ACLU-WV: 2021 legislative session a "brutal, devastating, relentless attack on civil liberties"
"There were, definitely, some trends we saw this year that we found to be particularly troubling. There seemed to be a concerted effort to punish people who already are suffering."
This story was originally published April 19 via Medium.
By DOUGLAS J HARDING
West Virginia’s 2021 legislative session included the passage—and attempted passage—of countless bills which constitute a “brutal, devastating, relentless attack on our civil liberties,” ACLU-WV executive director Joseph Cohen said during a recent legislative review meeting.
“After the 2020 election, I knew we would be facing an unprecedented and hostile political environment in West Virginia for at least the next two years,” Cohen said. “We knew we were facing this, and there weren’t too many surprises. Nevertheless, I don’t think any of us really fully grasped what that would look like in reality. We couldn’t fully understand how that would feel until we were actually in session, and it was honestly pretty devastating.”
Cohen said that this year’s legislative session began with a sense of uncertainty regarding how long the session would continue given the dangers of the COVID-19 pandemic. Leaders in the state legislature used this uncertainty, he said, as reason to pass several pieces of legislation—”priority bills”—at unprecedented speeds.
“Right out of the gate, we saw a series of largely anti-union and anti-public school bills, which seemed to be an attempt to exact revenge on [public employees] for striking in 2018 and 2019,” Cohen said. “There were bills they’ve been trying to pass for years that just immediately flew through both chambers, and, in some cases, were pretty quickly signed by the governor.”
One bill the ACLU-WV organized to fight back against—but which ultimately passed both houses and was signed into law—was the Hope Scholarship Act, which it now describes as “the most expansive education savings account (ESA) voucher program in the country.”
“Under the cover of this pandemic, when there couldn’t be 10,000 teachers crammed into the capitol building, they passed this atrocious voucher program that will be sending public funds—our tax funds—to private schools that discriminate against students,” Cohen said.
This highlights another recurring issue throughout this year’s legislative session, according to local organizers.
“The lack of access and public oversight resulting from the pandemic really was a problem throughout the session,” Cohen said. “The truth is, our experience—and I think the experience of a lot of other advocacy groups and individual citizens—was that legislators were significantly less responsive, and they would do things like casually and frequently ignoring requests for meetings. That was not at all uncommon during this session.”
Cohen and other local activists have said since the beginning of the 2021 legislative session that a lack of public access to the capitol would lead to even less accountability for lawmakers. Nevertheless, throughout the session, activists and organizers were kept from entering the statehouse because of rules supposedly related to the COVID-19 pandemic. But, for many, such rules about public access were all but clear and fairly applied.
“The access rules seemed to be applied, frankly, in an uneven manner,” Cohen said. “Some advocates were completely denied access to the capitol, and we’ve heard that some advocates were actually harassed trying to access the capitol, all while others were granted access under the same circumstances. There were even instances when committees went forward with meetings knowing that the live audio feed was not working, and that there was therefore absolutely no opportunity of public oversight of their actions. That is a real problem.”
Another way legislators were able to escape from public input and avoid scrutiny was through the process of originating “key bills” in committee rather than allowing them to pass through the traditional legislative process, Cohen said.
“There seemed to be an inordinate number of bills that would originate in committee,” he said. “These are bills that don’t go through the normal process of introduction and assignment to committee, and so, for the vast majority of originating bills, no one gets to review the language of those bills until after the committee meets. Without being in the capitol, it was much, much more difficult for advocates to get originated bills or bills that were amended in committee—sometimes it took days until after the bill passed out of committee before we could get the exact language of the bill, which really put an impediment in understanding what’s going on and being able to put up a meaningful fight back.”
The impact of lawmakers’ abilities to act without public examination was damning. This session, Cohen said, legislators passed bills attacking the rights of LGBTQ+ citizens, rolling back progress made in criminal justice reform, suppressing voting rights and ignoring Constitutional free speech rights—and, ultimately, further punishing and disenfranchising many of the most vulnerable people and communities across the state.
“With all of this lessened scrutiny from the public that the pandemic lent itself to, we saw bills pass in areas that always seem to be under attack in West Virginia, like abortion rights, but we also saw bills pass in areas where there have been attempts for years when we had been able to stop them from passing,” Cohen said. “Even in areas where we’ve had successes in recent years, we saw the legislature be able to roll back some of those successes—for example, in bail reform. There were, definitely, some trends we saw this year that we found to be particularly troubling. There seemed to be a concerted effort to punish people who already are suffering.”
Cohen said the ACLU-WV was forced to fight more fiercely against legislative attacks on LGBTQ+ rights than had been necessary in the six prior legislative sessions.
“We saw a serious reemergence of bills attacking LGBTQ+ people; This was the first time in many years that one of those bills actually passed,” he said. “One bill—which actually passed both chambers—bans transgender girls and women from participating in girls’ and women’s secondary and collegiate sports. We were fighting other such bills until the very last day of session. There were attempts to require state universities to fund student clubs that violate schools’ non-discrimination policies. On the last day of session, there was an attempt to amend a bill so that it would strike down all the local non-discrimination ordinances and prohibit the enactment of new non-discrimination ordinances.”
Lawmakers from across the state also engaged in political and legislative attacks on the rights of other minority communities, including refusing even to consider several bills attempting to deal with issues related to racist discrimination.
“It seemed like any bill that even recognized the reality of racism and white supremacy in our country was dead on arrival,” Cohen said. “Another trend was that, after all the advancements we’ve made in our criminal justice system in the last few years at the legislature, the truth is we spent most of this session pushing back against these antiquated notions of being ‘tough on crime’ and this War on Drugs mentality. We thought we had started to move past those in this state, just like most of the country has already moved past them.”
Cohen said two of the worst bills passed during the 2021 legislative session are one that bans evidence-based harm reduction programs, such as Charleston’s Solutions Oriented Addiction Response (SOAR), and one which mandates drug testing for Temporary Assistance for Needy Families (TANF) recipients.
“These are two of the absolute worst bills that passed, and they both have a feeling of being punitive to people already in tough straits,” he said.
Another of the most troubling—and telling—bills to come from this year’s session is House Bill 2933.
“Amidst this sort of general, raging and probably necessary national debate around free speech and so-called cancel culture, we saw the legislature pass a blatantly unconstitutional prohibition on the state contracting with any business that refuses to sign an oath that they will not boycott the state of Israel,” Cohen said. “It’s clearly an unconstitutional infringement on free speech and, I think, the final bill got 133 out of 134 legislators to vote in favor of it. That is not a good sign of where we’re headed.”
West Virginia Legislature roll call indicates that all 34 state senators voted in favor of the “Anti-Discrimination Against Israel Act,” while, indeed, just one delegate, Del. Barbara Fleischauer (D-Monongalia, 51) voted against it. Dels. Roy Cooper (R-Summers, 28) and Chris Pritt (R-Kanawha, 36) did not vote.
Advocacy director Eli Baumwell said the ACLU-WV tracked more than 460 pieces of legislation throughout this year’s session, actively lobbying on 85 of those. He said the organization supported 25 pieces of legislation, several of which staff members and volunteers worked to help craft. He said the ACLU-WV helped to kill 20 of those pieces of legislation that it opposed and which were in motion in the statehouse.
One of the most disappointing features of the session, Baumwell said, was the failure to pass the CROWN Act, which the ACLU-WV recognizes as a priority.
“It’s a very simple piece of legislation—only two sentences long—and it says that discrimination based on someone’s hair texture and hairstyle is a form of racial discrimination. That’s all,” Baumwell said. “We saw an absolute refusal by a lot of legislators to consider it. It was briefly put on committee agenda in the Senate Workforce Committee, but it was taken off before it was ever considered. That’s how reluctant legislators are about running this legislation to deal with a form of discrimination that a lot of Black and Brown people experience. Our legislators refuse to do anything about it.”
Another bill legislators failed even to vote on would have prohibited price discrimination based on a person’s gender.
“Basically, if companies are selling the exact same product and marking it up because it’s pink and selling it for more to women, that would not be permissible under this proposed bill,” Baumwell said. “Unfortunately, even though it passed out of committee and got examination, the Senate refused to vote on it and it did not pass either.”
Baumwell also noted the importance of defeating additional, dangerous pieces of legislation such as the infamous Confederate Monument Protection Act; House Bill 2264 that would have permitted teachers to carry guns in schools; and House Bill 2595 which would have prohibited anyone in a school or a company with a state contract from discussing “divisive concepts” such as system racism and other forms of systemic oppression and privilege.
The passage of several additional bills—such as House Bill 2094 dealing with restorative justice for minors; House Bill 2266 expanding Medicaid coverage; House Bill 2891 & Senate Bill 634 providing baseline, minimum standards for hiring of law enforcement; and Senate Bill 658 expanding the Handle with Care program to sheriffs—may provide some hope and encouragement for the people of West Virginia, Baumwell said.
“Overall, there still are some positives to take away from this,” Baumwell said.
Similarly, Cohen acknowledged the bleak reality that, even despite all the ways lawmakers succeeded in perpetuating and furthering various forms of oppression for the state’s most vulnerable communities, without the work of countless dedicated activists and organizers, the current situation may still be significantly more dangerous.
“As rough as this legislative session was,” Cohen said, “I think it’s really important to recognize that it actually could have been a lot worse, believe it or not. There were legislative proposals—some of which came pretty close to passing—that would have resulted in even more pain for the most vulnerable people in our state. I also think it’s important to realize that, while the legislature is adjourned, there’s still so much work to be done to minimize the damage right now. In some cases, that means working to force the governor to veto a bill. In other cases, it may mean preparing for litigation. But, in any case, while it’s important to recognize where we are—it’s important to acknowledge the hurt that so many people are feeling about our home and what’s going on here in West Virginia—we cannot let that interfere with the immediate and serious work we have in front of us today. The stakes at this moment are just too high.”
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