The behind-the-scenes power of N.H.'s Executive Council is now at center stage
Running for Executive Council comes with two particular challenges: The districts are huge, and it takes a lot of explaining.
“I always remember the quote from the Union Leader,” said Councilor Joe Kenney, who is serving his fourth term. “It said, ‘The Executive Council is the most powerful office in Concord that is least known by the public.’” Given how much attention the council has gotten lately – for controversial votes and the arrest of nine protesters at its last meeting – “least known” may not be as true as it once was.
Even though the council has been in place since the 1700s, when the king appointed its members, this part of the state’s government is unusual. (The State Library has a history worth reading.) No other state has an Executive Council as powerful as New Hampshire’s; with just three votes, the council can override the governor on nearly everything.
First-time Councilor Cinde Warmington, the current council’s lone Democrat, puts it this way when she’s explaining why Executive Council elections are no less important than those for every other office on the ballot: “One vote on the Executive Council is the difference between Planned Parenthood being funded and women across our state being denied essential health care services. One vote is the difference between having a commissioner of education who supports public education and one who works to dismantle it every day. One vote is the difference between a New Hampshire Supreme Court that will uphold our fundamental rights and one that will undermine the right to choose, the right to vote, and the right to marry the one you love.”
Councilors decide who becomes a judge or the head of a state agency. In 2019, the Democratic-controlled council rejected Gov. Chris Sununu’s appointment of then-Attorney General Gordon MacDonald for chief justice of the state Supreme Court. When the next election shifted power to Republicans, Sununu tried again and succeeded.
When the governor and state agencies want to sign contracts worth more than $10,000 with outside agencies – which provide the bulk of the state’s services – the council must agree. Last month, the council voted along party lines to defund several low-cost family planning centers, including Planned Parenthood of Northern New England. It did the same earlier this month, when it rejected $27 million in federal money for vaccine outreach under intense pressure from anti-vaccine and anti-mandate protesters. The protesters’ refusal to yield the floor prompted the council to cancel its late September meeting, citing concern for state employees’ safety.
The council must also approve the spending of the state budget. “One time I asked the state treasurer what would happen if we voted down this warrant,” Kenney said. “And he said, ‘In effect, state government would shut down.’”
If the governor and state Department of Administrative Services find a buyer for the 220-acre former Lakes Region prison, the council must agree and can set restrictions on the property’s redevelopment. The council will soon be asked to approve a request from the governor and Department of Health and Human Services to buy Hampstead Hospital for $15.1 million.
And councilors try to solve problems for their individual constituents. Kenney said he got a call on a late Friday night from a father in his district whose daughter was at risk of losing a nursing job in Colorado because the New Hampshire Department of Safety was behind on processing her background check. Kenney made some calls and got it done.
With so many specific and recent examples of the council’s power, advocates too may find it easier to energize and mobilize supporters. Both Planned Parenthood of Northern New England and RebuildNH, which opposes the vaccine contracts, have turned out dozens of followers at recent meetings and persuaded them to send hundreds of emails to councilors ahead of big votes.
“While these five elected individuals do not have the inherent power to create policy, their responsibilities have an enormous impact,” said Liz Canada, advocacy manager for the Planned Parenthood of New Hampshire Action Fund. “The Executive Council was established to provide oversight for and limits on gubernatorial authority. What we see now with the rejection of both family planning funding and vaccination program funding is that a majority of these public officials are playing an unprecedented, outsized role in the delivery of health care in New Hampshire. Our state is now telling public health entities and community health providers to do more with fewer resources – and that is a failure of the executive branch through these votes.”
Democratic Congressman Chris Pappas worked with governors from both parties during his three terms on the council. There was disagreement, even among members of the same party, he said, but not the kind of deep partisan divide at play now. Nor did he see his fellow councilors basing votes on misinformation, which he believes is happening with some current councilors.
“The Executive Council is like a board of directors for the state of New Hampshire” is Pappas’s shorthand when talking to voters. “I think that gives you the idea that it’s a group of individuals that are an important second balance on the executive branch, and really the most significant power the council has is the power to negate the governor. And we’ve seen that play out here over the last few weeks where the council has said no to a governor of their own party, and where four councilors who comprise a pretty extreme faction have turned down some really important contracts to the health and well-being of the people in New Hampshire. I think we are learning, once again, the importance of the council is really the nexus of state government.”
There have been multiple attempts to abolish the council and new legislation seeking to double its size. Among the Democratic House members who testified in support of a 1995 bill to abolish it was current state Democratic Party Chairman Ray Buckley. “The Executive Council is really irrelevant in our lives,” he said, according to legislative archives. There had been six straight elections without a Democratic governor or council member at the time, Buckley said last week.
“There was no dissent, no discussion, everything was simply rubber stamped and it seemed pointless,” he said. “In over a decade none of them spoke up or represented an alternative point of view.”
The 1996 election of Democrats Jeanne Shaheen for governor and Jim Normand for Executive Council changed that, he said; Buckley went on to run, unsuccessfully, for the council nine years later.
It may be no surprise that Andrew Manuse, chairman of Rebuild NH, sees the council as crucial. His group celebrated and took credit for the council’s 4-1 rejection of the vaccination contracts, which Sununu strongly supported.
“The founders of New Hampshire were so concerned about the tyranny that resulted from the unilateral power of Britain’s King George III that they instituted an elected Executive Council in the Granite State to provide additional checks on the governor’s authority,” Manuse said. “When one man has the reign of power, it is easy for special interest groups to influence or coerce him to do their will behind the scenes.”
Manuse pointed to the governor’s use of emergency powers at the start of the pandemic that allowed him to shut down nonessential businesses, mandate masks, prohibit eviction, and spend millions in federal pandemic aid – on his approval alone. That has so infuriated some lawmakers, they passed legislation limiting that power in the future.
“Even the most brilliant men and women know they need other people to check their facts and assumptions before they decide to act. When the Executive Council is properly functioning, it prevents the governor from going out on his own and limits him to make more reasonable decisions that are in the people’s best interests.”
Today’s council meetings are far more public than they once were, when only the minutes of closed-door sessions were released, said Bill Gardner, secretary of state and unofficial historian of the Legislature. Leon Anderson changed that nearly 90 years ago and shared his account with Gardner before passing in 1983.
When Anderson was turned down by the Concord Monitor for a reporting job because he hadn’t finished high school, he offered to write a few stories for free as a trial. Anderson knew then-Gov. John Winant and asked for permission to sit in on an Executive Council meeting. Winant agreed and introduced Anderson to councilors not as a reporter but as an acquaintance.
Anderson’s account of the meeting landed him a paying job at the Monitor, one he held for 30 years, and persuaded the council to change its practice and open its meetings to the public.
The council’s work invited even more public input in the mid-1990s, when Debora Pignatelli, then a Democratic state senator, proposed legislation requiring the council to hold public confirmation hearings on all judicial nominees. Pignatelli went on to serve five terms on the council.
“Before that, the only qualification to be a judge was to be a friend of the governor,” she said.
But while the council’s role has remained consistent, its workings have become less congenial in the eyes of former Republican councilor Peter Spaulding, who served 11 terms.
Like Pignatelli and Pappas, Spaulding does not recall the polarization and disrespect of the process he’s seeing today at council meetings and in all of government.
“It’s pretty much a derivation of Donald Trump,” he said. “There were controversial issues like the family planning contracts, but they were not contentious. There were those who were pro-life and they voted no, and there were those who were pro-choice and voted yes. The majority ruled, and no one tried to upset the majority.”
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