West Virginia House Seeks Special Session On Pandemic Spending But The Idea Falls Short In Senate

Updated Monday, July 13, 2020 at 4:25 p.m.

Lawmakers in the West Virginia House of Delegates are approaching a needed number of signatures to call themselves into a special session, but such an effort appears to be dead on arrival in the Senate. The push comes as some legislators have taken issue with Gov. Jim Justice’s spending of federal funding related to the ongoing coronavirus pandemic.

Just before the turn of the state’s fiscal year on July 1, Justice announced he was making use of some of the $1.25 billion from the federal CARES Act — as well as $150 million in the state’s Medicaid Surplus fund — by replacing money already allocated in the budget that was being spent on the pandemic. The move comes despite federal guidelines that say states cannot backfill state budget deficits with funds from the CARES Act.

The creative accounting, backed by a legal opinion the governor’s office sought from outside counsel Bailey & Glasser, helped the state overcome a $255 million deficit in Fiscal Year 2020 and come out with a $10 million surplus heading into the new fiscal year, Justice said. But some state lawmakers have taken issue with what they say is an overreach of executive powers. 

On Monday, House Clerk Steve Harrison provided West Virginia Public Broadcasting with 23 letters from lawmakers calling for a special session. Of those, 22 were from Republicans and another from the chamber’s lone independent, Del. Marshall Wilson, I-Berkeley.

Harrison noted that there may be letters outstanding that have been sent to the Clerk’s office or to House Speaker Roger Hanshaw, R-Clay. 

Under Article 6, Section 19 of the state Constitution, lawmakers can compel the governor to call a special session by gathering the support of a three-fifths majority of each chamber’s members. Such an effort would require 60 members of the House of Delegates and 21 members of the Senate.

House Finance Minority Chair Mick Bates, D-Raleigh, has been leading that charge in recent weeks and has often publicly questioned Justice on state spending without legislative oversight. Bates said, as of Monday, he has the support of more than 50 delegates and is trying to get to 60 “in a bipartisan way.” 

“I believe there’s a majority of the members of the House of Delegates that believe we need to step up and take some control and have some oversight around this $1.25 billion,” Bates told West Virginia Public Broadcasting. “And also, to put some checks and balances in place as it relates to the governor’s use of his executive powers under the four month-old state of emergency.”

Bates said he delivered Monday copies of letters requesting a special session to Justice’s advisor Bray Cary and had also made the Speaker’s office aware.

Del. Pat McGeehan, R-Hancock, has been one of the Republicans leading the charge for a special session. He has been gathering letters from members of his caucus and submitting them to Harrison.

“The power of the purse and to appropriate revenue, along with the authority to make law — these are exclusive to the Legislature. Strong limitations against the Executive branch are necessary to prevent these from being encroached and infringed upon,” McGeehan wrote in a text message Monday to West Virginia Public Broadcasting. “The alternative of doing nothing will only serve to cede ground and legitimize the exercise of arbitrary power — and further erode the classical check-and-balance system from our American tradition.”

Speaker Hanshaw said he feels the Constitution is clear that the Legislature has authority over all funds that flow through the state Treasury and said he has expressed as much to the governor’s office. He said the question at hand should not be if he agrees with what the governor is spending funds on from the CARES Act, but rather if he can do so unilaterally.

When it comes to lawmakers returning to Charleston — be that for the regular session in February or sooner for a special session — Hanshaw said some delegates have expressed concerns over the ongoing pandemic.

“There are members who’ve contacted me to say, personally, that they are not comfortable coming to Charleston or coming into the Capitol,” Hanshaw said. “I certainly want to be responsive to that, too. So there’s both a philosophical reason to come in or not come in and a very practical technical reason about how we get in session even if we were to be.”

While Hanshaw said he has not yet formally signed on to call for a special session, other delegates do appear to be gaining traction to make it happen. However, such an effort in the upper chamber appears to be nonexistent. 

Senate Clerk Lee Cassis said he is not aware of and has not received any requests from lawmakers calling for a special session. 

Senate President Mitch Carmichael, R-Jackson, acknowledged that even one chamber acquiring a three-fifths majority to call themselves into a special session is a rare occasion. But he said he is not in support of the effort to bring lawmakers back. 

“I don’t know the need to have a special session,” Carmichael said by phone Monday. “I mean, we’ve been — and you know me — I’ve been very forthright with the governor when we agree and when we disagree. And I think we’re working with the governor to implement the ideas and concepts, at least from the Senate’s perspective.”

Carmichael, who will give up the gavel next year following a primary loss last month, cited Justice using federal aid to fund broadband expansion projects as one way in which the governor has been working with lawmakers.

“I know there’s some thoughts around the oversight component of it and just the constitutionality,” Carmichael said. “But I believe there’s firm legal ground at this point for the actions the governor takes.”

While confronting Justice on spending federal aid money related to the pandemic is one priority, Bates and other lawmakers say there are many other functions of government that will need to be dealt with as soon as possible.

“Those executive powers were given to him by the Legislature. As we decided what his powers and authorities are, this was never envisioned. You know, they were put into code based upon a flood, you know, a localized, time-limited period that was going to affect a portion of the populace. We’re four months into this thing with no end in sight. So that’s that issue.”

Bates also said the potential of the virus carrying on into 2021 leaves many questions on how the Legislature will conduct its business. 

“What if something happened? What if there was to be a disaster on top of a disaster? Would the Legislature just continue to be absent?” Bates asked. “You know, we need to establish our procedures for us to be able to conduct business remotely. And, potentially, what might be in a way different than we’ve ever done before.”

Given the ongoing threat of the coronavirus, Carmichael said he is not interested in conducting interim meetings, which usually function as a way for lawmakers to study various topics and draft legislation for consideration during the regular session. He also said any concerns on the handling of issues raised by Bates could wait until the next regular session. 

“There’s no real reason to come in and do this. If there are issues around the executive power provisions in our statutes those could be addressed in February,” Carmichael said.

While legislative activity appears to be stalled because of a lack of interest in the Senate and interim meetings not rising to a high level of priority, there was at least a bit of movement as some lawmakers gathered Monday to hear from some of the main players involved in the state’s response.

Thirteen members of the House Health and Human Resources Committee held an informal meeting where they asked questions of and heard from state coronavirus czar Dr. Clay Marsh, West Virginia National Guard Gen. James Hoyer and Department of Health and Human Resources Sec. Bill Crouch.

Dr. Ayne Amjad, who was last week appointed as the state’s new public health commissioner, spoke briefly to lawmakers. She said she is working on an effort to educate West Virginians about the science behind wearing a mask to prevent the spread of the virus.