Teachers' Retirement Ruling Provides State Opportunity to Avoid Digging a New Financial Hole

When you find yourself in a hole, the first thing you need to do is stop digging. Former Senate Finance Committee Chairman Oshel Craigo, D-Putnam, was fond of saying this (or something very similar).

Two years ago, the Ruling Party had the bright idea of transferring all public school teachers who were first hired after July 1, 1991, from the Teachers' Defined Contribution Plan to the old Teachers' Retirement System (TRS), the defined benefit plan the Legislature had (in a very rare display of wisdom) closed to new enrollees in 1991 after finding the TRS had a multi-billion (that Billion with a B, folks) dollar actuarial, present-value unfunded liability.

However, fast-forward 14 years. The bleeding had been stopped, the Legislature had adopted a 40-plan to amortize the unfunded liability, and almost half of all public school teachers in West Virginia were on defined contribution retirement plans. However, there was just one problem: the teachers predominately did not receive good financial advice. Many of them were lured into buying some very poor investments by some unscrupulous investment houses who decided to employ former teachers to market these poor investments to current teachers.

In 2005, the Legislature tried (ultimately unsuccessfully) to pass a $5 billion bond to cover the unfunded liabilities in the state's pension funds, predominately the TRS. To help build political support for this measure, the Legislature offered a carrot: all teachers who were hired after the July 1, 1991, closing of the TRS to new members would, together with their defined benefit plans, be transferred to the TRS. This was contingent on a mail ballot election by defined contribution plan members; by a simple majority, plan members who voted voted to approve the merger. However, the TRS-defined contribution pln merger had a critical flaw: the transfer from the defined contribution plan to the TRS was mandatory; teachers had no way of opting out of their private accounts being transferred into the TRS. As I wrote many, many moons go, even before I began law school, this was blatantly unconstitutional.

Last month, Kanawha County Circuit Court Judge Paul Zakaib ruled in favor of more than 1,400 teachers who sued to block the confiscation of their individual retirement accounts and blocked the merger. Now, the Legislature has a fresh opportunity to reconsider this very ill-advised move.

Part of the reason the Legislature wanted to force all teachers, including those who preferred to stay in the defined contribution plan, to participate in the merger was because the merger was going to create a new unfunded liability that will likely measure in the billions of dollars if it happens in some form.

Now, the Legislature is considering a new plan to allow teachers in the defined contribution plan to transfer to the TRS on a voluntary basis. This would likely satisfy the constitutional problem with the mandatory merger. However, the financial result of this plan would be even worse for the state and the taxpayers than the original merger plan. The unfunded liability increase this plan would cause will far exceed the increase the original merger plan would have created because only those teachers who would presumptively benefit would transfer into the TRS.

Before the Legislature takes its shovel and starts digging a new hole, it needs to think through several major issues.

First, the Legislature should do no harm by not passing any bill that would add to the state's unfunded liabilities. The Legislature that has repeatedly told us taxpayers that it won't reduce our excessive tax burden because they want to do the "fiscally responsible thing" and focus on amortizing the state's unfunded liabilities first now faces a major test of its commitment to that goal; otherwise, they will expose themselves as merely wanting every tax dollar they may extract from us without us getting a bit too cranky at the next election and throwing them out of office. This means we need to stick with the defined contribution plan.

Second, the Legislature needs to provide defined contribution plan members with prudent financial advisers and regulate the types of investments that plan members may be offered and the marketing practices of investment houses that market investments to plan members.

Third, the Legislature should consider the potential alternatives available for assisting teachers who made bad investments, largely through no fault of their own. Clearly, many teachers who were first employed in West Virginia over the last 15 years will have difficulty affording retirement because of poor investment decisions, many of which were (as I am starting to become a broken record) through no fault of teachers whose expertise in in educating children, not managing investments. I do not pretend to know exactly how this should be done. However, this is the direction we need to go.

If the Legislature would properly regulate the investment of the defined contribution plan funds, West Virginia's teachers would have a decent range of sound investment choices available and sufficient freedom to choose among different alternatives. The regulation of investment options will be key to making a defined contribution plan work for most people.

So please, before we in West Virginia go down the road of digging a brand new hole for our state's finances, let's pull the emergency brake and carefully consider alternatives along the lines I have suggested above rather than add several billion dollars to our unfunded liabilities. And while we're at it, let's increase the chance the state will have the necessary revenue to support whatever "catch-up" program for teachers who had poor investments by reducing the tax burden on the private sector and grow our state's economy. There is no other way that will work.

Governor's State of the State Speech a Snoozer

Don't blame yourself if you fell asleep or changed the channel for the first time ever during a West Virginia state of the state speech.

Last night's speech from Governor Manchin was uncharacteristically bland & boring, not to mention devoid of big, inspiring ideas to really move West Virginia forward. Tax relief? (crickets chirping) Meaningful public employee pay raises to stem the loss of qualified teachers, state troopers, and correctional officers to other states? (crickets chirping) How about a bold initiative to

Instead of a bold tax relief initiative to transform "Open for Business" from a road sign slogan to reality by adopting broad-based tax reductions over the next decade to be competitive with Virginia (ranked #1 in the Forbes magazine state business climate index--and in which we're 49th), we got a proposal for a state income tax credit to defray the 5% of value-based vehicle privilege tax new residents must pay when registering their cars in West Virginia. Don't get me wrong, this will make becoming a new West Virginia resident a bit less expensive for the handful of people who actually move into this state each year, but it's peanuts when you look at the real picture and does noting to address the fundamental unfairness of the privilege tax. We reduced our corporate income tax from 9% to 8.75% last year, yet we got nothing last night that would have made us competitive with Virginia's 6%. Although the Legislature adopted a small reduction in the punitive business franchise tax last year, we heard nothing about either reducing it further or scheduling it for a full phase-out. Relief from the food tax will continue to drip like a leaky faucet; a reduction to 4% is scheduled for July 1, 2007, and a reduction to 3% is scheduled for July 1, 2008. Why not repeal it now and save thousands of small businesses the administrative headache of having to make at least 2 more adjustments to their accounting systems to tax groceries at a reduced rate? Of our neighboring states, only Virginia (at a reduced rate of 1.5% on the state level and 1% on the local level) still taxes groceries and they're making progress toward eliminating it. Finally, on an even larger scale, no one has even discussed long-term initiatives to reduce our sales and personal income taxes. The sales tax has gradually doubled over the last quarter-century, going from 3% to 5% in 1983 and to 6% in 1988. The 5 brackets of our personal income tax, ranging from 3% to 6.5% have gone untouched since 1987 and no one proposes addressing the marriage penalty (the brackets are identical for both single filers and married couples) or the lack of inflation indexing of the brackets. In 2007, if we had eliminated the marriage penalty and indexed the brackets for inflation since 1987, the top rate of 6.5% would begin at $110,000 for single individuals and $220,000 for married couples instead of its current $60,000 for both. Even with our state's anemic economic growth, a comprehensive tax relief package to 1) eliminate the food tax, 2) reform the privilege tax to treat motor vehicles the same as all other tangible personal property and only tax the sale one time, 3) reduce the state income tax rates by 10% percent across-the-board (1% every year)--which would mean reducing the bottom rate from 3% to 2.7% and the top rate from 6.5% to 5.85% by 2017, 4) eliminate the marriage penalty, 5) institute inflation indexing of the brackets and phase-in this indexing to expand the brackets to what they would be if we had been indexing them for inflation since 1987, and 5) reduce the state sales tax rate from 6% to 4% by 2017 can be done without adversely affecting current revenue levels because the gradual nature of each year's tax cut would both increase economic growth and, to the extent there may be revenue reductions compared to the status quo, could be covered by the small increases we already have from year to year in state revenues.

On the other side of the equation, Governor Manchin proposed raising teacher salaries by 2.5% and correctional officers by $1,000 a year. (yawn) Unlike many states and the federal government, West Virginia has not established automatic, annual cost-of-living adjustments to public employee salaries to prevent inflation from eroding the value of their compensation. At best, the governor's proposal would compensate for inflation since last year. Although I would, in the long term, like to see additional reforms such as hosing cost allowances for the Eastern Panhandle, merit pay to reward outstanding performance and a return to the defined contribution retirement system, I also agree with the WVEA's call for a 6% across-the-board pay raise, especially after they settled for less last year for the since-broken promise of a bigger raise this year. Because of the massive turnover of corrections officers resulting from substantially higher salaries from other states and the growing number of federal prisons in this state, I believe that we should adopt the $5,000 raise desired; on a budgetary level, this raise may actually save the state money by reducing the costs associated with training large numbers of new officers to replace the officers lured to other facilities by their higher pay shortly after being trained in this state.

Finally, I was just incredulous at one of the governor's supposed big ideas: tying "economic development" (pork) funding to counties' efforts on litter control. After the resounding sound of silence after what was supposed to have been the applause line for this initiative, the governor started running through some subsequent applause lines without pausing for the not-so-guaranteed response from a friendly audience.

Byrd Swears off Earmarks? I Don't Think So; Watch for the Federal Budget Digest

By now, you've probably seen the report from al-AP that the incoming chairmen of the House & Senate Appropriations committees, Congressman David Obey of Wisconsin and West Virginia's very own Robert C. "Big Daddy" Byrd, both of whom chaired their respective committees prior to the 1994 GOP takeover of Congress, have announced they will strip all of this year's remaining appropriations bills of earmarks.

Lest you think the Byrd is changing his ways, fear not my fellow pork-starved West Virginians. Either this is a one-time publicity stunt by a pair of leopards who want you to think they've changed their spots or they've got an even more insidious trick up their sleeves.

The second option is that Byrd will bring to Washington a West Virginia novelty whose use in our state Legislature was abolished early this year, the budget digest.

West Virginia's budget digest was a system whereby the chairmen (later expanded tot he full committee membership) of the finance committees of our state Senate and House of Delegates promulgated a list of projects they intended to have funded from the budget bill. Under this system, our state budget had no earmarks. Although the budget digest was not legally binding, career bureaucrats knew their lives would be much easier if they strictly adhered to the digest. And, as a legally nonbinding instrument, the governor did not have line item veto or reduction powers. This system was severely abused by the leadership of the House of Delegates, leading to a series of lawsuits that eventually prompted the legislative leadership to abolish the budget digest system so they could render the pending litigation moot and prevent discovery of very embarrassing evidence of this abuse.

WV House Speaker-elect Rick Thompson Names Leadership Team

Sunday, triumphant West Virginia House Democrats overwhelmingly voted to elect trial lawyer Rick Thompson, D-Wayne, as their Speaker to succeed retiring Speaker Bob Kiss, D-Raleigh/Kanawha. With that vote, I suspected there would be grab bags of goodies for both southern machine politicians and a variety of liberal interests.

I was not wrong. Today, Speaker-elect Thompson named his new leadership team. Gambling interests drew a full house with the appointment of Mountaineer Park horse trainer Delegate Joe DeLong, D-Hancock, to be the Majority Leader. Labor unions also fared well, as United Mine Workers official Delegate Mike Caputo, D-Marion, was appointed Majority Whip. Southern coalfields politicos won a major victory with the appointment of Delegate Harry Keith White, D-Mingo, as House Finance Committee Chairman. With little surprise, teachers' unions got their choice with the appointment of Delegate Mary Poling, D-Barbour, to chair the House Education Committee.

However, the true gem of the new leadership team will be in the House Judiciary Committee. Trial lawyers, abortionists, gay marriage supporters, the Charleston Gazette, and every possible left-wing cause you could imagine except gun control will cheer tonight as they learn that Delegate Carrie Webster, D-Kanawha, will take over the gavel of the Judiciary Committee from her (comparatively) far more moderate fellow Kanawha County Delegate Jon Amores. However, thanks to the election of socialist Delegate Nancy Peoples Guthrie, D-Kanawha, and the return to office of Delegate Barbara Evans Fleischauer, D-Monongalia, Webster will have to settle for being just the third most liberal member of the House.

Dems Take Control of PA House; New Speaker to Push Table Games

One of the last remaining unsettled elections this year was settled yesterday, resulting in Democrats winning a 102-101 majority in the Pennsylvania House of Representatives after a recount changed the outcome of one race. At the top of the agenda of former and future Speaker Bill DeWeese is the legalization of full-service casino gambling at the state's new slot machine parlors.

The prudential question for West Virginia lawmakers, who have been told by gambling lobbyists they must enact table games legislation to stay ahead of surrounding states and keep our "gaming establishments" competitive, is to what new low will the tracks go now? As I have said before, I suspect the next move by the tracks will be to legalize prostitution so they can expand their offerings from simple casinos to casinos with full-service brothels.

UPDATE: Fast Eddie says "Not so fast" to table games; PA may also consider barroom poker machines to spawn roadside mini casinos to compete with West Virginia's poker bars.

Ouch!

A quote from the past is quite in order today:

"A freight train came through here last night ... If Santa Claus had been running on the Republican ticket, he would have been defeated."

--Gov. Arch A. Moore, Jr., November 6, 1974

That's all I have to say.

Defying the Odds: GOP Victory Tomorrow in Our Hands

We have reached the end of the journey. Tomorrow is Election Day. The stakes are high. Almost everything that can be done, has been done. Let there be no doubt: the choices we make will impact our future for better or for worse.

As I said, almost everything that can be done, has been done. The one thing that remains is to get out the vote. Despite a seeming eternity of media prognostications that the GOP is roadkill, that Karl Rove has lost his mojo, and that the arrival a new era of liberal supremacy is unstoppable, final polling of a number of key races shows the outcome is too close to call. After all, why should we doubt the apparent confidence of a journalistic establishment that, in an earlier era, went to press before the votes had been counted proclaiming: Dewey defeats Truman? At this moment, I honestly cannot predict the partisan control of either house of Congress come January 3rd.

This is the fourth general election in which I will have cast a ballot--and about the eighth I have monitored closely. (I know, I know: I am not normal, for I have closely watched every election since I was old enough to know what politics & elections were--and I come from a family where no one before me had done anything higher than working the polls.) While I have very strong beliefs regarding the best outcome, I have also developed a keen sense for predicting the likely outcome in advance.

Time will tell whether I've shifted away from a seemingly natural tendency to try to identify a winner and go with him regardless of principle. Once upon a time, when I was very young and foolish, I was a Clinton Kool-Aid drinker. In 1999, although I had already decided that I would oppose Al Gore because his radical environmental policies would destroy the coal industry, I sensed that West Virginia was ready to vote Republican, although I had no idea how consequential our 5 electoral votes would prove. In 2001, after we changed history and put President Bush over the top, I was one of few Republicans (and a new Republican at that, as I was a registered Democrat for about a year, only because I lived in one-party Logan County at the time) who sensed that West Virginia was ready to consider electing Republicans in significant numbers down the ticket; we have since moved into position to take control of the House of Delegates and have more than doubled the number of Republican state senators over the last 5 years. With that in mind, I adamantly prefer another history-defying Republican victory but can only predict that the outcome lies in the hands of those of us who share this preference and whether we vote in sufficiently strong numbers to produce this result.

My appeal today has two audiences: first, my fellow conservatives who are at a crossroads over whether to vote--and vote Republican; second, the very small handful of you who are legitimately independent swing voters.

Elections have consequences--every single one of them. The outcome tomorrow will determine whether our resolve to defeat the terrorists and their allies outweighs the desire of the terrorists to kill us. The terrorists believe that America is a paper tiger--that we are, at our core, a bunch of yellow-bellied cowards who will run from a fight. They believe that, unlike President Bush, most Americans are no longer willing to say, as President Kennedy did 45 years ago:

". . . we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty."

There is no doubt that the cut-and-run liberals who harken back to the days of Vietnam and Watergate lack the spine and the willingness to win this battle of wills, but are we as a country of like mind? Five years of no attacks on U.S. soil is no accident and has happened only because we have a President who has committed himself to defending our country, no matter what it takes. In 1974, American conservatives stayed home, allowing nearly 50 liberal "Watergate babies" to be swept into the House of Representatives; in 1975, Congress pulled the rug of financial support from under the South Vietnamese, leading to their defeat and the rise of the killing fields--and leaving in vain the deaths of the 58,000 American servicemen who never came home. That must not happen again as the Iraqi people put their lives on the line to establish a free society and representative government that will shine like a beacon over the entire Middle East, inspiring the oppressed to seek freedom instead of terror and futures as contributing, productive members of open societies instead of martyrs in the cause of jihad.

At home, the consequences are just as stark. For those of us on the right, perhaps no issue is more important than realigning the federal judiciary. Chief Justice John Roberts and Justice Sam Alito would not have been confirmed to the Supreme Court under a Democratic Senate. In 1986, a Republican Senate unanimously confirmed Antonin Scalia to the Court; however, in 1987, a Democratic Senate Borked the nomination of Judge Robert Bork. In the wake of Bork's defeat, a moderate Anthony Kennedy was confirmed and President Bush the elder timidly chose David Souter as his first Supreme Court nominee instead of a known conservative. The 1986 election turned the 55-45 Republican majority into a 53-47 Democratic majority; 5 of those losses were by very narrow margins. A few thousand votes in a handful of states (most of which were conservative southern states) meant that 20 years later, a Supreme Court that could have had a reliable 6-3 conservative majority is now divided 4-4-1.

In the War on Terror, Republicans supported spying on the terrorists, tracing and blocking their money, and getting aggressive with them during interrogations at Club Gitmo when they tried not to spill the beans on their upcoming plans. Democrats did not. Their allies at the New York Times blew the cover of our NSA terrorist surveillance program and financial monitoring program. In a just society, the editorial suite of the Old Gray Lady would be marched to the gallows for treason.

We also face choices on whether the President's tax cuts that have revived an economy that was once reeling in the wake of a recession exacerbated by 9-11 and accounting scandals should continue or whether we should, by inaction, allow the largest tax increase in our history to silently take effect. Because of an unprecedented move by Senate Democrats in 2001 to filibuster the tax cuts, the tax cuts had to be enacted under arcane rules that automatically repealed them in 10 years unless renewed by a future act of Congress. So now, the clock is ticking. Over the next 5 years, the top marginal rates in each tax bracket will rise between 13% and 50%; taxes on capital gains will rise by 1/3; dividend taxes will rise 164%; the 55% Death Tax, scheduled itself to die in 2010, will rise from the dead in 2011; small businesses will lose a variety of favorable tax accounting rules that have created huge incentives for job-creating investments; and families with children will see $500 per child in new taxes just through the loss of the increased child tax credit, which will drop from $1000 per child to $500 per child, not to mention other factors that will increase their tax bills. That is, unless Congress makes the tax cuts permanent. The House of Representatives has voted every year to do so; the Senate has not because breaking a filibuster requires 60 votes and there are only 55 Republican senators, not all of whom can be counted upon all the time. House Ways and Means Committee Ranking Member (and Chairman if the Democrats take control) Charlie Rangel says there's not one of the hundreds of provisions of the tax cut package he would like to continue. House Speaker Wannabe Nancy Pelosi, D-San Francisco, says she likes tax cuts; as the President has been saying, she must be a secret admirer, because she has not voted a single time to cut taxes when it counted.

Thanks to the President's tax cuts and resulting economic boom, unemployment in the U.S. today is 4.4%; unemployment in France is twice the U.S. rate, at 8.8%; Germany is two and a half times ours, with 10.4% unemployment; even our neighbors to the north in Canada have 40% higher unemployment, at 6.2%. U.S. stocks are trading at all-time highs; interest rates still remain near historic lows; inflation is tame at under 3%; and gas prices, while still high, are well below historic, inflation-adjusted highs (does anyone who is old enough remember the days of Jimmah Cotta? Do you really want to go back?).

Some people say we should deliberately split control of Washington; that our constitutional system of checks and balances can only work effectively if there is a real friction between the two ends of Pennsylvania Avenue. In a time when continuing the status quo on autopilot would leave our country strong, safe, secure, prosperous, and free, maybe you would be right. However, we deal today with a perilous status quo in which inaction leads straight to disaster. The party in opposition would gladly sit silently as taxes increase dramatically and approaches foreign policy with its head in the sand, failing to recognize that 5 years of no attacks on U.S. soil does not mean the threats we face have subsided. Liberal Democrats in Congress do not share our vision of doing whatever it takes to win the War on Terror and cutting taxes to keep our economy the envy of the world. While we certainly have our faults for failing to act to shrink government, liberal Democrats have resisted these efforts in the past at almost every turn, instead seeking to constantly enlarge the role of government far beyond anything for which we conservatives have rightfully criticized the Washington Republicans.

In summary, my fellow conservatives: whatever grievances you may have with the Washington Republican establishment will pale in comparison to what a Democratic Congress--even a Congress of split control--will do. The time for action is in primary elections, especially in solidly Republican states and congressional districts where we do not need to nominate RINOs to win, not by staying home during the general election when the polls are tighter than the rusted lugnuts on a '55 Ford and whether we vote will decide the balance of power and the outcome of numerous issues far beyond those I have mentioned here.

To those of you who are honestly and truly independent, swing voters, I offer you much the same as to why I hope you will stick with the tried and tested leadership of the last few years. Everyone encounters their stumbling blocks when in power. The Democrats have their scoundrels and we have ours; we try to dispose of ours more so than they do theirs. However, the leadership of President Bush and Congressional Republicans has produced a safer, more prosperous America that, despite all the naysaying of the doom-and-gloom crowd, offers more opportunities to more people than any country at any time in the history of our world. While I believe nothing in our history has been inevitable, I believe that the right decisions will mean that, as Ronald Reagan said in his final public message in 1994, America's best days are ahead. That hangs in the balance tomorrow.

A lot rides on the outcome of the election tomorrow. Vote, vote early, only vote once, but vote Republican and let's keep moving forward toward that safer, more prosperous, more hopeful America that lies ahead.

Out-of-State Gambling Interests, Trial Lawyers Fund Last-Minute Attack on Incumbent GOP Delegates

Yesterday and today, numerous radio stations began running political ads targeting several incumbent Republican delegates funded by a group called West Virginians for a Brighter Future.

WVBF is a creation of former state Democratic Chairman Chuck Smith, who is listed with the Secretary of State as the group's treasurer, and has been funded primarily by out-of-state gambling interests and trial lawyers.

Today's electioneering communication disclosure shows numerous $1,000 donations, including 3 from 3 different women who are all listed as homemakers with an address of 40 Fountain Plaza, Buffalo, New York. Boston Bruins (NHL) Executive Vice President Charles Jacbos also lists this address. My research shows this is the address of the law firm of Bond, Schoeneck & King, PLLC, which is listed in the Martindale-Hubbell directory as focusing on employment law. Another donor to WVBF was Herbert Tyner, President of the Hazel Park Harness Raceway in Michigan.

Because of the urgency of disseminating this information, details about other donors to WVBF is unavailable at this time.

So apparently, West Virginia is for sale as long as the buyer is an out-of-state plaintiff's lawyer or gambling operator.

State Supreme Court Blocks Starcher from Becoming Chief Justice

This morning's Charleston Gazette reports that the state Supreme Court voted 3-2 last week to interrupt its 25-year-old tradition of annually rotating among its members the position of chief justice and retain Chief Justice Robin Davis in her current position next year.

Davis, the Court's most senior member, has been a justice since 1996 and would have been replaced next year by controversial Justice Larry Starcher, a former chief justice, had the existing rotation plan been preserved. The justices voted unanimously to resume the annual rotation of the chief justice in 2008, when former Chief Justice Elliott "Spike" Maynard will again become the chief justice.

Starcher has been a lingering source of controversy on the bench in recent years. In 2004, Starcher heckled Greenbrier County Circuit Judge Jim Rowe at a debate between Rowe and former Justice Warren McGraw. McGraw narrowly defeated Judge Rowe in the Democratic primary but lost to Justice Brent Benjamin in the general election following a very heated campaign and the Rant at Racine. Judge Rowe remains a circuit judge in Greenbrier County and is subject to administrative oversight by the chief justice.

Justice Starcher's unprecedented, flagrant violation of the canons of judicial ethics in this incident and his comments to the New York Times that Justice Benjamin "was bought by Don Blankenship" may have been contributing factors in the Court's decision to block Starcher's scheduled turn as chief justice in 2007.

Voting in the majority were Chief Justice Davis, Justice Maynard, and Justice Benjamin; dissenting were Justice Starcher and Justice Joe Albright.

I'm sure my law professors are not happy. Too bad.

8 Days before Election, Governor to Announce Tax Reform Plan

Tomorrow morning, Governor Joe Manchin will unveil his proposal for reforming West Virginia’s tax system. Given the timing of tomorrow’s announcement, one thing is certain: this plan will be long on politics and very short on meaningful policy.

Moreover, news reports over the weekend have indicated the governor will call the Legislature into special session immediately after the election and before new legislators may be sworn in. The state constitution (W.Va. Const. Art. IV, §7) provides that the term of office of the Legislature begins on December 1 in even-numbered years. Usually, legislators are sworn in on the first day of the regular session in January; however, if the Legislature is in session at any time between December 1 and the regular sessions, the swearing-in is held earlier.

While rare, lame-duck special sessions of the West Virginia Legislature are not without precedent. Twice, the Legislature has met in special session during the lame-duck period: November 20-28, 1916. and November 27, 1964. The 1916 special session is of special note because outgoing governor Henry Hatfield (R) convened a Republican-controlled Legislature after the election of Democratic Governor John Cornwell and a Democratic House of Delegates. The 1964 session was a one-day session following the election of a Democratic governor, Hulett Smith, to replace a fellow Democrat, Wally Barron, and an election of a Legislature more heavily Democratic than its predecessor. On several other occasions, newly-elected legislatures were convened after the December 1 beginning of the term of office but before the regular session on the second Wednesday of January.

The timing of tomorrow’s announcement, coupled with the governor’s planned mini-tour of the state to promote his plan, strikes almost every political observer as a pre-election political maneuver designed to benefit members of the Ruling Party. I see it as a desperate ploy to distract attention from the fact that a lifetime of one party-rule in the Legislature has produced only a lifetime of listlessness for our state. As I wrote last week, Open for Business remains a slogan on the road signs West Virginia expatriates see when they return home to visit their parents and grandparents a few times a year because our next-to-last ranking in state business climates has caused most noncaptive businesses (meaning those businesses that can choose where to locate as opposed to captive industries like coal, oil, gas, timber, and other extractive industries that have no such choice) to avoid West Virginia.

If my hectic schedule at law school permits, I will try to write more tomorrow about the substance of the governor’s proposal and whether its politics meet my current expectations.