Manchin Seeks to Prevent Food Tax Bill from Being Amended, May Violate Separation of Powers

Charleston Gazette columnist Phil Kabler reports in his weekly column today that Governor Joe Manchin is considering how to formulate the wording of his proclamation convening the Legislature in special session next month to place a reduction in the state's food tax on the agenda but prohibit any amendment to the bill providing for a reduction greater than the 1% he supports.

Under Article VII, §7 of the state Constitution, when the governor calls a special session of the Legislature, the Legislature "shall enter upon no business except that stated in the proclamation by which it was called together." Historically, special session calls have referred to general subject matters for the Legislature to consider.

If the governor, as reported, formulates his proclamation in a manner that effectively restricts the Legislature to either approving or rejecting without amendment a bill to reduce the food tax rate from 6% to 5%, we risk an unprecedented encroachment upon the constitutional separation of powers by the governor, whose hand is already very strong regarding special legislative sessions. Already, when the Legislature is convened in special session, it faces strong public pressure to act as soon as possible (most special sessions are now less than one week) by a constituency that has maintained a strong preference for a part-time Legislature comprised of citizen-legislators who spend only 2-3 months per year engaging in legislative business. Indeed, Governor Manchin convened a special session immediately after taking office in January in which he secured passage of Worker's Compensation privatization legislation and a proposed constitutional amendment (which was rejected in a special election in June) to bond the state's pension debts.

Normally, when the Legislature considers a bill, it is in order for any member, whether in committee or on the floor, to propose any amendment to the bill that is germane to the bill's subject matter. In the case of a bill reducing the sales tax on groceries, an amendment to increase or decrease the tax cut or completely repeal the tax in question would be in order. When a question is in order, it merely means that the committee or house may consider the question and vote on whether to approve or reject the proposition. With regard to the food tax, all Republicans are prepared to support an immediate, 100% repeal of the food tax and believe there are more than enough Democratic votes in both houses for our side to prevail.

Obviously, Governor Manchin does not want to fully repeal the food tax, at least not yet, and also knows that without the restriction he is contemplating attaching to the proclamation calling next month's special session, a full and immediate food tax repeal will pass. I suspect Manchin wants the political benefits that come from cutting the food tax and wants to repeat the process several more times, perhaps culminating with a final repeal of the food tax just before the 2008 election. He could always veto the bill if it was amended to include a full food tax repeal but he knows doing so might be the equivalent of signing his own political death warrant just less than a year after winning 64% of the vote and more votes than any other person on the statewide ballot last year. Moreover, as House Speaker Bob Kiss said, if we Republicans repeal the food tax, we will continue proposing additional tax cuts to relieve the burdens faced by the people of West Virginia and promote real private-sector economic growth.