Special Session Call Includes Inappropriate Food Tax Restriction

Although I have yet to obtain an actual copy of Governor Manchin's proclamation convening the special legislative session that begins today, there is some good news and some bad news. The good news is that table games for the state's tracks is not included. The bad news: today's Charleston Gazette reports that Governor Manchin has specified in the call that the food tax reduction may not exceed 1 percent.

As I wrote last week, "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."

House Minority Leader (and future Speaker) Charles Trump says that he will propose and expects to pass an amendment to the food tax bill to completely abolish the tax. If the Republican caucuses in the House & Senate receive enough Democratic votes (which is highly likely), a court battle will emerge testing the Governor's power to restrict the Legislature's actions during a special session as narrowly as the current Governor is doing.

Historically, the Governor's constitutional power to designate subjects for consideration at special legislative sessions has been regarded as pertaining to general subject matters. However, it is quite clear that in this case, the Governor is effectively constraining the Legislature to an up or down vote without meaningful amendments that would otherwise be in order on a specific bill. Ordinarily, under our system of three coequal branches of government, the legislative leadership should be outraged at this power grab that clearly infringes on their constitutional prerogatives. However, the Democratic leadership is taking "the end justifies the means" approach to this issue and is permitting this unacceptable infringement upon the legislative branch by the executive. How are they going to feel the next time the Governor calls them into special session and presents to them a complicated issue that could have many possible solutions but uses his power to frame the agenda in a manner that limits them to ratifying or rejecting his proposal? How are they going to react when it's an issue where they cannot afford to reject the legislation but sincerely believe in a different approach--or at the very least letting the subject resolve itself through the normal legislative process and the Governor's use of his veto pen?

Aside from the constitution issues at stake, it should be clear to any intelligent observer by now that the Governor is engaging in nakedly political calculations and protracting the progress of the conservative components of his legislative program. We passed Worker's Compensation privatization this year, but do you know when the law says is the first day a private carrier policy may be effective? July 1, 2008.

The governor says he wants to repeal the food tax, and do it during his term. I believe him. In fact, I believe he wants to do 1% this year, another 1% next year, maybe help the legislative Democrats in the elections next year by highlighting that achievement (although they will have to deal with their votes against full repeal), and then go for the remainder in 2008. While this Governor may very well govern to the right, he is engaging in a deliberate tactic to delay the actual implementation of his major policies until the year he will presumably stand for reelection and attempt to demand the gratitude of the people, to be expressed through their votes in the 2008 general election, for these "fresh" achievements.

In addition to these political benefits, the Governor and Legislature, by implementing conservative policies but doing so at an extremely laggard pace, is preventing the items on our agenda that would follow from taking the forefront. While they continue their additional installments of policies that should be implemented in one fell swoop, we could instead bring to the public forum other needed policies that this state needs to move forward.

Instead of enacting additional installments on repealing the food tax, we could be tackling comprehensive tax reform [SB 188 (Weeks & Yoder) / HB 2445 (Sumner, Sobonya, Wakim, Frich, Schoen & Ellem)] or maybe--Gasp!--more tax cuts. Instead of dillydallying on privatizing Worker's Compensation--which needs only a few months rather than over three years to implement since it's already a competitive private industry in 47 other states--we could instead discuss enacting--and maybe even enact--one of the most monumental changes to our state's business climate than any other 4-page bill that would say more to private industry considering doing business in our state but which would not cost taxpayers one penny: a right to work law [HB 2041 (Overington, Blair, Roberts, Evans & Schadler)].