value.

When LCAR reviews ANR’s proposed new rules, it does not approve or withhold approval based on whether they agree with ANR’s rules. Rather, LCAR’s review is limited to whether ANR’s proposed rules properly implement a statute, passed by the General Assembly, that authorizes rulemaking and permits ATV trails in natural areas. This review is controlled by the Administrative Procedure Act and 3 V.S.A. §842. The legislative committee will review whether ANR’s new rule (1) is beyond the authority of the agency;  (2) is contrary to the intent of the legislature; or whether (3) the proposed rule is arbitrary.

The ATV natural area trail rule fails all three tests.  There is NO authority to begin with so they have already exceeded the legal bounds of what ANR can do. It is not only contrary to the intent of the legislature, the legislature has not even set forth a policy for ANR to follow. The proposed rule is arbitrary because there are no guidelines or parameters for ANR to follow which they obviously didn’t.

—

Examples

Examples of ANR enabling legislation and ANR rulemaking authority in Title 10  (conservation and development), read like this:

Section 5402. Endangered and threatened species lists.

(a) The secretary [of ANR] shall adopt by rule a state-endangered species list and a state-threatened species list. The listing for any species may apply to the whole state or to any part of the state and shall identify the species by its most recently accepted genus and species names and, if available, the common name.

(b) The secretary shall determine a species to be endangered if it normally occurs in the state and its continued existence as wildlife or a wild plant in the state is in jeopardy.

(c) The secretary shall determine a species to be threatened if its numbers are significantly declining because of loss of habitat or human disturbance and unless protected will become an endangered species.

(d) In determining whether a species is endangered or threatened, the secretary shall consider:

(1) the present or threatened destruction, modification or curtailment of the range or habitat of the species;

(2) over-utilization of the species for commercial, sporting, scientific, educational or other purposes;

(3) disease or predation affecting the species;

(4) the adequacy of existing regulation;

(5) actions relating to the species carried out or about to be carried out by any governmental agency or any other person who may affect the species; and

(6) other natural or man-made factors affecting the continued existence of the species.

(e) In determining whether a species is endangered or threatened, the secretary shall:

(1) use the best scientific, commercial and other data available;

(2) consult with interested state or federal agencies, other states having a common interest in the species, and any interested persons; and

(3) notify the governor of any state contiguous to Vermont in which the species affected is known to occur.

Notice all the detail.  

First, the legislature authorizes rulemaking. Next, the legislature lays out the requirements needed for ANR’s to write and propose new rules. Then the legislature defines concrete parameters of regulatory oversight that must be part of an overall, and objectively predictable, rulemaking formula.  To do this, the Legislature gives specific instructions that the rules must address such as: (a) what goes into the list of species determined by administrative rules, (b) who must be consulted, (c) what must be considered, (d) multiple factors to be included in regulatory determinations, and (e) notification requirements.  

“The secretary may adopt rules” or “The secretary shall adopt rules.”  That is what rulemaking authority looks like. I have never seen a legislative grant of rulemaking authority that reads: “An all-terrain vehicle may not be operated in a natural area established under the provisions of section 2607 of Title 10.”

If ANR wants authority to create ATV trails, it needs to go to the General Assembly, respect the democratic process, respect the rule of law applicable to all of us and ask for statutory authorization. ANR’s power grab, and illegal claim of State land and natural area authority, is a farce.