Cynthia Browning has long been a burr under the saddle for the Shumlin administration, and her lawsuit seeking access to administration documents about its health care deliberations is perhaps the most nettlesome burr of all.
Browning is the Democratic House member from Arlington who has made a specialty of annoying her fellow Democrats in the executive branch, mainly because of her insistence that they be more forthcoming on health care. Legislation had required the administration to make public by January 2013 its financing plan for the single-payer system it hopes to unveil next year. It has failed to do so, and Browning has been on the case ever since. Republican critics of Shumlin’s plan can only be delighted they have a Democrat willing to prod the administration, and now her prodding has taken the form of a lawsuit seeking a court order for the administration to release documents describing its health care plans.
The administration has long argued that it would be premature to release details of a financing plan before a plan has been created. For officials to throw before the public a proposal to raise specific taxes to pay for health care would raise a furor that would last for months or years. It appears that Gov. Peter Shumlin hopes to confine the furor to the legislative process after he offers a proposal in January and to narrow debate, not to a host of diverse possibilities, but to the plan his administration devises.
In dueling motions in Browning’s court case, the parties are debating whether documents related to the financing of Shumlin’s health care plan are public documents that must be released under state law. The administration says that they are “confidential policy advice documents” and so they are exempt from public disclosure. That exemption applies to the private advice that the governor receives from his advisers.
Browning counters that the administration itself has breached the confidentiality it is seeking to protect by sharing the documents widely, giving them to a whole list of legislators. Browning, herself a legislator, is arguing that she wants a look at the documents, too.
Shumlin is in a race against time. He has five months to prepare his health care plan while maintaining a lid on information about it, and in that time pressure to remove the lid is only going to increase. As information becomes more widely shared, the administration’s arguments in defense of confidentiality become more specious. Browning, representing the public, has a right to know. For Shumlin to argue that the public is not smart enough to interpret or understand the documents it is looking at is not tenable. Our open government laws are based on the premise that the public can look at public documents and sort them out adequately.
Shumlin may have the idea that he can manage the debate about health care, but it is already escaping his management. The Browning suit is pushing it into the public sphere. Also, continuing troubles with the state’s health care exchange, Vermont Health Connect, have inspired anger and frustration by members of the Legislature and officials from his own administration. Thus, the unhappiness of the public has prompted action, and Monday the administration announced it had dropped CGI as its principal contractor for the health care exchange.
In this way, the public furor became a goad to action. Who knows how the public reaction to his single-payer plan will shape events? Shumlin has taken a risk in trying to keep the public out of the debate for as long as possible, but eventually the public is going to get in on the action. Browning may be doing him a favor by getting the debate going early and involving the public in what is one of the most consequential public policy decisions of recent years.
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