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The difficulty of constitutional amendments

As you read this we are now on the 34th day of the 2020 legislative session and by the end of the week two-thirds of the session will be behind us.

It’s kind of ironic then, given that one of the key pieces of legislation — Senate Joint Resolution 8, phasing out the business and inventory tax on manufacturing machinery and equipment– needs a two-thirds vote to get out of the state Senate and House of Delegates.

We saw a test run of how this might go last week with the crash and burn of Senate Joint Resolution 7, which would have amended the West Virginia Constitution (once it was approved by voters) to limit the state Supreme Court of Appeals and lower courts from interfering with internal actions of the Legislature. That bill failed in a 20-13 vote.

Senate and House joint resolutions take two-thirds vote of both chambers. In the Senate, you need to get to 23 of 34 members for a joint resolution to be adopted. In the House, you need 67 of 100 members.

A good example of this is Senate Joint Resolution 1, adopted in 2018. You might remember this on your ballot as Amendment 1, adding language to the state constitution that said, “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.” It passed the Senate 25-9 and the House of Delegates 73-26. The amendment was approved by voters in the 2018 midterm elections 52 percent to 48 percent.

I expect any vote on the phase out of the business and inventory tax to have a similar vote to SJR 7, which was along party lines (it would have been a 20-14 vote possibly, but state Sen. Bob Plymale, D-Wayne, was absent). That also might just be what Republicans want.

Leading up to the start of the legislative session, the West Virginia Manufacturer’s Association was going to several counties, including Wood County, to get support for a resolution their representatives said they wrote. That draft resolution was revealed during the January interim meetings prior to the start of session. At that time, the resolution only called for the governor and the Legislature to come up with a plan to keep county governments and school systems whole as they phased out $100 million in tax collections over four years.

Then on Jan. 21, Senate Joint Resolution 8 was introduced. This differed from the draft resolution, including a requirement for the governor to transfer money from the general revenue fund to make up for the lost tax revenue from the business and inventory tax. Both resolutions appear to be drafted without any input from their Democratic minority colleagues.

Bipartisanship is nice, but on most things you only need a simple majority vote, meaning the Republican majority can largely do as it pleases. But as I explained above, that’s not so with joint resolutions. You HAVE to have Democratic legislators on board. Republicans are very aware of this yet are keeping their Democratic colleagues at arms-length. Some believe that Republicans expect Democrats to vote against the joint resolution, giving pro-business groups carte blanche to donate to Republican campaigns or run negative ads against Democrats.

However, there is another problem that Senate Republicans might be having: is there a chance that they don’t have the caucus completely on board the SJR 8 train? Speaking to me on the first day of the session back on Jan. 8, state Sen. Bill Hamilton, R-Upshur, was very skeptical about repealing the business and inventory tax.

Last year, the Senate Democrats were unified in their opposition to both education omnibus bills and were joined in the opposition by Hamilton and state Sen. Kenny Mann, R-Monroe. Republicans still had the votes to pass both omnibus bills even with those defections. But I have to imagine Senate Republicans don’t want to roll out the joint resolution for a vote to have an 18-16 vote, which might be why it has sat in the Senate Judiciary Committee for the last 21 days.

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In your weekend papers I had a very comprehensive piece on the three races for the West Virginia Supreme Court of Appeals. I don’t know if this is the first time there have been three positions on the ballot before, but it’s probably safe to say it’s rare.

All of the justices need commended for the quick job they did repairing the damage done during the tenure of former chief justice Allen Loughry. There used to be a line in Star Trek that “superior ability breeds superior ambition.” There is no doubt that Loughry was a smart and accomplished person, but he used those abilities to build a kingdom within the judicial system. When that kingdom began to crumble, it nearly brought down all of the justices.

All of the candidates were great to talk to, and I appreciate them making time to talk last week. Please take the time to learn about all of them. I also plan to use parts of my interviews on the State of the State podcast.

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Speaking of which, this week’s State of the State podcast comes from the West Virginia Press Association’s annual Legislative Breakfast, featuring Senate and House leaders from both parties. You can listen and subscribe on Apple Podcasts, Stitcher, TuneIn, iHeartRadio, and Spotify. Please rate, review, and tell a friend.

(Adams is the state government reporter for Ogden Newspapers. He can be contacted at sadams@newsandsentinel.com)

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