As the 2021 legislative session nears its end and state officials warn of an impending “fourth wave” of COVID-19, calls from Republican lawmakers to limit the governor’s emergency powers are growing urgent.
“Here we are, in week 14 in the session, a week and a half to go, and we have yet to have a serious conversation about emergency powers,” Senate Minority Leader John Braun said this week.
Republican lawmakers have been pushing for months for the Legislature to have more oversight during emergencies, emphasizing that current law wasn’t designed for prolonged situations like this pandemic.
Legislatures in at least 45 states have introduced more than 300 bills or resolutions related to legislative oversight of executive branch actions, according to the National Conference of State Legislatures.
In Washington, where Democrats control the executive branch and both chambers of the Legislature, such proposals haven’t made it into law. Republicans in the House tried and failed to force the issue on Friday in a long-shot procedural move to exempt bills related to emergency powers from lawmaking deadlines.
“I am deeply disappointed that partisan discipline overcame people’s expressed interest in having legislative oversight, and I think that’s a failure,” House Minority Leader J.T. Wilcox said after the vote. Though time is short, his caucus hasn’t given up on the issue, he said.
HOW EMERGENCY POWERS WORK IN WASHINGTON
Under state law, the governor has the authority to proclaim a state of emergency. A state of emergency ends when the governor says it does, though the governor is required to end it when “order has been restored in the area affected.”
During the emergency, the governor can then prohibit certain behaviors and suspend or waive legal obligations.
The eviction moratorium and the state’s reopening plan have fallen in that first category, prohibiting behaviors, while proclamations waiving specific requirements at the Department of Licensing and delaying a law related to plastic bags have fallen into the second category.
To last longer than 30 days, orders in that second category — suspending or waiving legal obligations — require legislative approval. If lawmakers are in session, a majority in each chamber has to approve the extension. If they’re not, the four party leaders in the Legislature have to approve it in writing.
That means just one party leader can sink an order in the second category when the legislature isn’t in session.
Braun did that in January, with proclamations to expand the Family Emergency Assistance Program to help people without children and to waive requirements for employers to pay shared work benefits. He sent a letter to the governor in part explaining the reason was his caucus’s disapproval for the continued shutdown of gyms and restaurants.
The legislature doesn’t have such oversight over the first category of proclamations.
Lawmakers made changes to the law in 2019 that brought it to its current form via a bipartisan bill. In part, that bill gave the governor authority to waive or suspend state law and put in place the 30-day limitation. The Senate approved it in a 45-2 vote, and the House approved it unanimously.
Gov. Inslee declared a state of emergency due to COVID-19 on Feb. 29, 2020, and has been wielding his emergency powers for the nearly 14 months since. Of the dozens of proclamations, nearly 60 have required the Legislature’s extension, according to Tip Wonhoff, deputy general counsel in the Governor’s Office.
Lawmakers voted to extend a couple dozen proclamations through the end of the emergency earlier this legislative session. So, at this point, Wonhoff said there’s no existing, active order that will require the Legislature’s further approval.
Asked if he thought legislators should have more of a voice going forward, Gov. Inslee said they already have a voice — they’re in session and could pass legislation.
“I’m not keeping them from introducing bills,” Inslee said at a press conference this week.
He also pointed to the state’s relative success regarding COVID-19 compared to other U.S. states. Last month, he shared data at a press conference showing over 15,000 more residents would’ve died in Washington if the state had the same fatality rate as states with the highest.
“These things that we have done have had an impact of actually saving people’s lives,” Inslee said. “And I think that’s a good thing. Attacking a good thing, I wouldn’t agree to.”
A FAILED, LONG-SHOT PUSH ON FRIDAY
Bills aimed at emergency powers haven’t moved this session, and the path into law for a bill that has already missed key lawmaking deadlines is narrow. On Friday, Republicans tried to exempt bills related to the governor’s authority from those deadlines by passing a resolution.
Such motions are rare, according to Chief Clerk of the House Bernard Dean, and don’t frequently pass.
The specific bill Republicans have emphasized is sponsored by several lawmakers in their caucus and two Democrats, Reps. Dave Paul of Oak Harbor and Mike Chapman of Port Angeles.
House Bill 1557 would in part allow for the Legislature to end a state of emergency or any restriction imposed under it with the approval of a majority in each chamber. It would also end a state of emergency after 60 days unless the Legislature voted to extend it or, if not during session, the four caucus leaders extended it.
It would expand the 30-day legislative extension requirement to all restrictions, sponsor Rep. Drew MacEwen of Union confirmed, and require approval from three of the four party leaders for extension of restrictions outside of session.
“The bill that we would be allowed to continue to move if this resolution is adopted — it’s not about partisanship, it’s not about the current governor, it’s not about second-guessing the choices he made,” Rep. Drew Stokesbary of Auburn said in the brief floor debate. “It’s about asking ourselves whether or not we, for as long as we serve in this body and every single one who comes after us, will have a constitutional role to play in long-lasting emergencies.”
He referenced editorials in The Columbian of Vancouver, the Tri-City Herald, and The News Tribune in Tacoma that advocated for action, along with laws in other states. The Maine Policy Institute, a free-market think tank, recently scored U.S. states based on legislative oversight during emergencies — the lower the score, the less oversight. Washington tied for fifth from the bottom.
Minority Leader Wilcox represents a district that includes part of Pierce County, one of three counties that were under tighter COVID-19 restrictions as of Friday after missing metrics in the state’s “Healthy Washington” reopening plan.
Wilcox had called specifically for Pierce County Democrats in the House to vote for the resolution Friday — it shouldn’t be a party-line issue, he said, because the party makeup of our state government could be different when the next emergency happens.
The resolution failed 41-56 along party lines.
McClatchy reached out to House Democrats with districts that include parts of Pierce County to see if they’d support the motion and if they support the bill. A few representatives or their spokespeople responded.
Speaker of the House Laurie Jinkins and Reps. Mari Leavitt of University Place, Dan Bronoske of Lakewood, and Steve Kirby of Tacoma wrote that they did not support fast-tracking a bill directly to the floor.
“The devil is always in the details of every bill, and it’s important to have input from the public and affected stakeholders before a bill moves to the floor, or you increase the risk of approving unintended consequences that you will regret later on,” Kirby wrote in an email.
Reps. Bronoske and Leavitt expressed support for the bill itself, just not the shortcut.
“Circumventing the procedure is what I’m not supporting, not the policy,” Leavitt wrote. “If the bill came to a Floor vote, I would support it.”
Asked whether she thought the Legislature should have a bigger role in decisions made during a state of emergency and why bills to that end haven’t made progress this session, Jinkins said in a statement she’s “not interested in catering to narratives about ‘taking back power’” the Legislature already has.
“If I decide I don’t like something the governor is doing and the rest of the legislature agrees, we can call ourselves into session and pass a law,” her statement reads. “Until then, I’m not interested in playing games when lives and livelihoods are at stake. I can imagine circumstances where I would entertain changing the governor’s emergency powers, but this isn’t one of them.”
Similar to what Inslee said, she pointed to how well Washington has performed relative to the rest of the country during the pandemic:
“If the rest of the country had done what Washington state has done, more people would be alive today. House Democrats are focused on helping working families, renters and landlords, small businesses, and the people and communities disproportionally impacted by this pandemic.”