The more I observe events surrounding the omnibus education bill (SB 451), the more convinced I become that Senate President Mitch Carmichael, R-Jackson, is on a kamikaze mission.
Carmichael, who eked out a narrow 51-49 percent win in his 2016 re-election bid (he has the quandary of being too liberal for many Republicans, and too conservative for many Democrats), has to know that after being the target of teachers’ wrath during the 2018 statewide teacher walkout, he will be enemy No. 1 of teachers and teachers’ unions in the 2020 elections.
When his attempts last summer and fall at revisionist history (that Senate leadership had been in favor of the 5 percent pay raise all along) or branding teachers’ union leaders as socialists failed to gain traction, Carmichael’s chances for re-election next year likely stand, not on winning over constituents, but in assuring backing from enough gray money interest groups to fund a barrage of negative attack ads aimed at whoever his opponent may be in 2020.
Thus, the omnibus bill suddenly surfaced on the evening of Jan. 23, and as of this column’s deadline, was on a bullet-train pace of being passed by the Senate — on a narrow and partisan 18-16 vote — in just eight legislative days.
Much of the debate has been over how the massive, 133-page bill came to be, with educators, teachers union representatives, Boards of Education both state and county, and other stakeholders indicating they had no input in the drafting of the legislation.
Newly minted Sen. Paul Hardesty, D-Logan, who after years as a legislative lobbyist knows where a lot of the skeletons are hiding in the statehouse, noted that many sections of the bill appear to have been lifted verbatim from ALEC position papers; ALEC being the conservative, corporately funded organization whose motto is, “Limited Government, Free Markets, Federalism.”
Sen. Patricia Rucker, R-Jefferson, who Carmichael put in as Education chair after Sen. Kenny Mann, R-Monroe, proved too tolerant of the teachers unions, is the West Virginia state chairwoman for ALEC.
By their nature, omnibus bills are almost always doomed to failure, usually collapsing under their own weight. The problem with bills that have too many disparate elements, too many moving parts, is that they generally reach the point where everyone finds something to dislike.
(That may be why major tax reform legislation never succeeds.)
Once it gets through the Senate — assuming no one Republican senator flips, killing it — the omnibus bill has a long row to hoe.
Gov. Jim Justice is adamantly opposed to it, saying in his best Jim-ism, “This just irritates the peanuts out of me.”
State and county boards of education have issued statements of opposition to it.
House Speaker Roger Hanshaw, R-Clay, issued a statement expressing his clear lack of keenness for the bill, and the House’s leadership’s intent to move forward to pass clean bills “to improve compensation for teachers, service personnel and state employees.”
According to testimony on the Senate floor Friday, public calls and comments to senators were running as much as 3,000-to-one against the bill.
Clearly, teachers, service personnel and their unions are opposed to the bill, and we saw in 2018 what can happen when they invoke the power of 55 United.
Heck, Carmichael didn’t have enough support in his own Senate Finance Committee to pass the bill, having to use the convolution of calling the Senate into a Committee of the Whole to avoid having the bill die on an 8-9 vote in Finance.
Carmichael has to know the bill has little chance of surviving the legislative process, and even if it does, would likely be overturned in court. Besides that, the tactics used to get the bill advanced show that leadership’s talk of transparency and good government was lip service.
In crashing and burning in the name of causes backed by the gray money interests — shrinking government, weakening organized labor, among others — Carmichael is perhaps hoping those interests remember his sacrifice when it comes time to buy airtime to run attack ads against his opponent in 2020.
Imagine my disappointment when Senate Judiciary Chairman Charlie Trump, R-Morgan — who, as noted previously, challenged the constitutionality of a Lottery bill because it dealt with two different types of video slot machines — declared on the Senate floor that the omnibus education bill properly addressed a single object of law, that being “relating to education generally.”Surely, not every portion of a 133-page bill that changes 62 sections of state code can all be relating to education. Let’s see ...
18A-4-9 © “No amount of an employee’s pay may be withheld or deducted by the county board for the purpose of paying dues to an employee organization that provides representation, lobbying, or other employee-related services unless the employee within the last year has submitted a request for the withholding or deduction.”
What, pray tell, does a requirement that employees each year have to renew a request to have union dues taken out of their paychecks as a payroll deduction have to do with improving the educational system — unless you buy the premise that the existence of teachers’ unions themselves negatively affects education.
(When our attorney general weighed in on the issue with an advisory opinion saying the bill likely would stand up in court, he conveniently neglected to address how the various anti-union measures in the bill comport with the single object of education reform.)
On the Senate floor last week, Sen. Mike Woelfel, D-Cabell, asked Carmichael to rule if the omnibus bill violates the single object clause of the state Constitution, and Carmichael ruled it was beyond the purview of the chair to address.
Since that’s above my pay grade, I decided to seek out the opinion of an expert parliamentarian, of which I only know two.
One, Speaker Hanshaw, is not very efficient at returning reporters’ phone calls, so I turned to former longtime House Clerk and parliamentarian Greg Gray.
Gray said Carmichael was correct that the chair does not rule on constitutional questions — that’s the purview of the courts.
Gray said Woelfel’s follow up should have been to object to consideration of the question, with the question up for vote being, “Shall the Senate now consider the omnibus education bill?” with a negative vote having the effect of tabling the bill.
Gray lamented that the Senate leadership’s actions could set a dangerous precedent.
“Once they get by with it, the box is open,” he said. “We’ve seen it time and again over the years, in House, Senate and as result of conference.”
A good example: Not infrequently, a legislator will get fed up with lack of action on his or her bill, and will make a motion to discharge the bill from committee, to bring it straight to the floor.
When that happens, leadership always makes the argument about the necessity to maintain the integrity of committee process for vetting legislation.
Now that Senate leadership has taken an unprecedented step of short-circuiting the committee process, using the Committee of the Whole maneuver to keep the omnibus bill alive, any arguments leadership make in the future about the integrity of the committee process will ring hollow.
That ultimately may be the lasting legacy of the omnibus bill saga, the further eroding of legislative rules and parliamentary procedures designed to promote good government and quality legislation.
I made an appearance on the “West Virginia Press Insight” program, and a very good question was posed to me that, following the 2018 teacher walkout, why wasn’t a legislative interim committee formed to spend the year studying education reform?First of all, that requires a little background on interim meetings. Given that a part-time citizen legislature can’t be expected to get up to speed on complex issues within the parameters of a 60-day legislative session, the Legislature at some point (predating my time here) opted to hold monthly three-day interim meetings to get briefings from state agencies, and also to allow for in-depth study of key issues.
While the interim committee process has been an imperfect creature — an interim committee studied legalization of “gray” video poker gambling for years without reaching a conclusion until then-Gov. Bob Wise finally took the bull by the horns in 2001 with legalization of Limited Video Lottery — the current leadership has weakened the system in recent years in the name of cost-cutting.
From the end of the 2018 session to the start of this session, the Legislature had 17 days of interim meetings, down from the normal 24 days, a nearly 30 percent reduction. Which greatly restricts the Legislature’s ability to study issues in the off-season — which may well be part of leadership’s intent.
Finally, because I failed to note a time change for the Board of Public Works, I endured the embarrassment of walking into what turned out to be a governor’s cabinet meeting, which are generally closed to the public.As I hastily bid a retreat, I took notice that the meeting was not being chaired by Gov. Justice (who was not in attendance), nor by chief of staff Mike Hall (who was present). No, chairing the committee was senior advisor Bray Cary.
It occurred to me that Justice’s tenure could set a precedent for how to run a candidate for governor who has high electability, but no interest in overseeing the day-to-day operations of government, under an arrangement to turn the actual governing over to a key aide.