Last week, I wrote about the “Absolute Worst” legislator of the 2021 regular session. Today, I’d like to recognize the person I would consider to be the legislator of the year (although given the horrendous nature of this legislative session, that’s akin to being valedictorian of reform school).
That distinction goes to Senate Judiciary Chairman Charlie Trump, R-Morgan, whose committee managed to take a number of horrible bills and either improve them, effectively turn them into study resolutions or sit on them until time ran out at Saturday.
A case in point was the so-called Second Amendment Preservation Act (HB 2694), which as originally drafted, would have made it a criminal offense for state and local law enforcement officers to assist federal authorities in enforcing federal gun safety laws stricter than our meager semblance of state gun safety laws.
As Trump noted, the idea that state and local law officers working cooperatively with their federal counterparts is an “undesirable entanglement” is ludicrous, as is the concept of ignoring the supremacy of the U.S. Constitution and federal law, and declaring that certain laws are unenforceable in the state.
Trump cut to the chase to get to the heart of the issue prompting the bill, that gun nuts are terrified that old, feeble President Joe Biden and the scary Nancy Pelosi/Chuck Shumer controlled Congress are coming for their guns.
(Biden instead announced Thursday some wholly reasonable, rational and measured gun safety actions that all sensible Americans should support.)
Trump sagely noted, if the issue is an unconstitutional overreach by the president or Congress, the proper response is not legislation compelling state and local officials to effectively ignore the law or executive order but to challenge their constitutionality, which Trump’s strike-and-insert amendment does.
Similarly, Trump took House Joint Resolution 1, which originally proposed a constitutional amendment that would prohibit the state, cities and counties from passing laws or ordinances restricting the right to keep and bear arms by “means of locality, ammunition capacity, caliber, modification, accessory, decibel, method of carry or any other means,” and toned it down to stating cities and counties may not enact firearms ordinances stricter than state law — which happens to be current state law.
(Had the constitutional amendment been ratified in its original form, if your neighbor decided to put a shooting range in his backyard and host late-night tree stump obliterations with AR-15s, and you complained about noise, tough; you can’t infringe in any way, shape, form or fashion on his 2A.)
Also in another display of wisdom, Trump determined it wouldn’t be prudent to attempt to attempt to give a cursory review to a 400-page complete rewrite of the state criminal code in the final 10 days of the 60-day session, and instead amended it to effectively study determinate sentencing for a year, with input from the state Sentencing Commission.
(Trump’s counterpart in the House, Judiciary Chairman Moore Capito, R-Kanawha, showed similar prudence in concluding there was not enough time remaining in the session to take up a bill changing state election law (SB565), a bill that also had significant opposition and made the Brennan Center for Justice’s list of 361 voter suppression bills introduced in 47 states.)
Meanwhile, at my Friday deadline for submitting this humble column (and anything is possible in the waning hours of any legislative session), some horrendous bills remained in Trump’s Judiciary Committee, including the bill that would make it a crime to remove or relocate white supremacist statuary (HB 2174), a bill that was unanimously opposed in public hearing and has generated considerable negative national publicity for West Virginia at a time when we’re supposedly trying to attract people here.
Through his diligence and willingness to make stands unpopular with a party that continues to move further and further to the extreme right, Trump was a brief shimmer of light in a deeply dark session.
Trump carries on, to a lesser degree, a long tradition of the Senate Judiciary Committee being a sanctuary of sanity where extreme, ill-conceived or injurious bills have gone to die.
That follows a legacy of committee chairmen who were smart, open-minded and fearless (often helped by being in safe senatorial districts), names like Jim Humphreys, Bill Wooton, Jeff Kessler and Corey Palumbo.
Among the most egregious actions I’ve seen in my 32 legislative sessions was Senate leadership’s attempt to ram through an 11th hour version of the income tax cut/sales tax hike bill (HB 3300) with members having at best two hours to read the new version of the complex tax shift, and with Senate President Craig Blair, R-Berkeley, refusing to abide by Senate Rule 15a, which requires bills that have fiscal implications to have a fiscal note outlining the financial ramifications of the legislation.
Throughout the process, the party that supposedly is committed to transparency went out of its way to ensure that no evidence, no studies, no expert testimony was presented that would have challenged their basic premise that cutting income taxes will bring people and businesses to the state in droves.
It occurred to me that, throughout the entire process, the Legislature and governor have had a resident tax and revenue expert in their midst, but never once called on him to analyze the validity of the claims. That expert being longtime Deputy Revenue Secretary Mark Muchow.
Hiding in plain sight is Muchow’s Fiscal Note on the original version of the Senate’s income tax plan (SB 600).
Muchow pointed out that states without income taxes are not tax-free paradises, that those states make up the revenue through myriad other taxes, including consumption taxes, business and corporate taxes, and property taxes that are considerably higher than comparable taxes in West Virginia.
He noted that residential property taxes in Florida are 2.3 times higher than West Virginia’s and Texas’ property taxes are 3.5 times higher. Commercial property taxes are double in both states.
Muchow noted that Tennessee, often cited by Gov. Jim Justice as a model for his proposal, has property taxes that are 56% higher than West Virginia’s, has the nation’s highest sales tax at 9.55%, taxes food at 6.25% and imposes an additional 2.75% sales tax on luxury items.
Additionally, he notes that Tennessee’s general business taxes are higher, and as a personal concern of mine, the state has excise taxes that are substantially higher, including a beer tax that is dramatically higher than West Virginia’s.
Muchow also noted that, “On a per captia basis, Tennessee expends less on (public) education and higher education than West Virginia.”
(Cutting spending on programs and services, I’ve theorized, might be the real intent of the income tax cut.)
West Virginia likely would find itself making spending cuts under the original Senate plan, with Muchow estimating it would reduce general revenue by $185 million in its first full year.
(In his videoconference to blame House leadership for killing his plan by refusing to rush it through without vetting it as the Senate did, Justice claimed Muchow produced a fiscal note that the plan would have increased state revenue by $80 million. I can find no such fiscal note. Justice also said that in negotiations, he took a property tax increase off the table. I can find no evidence property taxes were ever in the plan.)
Notably, Muchow pointed out that West Virginia currently has the 17th lowest per capita state and local tax burden. This raises a question I’ve attempted to pose before: If our already low tax burden is not attracting people and businesses to the state, how low do we have to go to supposedly become attractive?
While Justice does not appear ready to give up on his plan, state taxpayers should demand he provide reliable independent evidence to support his basic premise of a direct causal effect between income tax cuts, along with sales tax hikes and expansions and economic and population growth.
I’ll wager what’s left of Justice’s fortune that none can be found.
Finally, legislation to make permanent some beer, wine and liquor regulations liberalized during the pandemic (HB2025) raised an interesting issue, given Major League Baseball’s shakeup of minor league baseball, which cost West Virginia all four of its affiliated professional baseball teams.
State Code (60-8-3 (i)1) provides for a special license to sell wine at “professional baseball stadiums,” defined as, “a facility constructed primarily for the use of a major or minor league baseball franchisee affiliated with the National Association of Professional Baseball Leagues, Inc., or its successor, and used as a major or minor league baseball park.”
(The National Association was the governing body of the minor leagues before MLB blew everything up.)
With the changes, the West Virginia Power is now a member of the independent Atlantic League, and strictly defined, is no longer a minor league team, while ballparks in Morgantown, Bluefield and Princeton are no longer “professional baseball stadiums,” since the three will now host amateur collegiate wood bat league teams.
(As a practical matter, I don’t believe Bluefield or Princeton have ever sold adult beverages.)
Sen. Richard Lindsay, D-Kanawha, raised the issue during discussion of the bill in Senate Judiciary Committee. Committee counsel Tom Smith said he believes the Power ballclub can continue to serve wine, since Power Park will continue to host professional baseball, but the West Virginia Black Bears appear to be out of luck on wine sales.
It would be a shame if wine sales had to be halted at Power Park on a technicality, as hard as lawyer/lobbyist Wendel Turner worked to get the legislation passed, in part, on behalf of his wife, Jane, who enjoys the occasion glass of wine at the ballyard.