The year coming to an end will go down as among the worst in the long history of the Pennsylvania General Assembly.
At a time when so many Pennsylvanians are struggling to keep body and soul together against the continuing threat of COVID-19 and the economic difficulties created by the pandemic, the Republican-dominated General Assembly has embarrassed itself and our state. It has done nothing to help Pennsylvanians with health and economic problems. It has passed legislation—vetoed by the governor—that would have led to more COVID-19 deaths. And instead of dealing with the real problems of the people of the state, it has spent most of the year advancing constitutional amendments and legislation that would undermine our representative democracy and carrying out unnecessary “investigations” in support of the Big Lie about the 2020 presidential election—the same one that elected every member of the House and half of the Senate.
There were so many terrible acts of omission and commission carried out by the General Assembly that we’ve had to combine a few of them to get the list down to ten. Even so, we had to leave some real stinkers out, including the proposed U.S. House district map and yesterday’s out-of-left-field suggestion by Rep. Seth Grove to elect all members of the U.S. House statewide and use the last decade’s maps for PA state House and Senate elections in 2022.
I. The failure to use $10 billion in American Rescue Plan funds and state budget surpluses to create a just recovery from the pandemic
The state is flush with more than $10 billion that should be used to help those who have been left behind by the pandemic and to take a first step toward addressing the deep inequities that long preceded it. But the Republican leaders of the PA General Assembly plan to leave that money in the bank. They are preparing to use it to provide temporary fixes to budget deficits created by Republican-led corporate tax cuts that now cost the state $4 billion per year.
At a time when a still-precarious recovery is just underway, it is fiscally and morally irresponsible to withhold funds that could help people who are in need now and create broadly shared prosperity in the future.
And on top of that, for the 13th year in a row, this General Assembly failed to raise Pennsylvania’s minimum wage even as every state around us has done—some more than once.
The Republican-led General Assembly is so determined to engage in voter suppression that members are trying to do it both by legislation and constitutional amendment. It passed House Bill 1300, which reduces the amount of time there is to register to vote before elections; reduces opportunities for early voting; creates restrictive voter ID provisions for in-person and mail-in voting; limits options for returning absentee and mail-in ballots; repeals the so-called permanent absentee and mail-in voter lists; moves the application deadline to apply for mail-in and absentee ballots back from 8 days to 15 days before Election Day; mandates signature-matching for mail-in and absentee ballots which will allow party operatives to reject ballots based on an unreliable technology that would compare signatures that might have been produced decades apart; and more.
Governor Wolf vetoed House Bill 1300. And then, rather than enact election legislation that does things everyone wants, such as provisions to count mail-in ballots faster, the General Assembly moved forward House Bill 1800, another version of the same voter suppression bill.
Not content to undermine our elections by legislation, PA Republicans have proposed amendments that would include voter suppression provisions in our constitution.
Aside from the bad ideas in these amendments, including them in the Pennsylvania Constitution makes a travesty of the whole idea of a constitution. A constitution is a sacred document that sets the framework for a regime by setting out the fundamental rights of the people and the institutions and structure of a government. It addresses basic issues about which our ideas generally change slowly over time and as a result of long experience. That is why the process of amending constitutions is often so difficult, as it is in Pennsylvania. Constitutional changes should not be made in response to transient concerns of the moment.
The constitution should not be amended to create public policies that could be enacted in legislation. And the constitutional amendment process should not be used by a General Assembly to skirt the governor’s veto of their repugnant ideas.
House Bill 1596 includes a grab-bag of voter suppression amendments.
The voter ID amendment is highly restrictive in that it only allows a limited number of ways for voters show to identify themselves. It includes a requirement of signature-matching for all mail ballots which is problematic because computerized signature matching is inherently subjective, burdensome. Signature-matching leads to disproportionate ballot rejection among voters within marginalized groups, including younger voters and voters of color. Another part of the amendment moves the voter registration deadline back to 30 days before the election is the opposite of what we can and should be doing—allowing voters to register on Election Day. This amendment also changes criteria for voter eligibility in a way that could be interpreted as repealing our constitutional right to vote.
Another proposed constitutional amendment in House Bill 1596 ban private donations to help carry out election administration. This would be a good idea if the General Assembly fully and fairly funded our elections. But since it has not done so, banning funding will make it impossible for many counties to carry out elections fairly and efficiently. That will lead to longer voting lines and fewer ways to return mail ballots—which could discourage voters—as well a slower counting of the vote which encourages election conspiracies of the kind Republicans keep generating.
The voter ID amendment was included in an amended version of Senate Bill 106, which passed the House in December.
IV. The “Legislative Tyranny” amendments: undermining the separation of powers and checks and balances
House Bill 2069 and HB 2070 propose two Constitutional Amendments that would destroy the separation of powers and checks and balances in Pennsylvania. The would allow the General Assembly to reject regulations made by the governor by a bare majority vote, rather than by a two-thirds vote as currently required by the PA Constitution, and would limit the effect of executive orders and proclamations to 21 days unless approved by the General Assembly. These provisions give the General Assembly control over the executive power in ways that directly and profoundly upset the design of the Pennsylvania Constitution, which is based on the design of the U.S. Constitution.
These amendments have the hallmarks of the legislative tyranny that the founders consistently warned against in the Federalist Papers. It is driven not by calm reason but by passionate, unreasoned, and dishonest objections to both the outcome of the 2020 election and to Governor Wolf’s regulations and executive orders, which saved tens of thousands of lives.
These two amendments were included in an amended version of Senate Bill 106 which passed the House in December.
The judicial gerrymandering amendment contained HB 38 would require that we elect all appellate court judges, including the justices of the Pennsylvanian Supreme Court, in districts rather than statewide as we do today. This is problematic for three reasons.
First, we elect legislators by district because it is important that regional interests be accounted for in the process of enacting legislation. But there is no regional way to interpret the statutes or constitution of our Commonwealth.
Second, electing judges in districts can make it more difficult to put the best-qualified judges on the bench. We want appellate courts judges with the legal experience in appellate matters and/or judicial experience required to sit on these courts, and while they come from everywhere in Pennsylvania they are most likely to be found working in the state’s urban, commercial centers.
And third, judicial gerrymandering would, in two ways, give the General Assembly far more influence over the courts than is appropriate in a government that respects the separation of powers. By gerrymandering judicial districts and by using the transition process to prevent the current judges from running in retention elections, the General Assembly would be able to influence both the partisan and individual composition of the courts in ways that undermine judicial independence.
The judicial gerrymandering bill, House Bill 38, was not passed in time for the 2021 elections. This legislation is still an active bill until this legislative session ends in December of 2022. That means that we could see attempts to bring a referendum question to the ballot up until November 2022.
This amendment is called the “Taxpayers Bill of Rights” implying that it will benefit taxpayers. But taxpayers also benefit from government spending, not sharp limits on everything taxpayers need the state to fund well, like education, health care, housing, and roads & bridges. And rather than reduce taxes by making local governments responsible for funding things we need, it would lead to higher property taxes across the state.
The TABOR constitutional amendment would limit the growth of General Fund spending to the sum of “(1) the average percentage change in the U.S. Consumer Price Index for all urban consumers (CPI-U) over the preceding three calendar years plus (2) the average of the percentage change in the resident population for the preceding three calendar years.”
Adopting this constitutional amendment would be a terrible mistake for many reasons.
First, it is unnecessary General Fund spending has increased by only 2.4% per year for the last ten years. This is just slightly above the combined increase of population growth and the CPI: 2.2% per year.
Second, TABOR would make it far more difficult to meet the needs of Pennsylvanians in the future. There is broad agreement in counties and municipalities, and even in the General Assembly, that the state must spend more to repair or replace our seriously dilapidated, and in many cases, dangerous roads and bridges and provide support to our public transit systems.
Third, TABOR would raise state and local taxes. When the state fails to meet local needs, government spending is shifted from state government to county and municipal governments and school districts. As the state’s share of funding for K-12 education has fallen, school taxes have risen dramatically.
Fourth, TABOR would make it more difficult for the state to meet the challenges of emergencies, such as the current one created by the COVID-19 pandemic.
Finally, the TABOR amendment would make it impossible for the state to adjust for new circumstances created by technological or other advances.
House Bill 904 would prevent women from getting an abortion as early as six weeks into a pregnancy and in doing so would take away a woman’s right to make their own medical decisions before they even know they have a decision to make.
Protecting the right to an abortion is central to creating equality for women and giving them control over their own bodies.
The PA Senate Intergovernmental Operations Committee, now under the chair of Senator Cris Dush who replaced Senator Doug Mastriano, is carrying out an “investigation” of the 2020 election that has little purpose other than to reinforce the Republican “Big Lie,” which falsely claims that the results of the 2020 presidential election were compromised by fraud. This lie has been rejected by court after court.
Not only does this investigation reinforce lies about the 2020 election but it threatens to compromise our personal information—including driver’s licenses and social security numbers.
The Education Committee of the PA Senate passed Senate Bill 846 which would have undermined Governor Wolf’s mask mandate for schools on a straight party-line vote.
The PA Budget and Policy Center supported Governor Wolf’s August 2021 decision to require teachers, staff, and students to wear masks in all K-12 schools and in child care centers for four reasons. First, it is necessary to protect the school children and entire communities in Pennsylvania from the threat of COVID-19. Second, it vindicates the basic principle that public health measures should be decided on the basis of the best science available to us. Third, the governor’s decision also vindicates the principle that we all have some responsibility to protect the whole community. Finally, the governor’s decision will resolve local disputes that are threatening to disrupt the governance of our schools.
Senate Bill 565, known as permitless carry, which would allow anyone over age 18 to carry a loaded, concealed handgun in public without a permit was passed by the PA General Assembly and vetoed by Governor Wolf. An editorial in the Philadelphia Inquirer explained why this is such a terrible idea:
“Each year, roughly 1,500 Pennsylvanians lose their lives to a rapidly rising epidemic of gun violence. In our city, these deaths are hollowing out a generation of Philadelphians with 60% more shooting victims under 18 so far this year than in all of 2019. There isn’t a part of the commonwealth from York to Erie to Pittsburgh that isn’t seeing the same deadly violence. But instead of debating numerous evidence-based solutions, the Pennsylvania General Assembly voted this month to make our commonwealth an even less safe place to live.”
Let’s hope that the new year brings us a General Assembly that wants to help people of this commonwealth instead of divide them.