Charter Schools: The Real Threat to Public Education

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.

Microplastics: An Emerging Concern for Animal and Human Health

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.

Impeachment Trial of Justice Elizabeth Walker – Day Two

The historic impeachment trial of Justice Beth Walker resumed on October 2, 2018. This trial day was short, consisting of only one witness called by the House impeachment managers and closing arguments by the parties.

The West Virginia Constitution declares that “any officer of the state may be impeached for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor.” Walker has been charged in the Articles of Impeachment, which were broadly drafted to cover the conduct of the four Justices involved, in this language:

[Walker] did, in the absence of any policy to prevent or control expenditure, waste state funds with little or no concern for the costs to be borne by the tax payers for unnecessary and lavish spending for various purposes including, but without limitation, . . . to remodel state offices, [and] for regular lunches from restaurants.

Walker’s conduct described at the trial could only conceivably fall into the categories of maladministration or neglect of duty. If she has committed offenses, it is hard to see how they could rise to the level of a high crimes and misdemeanors, which are limited to serious offenses against the state like treason.

The trial has been presided over by Judge Paul T. Farrell, a Circuit Judge from Huntington who was appointed temporarily to fill the seat of suspended Chief Justice Loughry.  Farrell is Acting Chief Justice for the purpose of the impeachment trial. In his October 1 charge to the assembled Senate, which is functioning as the “court of impeachment,” Farrell said:

This is your decision and your decision alone . . . I urge you all to be West Virginians. Not Democrats, not Republicans, simply West Virginians, and base your decisions on what is best for the state of West Virginia and what is fair not only to Justice Walker, but what is fair to the House members who have brought these charges.

The witness called today was Mike McKown, former State Budget Director. He testified that the state was required to adjust its budget mid-year in FY 2017, which required almost all state agencies to take significant cuts. Because the budget for the Supreme Court of Appeals is not controlled by the Legislature, no budget cuts were imposed on the Court. Instead House managers emphasized these cuts as context within which to view Walker’s “excessive” spending to renovate her office.

In the closing argument from the House impeachment managers, Senators were asked to consider that Walker continued participating in state-paid lunches until a FOIA request was made about them, and to weigh heavily what she did “when no one was looking.” As for the renovations to her office, House managers argued that while everyone else in the state government was required to tighten their belts, Walker was spending money for a cosmetic renovation of her office rest room that benefitted nobody but her. Using a golf analogy, the House managers argued that Walker was asking for mulligans (extra chances) when she apologized and expressed regret.

Walker’s counsel argued that since she didn’t take office until January 1, 2017 she was not responsible for policies that were adopted before, especially since she had no power as an individual Justice to change them. He pointed out that she had been the sole Justice to vote against substantial salary increases for the Court’s staff during the 2017 budget crisis. While the House managers had suggested that ethical standards applying to lawyers should also apply to Justices in impeachment proceedings, Walker’s attorney argued well that lawyer disciplinary rules and “best practices” are not incorporated into the state’s Constitution as standards by which to remove a Constitutional officer.

At about 12:50 p.m., the court of impeachment was called back into session and Senators cast their ballots through the electronic voting system. An aye was a vote in favor of sustaining the articles of impeachment; a nay was a vote rejecting them. The vote tally showed one aye and thirty-two nays. The lone aye vote was cast by Senator Stephen Baldwin (D-Greenbrier). Chief Justice Farrell declared the articles of impeachment rejected as to Justice Walker and dismissed the proceedings.

However, Senators gathered in regular session shortly after the impeachment vote and agreed to censure Justice Walker. The censure is, in effect, an admonishment that will not affect her tenure in office.

Impeachment Trial of Justice Elizabeth Walker – Day One

Beth Walker is the first of four Justices of the West Virginia Supreme Court of Appeals to face an impeachment trial in the state Senate.  Her trial began Monday, October 1, 2018. She is alleged to have failed to control wasteful spending on working lunches which the Justices enjoyed on argument days and other days when there were administrative of judicial conferences. She is also alleged to have wastefully spent $130,000 on the renovation of her office.

Regarding the lunches, the House impeachment managers sought to show that court employees such as security guards and clerks who were not working directly on legal matters shared in the lunches. They further showed that the lunches were purchased, not from fast food restaurants or the Capitol cafeteria, but rather at “upscale” restaurants in Charleston. The average cost of one of these lunches was $16.77 with tip. This is somewhat more than the $13 GSA per diem for federal employee travel reimbursement in Charleston. The GSA rates were incorporated by reference into the 2016 and 2018 versions of the Supreme Court of Appeals travel policy. The House impeachment managers will argue that the GSA rates should apply to working lunches that did not involve travel.

Justice Walker was not initially concerned about whether it was appropriate for her and other Justices to enjoy working lunches paid for by the state because, as an employment lawyer for 26 years, she knew that employer-paid working lunches were typical and not considered income to the employee. For that reason, she testified, that accepting these lunches was not illegal and did not cause her total compensation to exceed the $136,000 authorized by law.

When another Justice began not participating in the lunches, Walker also began to have some personal concerns and requested the total amount spent on these lunches in 2017. When she ultimately got these figures she repaid the state 1/5 of the total. Walker maintains there was nothing ethically wrong about these lunches but that she simply decided as a personal matter not to participate. The House impeachment managers pointed out that her personal concern did not begin until the “spotlight” of a FOIA request was shined on the practice. But the West Virginia Judicial Investigation Commission exonerated Walker of any wrongdoing in connection with the lunches.

Walker replaced Justice Benjamin, to whose former office she was assigned. Although she could have requested used furniture from storage, she proceeded with a design contract with an outside firm. This was not out of the ordinary as Justices typically do not ask for used furniture for their offices. The outside design firm chosen was low bidder, but the price it proposed was later raised in a change order. Walker’s objective was to have an office that was functional, brighter than Benjamin’s dark office had been and a place where she and her clerks could work comfortably. The House impeachment managers sought to show that when the renovation money spent by Benjamin in 2010 is added to the amount spent by Walker in 2017, it was the second highest amount among all. Although she testified that she regretted overspending taxpayer funds on her office she admitted that she had not repaid these excess costs.

As an Associate Justice who began her term on January 1 2017, Walker was not involved in the adoption or failure to adopt policies on taxable fringe benefits, the use of state charge cards, home offices, or the inventory of state property. The Court’s Chief Financial Officer testified that individual Justices were not able to issue or modify Court policies. Walker was not paid a per diem by the state for days when she worked; she did not use a state car; she never asked for reimbursement for mileage in her personal car; and she never used a state credit card.  She paid for her judicial robe and catering at her swearing in ceremony out of her own pocket.

Walker was contrite about the working lunch allegation and office renovation overspending.  She apologized to the assembled legislators and the state taxpayers.  She admits that she should have been more aware and sensitive about overspending.  However, she does not believe these things amount to grounds to remove her from office. She believes she can contribute to the restoration of public confidence in the court.

On Day 2, the House impeachment managers will call one additional witness and then Walker’s attorneys will call witnesses.

The West Virginia Legislature Fails Its Budget Responsibility

“Do Your Job!” This was a constant refrain heard from the thousands of citizens, many of them teachers, who filled the halls of the state capitol in late February and early March.

They were calling for investment in public education, and for decent salaries for themselves and thousands of other seriously underpaid public employees. The Legislature was dragged kicking and screaming into granting an average 5% raise.

This raise was critically important. But there is another critically important job the Legislature failed to do.

By essentially “rubber stamping” the proposed budget sent to it by the Governor, the Legislature failed to exercise proper stewardship of the public’s money. When it comes to the single most important document the Legislature produces each year, the State Budget, the Legislature did not do its job.

As to my bona fides, I served on the House of Delegates Finance Committee for 19 years (as Vice Chair for 10 years). Later, I was Deputy Secretary of Revenue for 3 years. I have learned the budget process from both the legislative and executive points of view.

Under our state constitution, it is the Governor’s responsibility to propose a budget. It is the responsibility of the Legislature to enact a budget. We on the House Finance Committee took that responsibility seriously and every year we went through the Governor’s proposal carefully, looking for places to economize.

Each of the members of the House Finance Committee was assigned individually to the proposed budget for one or more executive branch agencies to find money that might be cut or used elsewhere. It took us the first 30 days of each annual Regular Session to gather the information and about the next 20 days to compile and analyze it. We would make dozens of changes, sometimes over a hundred, to the Governor’s original proposal. When we reported our completed budget to the House floor during the last week of the session, we were confident that we had done our job up to that point.

But the job wasn’t finished. The Senate Finance Committee would send its budget to the Senate floor at the same time. A Budget Conference Committee for the two chambers would begin meeting as soon as the regular 60-day session was finished. It would usually take between five and seven days to finish. The Governor was always invited into the discussions. I served on this Committee for twelve straight years. The result would be a budget thoroughly vetted.

But that did not happen this year.

In recent years the Legislature has stopped being thorough in analyzing the Governor’s proposed budget. This year the Legislature didn’t even appoint a Budget Conference Committee to discuss ways to improve the budget.

This year’s final budget (FY 2019) included fewer than a dozen changes from the Governor’s proposal. And most of those changes were dictated by the decision (unanticipated when the Governor presented his proposed budget) to grant that 5% pay raise, which cost the state’s coffers about $150 million.

Either our present Governor is the smartest person ever to occupy the office, or the Legislature punted. I think the Legislature abdicated its responsibility to vet the governor’s budget proposal thoroughly. This was fiscally irresponsible.

The West Virginia Constitution permits the Governor to extend the Regular Session for as long as it takes to finish the budget. This is called the Extension of the Regular Session and is different than the Special Session that was required for the FY 2018 budget.  Each day of an extended regular session costs the state approximately $20,000. If this extension averages six days that would cost the taxpayers approximately $120,000. If that work can save at least $500,000 I argue it’s worth the expense. Every year I was on the Budget Conference Committee we saved at least several million dollars.

Because of this work we were able to significantly pay down the unfunded liabilities of the workers’ compensation fund and the various public employee retirement funds, and to establish the rainy day fund. We stabilized the public employee health care program, then called PEIB and now PEIA. The system was so behind in its payments in the 1990’s that medical providers were refusing to see state employees.

Through careful work and negotiation, West Virginia — a financial basket case in 1992 — became recognized as one of the half dozen most fiscally responsible states in the Union by 2012 when I left the Legislature. Our bond ratings were “junk” status in 1992, but had risen so much by 2012 that some were the highest rating (aaa-plus).

In the last four years the so-called “fiscal conservatives” in the Republican Party who lead the Legislature have raided our rainy day fund several times and have overseen a drop in our bond ratings. They have also slowed down paying off some unfunded liabilities. In my view this is fiscal irresponsibility. Their lack of budget scrutiny is another example of irresponsibility.

John Doyle resides in Shepherdstown. He is a Democratic candidate for the House of Delegates from the 67th District.

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.

Partisan Gerrymandering and the Constitution

On October 3, 2017, the United States Supreme Court will hear arguments in the case of Gill v. Whitford. This case raises the question of whether gross partisan gerrymandering by the Wisconsin state legislature in creating state voting districts violates any provision of the U.S. Constitution. Partisan gerrymandering – intentionally drawing voting district lines to favor one party or the other – has seen a sharp increase since the redistricting that followed the 2010 census. Many observers believe that partisan gerrymandering is to blame for much of the gridlock in Congress and the state legislatures because highly partisan districts elect highly partisan representatives who have no political room to compromise. The old legal wisdom is that for every wrong there is a remedy, so you would expect that this case would be a slam-dunk for those challenging the Wisconsin redistricting in the Supreme Court. But you would be wrong.

Appendix AFirst, some basics. The constitutions of each state determine the number of state Senators and Delegates assigned to voting districts and the apportionment of the state’s population into those districts. In West Virginia the House of Delegates is composed of a fixed 100 members, each theoretically representing 1/100 of the state’s population. But instead of there being 100 districts, our legislature has created 67 districts some of which elect multiple Delegates. (Appendix A). All Delegates face re-election every two years.

There are two Senators from each of seventeen senatorial districts for a total of thirty four. According to the West Virginia Constitution, senatorial districts “shall be compact, formed of contiguous territory, bounded by county lines, and, as nearly as possible, equal in population, to be ascertained by the census of the United States.” (Appendix B). There is no such language relating to House districts. Senate terms are four years and elections are staggered so that a portion of senators faces re-election every two years.

Appendix BState legislatures also draw each state’s Congressional district boundaries, which must be revisited every ten years immediately after the census. West Virginia has had three Congressional districts for several decades, but their boundaries have changed slightly over time to reflect the shift in population to the Eastern Panhandle and Monongalia County. The U.S. Constitution and its Amendments determine who can vote in federal elections. But as for how districts are constituted, it merely says that “Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective numbers” and that “the number of Representatives shall not exceed one for every thirty Thousand.”

The basic requirement of Congressional apportionment that each district have an approximately equal population is consistent with the 5th Amendment’s promise of equal protection of the law. For example, if District A has a population of 750,000 and District B has a population of 800,000, then voters in B have an incrementally less powerful vote. That same principle was made applicable to the states by the 14th Amendment, ratified after the Civil War. In a series of cases in the 1960s, the Supreme Court announced that “equal protection” in the context of state legislative district apportionment meant “one person, one vote.” For example, in Reynolds v. Sims (1964), the Court said:

To the extent that a citizen’s right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote. . . . By holding that as a federal constitutional requisite both houses of a state legislature must be apportioned on a population basis, we mean that the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.

But if all equal protection requires is districts of equal population, there is still an infinite number of ways to divide a state’s population into roughly equal segments. The development of software that predicts the likely election consequences of moving even small groups of voters from one district to another has tempted legislatures to find just those configurations that maximize the likely future success of the party in power, while still satisfying the equal population requirement. The Republican legislators in Wisconsin sorted through multiple proposed district maps with the use of redistricting software and the help of political science experts until they found the one they believed would best ensure their control of the legislature for an entire decade even if they were to lose the popular state-wide vote.

The challengers to this plan in Wisconsin were numerous individuals and groups acting on behalf of Democrat voters in the state. There is a subtle but significant difference between protecting an individual voter from the dilution of her vote and protecting a subset of the whole voting population – registered Democrats – from being deprived of a proportionately equal chance to elect Democrat candidates. This difference raises the question of whether the Equal Protection Clause even applies to state-wide voter groups? If it does, are all such groups entitled to equal protection? If Democrats and Republicans as distinct voter groups are entitled to equal protection, how about the Green Party or the American Nazi Party? This is one thing that makes the issues raised in the Wisconsin case so difficult for courts to get their minds around.

There is even a more fundamental legal question the Court must answer before deciding whether the Equal Protection Clause prevents partisan gerrymandering. That question is “justiciability” – whether a clear rule can be found delineating what is acceptable from unacceptable in the drawing of district boundaries and whether courts should step into the political arena at all in view of the separation of powers. In my next post, I will explain why partisan gerrymandering greatly intensified after the Supreme Court’s last pronouncement on these issues in 2010, and where the law now stands on the issues presented in the Wisconsin case.