Charter Schools: The Real Threat to Public Education

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Those who have been following the Brexit debacle in the UK will be familiar with the terms Leavers and Remainers. Leavers are the faction who want Britain to leave the European Union, where it has prospered for decades. Remainers are the faction who want Britain to stay. West Virginia has its own version of Leavers. Our Leavers, led by Senator Patricia Rucker of Jefferson County, want to set up a system of charter schools that would permit parents to remove their children from public school. But the evidence does not show that students at charter schools perform better. Worse yet, the Leavers want the rest of us to pay for this scheme with our tax money, draining funds from already underfunded public schools.

Senator Rucker was appointed by the Republican leadership in the West Virginia Senate to be Chair of the Senate Education Committee. This Committee has first crack at any legislation affecting our public schools. She is an odd choice for this role. Her education views have been described as “extremist and in many ways anti-public education.”

Senator Rucker has five children, all of whom have been home schooled. At the very least, this shows some sort of distaste on her part for public schools. For this and other reasons the Charleston Gazette-Mail, West Virginia’s largest and most influential newspaper, declared that she was a poor choice for Education Committee Chair.

The Republican members of Senator Rucker’s Committee recently advanced SB 451, known as the Omnibus Education Bill. This 133-page Bill covers many topics, including teacher pay raises. It contains a complicated charter school provision and a provision for Education Savings Accounts into which the state would deposit money for parents to spend on private school education for their children, including religious schools and home schooling.

The Bill was passed out of the Education Committee to the floor of the Senate, from where it was scheduled to be referred to the Finance Committee. But the Republican leadership somehow forgot that they did not have the votes on Finance.  As a result, they quickly resorted to parliamentary hard-ball by declaring the full Senate a Committee of the Whole and bypassing the Finance Committee. This has been done only four times in state history. A revised Bill will probably pass the Senate and move to the House in the week beginning February 4, 2019.

Since the late Nineteenth Century, American public education has produced legions of well-educated students who have gone on to productive lives. Our system has been the envy of the world. Recently, our system of public education has been weakened by poor funding and low teacher pay.

It has also been undermined by conservative ideologues like Secretary of Education Betsy DeVos pushing alternatives to public school, such as charter schools, mostly in the name of parent choice. But there are already private schools in West Virginia – Jefferson has two and Berkeley has five. And there are over 11,000 home school students in West Virginia. So it cannot be a desire for alternatives to public school that is driving the Leavers.

Private schools charge tuition for attendance. These private schools are not the charter schools contemplated in SB 451, although private schools could qualify if they successfully complete the application process. Unlike private schools, SB 451 prohibits charter schools from charging tuition or fees.  Instead, they would be funded by a portion of the tax money that would otherwise fund public schools.

One issue that is not addressed in the text of SB 451 is whether private religious schools may qualify as public charter schools. An applicant for a charter must be a 501(c)(3) organization, but religious schools can possess that tax designation. Although there is a provision entitled “Prohibitions” in SB 451, it does not include a prohibition on a religious course of instruction. So SB 451 has the potential to allow public religious charter schools.

Charter schools would carve students and revenues from public schools and would recruit public school teachers. There is no way that public schools can be as strong after this bleeding. Charter schools might benefit students who attend them, but would harm students who don’t. This was precisely the issue raised by teachers in the recent strike in Los Angeles. That strike resulted in a moratorium on new charter schools.

Moreover, there is plenty of evidence that charter schools don’t deliver superior student performance. In a 2011 study of 36 charter middle schools in 15 states, the researchers compared charter school performance with local public schools. They found that charter schools showed some positive achievement results versus disadvantaged public schools but some negative results versus the more advantaged schools.  On average, however, charter middle schools in the study were neither more nor less successful than traditional public schools in improving student achievement.

Despite high-sounding language about improving student achievement, the oversight and accountability under the Bill would be weak. HB 451 requires the authorizing School Board to supervise the performance of charter schools, but only allows it to terminate a charter school for failure to perform after five years of performance or lack thereof.

The second major initiative proposed by the Leavers is the creation of Education Savings Accounts (ESA), in use in only five states. These would be different than the vouchers that have been tried in 15 states over the last two decades. Vouchers are usually issued to parents and submitted by them to qualified private or charter schools in partial payment of the tuition. Money flows from the government to the qualified schools when they present the vouchers for payment. With an ESA, the money flows directly to the parents of a qualifying student. The amount would be 75% of the state’s share of per pupil spending — $3,172 in 2018-2019.

The parents would agree to spend the money on tuition to a private school or an institution of higher learning, tutoring, textbooks, educational hardware and software, school uniforms, transportation to school and several other things. The West Virginia Treasurer would be tasked with developing rules for determining if funds have been misused. The Treasurer does not currently perform these duties in connection with any similar program.

As with charter schools, the ESA money provided by the state could be spent on defraying the cost of attending a religious school. This would be an unprecedented failure to respect the separation of church and state embedded in our Constitution. It would be wrong.

The revised SB 451 limits the number of ESAs to 2,500, but there is no means test for eligibility.  A substantial number of these ESAs could be created for parents who would otherwise send their children to private school even without an ESA. In that way the ESAs would benefit the wealthy, not those who presently cannot afford private school.

Furthermore, the amount of the state’s contribution to the ESA would be short of the typical West Virginia private school tuition of $4,761, leaving a financial hurdle for low-income parents. Finally, private schools in West Virginia are not evenly distributed. Over half of the state’s private school students attend school in one of five counties. Nineteen counties in the state have no private schools at all.

SB 451 is not only ant-public school, it is anti-public school teacher. Some wags around the Capitol have called the Bill “Mitch Carmichael’s Revenge,” referring to the current Senate President’s annoyance at last year’s teacher’s strike. Not only does SB 451 contain charter school and ESA provisions, which most teachers oppose, it contains a provision making union dues harder to collect and a provision barring teachers for receiving pay even if School Boards close schools during job actions as they did last year.

Clearly the Leavers are in control of the West Virginia Senate and its Education Committee. But SB 451 doesn’t become law unless it is also passed by the House of Delegates and signed by the Governor, who has threatened a veto. There is hope for our public schools.  Our leaders simply need to come to their senses to protect them.

Death By A Thousand Cuts

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The West Virginia Legislature began its main 2019 session on January, 9, 2019. All bills introduced in 2018 that were not then acted upon were re-introduced on the first day of this session. New legislative proposals have also been introduced early in this session. A review of both categories introduced in the House and Senate shows that there are several serious attempts to deal with the state’s problems.

But it also shows that many legislators are in love with tax exemptions and credits, which benefit one class of taxpayer and disadvantage everyone else. Sometimes these proposals have merit, but taken cumulatively they show the Legislature’s willingness to bleed our government of the revenue required for it to function effectively, drop by drop.

Legislators from both parties have proposed tax exemptions or credits, although Republicans have done so by a margin of roughly three to one. Here are some of the many proposals:

  • To exempt law enforcement officers from the payment of personal property tax (HB 2075);
  • To reduce the federal adjusted gross income figure used in West Virginia tax calculations for volunteer fire department and rescue squad members (HB 2208);
  • To exempt firefighters and volunteer firefighters from the payment of income tax, and real and personal property taxes (HB 2403)
  • To permit honorably discharged veterans to hunt, trap and fish without a license (HB 2030);
  • To exempt all motor vehicles from personal property tax (HB 2094);
  • To exempt the pension benefits of Department of Natural Resources police officers from state income tax (SB 12);
  • To exempt income earned by primary and secondary school teachers from personal income tax (HB 2370); and
  • To establish an income tax credit for practicing physicians who locate to West Virginia (SB 80).

For the last several years, this state has struggled with large budget deficits created because in earlier periods, when coal severance revenues were high, we reduced or eliminated other taxes. Among these were the business franchise tax and a reduction in the corporate income tax. Then the coal market, as it always does, went bust. We are now again operating with a surplus from an improved coal market and revenues from gas pipeline construction. But these sources of revenue are not permanent. Tax exemptions and credits, on the other hand, often become permanent.

Effective government costs money. Nobody likes paying taxes, but many of us like even less the failure of our government to create a successful, modern state that we don’t have to apologize for. Jim Justice is right about one thing – we are all tired of being 50th. Yet our tax choices don’t reflect an understanding of how to change this.

I am certain that cogent supporting arguments can be made by the legislative sponsors of each of the proposed exemptions and credits mentioned above. And it is difficult for opponents to argue that, say, school teachers aren’t worthy of tax relief. That sort of debate, though, is limited to the worthiness of the constituency to be favored.

What is missing is an analysis of the opportunity cost of granting exemptions and credits. What more important thing would we be able to do with the money we propose to confer on teachers or DNR police officers? There is very little of this analysis in the Legislature beyond the legislative fiscal notes, which are little more than a bookkeeping of what a proposal might cost. These fiscal notes are routinely ignored. You can be sure, however, that every nick in the general revenue fund created by a tax exemption or credit is ultimately felt somewhere else in the budgetary process.

This is not to say that tax exemptions and credits can’t be useful in achieving important policy goals, so long as they rationally fit those goals and are not one-off gifts to a particular constituency. Some of the recent legislative proposals fit well and seem worthy of enactment. For example, a refundable state earned income tax credit of 50% of the existing federal earned income credit. (HB 2108). This credit would further supplement the incomes of low and moderate income working adults. Doing that would increase the attractiveness of work and reduce the need for other public benefits like food stamps.

The idea of raising taxes is like the third rail in West Virginia politics. Nobody in the Legislature wants to touch it for fear of being punished by voters. But maybe we can be more careful about “spending” the revenues we do have on tax benefits for narrow constituencies. One way to do this is to resist the temptation to open any more small fiscal wounds in the body politic for the sake of momentary political benefit.

Going through all the bills that have been introduced in the Legislature so far, I came upon another idea. In each of the last two sessions, a bill has been introduced in the Senate proposing a five year sunset period for all tax credits in the Code (SB 23 and SB 48). Now that is a breath of fresh air.

 

Microplastics: An Emerging Concern for Animal and Human Health

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I cannot claim to be the most environmentally aware person in my neighborhood. I drive a car that is way too fond of gas, and often leave the lights on when I shouldn’t. So maybe I can be excused for not having heard of microplastics until now.

Plastic, which is a petro-chemical product, is produced in prodigious quantities around the world and has been an important advancement in modern life. But all this plastic has created its own set of problems. One visible problem is the huge amount of plastic trash – containers, fishing nets, straws – that floats around on the surface of the oceans. Plastic products also shed or deconstruct to tiny, sometimes invisible, particles and fibers. The effects of these microplastics are poorly understood now, but they are sure to become a concern for animal and human health.

Since plastics were first widely used in the mid-20th century, roughly 9 billion tons of it have been produced, most of which has become trash. This trash doesn’t biodegrade. A November 26, 2018 article in the excellent magazine High Country News speculates that scientists in the distant future will come upon a brightly colored layer of plastic material deposited in our time. Some geologists today refer to the current period as the Plastocene, and even recognize a type of rock made from naturally fused plastic and sediment called plastiglomerate.

Microplastics are particles smaller than 5 millimeters in diameter. Some have broken down from larger objects like tires or plastic bags. Some have been intentionally manufactured. Concern about microbeads, tiny plastic scrubbers in toothpaste and exfoliant washes, led to a federal ban on them in personal care products beginning in 2017. But perhaps the greatest concern now is the tiny synthetic fibers shed by clothing.

Synthetic fibers are long, thin strands of plastic woven into threads, much like wool. It is estimated that 58% of today’s clothing is woven with them. The fleece that keeps us warm in the winter is full of synthetic fiber. Synthetic blankets, sweaters and shirts also. A researcher in Australia set up three washing machines with special filters that trapped the microfibers after washing fleece garments. He found that they shed up to 1900 tiny fibers each time they were washed. These are too small to be captured by typical washing machine filters or municipal sewage systems. They go directly into our open water.

We are beginning to realize how widely microplastics are being taken up by animals in the lower orders of the food chain, such as invertebrate sea creatures, worms and insects. Mosquito larvae are also capable of eating microplastics and then retaining the plastic as adults. Dragonfly and midges, which also begin life as underwater larvae, are similar. Larger fish and sea animals that predate on the lower level creatures are likely to take up microplastics into their gut. And birds that make meals of insects are equally likely to take up microplastics.

Studies between 1962 and 2012 have revealed that 59% of examined seabird species have ingested plastics. Albatrosses, petrels and shearwaters contain more plastic that other species, probably because they feed in the open ocean and mistake floating plastic for prey. Most of this comes from pecking or otherwise ingesting small pieces of bottle caps, plastic bags, balloons, buttons and plastic lighters.

In the case of birds and other animals, it is unclear whether the plastic transfers from the gut to other organs and muscles. It may simply be ground up and pass through undigested. It is clear, however, that mortality rates increase among the birds that ingest large amounts of plastic. This could be caused by obstruction in the digestive tract, or an inverse correlation between the amount of plastic ingested and the amount of body fat the bird produces.

There have been no proper studies of the effects on humans of plastic uptake by fish and birds. Even scientists who work in the area concede that we have more serious environmental problems like carbon dioxide emissions and coastal erosion that require attention immediately.

But you can expect more attention to be paid to microplastics in the future. One reason is that they often act as sponges for other organic pollutants such as dioxins and PCBs. The molecules of these notably harmful chemicals shelter in the water-free environment found between the long carbon chains that make up plastics. A Japanese study found that 3-millimeter-wide plastic resin pellets found in Tokyo Bay contained organic pollutants one million times their concentration in ordinary sea water.

So how can an environmentally retarded person such as my own personal self act appropriately when it comes to plastic? One thing I do is ask for paper bags at the Food Lion. The check-out people see me coming and immediately go on break. Too bad – they will just have to get used to it. I also try to buy products packaged without plastic, but this is near impossible. Recently I found a big jug of olive oil in a glass bottle and snagged it. The more people do this the sooner manufacturers will get the message. And I will start buying cotton and wool garments, avoiding space-age synthetics. No more Speedo swimsuits.

But aside from modifying individual behavior, what can be done? West Virginia counties and cities still have the freedom to pass ordinances prohibiting one-use plastic packaging like shopping bags and water bottles. Last year, our ultra-libertarian Senator Patricia Rucker led a group of like-minded legislators in an effort to prohibit municipalities from passing ordinances relating to packaging and similar sinister left-wing topics. This effort failed, but she is likely to try again this year. If our newly-found environmental consciousness in Jefferson County has continuing strength, perhaps we can prevail on our local governments to tackle the plastic issue promptly.

Finding A Practical and Effective Solution for Carbon Emissions

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Can we talk? We need to stop wasting time and come up with a way to drastically reduce greenhouse gas emissions – now. The recent U.N. report on climate change should scare us into action if nothing else has. Earth’s surface temperatures are virtually certain to rise at accelerating rates between now and 2050, with many serious heat-related consequences, including the disruption of agriculture, wildfires and sea level rise. These will threaten world economic and political stability. This is no hoax. Existential threat would be a better term.

Many of the best minds today believe that the solution lies in putting the right price on the production of carbon-based fuels. Carbon producers like the coal industry create “externalities” – costs that are not part of the price of the coal paid by consumers.  Chief among these are the environmental effects of the greenhouse gasses emitted when coal is burned.  These costs are foisted onto the public in general.

Finding the right higher price for carbon would make carbon-based fuels less attractive than cleaner sources of energy, such as wind and solar. The right price for carbon would also encourage the development of energy efficient machinery and processes. Individual consumers would make better energy choices.

For those who believe the conservative ideology that free markets can solve all of our problems, here is a wake up call.  Free markets have totally failed us in pricing carbon. This is because neither the seller nor the buyer of carbon has an incentive to take externalities into account in the price.  Nearly everyone outside the Trump Administration – liberals and conservatives alike – believe that government must intervene. The question is how. There are two candidates for the job.

Cap and Trade

One system, called cap and trade, is currently in use in a group of New England states and California. Government’s role in a cap and trade system is to determine how much total carbon it will permit to be dumped into the atmosphere each year.  Government also sells permits to emitters up to the carbon limit and then supervises a secondary market.

Imagine that government decides it will tolerate 5 billion tons of carbon dioxide in year one.  It divides this amount into 1,000,000 permits worth 5,000 tons each.  The permits could be auctioned, generating revenue.  Some carbon emitters might be priced out of an auction, so they could go onto the secondary market to purchase pollution rights from emitters who, through technological improvements, do not need the right to emit all 5,000 tons authorized by their permit.

In year two the overall amount government will tolerate might be reduced to 4.5 million tons.  Each of the 1,000,000 permits in year two would authorize 4,500 tons, less pollution than the year before.  The price of these would be much higher than the year before at auction and also on the secondary market. The financial pressure on emitters to find ways to reduce their own carbon emissions would be intense. The carbon limit would be steadily reduced year to year until the goal is met.

The criticisms of cap and trade are several. First, emitters chafe at the government setting overall emission limits and call this “command and control,” a buzz-phrase for top down regulation. Actually these limits would be politically negotiated and might not be set low enough to avoid climate disaster. Second, if the overall limits are too low some emitters would be forced out of business, harming the economy. Third, and most important, cap and trade does not involve a mechanism to soften the impact of higher energy prices on consumers.  While environmentalists will favor the certainty that emissions would be reduced at predictable rate down to the level that will avoid climate disaster, this system would be subject to intense political pressure from emitters and consumers and would be politically unstable.

A Carbon Tax

The other method for solving the problem is a carbon tax. Under this method, government would decide the appropriate price for discouraging carbon emissions and then impose an escalating tax until that price is reached. This seems to be as much “command and control” as setting the carbon limit in a cap and trade system, but surprisingly conservatives seem to like the carbon tax better.

Voters in Washington state had the opportunity on November 6 to impose a “pollution fee” on emitters in that state. This fee would have operated exactly like a carbon tax. It would have been the first such tax to be adopted by ballot referendum anywhere.  Unfortunately voters turned down this measure 56% to 44% in what is now the typical divergence between rural and urban voters.

The Washington proposal was to impose a fee on large emitters, beginning at $15 per metric ton of carbon content and escalating $2 each year until it reached $55 per ton. For comparison, Sweden has the highest carbon tax in the world at $140 per ton. The Washington fee would have applied to fossil fuels sold or used within the state and electricity generated within or imported for consumption within the state.

The measure was expected to generate $2.2 billion in the first five years, which would have been directed to a trust fund. As a fee instead of  a tax, the proceeds could not be spent for general governmental purposes. Every cent raised would have gone toward solving climate-related problems, protecting the state’s environment or aiding communities affected by climate change or by the fee itself. This measure was designed to appeal to left-leaning and environmentally concerned voters.

An earlier measure for a carbon fee in Washington also failed because it was opposed by Democrats and labor. It aimed to gain support from more moderate voters by providing for the return of the proceeds from the fee directly to Washington residents, without reserving the money for alternative energy and conservation purposes.

The 2018 ballot initiative was opposed by petroleum producers who argued that the fee would not make a dent in global warming but would damage the state’s economy. They also argued the fee’s impact would be borne by consumers and small business. Commenting on the defeat of this measure, David Roberts, a reporter at Vox, wrote that “it’s difficult to avoid the conclusion that the public is not quite ready for state carbon taxes.”

A Carbon Tax With Public Dividend

So it is with healthy skepticism that I come to the recent proposal made by a group called the Climate Leadership Council (CLC), consisting of the heads of large energy companies and Republican heavy-hitters like James Baker, George Schultz and Janet Yellin. Their plan is called The Carbon Dividend.

This plan involves a tax on carbon-based fuel producers determined by the carbon content of the fuels.  For example, coal would be taxed at $96 per ton, natural gas at $2.28 per thousand cubic feet and oil at $18 per barrel. This would work out to an average of $43 per ton of carbon dioxide. It would increase 3 to 5% per year as determined in the legislation.The purpose, as with any carbon tax, is to raise the cost of carbon-based fuels to discourage their use relative to cleaner sources of energy. Exxon-Mobil has pledged $1,000,000 to promote the plan.

The tax would be imposed on energy producers at the point the fuels enter the economy. But the financial impact of the tax would be passed on to consumers, indeed the scheme won’t work unless the costs are passed on because part of the design is to get consumers to economize and make the right energy choices.

Unlike the Washington proposal just defeated, revenues from the tax would be distributed to the public in a carbon dividend paid monthly or quarterly through the Social Security Administration. It would not be devoted to developing alternative energy or softening the blow on communities affected by the tax like Southern West Virginia would be. The CLC estimates the dividend will be as much as $2,000 per year for a family of four and is intended to offset the higher cost of goods caused by the tax.

The CLC further estimates that two-thirds of American families would be financial winners because the increased cost of energy for them would be less than $2,000. This is because only higher income families consume enough to outweigh the dividend. The proposal banks on the carbon dividend becoming as popular as Alaska’s Permanent Fund dividend of $1,000 per year to citizens.

Why, you ask, would big oil companies be interested in a program that reduces the consumption of their products? One answer is that these companies are afraid of future lawsuits blaming them for the effects of climate change.  The Carbon Dividend plan would involve some sort of litigation immunity much like the settlement with tobacco companies. Perhaps a more important reason is that the plan involves a grand trade-off whereby current regulations on carbon dioxide emissions like Obama’s Clean Power Plan would be eliminated as “unnecessary.”

Obviously, there are things about the Carbon Dividend plan that will be unpalatable to the environmental community. But keep in mind how quickly we must act. It will be politically necessary to have leading Republicans and much of industry on board if we hope to do anything beyond arguing about what should be done.

I for one am willing to allow conservatives to have their “revenue neutral” solution wherein the government doesn’t get the proceeds from the carbon tax to spend in ways I would like — so long as the plan effectively reduces carbon emissions. On this point the CLC says that the Carbon Dividend plan will reduce emissions by 32% compared to 2005, meaning the U.S. would exceed the upper end of the Paris Accords which called for a reduction of 26-28%.

The real beauty of the Carbon Dividend plan is that it addresses the psychological resistance people have to acting in their own best interest on the climate issue. The threat of global warming lacks immediacy to most people. It is difficult to convince them to endure costs now that will benefit others in fifty years. The dividend provides immediate benefits for behavior that is required to secure a much larger, though long-term benefit. It would make political support for adoption much more likely and help to insulate the plan from amendment through later legislation. Because of this the Carbon Dividend might be the practical and effective solution we are looking for.

SNAP Benefits, Work Requirements and West Virginia’s Hungry

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The Supplemental Nutrition Assistance Program (SNAP) is the centerpiece of the nation’s food security safety net. In FY 2016 SNAP benefits, formerly called food stamps, provided $500 million in nutrition assistance to low income West Virginians. On average, 358,000 West Virginians received benefits each month, roughly 20% of our population. These benefits amount to about $1.29 per meal. Yet our state government seems determined to cut recipients from the SNAP rolls.

Governor Justice recently signed a law making it more difficult for under-employed individuals to receive SNAP benefits.  This new law (HB 4001) was promoted by Republicans in the Legislature using the old “welfare Cadillac” myth about recipients taking advantage of public benefits. HB 4001 will have the effect of reducing the number of SNAP recipients among the vulnerable low-wage population.

Furthermore, the 2018 federal Farm Bill pending in Congress might do much the same. The U.S. House version of the Farm Bill, which would restrict current SNAP eligibility rules, barely squeaked by in the House on a vote of 213-211. House leadership had to rely entirely on Republican votes, the first farm bill in history to pass either chamber with only one party in support. The Senate, which passed its own version, is willing to be more generous than the House. SNAP eligibility is the most contentious issue facing House and Senate conferees.  The harsh House approach was favored by West Virginia Congressman Alex Mooney for the emptiest of reasons.

West Virginia Governor Jim Justice

West Virginia Governor Jim Justice

To receive SNAP benefits an individual can have gross monthly income of no more than $1,307 and a family of four no more than $2,665. These figures are 130% of the federal poverty level. In addition, there are work requirements for eligibility, first imposed in 1996. An able-bodied adult without dependents (ABAWD) can only get SNAP benefits for three months in a three year period unless he or she meets the work requirements. This is called the time limit. An ABAWD must work at least 80 hours per month or participate in a qualifying training activity to avoid the time limit.

Federal law allows states to apply for a waiver of the time limit for ABAWD individuals in areas where it is more difficult to find work than in more prosperous areas of the country.  In West Virginia this has been done broadly on a county by county basis and many counties have routinely received waivers.  The waivers are largely responsible for the broad availability of SNAP benefits in the state. But HB 4001 will put a stop to these waivers. No West Virginia county will be allowed a waiver for any reason after October 1, 2022.

I am interested in eliminating fraud as much as the next person. But the waiver elimination in HB 4001 isn’t directed at fraud. Instead it is directed at people who are presumed to be lazy and unwilling to work, and who thereby take advantage of federal benefits. In this way HB 4001 creates a moral test of personal responsibility to receive assistance irrespective of need. It isn’t even a matter of saving West Virginia taxpayers money. SNAP benefits are entirely paid for by federal money, and every dollar in these benefits results in $1.80 in total economic activity in the state. So cutting people from SNAP benefits will actually hurt our economy.

Nevertheless, the lead sponsor of HB 4001, Del. Tom Fast (R-Fayette) told the Huntington Herald-Dispatch that the various features of the bill were designed to weed out “those who do not truly need assistance”:

I have consistently heard people just in conversation make complaints of seeing people purchase things with [a SNAP debit card] – luxury-type items – using the cards and then going out and getting in a luxury SUV. It is something I hear not just in my district but in areas all around the state.

This is certainly not what you would call empirical proof on which public policy should be made. Yet our Jefferson County Delegates — all Republican — didn’t seem to be bothered by the lack of proof. Delegates Paul Espinosa, Riley Moore and Jill Upson all voted in favor of HB 4001.

HB 4001 is just one more measure imposed by the conservative “personal responsibility” crowd without inquiring whether there might be some reasons other than lack of responsibility why a SNAP recipient might be unable to work twenty hours per week. Most of these people actually are working, but in jobs with low-pay, inconsistent schedules and unstable futures. The West Virginia Center on Budget and Policy adds that lack of access to transportation, undiagnosed mental illness, a criminal record from a past mistake, or living in an economically devastated part of the state are also plausible explanations. Unfortunately these explanations have also not been empirically validated.

But the Brookings Institution has looked at the question in a serious way in connection with the 2018 federal Farm Bill. Their research found that one in five adults in the ABAWD category switches between working more than 20 hours per week to a different employment status, such as working less than 20 hours per week, seeking employment, or being out of the labor force. For those in the labor force, work-related reasons – not being able to find work, being laid off, or working more than 15 hours for no pay at a family business or farm – were the most frequent explanations. Because only those working more than 20 hours per week every month would be eligible to retain their SNAP benefits, Brookings estimated that nearly 80% of ABAWD individuals would be exposed to potential SNAP benefit loss.

One other study came to a similar conclusion. In May 2016 the Department of Health and Human Resources did an experiment in the nine West Virginia counties with the lowest unemployment rates. The experiment explored what would happen if there were no possible waivers of the time limit — exactly the effect of HB 4001.  In the experiment ABAWD individuals strictly lost SNAP benefits unless they found 80 hours per month of employment or were participating in a work training or community service activity. While 5,417 people were cut from the SNAP rolls in the nine counties, DHHR reported that the experiment did not significantly improve employment figures for the ABAWD group. While the results of this experiment were available to the West Virginia Legislature before it adopted HB 4001, the results came to an inconvenient conclusion and were therefore ignored.

In a separate but predictable outcome during the experiment, demand for meal service at private soup kitchens increased 25% in Cabell, one of the nine pilot counties. This simply demonstrates that even though many of the hungry won’t be assisted by government benefits under HB 4001, they will still be hungry. The burden of feeding them will not disappear but rather will fall to private organizations.

Congressman Alex Mooney

Congressman Alex Mooney

Meanwhile the drama concerning the 2018 Farm Bill continues. The House version would impose increasing periods of disqualification each time an under-employed person failed to meet the work requirements. This feature and others are predicted to result in 400,000 households losing benefits. The Congressional Budget Office estimates that by 2028 the House version would lower the SNAP caseload by about 1.2 million people.  Congressman Alex Mooney, who has probably never experienced real hunger in his life, said that the “conservative” SNAP reform provisions led to his support for the Farm Bill. In a spectacular non sequitur, Mooney said that “because farmers work long hours to produce food for the nation, so should program recipients.” His analysis on this, as on other matters, is about a quarter-inch deep.

It is certainly time that we stopped blaming the poor for their own misfortune. Hunger and food insecurity are not things people voluntarily choose. Moreover, cutting people off SNAP benefits harms the entire state because we would lose millions in federal benefit dollars that circulate in our economy. Regrettably, however, unsophisticated and uncharitable attitudes toward poverty and hunger dominate the majority party in Charleston and in Washington.

Trump Administration Abruptly Changes Migratory Bird Enforcement Policy

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For 100 years, the Migratory Bird Treaty Act (MBTA) has protected nearly 1000 bird species in the United States against being “taken” or killed except under prescribed circumstances. This statute prohibits hunters from intentionally killing birds without a permit, but has also been interpreted by courts and the Interior Department to prohibit incidental taking – the unintentional destruction of birds or nests through some instrumentality or activity like spraying pesticides or the erection of wind turbines. The MBTA is a strict liability statute. If a covered bird dies then misdemeanor liability is established despite the efforts or good will of the defendant.

The MBTA itself is silent about whether intent is a necessary element of the misdemeanor, but Congress has amended the statute several times without correcting the prevailing judicial interpretation that intent to harm birds is not required. In fact, the amendments carved out special areas where intent was necessary, strongly implying that in all other areas intent was unnecessary.

This interpretation was formally adopted by the Interior Department in a legal memo issued in the waning days of the Obama Administration. However, a new interpretive memo was issued in December 2017 by the Trump Interior Department reversing the Obama approach and essentially eliminating the enforcement of the MBTA against incidental taking.

This is an historic and meaningful about-face. Incidental taking cases are largely against the oil industry – the two largest prosecutions came after the Exxon Valdez spill and the Deepwater Horizon oil well disaster. Oil production activity is obviously not intentionally designed to kill birds, so without enforcement against incidental taking the overwhelming majority of large scale bird kills will have no legal consequences. Since private citizens have no right to file lawsuits to enforce the MBTA, the Trump Interior Department’s direction to Fish and Wildlife enforcement officials to lay off incidental taking cases is hugely significant.

The author of the new Trump enforcement memo is Dan Jorjani, a long-time advisor to billionaire oil man Charles Koch. The Obama interpretation also angered Harold Hamm, a billionaire backer of Donald Trump whose Continental Resources company was prosecuted for repeatedly failing to erect nets over waste oil pits. But seventeen former Interior officials, including Fish and Wildlife directors under Presidents Nixon, Bush I, Clinton, Bush II and Obama have repudiated Jorjani’s interpretation. And it is easy to pick apart Jorjani’s rationale. It is clear that in the Trump Administration good conservation policy and quality legal analysis has given way to rewarding small-government, libertarian political contributors.

The Trump memo justifies the enforcement change in two ways. First, three U.S. Courts of Appeals have ruled that prosecution of a corporation that unintentionally kills birds in the course of a business activity is inconsistent with the meaning of the word “take” as used in the statute. Two of these cases dealt with habitat destruction from cutting trees. The rationale in these cases was that when the statute was passed 100 years ago taking referred to hunting or capturing birds, clearly intentional conduct directed at birds. These courts were concerned with the unfairness of extending criminal liability to otherwise innocent business activity.

Several other Courts of Appeals have supported the Obama approach, but the Trump Administration has chosen to ignore those cases. The MBTA is an historic conservation statute with broad scope. It is the responsibility of the Interior Department to interpret the statute to give it broad effect. This is exactly what the Department has done for 100 years by considering as prohibited incidental taking without actual intent to harm birds. If Congress intended to exclude incidental taking from the scope of the statute, it could have said so on many occasions. But this issue seems beside the point. Since the statute also prohibits killing birds “by any means or in any manner” it is simply not necessary to resolve what the word “take” meant 100 years ago. Incidental, unintentional killing is clearly covered.

The second justification for the enforcement change is that the Obama interpretation was open-ended and could potentially have criminalized millions of Americans who merely have a large picture window into which a bird commits suicide, or whose cat behaves like a cat. This issue has been raised in many of the litigated cases but has never gotten judicial traction. One court explained that to get a conviction for incidental taking, the prosecution would still have to prove that the killing of birds should have been reasonably anticipated or foreseen from the nature of the defendant’s activity. This is not intent to cause a bird kill, but rather awareness that it could happen. The court said “[b]ecause the death of a protected bird is generally not a probable consequence of driving an automobile, piloting an airplane, maintaining an office building, or living in a residential dwelling with a picture window, such activities would not normally result in liability.”

Some commentators have remarked that the public has been whipsawed between an Obama enforcement approach that went too far and a Trump enforcement approach that doesn’t go nearly far enough. Clearly the Trump interpretation of the MBTA guts the statute and is unacceptable. But it is hard to escape the sense that interpreting a statute broadly to create potential (and actual) business liability without considering the intent of the business, or the efforts of the business to comply, is asking for trouble. Businesses caught up in MBTA enforcement have been frustrated and believe they have been treated unfairly. This has led them to seek political help, which they have now found.

Perhaps the best way through this mess is for Congress to amend the MBTA to confirm clearly that the statute reaches incidental taking, while requiring Fish and Wildlife inspectors to first warn a business with a structure or practice likely to harm birds, and allowing a substantial penalty reduction for good faith efforts to comply. Without this kind of balance the MBTA will simply be unstable, lurching from one enforcement interpretation to the next.

West Virginia Republican Legislators Propose “Death Star” Preemption Bill to Strip Counties, Cities and Towns of Power to Enact Progressive Policies

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State preemption of local government is all the rage among conservative legislators around the country these days. Here’s how it works. Suppose the Jefferson County Commission wished to pass an ordinance banning plastic bags at grocery stores as a threat to the environment. Or suppose the city of Beckley declared it unlawful for a private employer within the city to ask for information about race or sexual orientation on employment applications. State preemption seeks to strip local governments of the right to regulate certain matters within their own borders. Usually these matters are of concern to progressive cities but not conservative Republican-majority state legislatures. And preventing West Virginia local governments from adopting progressive policies is just what the Panhandle’s own Senator Patricia Rucker and her conservative Republican colleagues are now seeking to do.

West Virginia is one of the states that follows Dillon’s Rule. In a nutshell this principle of law states that municipal governments owe their existence to state legislatures. They can be created, eliminated or limited in authority any way the state legislature decides. Unless a power is expressly given to the local governments, they don’t possess that power. Even in those areas where local governments have express power to regulate, those regulations cannot be inconsistent in any way with state law. This played out in the rejection of Morgantown’s local ban on fracking, which was found by the U.S. Fourth Circuit Court of Appeals to be inconsistent with the state’s licensing of drillers under its broad oil and gas laws.

The Legislature has expressly granted certain “home rule” powers to all West Virginia cities in WV Code 8-12-5. Among these are the powers to furnish local services, to protect order, safety and health, and to tax under certain limitations. West Virginia has also created the Home Rule Pilot Program, under which 34 cities can apply for extra power to solve specified problems. Martinsburg, Shepherdstown, Charles Town, Harpers Ferry and Ranson have been granted these limited extra powers.

But standard home rule power under WV Code 8-12-5 is generalized, leaving the municipalities much room for interpretation and action. For example, in order to protect order, safety and health a city might pass an ordinance banning handguns. That is where state preemption comes in. At the behest of the NRA, the West Virginia Legislature has specifically preempted localities from regulating firearms.

Other Republican-controlled states have gone much further to shackle local governments than preempting firearm regulation. Michigan, for example, passed what opponents called the “Death Star” bill because of the extent to which it imposed state control. That statute affected local government ability to pass ordinances that raised minimum wages, raised benefits, required sick leave, regulated union organizing and strikes, or regulated apprenticeship programs. As originally proposed, the Death Star would have retroactively invalidated local ordinances protecting the LGBT community. That feature was removed and the bill that passed has prospective effect only.

The vehicle for state preemption of local governments in West Virginia is SB 458 sponsored by Sen. Rucker and a handful of other Republican Senators. The Bill passed the Senate on February 15, 2018 on a vote of 22 to 12. Panhandle Senators Rucker, Charles Trump (R-Berkeley/Morgan, 15) and Craig Blair (R-Berkeley/Morgan, 15) voted in favor, while Sen. John Unger (D-Berkeley/Jefferson, 16) voted against. The Bill is now with the House Judiciary Committee.  The Bill is worded to apply to county governments as well as cities.

SB 458 is nearly identical to the Michigan Death Star bill. In fact, it is worse in some ways. It would retroactively invalidate any local ordinances that regulate matters the bill now would declare off limits to local governments. In addition to prohibiting local governments from regulating wages, benefits, paid leave, strikes and apprenticeship programs, SB 458 would preempt any effort by local government to restrict what information a private employer requests on an employment application. And in an obvious concession to certain business interests, SB 458 would preempt any local regulation of consumer products or their packaging. Think plastic grocery bags.

The retroactivity provision of SB 458 would invalidate several current West Virginia city Human Rights ordinances that regulate what a private employer may ask on an employment application. A non-exhaustive survey shows that Charleston (Code 62-81 (2)(a)), Beckley (Art IV, 10-450 (2)(a)), and Martinsburg (Code 154.03 (2)(a)) all have such ordinances.

It is no coincidence that the Death Star bills in Michigan and West Virginia are so similar. Both were taken from “model” laws written by the American Legislative Exchange Council (ALEC), of which Sen. Rucker is State Chair. ALEC was formed and is funded by big business and the notorious billionaire Koch brothers. It is determined to strangle local democracy because it rightly sees the normally more progressive cities as a threat to the libertarian agenda.

West Virginia’s local governments cannot be responsive to local needs and interests if their power to act is snuffed out from the start by conservative Republicans in the state legislature. Stopping SB 458 deserves your attention and action.

Panhandle Legislators Lead West Virginia’s “Bad Idea Machine”

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Delegate Mike Pushkin, who represents Charleston’s East End in the House of Delegates, once quipped that the West Virginia Legislature is a “bad idea machine.” Our Eastern Panhandle delegation contains some of the leaders, if that is the proper term, in generating bad ideas. I have recently written that Sen. Patricia Rucker has sponsored a host of bills that advance her far right ideology and religious beliefs. Most notably, these include her sponsorship of Senate Joint Resolution 12 that would put on the November 2018 ballot a proposed amendment to the West Virginia Constitution declaring that nothing in that Constitution creates a right to abortion. Not to be outdone, her Panhandle colleagues in the House of Delegates have introduced pro-gun and anti-public school legislation that give Sen. Rucker a run for her money.

The recent teacher strike has highlighted how badly our government has allowed the state’s public schools to deteriorate. Until the settlement announced on February 27, 2018 is implemented, teacher salaries in West Virginia rank 48th out of 51 state jurisdictions. We are surrounded by states that value their teachers more. And yet the poor-mouthing by Governor Justice about the state’s inability to raise teacher pay was obviously just posturing in light of the 5% bump teachers will now receive.

If there is any truth to the “inability to pay” argument, that inability has been created by a decade of corporate tax cutting that has blown huge holes in the budget. Over this period, West Virginia has relentlessly cut corporate taxes. In the period 2007 to 2014, the Legislature reduced the business franchise tax from .7% to zero and reduced the corporate net income tax rate from 9% to 6.5%.

In the midst of a courageous walkout by teachers in all 55 counties, the Legislature was primed to hand business interests yet another tax cut in the form of eliminating the business inventory tax and may yet do so. Tax cuts for business are nothing more than a choice on how to “spend” revenues, in this case by forgoing revenue that otherwise would be collected and available. Until its hand was forced by the teachers, the Legislature was prepared to spend a big pile of cash on corporations instead of quality education.

But there is reason to question whether our Panhandle Delegates care about public education at all. Del. Michael Folk (R-Berkeley, 63) has introduced HB 2031, which would eliminate state payment for teacher training or professional development, and HB 2094, which would give home school parents a $100 tax credit per student. This tax credit would begin the process of permitting home school parents not only to opt out of public education but to avoid paying for it like everyone else. This folks is what libertarians want not only when it comes to public education but all government services.

When it comes to guns, our Panhandle Delegates are second to none in the bad idea category. Here Del. Folk fully reveals his extreme views. He sponsored HB 2311, which would declare any federal or local laws or regulations that attempt to tax, regulate or restrict gun ownership void and unenforceable in West Virginia.  He clearly needs some re-education about the Supremacy Clause of the U.S. Constitution.

The recent horrible school shootings have perhaps caused us to forget the equally horrible workplace shootings of the near past.  Del. Saira Blair (R-Berkeley, 59) may be too young to remember what “going Postal” meant to America but a few short years ago.  She has co-sponsored HB 4187, named the Business Liability Protection Act, but referred to as the Parking Lot Gun Act.  It would allow an employee, contractor or visitor to a business that bans guns on its property to nonetheless keep a gun locked up securely in their cars while parked in the business parking lot. The business would even be prohibited from inquiring whether a gun is in the car. This bill has now passed the House of Delegates.

In Committee, Del. Riley Moore (R-Jefferson, 67) offered an amendment to HB 4187 that was favored by the NRA to retain the full scope of this bad idea against efforts to soften it. State Chamber of Commerce President Steve Roberts, West Virginia Manufacturers Association President Rebecca McPhail and David Rosier, general manager of administration for Toyota’s Buffalo plant, have all come out against HB 4187, saying it would make their workplaces less safe.

Elections have consequences. The 2016 House of Delegates election produced this crop of Republican legislators and we are now truly living with the consequences. Fortunately, the winds of change are swirling.

Sen. Patricia Rucker: Leader of West Virginia’s Far Right Fringe

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In the 2016 West Virginia Senate election, voters in Jefferson and Berkeley elected Patricia P. Rucker over Stephen Skinner by a margin of 2,773 votes – 6.5% of the votes cast. Rucker is a stay-at-home mom from Harpers Ferry who home schools her five children. Voters in this area are usually moderate, and fringe views on either side of the political spectrum don’t attract much support. But by her activity in the Senate and the attention she has received from national far right political groups, it is clear that Sen. Rucker is no ordinary West Virginian.  Instead she has proven herself to be a leader in libertarian fringe politics to a degree that would shock most of the unsuspecting people who voted for her.

According to Rucker, she and her husband moved to West Virginia “as refugees from socialist Montgomery County [Maryland].” In 2009, she founded a local Tea Party chapter. After several years, that group restructured into a political action committee and began recruiting “liberty-minded” candidates for local office. Because none of these would step forward to challenge Skinner in the 2014 House of Delegates race, Rucker did. Skinner narrowly prevailed, but the two found themselves again opposing one another in the 2016 Senate race.

In connection with her 2016 election victory, the West Virginia Secretary of State reports that Rucker raised over $104,000. Heavily represented among her contributors were political action committees formed by corporations in the energy industry: First Energy PAC, AEP PAC, Arch PAC, Dominion PAC and Noble Energy PAC. She was also financially supported by other right-wing politicians in West Virginia: Peter Onoszko, Michael Folk, Eric Householder, Jill Upson, Elliott Simon and “Mooney for Congress.” The Tea Party group she founded and led – We the People of West Virginia – also donated money to her campaign.

Once in the West Virginia Senate, Rucker began to sponsor a slew of bizarre bills, many of which never got out of committee. A significant number of these bills would benefit people with the narrow interests and views held by Sen. Rucker herself. For example, several of these bills involve home schooling.  One called the “Tim Tebow Act” (SB130) would allow home school children to participate in public school extra-curricular activities like football. People who support this legislation want to pick and choose which aspects of public education their children will enjoy. She also led an effort to have pornography declared a “public health crisis,” claiming that it was hypersexualizing teenagers.

Acting on her own religious beliefs, Sen. Rucker has sponsored several bills attacking abortion. One is the “Life at Conception Act” (SB 405), which would contradict current U.S. law and make medical professionals who perform abortions in the first trimester of pregnancy legally responsible for violating a “right to life” of the fetus.

Just recently Sen. Rucker introduced Senate Joint Resolution 12 that would put on the November 2018 ballot a proposed amendment to the West Virginia Constitution declaring that nothing in that Constitution creates a right to abortion. This amendment would prevent the Constitution from being used to argue against further abortion restrictions, such as banning Medicaid funding of abortion, which Rucker is also pushing. After a successful vote in the Senate, the West Virginia ACLU issued a statement saying “25 legislators have chosen to side with misogynists and fundamentalist religious extremists who are hell-bent on imposing their own religious agendas on all West Virginians.”

Her effort to place the proposed amendment on the November 2018 state-wide ballot is also viewed by many as an effort to ensure turnout by religious fundamentalists in an election that appears to be trending badly for Republicans at all levels.

Sen. Rucker has also sponsored the “Taxation With Representation Act” (SB 399) whereby nonresidents of a municipality who work in that municipality and who pay a tax or user fee pursuant to a municipal ordinance would be permitted to vote in municipal elections. In other words, merely paying a user fee would enfranchise any person, who has no other connection or interest in a municipality’s affairs, to select the municipality’s elected officials. Anti-tax fanatics love this kind of thing.  Sen. Rucker has also engaged in blaming the victim. She sponsored a bill (SB60) that would have added work requirements for SNAP benefits (food stamps).

By virtue of her performance as a legislator, Rucker has risen in the esteem of right-wing groups. For example, she was selected to be the State Chair for the American Legislative Exchange Council, an organization funded by large corporations and the notorious billionaire Koch brothers. This innocuous-sounding organization is actually a libertarian legislation mill for sympathetic state legislators around the country. According to the group’s website, it works with legislators “dedicated to the principles of limited government, free markets and federalism.” ALEC creates “model” laws and policies, among which are model state resolutions calling for the U.S. Congress to convene a convention to amend the Constitution under Article V.

An Article V convention by which to advance a balanced budget amendment to the Constitution is the dream of the Koch brothers and all libertarians. In her groundbreaking 2017 book Democracy in Chains, Nancy MacLean details how a balanced budget amendment would be used to handcuff Congress and ensure that spending would be virtually eliminated for Social Security, Medicare, Medicaid and all other discretionary social spending the libertarians hate. This would be the case despite overwhelming support for these programs by the majority of voters.  Even conservative legal scholars like Justice Antonin Scalia have opposed a constitutional convention because there would be no telling what dangerous proposed amendments would emerge.

Alarmist you say? It could never happen here? Article V states that the Constitution can be amended when two-thirds of the state legislatures apply to Congress to convene a convention and any amendments that that are proposed are ratified by three-fourths of the states.  Two-thirds of the states would be 34 states.  In 2016, West Virginia became the 28th state to apply for a convention. That application (HCR36) is straight out of the ALEC playbook. In the current West Virginia legislative session, two related pieces of legislation have been proposed that double down on this effort.

On January 26, 2018, Rucker and others introduced a Senate Resolution (SCR9) which again calls on Congress to convene a convention, asserting that Congress has abused its power by creating a national debt, that the federal government has ceased to follow the Constitution, and that the states themselves can limit such convention to amendments that “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”

At the same time a second, breathtakingly anti-democratic companion piece of legislation (SB95) was introduced by Rucker and two other libertarian fringe Senators — Robert Karnes (R-Upshur, 11) and Mark Maynard (R-Wayne, 06). It would prohibit a West Virginia delegate from participating in any convention where the states are represented proportionally by population. In other words, each state may have only one vote regardless of size. This would shift power to rural states and away from large blue states like California and New York. Further, SB95 calls for immediate removal of any West Virginia delegate who votes for an amendment outside the purposes in the state’s application and would subject that delegate to criminal prosecution. Sen. Rucker’s two pieces of legislation seek to rig the rules of a convention to ensure the outcome the libertarian right desires even though the majority of West Virginia voters might want another outcome.

Sen. Patricia Rucker is not simply a benign legislator with a few quirky ideas.  She is on a mission to impose her libertarian and religious fundamentalist views on the rest of us in whatever way she and her like-minded colleagues can manage. Along the way, she will dispense with majority rule democracy as an inconvenience in achieving the end she seeks.

Blaming The Victim: West Virginia’s Flirtation With Medicaid Work Requirements

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It was my intention when launching this blog to support economic policies in West Virginia that actually spread prosperity to all citizens. The wealthy don’t seem to need help ensuring they get a big plate full at the prosperity table. It is the less fortunate who need help. But in this long Republican winter, avoiding policies that hurt the less fortunate is really a full time job.

Two ideas popular in West Virginia and the nation today fuel this problem. First is the Koch-funded libertarian idea that any expansion of public benefits is a threat to the “liberty” of those who are taxed to pay for it. This is well-documented in Nancy MacLean’s 2017 book Democracy in Chains. Second is the populist notion that people who receive public benefits are somehow lazy and morally at fault for their situation. Both of these factors are on display in the current debate about whether to add work requirements for Medicaid benefits.

Medicaid is a jointly funded federal and state program that helps several categories of low income and disabled people with medical costs. As of 2017, Medicaid provided healthcare coverage to 74 million nationwide (over 23% of the population). Some of the covered categories include children in low-income families, pregnant women, parents of Medicaid-eligible children who meet certain income requirements, and low-income seniors.

Obamacare extended Medicaid eligibility to all U.S. citizens and legal residents with income up to 138% of the federal poverty line, including for the first time adults without dependent children. But as a result of a Supreme Court ruling, states were not required to adopt this expansion in order to receive federal Medicaid funding for previously covered groups. Given its large poor population, West Virginia wisely opted to extend coverage. About 170,000 additional West Virginians became eligible under Medicaid expansion, roughly 9% of the state’s population.

On January 11, 2018, the landscape changed. The Director of the federal Centers for Medicare and Medicaid Services (CMS) issued a letter to all state Medicaid directors inviting them to apply for a waiver that would allow states to require participation in work and other community engagement as a condition for Medicaid eligibility. The policy change is described as “designed to assist states in their efforts to improve Medicaid enrollee health and well-being through incentivizing work and community engagement.” Yes, you read that right. These bureaucrats are asserting that work will make you healthy. They cite studies that link unemployment with depression. Of course, they have it totally backwards – being healthy will enable you to work.

I am inclined to think that CMS’ explanation is a cynical effort to avoid the legal challenges to Medicaid work requirements that have already begun. In the first place, approving work requirement waivers is an about-face – several states attempted this in the past but were denied. They were denied because work requirements for eligibility are contrary to Medicaid’s stated purpose to provide comprehensive healthcare coverage for people below state income thresholds. Administrative agencies cannot lawfully rewrite a statute through adding eligibility requirements that advance other goals (limiting benefits to the “deserving poor”) that are contrary to the purpose of the law. CMS operatives know this, which explains their absurd effort to link work requirements with health.

At the urging of Republican legislators, West Virginia’s Department of Health and Human Resources is now considering work requirements for Medicaid recipients. According to Jeremiah Samples, Deputy Secretary of DHHR, this effort would focus on “able-bodied” people:

We’re trying to empower folks to get out of the system. At the end of the day, the best thing we can do at DHHR for our able-bodied population is to get them into the workforce, without question.

Truth be told, any such requirements would expel recipients from the system, not “empower” them to leave. This is a stick not a carrot. For Medicaid expansion states like West Virginia, any work requirements will have the (intended) effect of reducing the recipient population irrespective of whether those removed remain below the state income threshold.

How would this happen? According to Mr. Samples, the DHHR is reviewing how other states plan to add work requirements. Kentucky’s waiver was the first to be approved by CMS. The Kentucky plan calls for reporting by the recipient every 30 days to verify that he or she is working or involved in some other activity approved by the authorities. Kentucky will disenroll recipients from Medicaid for up to six months if they fail to report changes in income or work status.  Beyond the sheer hassle to the recipient and the possibility of inadvertent noncompliance, this would be yet another layer of red tape and opportunity for error. It would be a system the sole purpose for which is to snag and remove Medicaid recipients who do not repeatedly, month after month, prove their eligibility and worthiness. An aide to Kentucky Governor Blevins says that he expects 95,000 recipients to be removed from Medicaid benefits within five years.

Getting people off benefit rolls and onto employment rolls is a great idea. But West Virginia can’t do this by denying people healthcare. There are several reasons why an “able-bodied” person might be in need of Medicaid that have nothing to do with laziness. A shortage of jobs is one. Being between jobs for over 30 days is another. A mismatch between job requirements and a worker’s skill might be another. Opioid dependency might be involved. In an excellent editorial published on January 25, 2018, The Charleston Gazette put it this way:

How does interruption in coverage improve anything? Or is it just an exercise for the righteous . . . to feel better about themselves? ‘Must work for your healthcare,’ might be a great policy in the perfect imaginary world where ideologists live, but it fails to acknowledge the real circumstances of life in most of West Virginia, both town and country. No doubt that is by design. If people who never liked the Medicaid expansion can dress up their ‘solutions’ as getting tough on the poor and lazy, it sells better than if it is more accurately described as kicking the most vulnerable West Virginia workers, or potential workers.

Eighteen states declined to accept Medicaid expansion funds despite the needs of their populations. This group includes every state in the old Confederacy except Arkansas and Louisiana. But one unintended consequence of the present willingness of CMS to approve Medicaid work requirements is that several of these non-expansion states are now considering participation in the expansion. This may have the ultimate effect of increasing the Medicaid rolls nationwide. But it is a development that will not help expansion states like West Virginia.