CHARLESTON — The Republican-supermajority West Virginia Senate passed two bills Thursday morning that it introduced just moments before without making the text of the bills publicly available until hours after they had passed.
The Senate suspended state constitutional rules to ram the bills through with little discussion and no chance for public comment, a day after it opened the 2023 regular legislative session by passing 23 other bills the same way.
All the bills passed moments after they were introduced without committee consideration on the Senate floor. Bills don’t get put into the Legislature’s bills system until after they’re introduced on the floor, giving the public only seconds to review a wide range of bills Wednesday before the Senate approved them.
“The power they’ve got, they’re abusing it,” Richard Painter, a law professor at the University of Minnesota who served as chief ethics lawyer for President George W. Bush.
Article VI of the West Virginia Constitution requires that a bill be “fully and distinctly read” on three different days in both the Senate and the House of Delegates, “unless in case of urgency,” an exception requiring 80% of members present to suspend the rule.
Republicans hold 31 of 34 Senate seats, giving them the power to suspend the rule in any party-line vote.
“It’s simply flaunting the Constitution to waive it in such fashion that routinely,” West Virginia University law professor Bob Bastress said. “It defeats the purpose of the constitutional provisions.”
State lawmakers sometimes suspend the rule toward the end of a legislative session to ensure that a bill that didn’t gain momentum until late in the session passes by eliminating one or more days of reading the bill.
But bills getting that fast-track treatment customarily are considered by one or more committees posting them on agendas that allow for at least some public review and input.
“The public should know what they voted on,” Painter said. “The public also should have the right to contact their state legislator, senator, and say, ‘Vote yes’ or ‘Vote no.’ That’s why we should have a bill that’s publicly available.”
The bill text for Senate Bills 161 and 162 wasn’t available on the state Legislature’s website until roughly three hours after the Senate passed them Thursday.
Both bills would expand the power of the Division of Natural Resources, if also passed by the House of Delegates and signed into law.
Senate communications director Jacque Bland said Senate members would have had access to the bills to review Wednesday night.
Bland said an undiagnosed technical issue prevented the bills’ texts from transferring over to the Legislature’s website when they were introduced on the floor.
Drew Ross, director of the state Office of Reference and Information, said the bills were dropped into a virtual folder that feeds the Legislature website shortly after 12:45 p.m., more than an hour after the bills were passed.
SB 161 passed less than 15 minutes after its introduction on the Senate floor. SB 162 passed just under six minutes after its introduction.
Senate President Craig Blair, R-Berkeley, did not respond to a request for comment. Bland pointed out a statement released by the Senate on Wednesday in which Blair touted the speed with which the chamber passed bills on the legislative session’s opening day.
“When we show up to work, we’re ready to start on time and get the job done immediately,” Blair said.
One of the bills, SB 126, would reorganize the Department of Health and Human Resources into three separate departments: the Department of Health Facilities, the Department of Human Services and the Department of Health.
Another bill, SB 127, would reimburse any hospital that provides inpatient care to increase the Public Employee Insurance Agency reimbursement rate of hospitals and emergency medical service providers to 110% of the Medicare reimbursement rate effective July 1. SB 127 is the same as last year’s SB 574, which a fiscal note estimated would cause the PEIA to incur a minimum of $40 million in additional annual claims expense increases.
The Senate passed SB 574 unanimously last year, but it stalled in the House. Most of the bills the Senate suspended constitutional rules to pass Wednesday passed the Senate by overwhelming margins in 2021 or 2022, an argument Blair made to defend the fast-tracking in his statement Wednesday.
“I don’t think that matters a whit, what the origins of the bills were,” Bastress said. “I still think it’s clearly contemplated by Article VI that the public should be fully informed about what’s being voted on.”
Article VI doesn’t explicitly weigh in on bill text availability.
“I don’t think anybody ever contemplated you would need that provision,” Bastress said.
The Senate also suspended constitutional rules to pass 18 bills on the opening day of the 2022 legislative session.
But West Virginia Citizen Action Group’s Gary Zuckett noted that the 2023 Legislature, unlike last year’s body, includes many newly elected members who hadn’t previously voted on bills they were asked to approve on their first day of voting.
“Will this now be the normal procedure for what is supposed to be our state’s most deliberative body?” Zuckett said in an email.
SB 161 would authorize the director of the DNR to sell, lease or dispose of property under division control. Under SB 161, the director could convey property for money, security or other property.
Blair ordered Sen. Brent Stover, R-Wyoming, to approach him for a sidebar amid Stover’s line of questioning for general details about SB 161 for the bill’s presenter, Senate Judiciary Chairman Charles Trump IV, R-Morgan, questions about SB 161. Stover’s line of questioning ended abruptly after the sidebar, allowing the Senate to move toward a vote.
SB 162 would allow the DNR’s director, with Department of Commerce approval, to lease state-owned pore spaces underlying state forests, natural and scenic areas and wildlife management areas under division control for carbon sequestration. The director would be prohibited from leasing state-owned pore spaces underlying lands that are designated as state parks.
The pore space development proposal would be sold or leased to the highest responsible bidder, who must give bond for the “proper performance of the lease.”
But the DNR director also may directly award a pore space lease when secretaries of the Department of Commerce and the Department of Economic Development certify the lease is a required component of an economic development project.
SB 162 follows last year’s House Bill 4491, a law that set up a state regulatory program for underground carbon dioxide storage and established permit guidelines for drilling injection wells and sequestering the carbon.
“This is an economic opportunity that the Economic [Development] department would like to have in their tool[box],” Sen. Glenn Jeffries, R-Putnam, said during a brief discussion of the then-unreleased bill.
Just two months after the GOP’s state legislative supermajority swelled following the 2022 general election, Painter concluded they’re using their power to commence “short-circuiting” the legislative process.
“If I were the voters, I’d be pretty mad,” Painter said.