Special COVID-19 legislative session faces early test Tuesday

Representatives and Senators crowd the House floor on the first day of the 2020 Legislative session. (Mike Vanata/WyoFIle)

Not all lawmakers are on board with proposed rules to curtail debate and comment

By Angus M. Thuermer Jr., WyoFile

Each chamber in Wyoming’s Legislature must cast a two-thirds majority vote approving special rules Tuesday before lawmakers fast-track any of 20 bills, most aimed at blunting anticipated federal COVID-19 health and workplace standards.

The rules, opposed by all Democrats and some Republicans, would limit comment and debate and allow the Senate and House to consider measures simultaneously. Special rules could see the session completed in as few as three days. The session will be broadcast on YouTube.

Sen. Cale Case (R-Lander) has stood out among critics, saying the proposed rules for a streamlined, truncated session fail to uphold “the vision of the Wyoming Constitution.” In a six-page white paper co-written with Chris Merrill, former director of the Equality State Policy Center, Case said the proposed rules make legislating “an insiders’ game [ensuring] any resulting laws will be less informed, less considered, less tested, and less likely to be in the best interest of the people of Wyoming.”

Consideration of the rules will likely be one of the first orders of business Tuesday. So-called “mirror bills” are filed in the House and Senate with the anticipation both chambers will consider them simultaneously.

Sen. Cale Case (R-Lander) (Wyoming Legislature

Members of the public who wish to participate may attend committee meetings in-person at the State Capitol or remotely by registering for the Zoom meeting for each committee meeting by clicking the “testify” button provided on the Legislature’s calendar page.

Some of the measures that have been submitted for consideration call for funding, including up to $20 million from American Rescue Plan Act money. Some bills are sponsored by as many as 22 legislators, others by as few as two. Legislative committees sponsored two of the measures.

The two bills with the largest number of co-sponsors, House Bill 1 – COVID-19 vaccine employer mandates and House Bill 2 – Federal COVID vaccine mandates-prohibition and remedies-2, would prohibit businesses from requiring their workers to be vaccinated and prohibit “discrimination based on COVID-19 vaccination status” in the health-insurance marketplace. House Bill 2 also would prohibit any person from denying another any service or access to a facility that is “public in nature,” including apparently places like theaters.

Not all the measures seek to take on President Joe Biden’s COVID-19 Action Plan.

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The Joint Revenue Interim Committee sponsored House Bill 11 – Medical Treatment Opportunity Act 2, which would expand Medicaid eligibility. Expansion would end if federal participation dropped below 90% of the program funding.

Sen. Chris Rothfuss (D-Laramie) and Rep. Cathy Connolly (D-Laramie) sponsored two bills aimed at protecting workers who seek to toe the anticipated federal guidelines. House Bill 13 – Unemployment benefits-failure to comply with federal law would ensure unemployment benefits to workers who quit businesses that don’t comply with anticipated federal COVID-19 standards. House Bill 18 – Unemployment benefits-failure to comply with local law would ensure the benefits to workers who quit after a business defies state or local health orders.

$10 million fine

Some of the draft bills call for aggressive actions and consequences for supporting federal standards or requirements relating to COVID-19 vaccinations. House Bill 20 – Penalties for mandating COVID-19 vaccinations-2 would subject any public servant, including federal employees, to a $10 million fine and up to a year in jail if they enforce or attempt to enforce “any act, order, law, statute, rule or regulation of the United States government regarding COVID‑19 vaccinations or any other form of preventative treatment.”

House Majority Floor Leader Eric Barlow (R-Gillette), left, and Senate Majority Leader Dan Dockstader (R-Afton) wait to speak with reporters on the opening day of the 2018 Legislative session. (Andrew Graham/WyoFile)

House Bill 4 – COVID-19 vaccinations-employer prohibition would allow a person “aggrieved by a discriminatory practice” in the workplace for lack of a vaccine to collect a minimum of $500,000 if successful in a lawsuit against an employer. Several measures would prevent requiring COVID-19 vaccinations for students.

In a protest letter, Democrats warned that some of the measures could run afoul of the U.S. Constitution, which elevates federal laws and attendant regulations above those of states. In the case of conflicting laws, “the state or local law must give way to the federal law and is invalid,” University of Colorado Law School Professor Helen Norton wrote in an email.

A couple of options are available for state or local governments attempting to avoid federal preemption, she wrote. One would be to challenge the federal law as constitutionally invalid. The second would be to argue that there is no conflict between the Wyoming and federal statutes, she wrote.

Wyoming was snake-bitten when it passed a data trespass law in 2015 and 2016 that was challenged successfully in court. It sought enhanced penalties for persons convicted of trespassing with the aim of collecting environmental data.

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Courts found portions of that measure unconstitutional, ordering the state to pay about $600,000 to attorneys for the National Press Photographers Association and other groups. (WyoFile staff provided an affidavit in that case). Wyoming did not appeal the judgement and paid up, NPPA attorney David Muraskin said.

Vaccine requirements working

Some of the proposals in Cheyenne are heavy handed and counter to the idea of local rule, said Marty Camino, the executive director of the Center for the Arts in Jackson. His venue recently hosted two 525-seat sold-out shows of the local musical “Homecoming Queen” and a third night with all but a handful of tickets gone.

The center required every patron to show proof of COVID-19 vaccination. It was the first time the theater has been full since March 2020 and marks progress in the process of “retraining our patrons that it will be safe,” Camino said.

“It would really make our job harder,” he said of bills that would prohibit vaccine screening. “We have done and are doing everything we can to get things happening on stage again. The last thing we need is somebody else from Cheyenne telling us what to do.”

Some touring artists, including the band Lake Street Dive that the Center is negotiating with for a show, require audiences to be vaccinated, Camino said. Prohibiting vaccine screening “would cause some artists to avoid Wyoming completely,” he said.

Fifty-two of the state’s 90 legislators voted to hold the special session, called to address what Senate President Dan Dockstader (R-Afton) and Speaker of the House Eric Barlow (R-Gillette) called “a critical situation … relating to COVID-19 vaccine mandates.” Eight GOP senators and 14 representatives either voted “no” for the special session or abstained.

Democrats were unanimous in their opposition and said they would vote against the special rules. The proposed rules would “violate the spirit of our deliberative public legislative process” and lead to “grandstanding instead of constructive problem solving,” a letter from minority leaders reads.

At issue are pending federal standards based on Biden’s COVID-19 Action Plan that call for the federal Occupational Safety and Health Administration and Centers for Medicare & Medicaid Services to protect workers from the virus.

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Biden called on OSHA to set test-or-jab standards for businesses with 100 or more employees. His plan would have the Centers for Medicare & Medicaid require employees of institutions receiving federal aid under those programs to be vaccinated.

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.