Momentum Grows for Special Session on C.A.R.E.S. Act Distribution
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CHARLESTON -- Regardless if he wants or doesn't want a special session, Gov. Jim Justice might be forced to call one if the West Virginia Legislature meets the threshold to call itself into special session to deal with the $1.25 billion in federal coronavirus relief dollars.
Since the Legislature adjourned its regular 2020 session on March 7, Justice has unilaterally managed the state's coronavirus response from the executive branch.
The governor has issued more than 50 executive orders since March, including orders that closed all non-essential businesses in West Virginia and required all state residents to stay at home.
Justice and the governor's office also has sole authority over $1.25 billion sent to the state by Congress through the Coronavirus Aid, Relief, and Economic Security Act for state, county and municipal government. The funding is meant to be used for coronavirus-related unbudgeted expenses incurred by state and local governments since March and is meant to last until Dec. 30.
A number of lawmakers have expressed frustration at being left on the sidelines during the pandemic. Five lawmakers filed a writ of mandamus with the state Supreme Court of Appeals asking the justices to determine whether Justice is required to call a special session of the Legislature.
Other lawmakers have questioned the governor's authority in State Code to decide how to spend the $1.25 billion – nearly one-fourth of the state's annual general revenue budget – without legislative authority. Justice has repeatedly said there is no need for a special session, raising concerns that a session could become a "political circus."
"I've not heard one single person say I think we should call ourselves back into special session," Justice said Wednesday. "You know and I know, too, that this is absolutely rock-solid nothing but politics, nothing but political."
As of Wednesday, the House Clerk's Office has received 26 letters from Republican members of the House of Delegates asking to be called into a special session. Article 6 Section 19 of the West Virginia Constitution gives the authority to call a special session to the governor, and it also gives the Legislature the authority to call itself into a special session if three-fifths of members of both the House and Senate submit the request in writing.
Delegate Pat McGeehan, R-Hancock, is among the 26 House Republicans who have submitted letters. He said the founders of the state did not intend for one person to call all of the shots during an extended emergency.
"We have not been involved in the process of governing this entire time," McGeehan said. "No matter how noble the intentions are, too much power concentrated in the hands of too few establishes dangerous precedent for not only our future but the future of our children. At the end of the day, the power of the purse and to appropriate revenue, along with the authority to make law, are exclusive to the legislative branch of government."
For the House to reach the three-fifths threshold, the 26 House Republicans will need to reach 60 members. According to a letter released Wednesday, 35 members of the House Democratic caucus asked Justice to call the Legislature into special session or they would join with the 26 House Republicans to call themselves into special session.
Delegate Isaac Sponaugle, D-Pendleton, is among the five assistant minority whips in the House. Sponaugle, citing Article 1 Section 3 of the West Virginia Constitution, said the governor's executive order for a state of emergency doesn't negate the authority of the state Constitution and the Legislature's power of the purse.
Article 1 Section 3 states that, "The provisions of the constitution of the United States, and of this state, are operative alike in a period of war as in time of peace, and any departure therefrom, or violation thereof, under the plea of necessity, or any other plea, is subversive of good government, and tends to anarchy and despotism."
"I don't know about anarchy, but I think he is trying to establish absolute power," Sponaugle said. "We've been operating in a state of emergency for over five months and closing in on half a year. The governor is trying to spend $1.25 billion all by himself by the end of the year with no oversight and no check whatsoever on his power or authority. If he wants to run the state like a monarchy, then he needs to go to the voters and say make me king of the state and abolish the Legislature."
While the House may have more than three-fifths of members needed to call itself into a special session, the House can't do it without three-fifths of the Senate, or 20 senators, agreeing to a special session. On Tuesday, 12 Democratic Senators wrote Justice a letter calling on him to use C.A.R.E.S. Act funding for schools and volunteer fire departments and put aside additional dollars for local governments in case of a surge of COVID-19 cases.
The 12 senators also called on Justice to call the Legislature into a special session to provide transparency and oversight of C.A.R.E.S. Act fund distribution. Sen. Stephen Baldwin, D-Greenbrier, said it is the Legislature's duty.
"We have a duty that is laid out in the state Constitution and State Code about appropriating funds," Baldwin said. "We think this is an instance in which we need to do that. We're not unhappy with the governor's response to this. I personally think the response has been good. These are unprecedented times and I think they've handled them as well as can be expected. But we are now at the point where we need to appropriate significant dollars that will have a major impact on our state."
Baldwin said Senate Democrats would prefer the governor call the special session and keep the agenda limited to appropriating C.A.R.E.S. funding, but they would be willing to join with Senate Republicans if any of the 20 members of the majority decided the Senate needed to call itself into a special session.
As of Wednesday, the Senate Clerk's Office had not received letters from Senate Republicans wanting to be called into a special session. Senate Republicans held a conference call Wednesday afternoon to discuss a number of issues, including the possibility of a special session.
Sen. Mike Azinger, R-Wood, one of the five lawmakers who brought a writ of mandamus against Justice in May, said a special session is the only way to check the emergency power of the governor.
"I have a problem with a lot of the governor's actions and that's why I joined the lawsuit against the governor because I believe he was acting unconstitutional by having these unilateral edicts from his throne in the governor's office," Azinger said. "It's a dangerous thing to have that much money and do virtually what you want with it. We all need accountability and checks and balances."
As for whether enough Senate Republicans would be willing to follow the example of House Republicans and sign on for calling themselves into a special session, Azinger was not optimistic.
"My guess is the Senate Republican Caucus is going to be monolithic in their stance on waiting until the February legislative session begins," Azinger said. "I don't see the Democrats in the Senate having a lot of pull in that particular instance, but we'll see. At this point, I think it's going to be tough to have the Senate Republicans in a consensus and join the House with wanting to have a special session.
Justice, speaking Wednesday during his coronavirus briefing from the Capitol, said the effort for a special session was a political move by Democratic lawmakers and "unusual players" in the Republican House and Senate caucuses. Justice also said a legislative task force to advise him on C.A.R.E.S. Act funding was formed of minority and majority leadership of the Legislature. The task force has only met once, for lunch two hours before he released his C.A.R.E.S. Act plan to the public on June 26.
"I have tried with all in me and I've given you the very best that I know to give in every way," Justice said. "I have tried with all in me to keep things from getting political, to keep things transparent, and to look out for all West Virginians in every way."