Two extraordinary events will leave an indelible imprint on the manner and scope of legislative activity expected when the West Virginia Legislature convenes its 60-day Regular Session on February 10, 2021. First, a global pandemic has ushered in a new, more socially distanced manner of legislating. Second, with Republican super majorities firmly established in both the House of Delegates and Senate, along with a Republican Governor handily re-elected by the voters, many items on their longtime wish list may now be within grasp.
We provide a preview of how both events will impact the 2021 Regular Session after it gavels in for business at noon on February 10.
COVID-19 Fundamentally Alters the Legislative Process
The 2020 Regular Session concluded at midnight on March 7, 2020 and, barely two weeks later, Governor Justice issued an Executive Order declaring a State of Emergency that mandated the closure of all non-essential businesses and imposed a general stay-at-home order on the residents of the Mountain State. As part of the Executive Order, the State Capitol was deemed closed to the visiting public, though it remained open for official business on a more limited basis.
Since the end of the 2020 session, there have been no plenary meetings of the Legislature and, except for a few exceptions, the leadership cancelled the regular interim committee meeting process. Thus, until now, the Legislature simply has not had an opportunity to address how it can conduct open meetings of its committees and floor sessions while balancing the need to maintain public safety and welfare in the face of remaining concerning over COVID-19.
In recent public statements, Senate President Craig Blair and Speaker of the House of Delegates Roger Hanshaw both have announced an increased reliance on virtual technology (e.g., the live-streaming of committee meetings and floor sessions) to keep the public informed of the ongoing legislative proceedings. Legislative leaders also indicated that the clerks' offices are investigating whether members could participate in committee meetings, and potentially vote on legislation, while remaining in their offices. Speaker Hanshaw announced that House galleries have been converted into seating areas for members so that proper distancing and mask usage may be more easily followed there than on the otherwise crowded House floor. While the public would not be permitted to be physically present, provisions may be made for stakeholders and other invited guests to participate as needed both in person or through virtual video-conferencing. Other changes that one may expect are overall fewer bills coming to the floor for consideration, a more streamlined process with bills single-referenced to committees, and perhaps even a more compressed schedule so that preferred legislation is advanced at the beginning of the legislative session rather than, traditionally, towards the end. This also would assist the legislative leadership with planning in case of an interruption tied to coronavirus exposures.
To be sure, the arrangements described above, while preserving a certain degree of transparency, will make the traditional method of "lobbying," at the Legislature look a little different in 2021.
Republican Super Majorities
The second extraordinary event from 2020 was the increased "red wave" that increased Republican majorities in both chambers to "super-majorities," or more than two-thirds. In the House of Delegates, the Republicans now hold a 77-23 advantage, while in the Senate the GOP maintains an advantage of 23-11. Given such dominating leads in both chambers, one may reasonably expect the majority party to act on certain goals long held by their caucus. Moreover, there also may be one or more constitutional amendments, such as the elimination of the personal property tax on equipment, machinery and inventory, considered by the full Legislature since they only need a two-thirds vote in both chambers to proceed to the ballot for voter consideration.
Governor Jim Justice will outline his legislative priorities at the annual State of the State address to kick off the Regular Session on the evening of February 10. The state budget for fiscal year 2021, through the end of January, continues to exceed budgeted estimates.
Legislative leaders already have released a list of key topics and outlined general legislative concepts for the first two weeks of the session. Here are a few of the bills we may expect:
Expansion of Broadband. One thing where there seems to be consensus early on is that the Legislature will be focusing considerable attention on the availability of high speed internet access. Expect to see numerous funding and broadband-related initiatives coming from the Governor, House, and Senate leaders. With the recent appointment of Mitch Carmichael as the Executive Director of the West Virginia Development Office, the agency supporting the Broadband Office and the Broadband Enhancement Council, this topic will be taking center stage as policy-makers continue to grapple with the goal of making reliable, affordable high-speed internet available to more West Virginians, both urban and rural.
Personal Income Tax Changes and Other Tax Reform. A reduction of taxes has long been a staple of the GOP agenda. This year, at the urging of Governor Justice, the legislative focus has seemingly shifted to a gradual elimination of the personal income tax. Since that tax accounts for over 43 percent of the state's General Revenue Fund, or slightly more than $2 billion, one may expect the debate to center largely over how one could fill a gap in the state's budget, either through tax increases, budget cuts, or a combination of both. Cuts in certain government programs would seem to be on the table, together with an increase of other taxes, like consumer sales and use taxes, to make the difference.
Limitation of COVID-19 Liability for Employers. In anticipation of an onslaught of lawsuits over premises liability for employers or business owners for COVID-19 exposure, both chambers most likely will have under consideration a bill that would limit such liability where there has been no reckless or intentional exposure to employees or business invitees. Additional limitations or restrictions likely will address the need for proof of actual exposure, diagnosis of the disease, and a narrow timeframe within which to bring such civil actions. Other states already have enacted such legislation and one could expect West Virginia to follow suit.
Less Regulation on the Establishment of Charter Schools. The 2019 omnibus education reform bill permitted the recognition of up to three charter schools as long as the local county board of education approved the creation of such an institution. Since the enactment of the law, however, no charter schools have been recognized with the recent rejection of an application coming at the hands of the Monongalia County Board of Education. Therefore, one may expect legislation eliminating the cap on the number of charter schools as well as a repeal of the complicated approval process by local county boards of education. Other improvements to K-12 education could encompass the creation of personal education savings accounts.
Examination of Gubernatorial Emergency Powers. Since declaring a State of Emergency in mid-March 2020, Governor Justice has issued 70 Executive Orders running the gamut from mandating a statewide stay-at-home order, a gradual reopening of certain business sectors, to the closure of bars in a particular county after disregard of certain safety protocols. In addition, the Justice administration has directed the spending priorities for the $1.25 billion in federal CARES Act funding allocated to West Virginia. All of these actions were taken without legislative oversight or regular input. While few legislators have expressly found serious fault in the manner in which Governor Justice has responded to the coronavirus pandemic, and no one would want to hamper the executive's ability to respond to emergency situations, some have nonetheless expressed a need to examine the overall process by which the Legislature may play a more active role. At a minimum, there may be some interest in limiting the time period by which such states of emergency may remain effective without legislative ratification or approval.
Review of Professional Licensing Boards and Other Regulatory Requirements. In order to provide the greatest flexibility to address the state’s response to the COVID crisis, Governor Justice temporarily suspended many of the regulations restricting access to healthcare, such as renewal of licenses, recognition of out-of-state licenses, and even scope of practice rules that defined the professional boundaries between certain professions. The need for many of such regulations governing the various professions licensed by the state has always come under scrutiny. Now, with almost a year of experience without some of those same regulations in force, there will likely be an increased effort to minimize the regulatory burden and permit easier entry to the market for certain professions.