Trump Administration Abruptly Changes Migratory Bird Enforcement Policy

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

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”

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

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

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.

West Virginia’s New Voter ID Law and the Myth of Voter Fraud

Effective on January 1, 2018, West Virginia law now requires a prospective voter to present a valid identifying document to a poll clerk. The clerk will then verify that the name on the document conforms to the individual’s voter registration record. If the identifying document has a photograph, the poll clerk will determine that the photograph is “truly an image of the person presenting the document.” This new law is similar to voter ID laws passed by state legislatures around the country at the urging of Republicans. But voter impersonation fraud – the only possible fraud affected by the new law — is virtually non-existent in the United States and no cases have been identified in West Virginia.

I believe that West Virginia’s new voter ID law will have the consequences – perhaps intended – of complicating the voting process, intimidating some potential voters, and reducing the numbers of voters from the poor and less-educated ranks of our state. It will slow the voting process and create lines where there haven’t been lines, thereby frustrating and deterring voters. If these predictions are correct, the new law will undermine voter confidence and participation. But there are benign aspects of the law that should be acknowledged.

There are eighteen categories of documents that may be used to establish identity, not all of which are photo IDs. Most people will have at least one of them. If not, a voter can be accompanied to the polls by someone who can vouch for her identity. If none of this works the voter will be required to execute an affidavit stating his identity and that he is the person listed in the precinct voter records. He will then will be permitted to vote a provisional ballot. The question of his identity will be resolved by election officials later. The provisional voter will not be required to take any further action to have his vote counted. In theory, anyway, no one will be turned away from the polls.

West Virginia’s new law is less restrictive than the laws passed in many states. Seventeen states require a photo ID, which African-Americans and Hispanics are statistically less likely to have. In ten states voters who do not have the required ID may vote a provisional ballot but must take some action after election day, such as returning to the polls with a qualifying ID, for the provisional ballot to be counted. These strict requirements have been challenged in court, with some notable successes so far.

West Virginia’s new voter ID law was passed in 2016. To the surprise of many, an amendment proposing automatic voter registration when an individual interacts in some way with the Division of Motor Vehicles also passed. At that time only two other states – Oregon and California – had automatic voter registration. Automatic voter registration is already showing clear benefits in Oregon. Within two months of implementation more than 15,500 Oregonians were registered — a four-fold increase. Thirty percent of the new registration records transferred from the Oregon DMV to election officials reflected eligible but previously unregistered citizens.

Saira BlairWhen the Republican legislators who sponsored the voter ID law realized that it might actually increase voter registration, they began to backpedal. During the 2017 legislature, Del. Saira Blair (R-Berkeley) proposed an unsuccessful amendment to the original bill that would have permitted voting only upon showing a photo ID. Blair, who is 21 years of age, couldn’t cite a single case of voter fraud but sponsored the amendment because she had heard anecdotes. She said “without photo identification, it’s hard to stop fraud, and it’s also nearly impossible to prove it took place.” As Supreme Court Justice David Souter quipped, this is like arguing that “the man who isn’t there is hard to spot.” Really, isn’t there anyone more mature than Blair – Republican or Democrat – who is willing to run for this seat?

It is no wonder that Del. Blair could cite no cases of voter impersonation fraud in West Virginia, because there just aren’t any. A comprehensive study of allegations of impersonation fraud (not just prosecutions) was begun in 2008 by Justin Levitt, a professor at Loyola Law School in Los Angeles.  As of 2014 he had logged only 31 incidents nationwide out of over one billion ballots cast.  None of these were in West Virginia. And keep in mind that impersonation fraud is the only kind of fraud the new West Virginia voter ID law is designed to prevent.

Impersonation fraud is exceedingly rare for several reasons. First, it is risky to the fraudulent voter. He must announce himself in front of poll workers, who may know who he actually is or the person he claims to be.  Second, the penalty for fraudulent impersonation of a voter is severe – it is a felony. Third, a fraudulent impersonation affects only one vote. The risks and rewards just do not encourage impersonation fraud.

West Virginia’s former system of voter identification required the voter to announce his name in front of poll workers, sign a register and have poll workers compare that signature to the one in voter registration records. This system worked exceedingly well to deter impersonation fraud before the enactment of the new voter ID law. One wonders about the true motivation for adopting this legislation – it certainly wasn’t based on a problem that needed to be fixed.

In her excellent 2010 book The Myth of Voter Fraud, Lorraine Minnite concludes that

The best facts we can gather to assess the magnitude of the alleged problem of voter fraud show that, although millions of people cast ballots every year, almost no one knowingly and willfully casts an illegal vote in the United States today.

Instead, voter fraud is a politically constructed myth. It is used to support measures that suppress the opposition party’s votes because this is more effective and less expensive than mobilizing new voters who may end up destabilizing a party’s own coalition.

Voting is a constitutional right. So it is unconstitutional to condition the exercise of that right on the payment of a poll tax. However, current Supreme Court law does not extend this principle to universally applicable voter ID requirements, such as requiring a photo ID, even where they burden the right to vote for some groups like the elderly, the homeless and the disabled. Nevertheless the legislative motivation for adopting such requirements can render them unconstitutional. North Carolina’s strict voter ID law was struck down by the Fourth Circuit Court of Appeals (also with jurisdiction over West Virginia) because it was surgically designed to reduce African-American voting. There is no similar legal challenge to West Virginia’s new law.

My advice to West Virginia voters: get your IDs ready, be prepared to stand in line, and be sure to thank the Republicans for their handiwork in 2018.

The Rich Benefit Bigly From Trump’s Tax Reform

The Tax Cuts and Jobs Act (TCJA) has added mightily to the already serious income and wealth inequality in America. Yet our state’s Republican representatives in Congress seem oblivious that most people in this state are poor relative to the rest of the country. They have boasted about what amounts to the crumbs on the table that middle and lower income West Virginians gain from this Act. For example, Rep. Alex Mooney, who represents much of the Panhandle in Congress, announced that he voted for “tax cuts for all West Virginians.” Always obsequious when it comes to the White House, Mooney said “President Donald Trump has been a true leader on delivering tax relief for all Americans and I am looking forward to continuing to work with him to create more jobs and to keep our economy growing.” There is no other way to put it — this emphasis on the illusory benefits enjoyed by the broad middle of our society is just willfully deceptive. The true winners under the TCJA are the rich, who will benefit at the expense of the rest of us.

Even the frequently touted tax reductions for lower and middle income taxpayers are not intended to be permanent. These will decline over the next eight years and ultimately expire. Sen. Shelley Moore Capito argued in the December 27, 2017, Spirit of Jefferson that the new law doubles the standard deduction to $24,000 for couples. But she failed to mention that this increase also expires in 2025. Furthermore, she didn’t even try to defend some of the law’s permanent features, which benefit the wealthy. These are the $1.5 trillion tax cuts for corporations, which will do nothing but increase the value of corporate stock in the hands of the wealthy, and the repeal of the Affordable Care Act’s individual mandate. The repeal of the mandate will generate $53 billion in annual savings by 2027, paying for about one-third (about 4.7 percentage points) of the bill’s 14-percentage-point permanent cut in the corporate rate. But it will leave millions more uninsured and raise premium rates for many others.

Here are three additional key ways in which the TCJA benefits the rich at the expense of the rest of us:

Distributing Tax Cuts Disproportionately to the Rich. The Tax Policy Center, a joint effort by the Brookings Institution and the Urban Institute, put it this way: “In general, higher income households receive larger average tax cuts as a percentage of after-tax income, with the largest cuts as a share of income going to taxpayers in the 95th to 99th percentiles of the income distribution.” This result will clearly play out in West Virginia.

Tax Benefits

Doubling the Estate Tax Exemption. The TCJA doubles the exemption from tax on estates valued from $11 million per couple to $22 million per couple. Doubling the exemption reduces the share of estates facing tax from 0.2 percent to 0.07 percent, leaving only 1,800 taxable estates nationwide. It is hard to understand why this tax change was so important — unless satisfying rich donors is considered. The estate tax rate is only 17%, far less than on ordinary income for this group of taxpayers. Still the tax exemption will be worth on average $4.4 million to those upper-end estates who will now be exempt. To put this in perspective, $4.4 million is about what it would cost to give 1,100 Pell grants to low income students.

Creating a Tax Break for “Pass-Through” Income. Although the corporate tax rate is reduced by 14 points, this benefit mainly applies to large corporations.  Many small corporations and limited liability entities account for business income by passing it through to the individual owner. Trust me on this, most of these business owners are not among the struggling taxpayers in this country. The corporate tax rate doesn’t apply to passed-through business income. Instead, the individual tax rate for that taxpayer would apply. It was not enough that the individual tax rates will be reduced, the TCJA also creates a special new tax benefit for pass-through business income. The final TCJA allows small business owners to deduct 20% of their passed-through business income.

I get it that current Republican ideology is interested in directing policy benefits to those in society they call the “makers,” while being far less concerned about everyone else whom they label the “takers.” The TCJA is a perfect example of how this works, even though Republican politicians continue to argue falsely that the beneficiaries of this law are the middle class. To some extent, the horse is out of the barn — this bad tax law passed warts and all. But we cannot let this go. At every opportunity in the run-up to the 2018 mid-term elections and then on to 2020, we need to keep this issue at the front of the debate.

Government by the Rich, for the Rich

The much maligned Tax Cuts and Jobs Act (TCJA) is regarded by most Americans as a naked effort by the Republican Party to reward its key donors, among them the wealthiest of Americans. Public polling has consistently been negative for this “reform” legislation. The law’s modest temporary tax relief for the middle class is just window dressing. The public has simply disregarded this window dressing and correctly assessed the stink from what has been served up to them.

The TCJA is an enormously complex law, with poorly understood provisions the effect of which won’t be known until well after the law takes effect. Since the tax code has a profound effect on the behavior of individuals and businesses, and hasn’t been revised since 1986, a major revision should be thoroughly debated in the light of day. But to do that would have permitted the TCJA’s ugly flaws to be exposed and for opposition to solidify. So in adopting the TCJA Republicans jettisoned any pretense of democracy.

There were no public hearings. Some of the law’s provisions were added at the very last minute. The Congressional Budget Office had no time to evaluate the Republicans’ flimsy claim that increased business activity spurred by the tax cuts would raise substantial new tax revenues. The Bill was available for review roughly three days before the final Senate vote. The Democrats, who were not opposed to revisions to the corporate tax structure and might have made reasonable suggestions, were shut out of the process. This is how the Republicans govern.

One wonders why a massive tax cut was so important for Republicans in the first place, particularly in the face of negative public polling. The Trump Administration is riding the wave of economic recovery that began well before Trump took office. National unemployment is hovering around 4%, generally regarded as full employment. Corporations are already sitting on $2.3 trillion in cash reserves. They do not need massive tax cuts to free up cash for investment. The answer is that big donors are furious about not receiving the big tax cuts that were promised when the Republicans repealed Obamacare, which they failed to do.

Nobel-prize winning economist Paul Krugman has argued in the New York Times:

A large part of the answer [for why a huge tax cut was so important] is that many Republicans now see themselves and/or their party in such dire straits that they’re no longer even trying to improve their future electoral position; instead, it’s all about grabbing as much for their big donors while they still can. Freedom’s just another word for nothing left to lose; in the GOP’s case, that means the freedom to be the party of, by, and for oligarchs they always wanted to be.

Krugman can be intemperate at times, but he seems to be on to something. At all the key forks in the policy road, the Republicans have rewarded themselves and their rich friends. The TCJA represents a huge redistribution of wealth from the poor and middle class to those in the upper income brackets who hardly need it.

By far the largest impact of the TCJA will be the reduction of corporate tax rates. These reductions will themselves be responsible for nearly $1.5 trillion in reduced tax revenues. The Republican argument is that corporations will use this new cash to increase business capital investment, hire new workers and raise wages. But there is nothing in the TCJA that requires a business to use the tax cuts in this way. Many businesses have said they will use the money for non-productive uses like increased dividends and share repurchases. These uses only serve to increase the value of the corporation’s stock in the hands of those who own it.

Who benefits when the value of corporate stock goes up? Only 52% of the American public owns any stock whatever, even in retirement accounts, and those owners surely won’t be found in the bottom half in wealth and income. President Trump is fond of bragging about how the stock market is breaking records. Can’t you just hear the Champagne corks popping in all the nation’s homeless shelters?

In my next post, I will detail how the rich will directly benefit from the TCJA at the expense of the rest of us. Certainly, this statute ought to be one of the first things on the agenda of any new Democratic majority in Congress to reverse. In fact, instead of just undoing this bad law, the TCRA may unleash the Democrats to make substantial changes to the tax code to benefit affirmatively those whom the Republicans have, for now, shut out.

West Virginia’s Other Public Health Crisis

Now that President Trump has declared that the opioid epidemic in this country is a national disaster, we may soon see more attention being paid to that health crisis in West Virginia. But there’s another health crisis in West Virginia that’s been festering under the radar: the epidemic of chronic disease and general poor health. According to the most recent report by the West Virginia Health Statistics Center, West Virginians have the second highest obesity rate in the country, the fifth highest rate of inactivity or lack of exercise, and the fifth highest rate of cancer. The state ranks first in the country for heart attacks, second for the prevalence of mental health problems and fourth for diabetes. Panhandle counties, particularly Jefferson, generally fare better than the rest of the state on these measures. Yet from any viewpoint, these statistics are troubling.

But unlike with opioids, recent science has shown there’s a quick, inexpensive, and certain cure for this crisis of poor health: it is our feet. When it comes to the epidemic of chronic illnesses that West Virginians are facing– cardiovascular, cancer, diabetes, orthopedic and even Alzheimer’s and depression– the remedy is to get moving.

Our current medical delivery system is a complicated mess, with most of the focus being on acute care fixes, and little on prevention. Primary care doctors can’t spend much time with individual patients. Insurers and the government reimburse for “procedures,” fixing what’s wrong after you’re sick, not preventing it in the first place. So the classic rule of economics applies. We get more of what we subsidize, and the US healthcare system rewards fixes—pills, coded treatment routines, but not prevention.

So the latest medical news is something that everyone in West Virginia and the rest of the nation should read and heed: simple, inexpensive and relatively easy forms of exercise can both extend lives and improve the quality of our years.

For 15 years, the nationally regarded Cooper Institute in Dallas compiled data from over 55,000 men and women on whether running – slog or speedy – showed health differences. In 2014, the published study showed a remarkable difference, regardless of how fast you moved, or how far. The overall risk of dying for movers went down 30 percent, and heart-related deaths declined 45 percent.

This year the news got even better. In a follow-up to the 2014 study, a new published study reexamined the Cooper data, added results from other recent related studies and reported even more striking benefits. If you regularly move some, regardless of pace or distance, you can add three years to your life. The study found as little as five minutes of daily running led to better life spans. Notably, the overall longevity benefits of 25 to 40 percent were found even after the scientists, in their syntax, controlled for such “confounding factors” as smoking, drinking, hypertension or obesity.

But wait, as the late-night infomercials say, there’s more. The health benefits weren’t just for better cardiovascular health, which showed a risk reduction of 45 to 70 percent when compared to non-runners. A similar powerful result was achieved from just walking. In addition, the report noted a 30 to 50 percent cancer death risk reduction, as well as an unquantified protection from death due to neurological conditions, such as Alzheimer’s and Parkinson’s. Just regular walking at a moderate pace lowered memory loss risk by up to 50%, slowed age-related declines in brain function, and improved cognitive task performance.

With all this compelling evidence, the question becomes what could government and employers do to help people get moving? To its credit, West Virginia has begun steps to formulate a plan to do just that. Two health-related initiatives at West Virginia University, along with a non-profit, have set up “ActiveWV 2015.” These groups took the generalized outline from the National Physical Activity Plan (NPAP) and began adapting it to fit the state’s unique challenges. Its most recent report says:

Examples of implementation activities include multiyear programs to provide resources and support to pre-K through 12th grade schools seeking to establish comprehensive school physical activity programs and a public awareness and social marketing campaign to promote physical activity using the people, programs, and places of West Virginia. Other examples include providing resources for primary care physicians interested in writing physical activity prescriptions based on use of local and state parks.

These are good ideas, and hopefully will produce long-term results. But are there other more concrete policy steps that might move things along faster? I think so. One is tempted to think how smoking was substantially reduced by treating it as a public health problem. Strong government efforts were implemented, such as warning notices on tobacco products, and graphic public ads on the adverse results of smoking. Then laws were passed prohibiting smoking in most public places, and slowly the tide turned against smoking. But could this approach be applied to increase physical activity? The problem is different. There is not one single behavior that needs to change. There is no single harmful product on which to affix warnings. More fundamentally, it probably is much easier to persuade people not to do something than to take positive action. Nevertheless, the public health campaign approach should not be ignored.

Here is my modest proposal for three concrete policy changes that would have significant public impact. First, motivate both primary care physicians and their patients to have a dialogue about the benefits of exercise, and to recognize when good exercise habits are being formed. The best way to do this is not some “command and control” regulation, but rather to find the right motivator. Most doctors already do a good job on the dialogue and tracking of blood pressure, cholesterol and insulin resistance. Perhaps some way to compensate doctors for positive changes in patient physical activity can be found, emphasizing prevention rather than cure. And while we are at it, why not find some creative way to reward patients financially for doing what they should do for themselves? Doing so would be far less expensive than the current healthcare approach.

Second, let’s build more public gyms and exercise facilities. Governments already find it a useful expenditure of public money to build and staff facilities for the preschool population as well as senior centers for the aging population. Today only a small proportion of people in the middle age groupings have sufficient resources to afford private health facility memberships. Indoor exercise facilities could be incorporated into, or become, community centers. The dollars spent on these type of facilities will substantially reduce the state’s soaring Medicaid expenditures and other public health costs.

Third, some employers acting in enlightened self-interest get their employees to engage in healthy activities and give them a small reward for doing so, often in the form of a modest reduction in their health insurance premium. Most of the time that reward is too small, so employers might create a scaled-up version of subsidies and rewards for exercise and related good health outcomes, sharing more of the employer’s healthcare expenses that are avoided.

West Virginia now has the medical and scientific evidence on how simple it can be to extend the quality and length of its citizens’ lives, and to reduce the soaring incidence and cost of chronic disease. This state could be an excellent laboratory for dramatic reductions in poor health indicators and set an example for the rest of the country. After all, there is nowhere to go but up.

 

West Virginia’s Budget Disgrace

The soap opera in Charleston appears to be over. After failing to come together on any meaningful changes for increasing revenues or reforming the tax structure, the Legislature adopted a “bare-bones” budget that cuts more deeply than ever into valuable state programs. This was a default to the lowest common denominator and a failure of statesmanship. It defers many important questions for a later Legislature. One Delegate said that the budget was the result of “complete and utter dysfunction.” The process wasted everyone’s time and money.

While there is blame to go around, this result was the product of opposing positions taken by members of the same political party. Senate Republicans insisted that there would be cuts to personal income taxes or nothing. House Republicans insisted on broadening the sales tax base and were suspicious of income tax cuts in a deficit environment. Week after week neither side moved. The Democrats were impotent on the sidelines and the Governor lurched from one folksy hyperbole to the next, offering some bone-headed proposals of his own. The whole process was a disgrace.

The Legislature gathered in general session knowing in advance that revenues in the state’s General Revenue Fund were projected to fall short of the spending level from last fiscal year. The shortfall was roughly $500 million. There has been agreement on both sides of the aisle that tax reform will be necessary for West Virginia to stabilize and increase revenues and avoid volatility in our budgeting.

But for many Republicans, particularly a Senate faction led by Robert Karnes (R, Upshur), tax “reform” meant radical reductions to the personal income tax, the largest single source of state revenue. Karnes and his crowd actually think that cutting income tax for wealthy “job creators” will raise revenues.  By allowing these people to keep more of what they make, reasons Karnes, they will leap into action, juicing up business and the economy. This widely debunked nonsense was exposed most recently by the Kansas experience where substantial income tax cuts put the state’s economy into the toilet.

Karnes and the Senate Republicans labored under a false belief that also afflicted House Republicans. It can be reduced to a simple equation: tax = bad. In an environment where we needed more revenue to avoid harmful cuts, only the House Republicans were willing to put their toe into the water to find new revenue sources. Even then, House Republicans wanted to add new items upon which to levy sales taxes rather than raise the tax rate itself, presumably so they could then claim they didn’t raise taxes. They rejected a Senate bill because it “amounted to a tax increase.” The conservative Tax Foundation, which followed the situation in West Virginia closely, said “It would almost be easier to enumerate the taxes the legislature didn’t consider as possible solutions to the budget shortfall over the past few months.”

West Virginia has well-documented problems. On just about any measure of successful governance we are last in the country or very close to it: per capita income, workforce participation rate, educational attainment, health indicators and obesity, opioid addiction. You name it. Governor Justice’s initial proposed budget recognized that important spending on education and social programs had to be retained in order to ensure that we did not become a failed state. But later he seemed to lose his head by aligning himself with Senate Republicans and their income tax cuts, presumably on the theory that even a bad idea is better than no idea. In the end he lost respect from everyone, even members of his own party.

The best summary of the cuts our FY 2018 budget will make versus the spending from FY 2017 (which itself involved cuts from prior years) has been provided by the West Virginia Center on Budget and Policy.   The budget cuts $7.5 million from colleges and universities and $2.5 million from community and technical colleges. Public broadcasting was cut nearly $1 million, the line item for the Division of Culture and History was cut 14%, and the West Virginia Commission on Women, the Division of Educational Performance and the Tobacco Education Program were all completely defunded.

We need some new thinking and new leadership who recognize that good government is expensive and that we cannot cut our way to prosperity. If West Virginia is determined to elect Republicans to majority roles in the House of Delegates and Senate, these public servants need to rise above squabbling among themselves, reject the latest fashion in right-wing economic theory, and a find a way to grow revenues over the long haul. Yes, that might mean even raising taxes, which West Virginians would welcome if we applied the revenue toward solving some of our many problems.