Blink and you could miss something. Keep a close watch anyway.
That was a message recurring throughout a pro-democracy group webinar last week that scrutinized the West Virginia Legislature’s increased reliance in recent sessions on fast-tracking legislation and other measures panelists say hinder public participation in the legislative process. Both chambers of the Legislature are under the control of a Republican supermajority.
“We expect and we need to have a transparent government so that we know what’s going on,†American Civil Liberties Union of West Virginia Policy Director Eli Baumwell said during the webinar held by West Virginia Citizens for Clean Elections.
The panel discussion followed a special state legislative session this month in which lawmakers fast-tracked 35 bills to passage fewer than five hours after Gov. Jim Justice announced the session.
The sudden introduction and instantaneous passage of the bills, with little to no discussion and no committee referral, sparked renewed criticism that lawmakers aren’t giving the public adequate opportunity to review and respond to legislation with broad implications for their lives.
The Senate has regularly fast-tracked bills to begin legislative sessions. On the first day of the 2023 regular session in January, the Senate suspended a constitutional rule to ram through 23 bills to passage.
Article VI of the West Virginia Constitution requires that a bill be “fully and distinctly read†on three different days in the Senate and the House of Delegates, “unless in case of urgency,†an exception requiring 80% of members present to suspend the rule.
Thursday’s panel said legislators in ÂÒÂ×ÄÚÉä have weakened transparency in state government by abusing that rule and cutting corners in other lawmaking procedures.
By 8 p.m. Aug. 6, only four-and-half hours after Justice announced this month’s special session, the Senate alone had taken up and passed 27 bills poised to have significant fiscal and health effects for the state and its residents.
Without opposition, the body passed Senate Bill 1001, changing the calculation for how much in surplus revenue must be placed into a state revenue shortfall fund, SB 1017, allotting $45 million for a Marshall University cybersecurity program, and SB 1009, prohibiting the use of medical procedures the Division of Corrections and Rehabilitation deems not medically necessary for people in its custody.
Baumwell recalled the Senate opened the 2023 legislative session by suspending state constitutional rule to pass a measure in SB 126 to split the Department of Health and Human Resources, which provides a wide array of critical child support, family assistance and public health services, into three different agencies. The Legislature eventually passed a House version of the legislation, House Bill 2006.
Senate President Craig Blair, R-Berkeley, and House Speaker Roger Hanshaw, R-Clay, have defended their chambers’ quick work by saying they’re avoiding gridlock in advancing bills their Republican supermajorities agree on – many of which previously passed their chambers in other forms.
But passing bills moments after they’re introduced and without committee consideration has drawn objections from lobbyists like Baumwell and government law experts.
Baumwell was part of a panel Thursday that skewed left of center, moderated by former Democratic West Virginia secretary of state Natalie Tennant, former delegate Barbara Evans Fleischauer, D-Monongalia, and Margaret Chapman-Pomponio, executive director of WV FREE, a ÂÒÂ×ÄÚÉä-based reproductive health and rights group. Also joining the panel was Gazette-Mail columnist and semi-retired Statehouse reporter Phil Kabler.
But state lawmakers’ penchant for fast-tracking legislation also has prompted criticism from Richard Painter, a law professor at the University of Minnesota who served as chief ethics lawyer for President George W. Bush.
“The power they’ve got, they’re abusing it,†Painter said in a January phone interview.
Chapman-Pomponio recalled increasingly frequent dispensing of a second committee reference for bills advancing toward passage
“It’s a disservice not just to the public but to legislators as well because all of a sudden, they’ve got a bill on the floor, and they haven’t had any chance to study it. Stakeholders haven’t been able to come in,†she said.
Medical professionals don’t have time to drop their patients and travel to ÂÒÂ×ÄÚÉä to weigh in on the potential effects of legislation under consideration, Chapman-Pomponio noted.
The law passed this month prohibiting the use of medical procedures the Division of Corrections and Rehabilitation deems not medically necessary for people in its custody, as passed by the Senate, didn’t include a provision requiring consultation with a medical professional. The House added that provision in its version of the bill that became law.
Baumwell noted that public hearings on bills under House committee consideration often are very poorly attended, with legislators often not even there.
No speakers showed up for a March 2022 House Energy and Manufacturing Committee hearing held in the House Chamber on a Friday at 8 a.m. on a measure in SB 650 that eliminated a state requirement that at least seven royalty owners must own an oil and gas interest for an operator to develop it. The committee already had advanced the bill, which became law, three days earlier.
Later in the 2022 session, the Energy and Manufacturing Committee held a public hearing on a Monday at 9 a.m. on only a few days’ notice on a controversial, sweeping horizontal well drilling bill, SB 694, that already had been passed by the Senate and two committees in the House.
“At eight in the morning, it’s really hard for anyone who doesn’t live around Kanawha County to roll out of bed and go to it,†Fleischauer said of House public hearings.
In July 2022, 90 speakers took the podium in the House Chamber on a Wednesday morning during a public hearing on a bill, HB 302, to ban almost all abortions in the state. Speakers were given 45 seconds to speak. Roughly five hours after 69 of 90 speakers opposed the bill, the House passed the bill in a 69-23 vote. HB 302 eventually became law, significantly limiting abortion access.
Fleischauer said the “executive branch needs to have sunlight†as well, noting Gov. Jim Justice’s press conferences have been closed to in-person reporter attendance since the start of the COVID-19 pandemic. The virtual format keeps reporters from posing follow-up queries, allowing Justice greater control over press briefing dialogue and to avoid tough lines of questioning.
Fleischauer, who narrowly lost in a state Senate race last year to Sen. Mike Oliverio, R-Monongalia, observed the state constitution provides citizens the right to “instruct their representatives.â€
“We may need to be thinking some more, how can we give that real meaning?†Fleischauer said.
Tennant, who was edged in her bid for a third term by incumbent Republican Mac Warner in 2020, suggested the remedy for those who disapprove of the GOP supermajority’s speed of lawmaking is clear.
“Ultimately it comes down to elections,†Tennant said. “They don’t have to be transparent when you have a super-duper majority.â€
“A lot of this is going to come down to winning elections,†Baumwell agreed. “We need to elect representatives who want to be transparent, who want to be thoughtful.â€
