Jon Margolis is a political columnist for VTDigger.
The Legislature is tweaking the Open Meetings Law to allow state and local government bodies to “meet electronically” instead of “in a designated physical location” as long as they “provide the public with electronic access to meetings.”
Good idea. Everybody is expected to stay home. “Everybody” includes mayors, commissioners, councilors and members of the various boards: select, school, planning, zoning, health. They, too, have to keep their distances. Since the public’s business must be done, for the duration of the COVID-19 pandemic it makes sense for that business to be done without endangering anyone’s health.
Just make sure it’s only for the duration.
Surrendering public rights and granting more powers to the powerful is tempting and easy during times of danger, when nothing is more important than staying alive.
Reclaiming those rights and regaining power from the powerful can be harder. The powerful do not like to yield power. The public sometimes forgets how essential its rights really are.
In this case, the surrender of the public’s right is modest. In addition to that “electronic access” requirement, the proposed new law H. 681 says that “unless unusual circumstances make it impossible for them to do so, the legislative body of each municipality and each school board shall record its meetings.”
It’s not clear, though, whether those recordings have to be made public.
And watch out for those “unusual circumstances.”
These exceptions to the usual Open Meeting Law standards are “temporary” and apply “during a declared state of emergency … due to COVID-19 requirements,” says the legislation.
That appears to be a “sunset” provision guaranteeing that as soon as this state of emergency is over, the regular Open Meeting Law standards automatically apply.
But “automatically” doesn’t always happen automatically. When that emergency ends, somebody should make sure those selectboards and school boards understand that all their business has to be open to the public, meaning the public personally in attendance, not just electronically connected.
Across the political spectrum, this struggle against the virus is being called a war, a common struggle in which special concerns have to be downgraded as society unites against the foe.
It is. But it might be good to remember the words of Randolph Bourne (1886-1918), the early 20th century radical/pacifist who shortly before he died wrote an essay calling war “the health of the state.”
War, Bourne wrote “sets in motion throughout society … irresistible forces for uniformity, for passionate co-operation with the Government …”
Ironies atop ironies here. An unusual if not downright peculiar fellow (deformed from birth and by childhood tuberculosis of the spine) Bourne was a leftist later honored by the anti-government right because of this one essay, which he didn’t publish or even finish. It was found by friends after he died. He died in the last great pandemic, the Spanish flu of 1917-18.
And if today’s great pandemic has proven anything, it is the importance of a competent, effective, government, a conclusion the politically leftish Randolph Bourne would have shared.
But the words of that unpublished essay continue to impress both liberals and conservatives, perhaps because Bourne recognized that the danger wasn’t the ambitions of the powerful to gain more power as much as the eagerness of the public to surrender it.
“The mass of people, through some spiritual alchemy … proceed to allow themselves to be regimented, coerced, deranged in all the environments of their lives,” he wrote.
Seen from that perspective, temporary adjustments to Vermont’s Open Meeting Law might seem trivial, and so might the FBI’s announcement that it “is not accepting electronic Freedom of Information/Privacy Act requests,” but would still respond to “requests via standard mail.”
But there’s more. Three states are trying (the courts so far are not letting them) to “suspend” all abortions for the duration of the emergency on the grounds that the procedures are not “essential.”
That’s suspension of a constitutional right, and the suspension could become a prohibition. As the American College of Obstetricians and Gynecologists pointed out, abortion is “a time-sensitive service.”
Last month, the U.S. Department of Justice asked Congress to grant judges the power to detain people indefinitely without trial and to delay legal proceedings, which in some cases could eliminate a defendant’s right to appear before a judge after arrest.
That right is known as habeas corpus, a basis of personal freedom for almost 1,000 years. The Constitution guarantees that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Except metaphorically, this is not an invasion.
Willingly if grudgingly, Americans are also ceding the right to travel around the country at will. Several states, including Vermont, have effectively hung out a “Not Welcome” sign, requiring newcomers and visitors to quarantine themselves for 14 days.
No one has actually been forbidden from traveling from one state to another. But the harsh tone used by some of the governors (definitely not including Vermont Gov. Phil Scott) raises doubts about whether they believe that “we are one people with one common country (who) have the right to pass and repass through every part of it,” as the chief justice of the United States wrote in 1849.
Another irony. That chief justice was Roger B. Taney, later author of the odious Dred Scott decision. He seemed to be on firm grounds; President Andrew Jackson had declared in 1832 that the Constitution “forms a government, not a league.”
Still, there has always been and still is a dissenting faction on the far right edge of the political world arguing that the country should be considered a federation of states rather than a “common country.” The pandemic could give these folks an opportunity to make their case.
As they have a right to do. As long as when they make that case before an official government body, the meeting is open.
