In Pennsylvania, the business community is challenging Democratic governor Tom Wolf’s executive overreach amid the COVID-19 pandemic. Pennsylvanians’ year-long calls for lawmakers to limit Wolf’s emergency powers have resulted in a historic ballot referendum, which would amend the state’s constitution and restore checks and balances if passed. Voters will be presented with that opportunity during the May 18 primary next month.
Since his initial restrictions last March, Wolf has vetoed at least twelve bills that lawmakers crafted to reopen the economy. He also enacted an uneven, opaque waiver process to determine which “life-sustaining” businesses could stay open. The Wolf administration has refused to release “exactly what criteria it was using to consider applications, or explain to applicants why waivers were granted or denied,” according to Spotlight PA.
Though Wolf has postured himself as an advocate for senior citizens who were most vulnerable to COVID-19, he has hindered lawmakers’ efforts to save essential senior-housing construction projects. Indeed, last spring, Wolf’s veto of a state senate bill to reopen the construction industry — based on federal guidelines — signaled that his pandemic response would prove chaotic. Wolf eventually relented to legislative pressure, but his initial executive actions delayed the completion of crucial senior-housing projects during the crisis.
Yet the construction companies, their elderly clients, and the countless others who experienced the consequences of Wolf’s business closures will likely find the ballot questions attached to the proposed constitutional amendments confusing, if not deliberately misleading. Though it was the governor who acted unilaterally while resisting legislative efforts to help businesses, the Wolf administration crafted the ballot referendum’s wording as if the opposite were true. “The language is disingenuous. It is meant for it to be defeated,” Democratic state senator Lisa Boscola told The Morning Call. “The worst thing about it is it creates fear.” The challenge for supporters is to transcend the skewed language that the Wolf administration is attempting to coerce onto the voting public.
There are two separate, but related ballot questions. The first asks voters if they want to change the current law and increase the General Assembly’s power “to unilaterally terminate or extend a disaster emergency declaration.” The biased and unclear wording, in essence, asks if voters would like to remove an existing “check and balance.” The second asks voters if an emergency declaration should automatically expire after 21 days “regardless of the severity of the emergency, unless the General Assembly takes action to extend the disaster emergency . . .”
There is nothing unilateral about a majority vote of the people’s elected representatives. Assessing the severity and duration of an emergency, moreover, should not be the sole power of one person.
Under current state law, a governor’s emergency declaration can last up to 90 days. But now, thanks to a ruling from the state’s supreme court, a governor can perpetually renew declarations without legislative input. While Wolf has argued — with support from the court’s Democratic majority — that Pennsylvania statute allows the legislature to end an emergency declaration with a concurrent resolution, lawmakers must then present the governor with the resolution for his approval or veto.
That’s the very definition of unilateral. And it hasn’t served Pennsylvanians well.
“What all of this comes down to is the fact that the elected representatives are the ones who are closest to the people,” House speaker Bryan Cutler told National Review. “This simply ensures that the people have an opportunity to raise their hand and say, wait a minute, this might not be the best way for us to handle a certain situation and there may be a better way.”
Cutler argues that contrary to what the Wolf administration would have voters believe, the amendments would provide future governors with latitude to address emergencies. After 21 days, however, new measures would ensure that the executive could not indefinitely extend emergency orders.
Pennsylvanians would have “more of a direct say in the process,” Cutler points out, while the governor would be required to work “in a more collaborative fashion” with the General Assembly.
Cutler, a Lancaster County Republican, notes the creation of Pennsylvania’s COVID-19 Vaccine Joint Task Force as an example where lawmakers and the governor’s administration have worked together in an emergency situation to efficiently deliver public services.
“If you’re fan of what has been happening recently with the vaccine distribution, you would also be a fan of managing all emergencies this way, and you should vote yes on these ballot questions,” said Cutler. The task force worked with the National Guard to “improve logistics and coordination across all branches of government,” he added.
Cutler recalls a different — and dysfunctional — dynamic last year, after the governor had issued COVID shutdown orders.
“Unfortunately, the public was overwhelmingly shut out,” Cutler said. “When the governor closed all businesses and then had his failed business waiver program, nobody could actually call and talk to the governor’s office. Instead, the phones were all transferred to the Department of Health. So then, people called their local legislators because that’s the closest contact for them.”
In Pennsylvania, before any proposed constitutional amendment can be placed on the ballot, it must be approved by the General Assembly in two consecutive legislative sessions — oftentimes an arduous process. But shortly after the state court’s ruling last July, Wolf fueled lawmakers’ momentum when he vetoed a concurrent resolution to end his shutdown orders. The House then attempted to override Wolf’s veto but fell short, prompting both chambers to advance the amendments.
“As we pointed out in our amicus brief to the supreme court, it is actually easier to impeach the governor than to pass a concurrent resolution overriding the governor’s emergency powers,” observes Nathan Benefield, vice president of the Commonwealth Foundation, a Pennsylvania-based public-policy think tank. “Our hope is that in the future, the governor will have to consult with the legislature about his emergency powers and orders.”
According to Benefield, the amendments “strike the right balance” because they preserve a governor’s ability to “take quick, decisive action at the outset of an emergency.” At the same time, he notes, they help to “restore checks and balances where they have gone missing.” “Wolf’s actions during COVID-19 demonstrate that emergency powers don’t need to last for a year or more,” Benefield added.
The ballot questions crafted by Wolf’s secretary of state employ loaded language, suggesting that the General Assembly is the one seeking to overstep constitutional boundaries and operate unliterally. In reality, it’s Wolf who sought to centralize power with an added boost from Democratic judges on the state supreme court.
“It’s a classic example of government making something much more complicated than it needs to be,” Cutler laments. “The questions could have been worded more simply to ask voters if they believe the people should have a voice in the process in terms of managing the state.”
State senator Kim Ward, the GOP majority leader and the lead sponsor of the bill that placed the constitutional amendments before voters, describes the supreme court as “an extremely partisan” body that consistently does Wolf’s bidding. “They’re not going to look at the law and they’re just going to do whatever the governor wants,” she said. “The court created a constitutional crisis with this ruling, because now the governor is the only person who can end a state of emergency.”
Despite the “misleading verbiage” that Wolf’s State Department inserted into the ballot language, Ward still has faith in Pennsylvania’s voters.
“They are trying to scare the people into bypassing their opportunity to get back to a balance of power, which we haven’t had for well over a year now,” Ward said. “But it’s very heartening to see rallies popping up across the state from people who are engaged in this process.”
Ward emphasized the importance of May’s vote. “The next time there is a crisis, if you want to make sure your mom-and-pop restaurants are represented, and not just the big chain stories, and if you want to make sure the person cutting your hair is represented, then please vote and vote yes.”