The Wyoming Capitol was buzzing last week.
On Tuesday, lawmakers descended on Cheyenne for a special legislative session that featured roughly 20 bills, dozens of amendments and spectators from all around the state. There was plenty of drama, a few tears and, on Friday, threats of censure.
The push for the special session began in September, after President Joe Biden signed an executive order that would require workers at companies with 100 or more employees to either be vaccinated against COVID-19 or undergo weekly testing. The move angered many in Wyoming, the nation’s most vaccine-hesitant state, and one with a long history of skepticism toward the federal government.
Before the mandate can go into effect, the federal rule-making process has to be completed. While that hasn’t happened yet, political pressure from the right, including the Wyoming Republican Party, pushed lawmakers to convene the gathering, even though the dearth of details concerning the final rules could hamper lawmakers’ ability to block them. Legislators must also contend with the U.S. Constitution’s Supremacy Clause, which holds that federal law supersedes state statute.
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But that hasn’t stopped them from trying. They spent four days last week devising ways to thwart the mandate, and they’ll be at it for at least three more days this week.
Here’s where things stand as lawmakers prepare for week two of the special session.
House Bill 1001
Let’s start with HB 1001. House lawmakers spent the bulk of Friday debating a bill that many of them agreed was less than ideal. A third of representatives didn’t even want it to be voted off the House floor.
Several lawmakers who did vote for the measure called it a bad bill. Many acknowledged that it doesn’t do much to challenge a likely federal mandate. Others struggled with the fact that the proposal does not apply to roughly half of Wyoming businesses.
What House Bill 1001 does do is establish rules for a select group of Wyoming employers if they choose to require COVID-19 vaccination of their workers, until and unless federal rules are issued that conflict with the state’s outline.
The only employers bound by the legislation would be those with 100 or more employees, those that receive Medicaid or Medicare dollars, and those who have federal contracts.
Despite all of those misgivings, the proposal did advance, and the ball is now in the Senate’s court.
Before we dive into the issues lawmakers debated Friday, let’s try to explain exactly what this legislation would look like if it became law today.
Say you employ 103 people, and you want them to be vaccinated against COVID-19. This bill would allow you that freedom, but you would need to offer employees who don’t want the shot, or who refuse to disclose whether they’ve received it, exemptions or accommodations to keep their job.
Now, let’s say the federal government issues formal rules declaring that your business must require workers be vaccinated against COVID-19, and that you can’t accommodate employees who don’t get the shot.
You would be bound by the federal rules, not the state ones.
It can get even more complicated. Let’s say a U.S. court issues a stay on the federal rules — meaning they’re suspended while the judiciary determines if they’re lawful to enforce — then you would again be allowed to follow the state rules.
Let’s try another example. Your company relies on federal contracts but as the business owner, you don’t really care if your employees are vaccinated against COVID-19 or not.
This bill doesn’t require you to do anything different than you normally do. But now let’s say a federal rule is issued that states any business with federal contracts must have their staff inoculated. Those rules lay out very strict parameters for who qualifies for exemptions and how those can be honored.
House Bill 1001 means almost nothing to you. You would be bound by the federal rules and would need to follow those guidelines for offering exemptions, not the state’s. That is unless there’s a judicial stay. Then, you would need to follow the state’s rules.
If you’re confused, you’re not alone.
Twenty House members Friday voted against passing the bill, several of whom said lawmakers should wait until the February budget session before crafting legislation about federal rules that haven’t been issued yet.
Those lawmakers were outnumbered.
Rep. Landon Brown, R-Cheyenne, told his colleagues Friday the bill only accomplishes “making lawyers even richer” by opening doors for litigation while businesses and employees try to parse out who is following and who is breaking the law.
Rep. Karlee Provenza, D-Laramie, wrote an amendment so that businesses wouldn’t be held liable for accidentally violating the state law, given how confusing she and many other lawmakers said it is.
Rep. Jim Roscoe, I-Wilson, said the legislation would impact him directly, but that didn’t give him any clarity on how he should move forward as the owner of a general contracting business.
“As a businessman, about 35 years at a small little construction company, this will affect me,” he said. “And I don’t think it really will give me any certainty, and it certainly won’t give me any protection.”
If lawmakers weren’t discussing the complexity of the bill, those opposed were frustrated with how little it accomplished after being heavily amended over the course of several days.
“There’s a lot of space in here now. We just wrote out about half the people, half the workers in this state, from the protections of this bill,” said Rep. Sue Wilson, R-Cheyenne, in reference to an amendment limiting the bill’s scope to businesses with 100 or more employees, those that receive Medicaid or Medicare dollars and those with federal contracts.
Even the bill’s supporters acknowledged it’s faults.
“I think everybody, without a doubt, knows this bill isn’t a perfect bill. It isn’t really even a good bill,” said Rep. Bill Fortner, R-Gillette. “But it’s like building a house. You’ve got to have the foundation before you build the house.”
That was the camp most of the bill’s supporters seemed to fall into Friday afternoon. Ultimately, 38 lawmakers supported sending the proposal to the Senate, which will begin working through the legislation Monday.
House Bill 1002
There is another bill still alive in the House and headed Monday to the Senate.
House Bill 1002 would prohibit employers from enforcing federal vaccine mandates until the judiciary steps in. It would also provide the governor’s office with $250,000 to pay for legal challenges to vaccine mandates.
The legislation also contains language that, like House Bill 1001, would allow Wyomingites to follow the state rules if a judicial stay is issued.
An amendment brought by Rep. Tom Walters, R-Casper, on Friday added a far-reaching safeguard to the bill. His change would allow any public entity that risks losing federal funding because of the bill to be exempt.
Walters’ amendment does change the nature of the measure, but the legislation is nonetheless on its way to the Senate starting Monday, where it will undergo changes once again.
Amidst Friday’s special session, news broke about a lawsuit against the Biden administration over vaccine requirements. Gov. Mark Gordon announced that Wyoming is one of 10 states suing the administration over its COVID-19 vaccine mandate for federal contractors, which is set to go into effect in December.
The lawsuit alleges that Biden’s executive order violates state enforcement powers, the 10th Amendment, federalism and a number of other federal policies. It further alleges that it would be an unconstitutional use of spending power.
“This vaccine mandate for federal contractors is a clear example of the extreme federal overreach that Wyoming must put an end to,” Gordon said in a statement. “Today, as promised, we take action as a broad coalition of which (Attorney) General (Bridget) Hill is proud to be a part. We are committed to defend the interests of Wyoming’s people and protect them from further federal intrusion into our lives.”
Hill joins attorneys general from Alaska, Arkansas, Iowa, Montana, Nebraska, New Hampshire, North Dakota and South Dakota in the suit, which was originally filed in Missouri. Florida also filed a similar suit on Thursday, and the governors of states including Texas, Alabama and South Dakota have issued their own executive orders meant to block state and private-sector mandate enforcement.
The almost surely defunct Senate File 1019
The third bill technically still in the mix is Senate File 1019, although Speaker Eric Barlow, R-Gillette, said he is not going to introduce it in the House.
The legislation is not COVID-19 related. Instead, it corrects an error that was made in a bill passed in the 2021 general session concerning the Wyoming Gaming Commission.
Because SF 1019 is the only bill the Senate is delivering to the House, the House would have to be in session for three days while working a bill that’s not related to COVID-19, the speaker pointed out. Instead, the House will convene again Wednesday.
Some senators were against the bill for the same reason that Barlow is not taking it up — it is completely unrelated to vaccine mandates, the topic that lawmakers convened in Cheyenne for.
In the run up to the special session, one question came up repeatedly: Is it worth the time and money?
Now, with only two bills advancing, neither of which came from the Senate, that question is gaining new attention.
“Definitely needed to be aired out and have the discussion. The majority vote called for the special session,” said Senate President Dan Dockstader, R-Afton, who was among those who voted in favor of the gathering. “Think about the intensity of debate with the amendments alone. Note how close the vote was as the Legislature responded to difficult matters in unique times.”
Gordon, who was walking the House chambers Friday afternoon after the representatives adjourned, said that only having two COVID bills left in play is all part of the legislative process.
Being in session is no cheap endeavor. If no lawmakers waive wages and per diem, it costs roughly $25,000 a day in taxpayer money.
The session is also taking place as Wyoming’s hospitals contend with record-levels of COVID-19 patients. Earlier this month, hospitalizations hit an all-time high. That same week, the Wyoming Department of Health announced 69 COVID deaths — a high for 2021.
Then there is the question of how much vaccine discrimination is actually an issue in Wyoming.
“I haven’t had a single person tell me they were denied service because of their vaccination status,” Sen. Drew Perkins, R-Casper, said when voicing his opposition to the now dead Senate File 1003.
Vaccination status and race
The heavyweight COVID bill in the Senate narrowly died on third reading Friday.
The bill would have done many things including making “vaccination status” a protected class like race, religion, national origin and more.
Based on senators’ testimony, it appeared discomfort over that inclusion at least partially led to its demise.
“You can’t choose to be a particular race,” Sen. Cale Case, R-Lander, said. “Religion? You can’t really choose that either. But you can choose whether you’re vaccinated.”
Earlier in the week, Sen. Bo Biteman, R-Ranchester, one of the more conservative state lawmakers, compared restrictions on unvaccinated people in certain venues to racial segregation.
“What are we having right now with COVID? Second-class citizens,” Biteman said on the floor. “I’m hearing members who are perfectly OK with that; think it’s funny to have a vaxxed bar versus an unvaxxed bar. It’s not funny to have a Black-only bar versus a whites-only bar. We’re beyond that in this country. Thank God.”
Biteman’s colleague in the House made a similar comparison Thursday.
Rep. Chip Neiman, R-Hulett, compared not standing up to the federal government to Rosa Parks challenging segregation by staying in her seat in the white section of a bus.
“You know, a thought came to my mind,” Neiman started. “If Rosa Parks would have just stayed in the back of the bus, nobody would have said anything. Nothing would have changed,” he said, somberly slowing his speech. “Is there a state that’s going to stand up?”
On Thursday Casper Republican Rep. Steven Harshman, the former Speaker of the House, used derogatory language against Rep. Chuck Gray, R-Casper. Harshman, who was attending remotely, made the comments during an unrelated discussion, not realizing his Zoom microphone was on. Because it was, his words were heard in the House chamber.
“Chuck Gray, f**** [inaudible],” Harshman was caught saying. “Little f****** [inaudible].”
Friday’s special session began with Harshman publicly apologizing to the entire body and Gray specifically. Harshman said he had driven to Cheyenne specifically to apologize. He left after only a couple votes because he had a football game to coach in Casper.
“I apologize for that distraction because we have real work to do for our people,” Harshman told his colleagues. “It wasn’t right and it won’t happen again,” he later added.
Speaker Eric Barlow, R-Gillette, also took action against Harshman, revoking his privileges to participate remotely.
In response to Harshman’s comments, another representative signaled that he would ask his colleagues to censure Harshman.
Rep. John Bear, R-Gillette, said he plans to make a censure motion next week. It takes a majority of the body to successfully censure someone in the Wyoming Legislature.
On Monday, the Senate will begin the process of working House bills 1001 and 1002. Once a bill makes it through all three readings in one chamber, it moves to the other chamber for three more readings. The bill needs a majority vote to move forward each time, otherwise it dies.
Legislative leadership is estimating that the body will be in session until late next week or early the following week.
Wendy Harding, chief clerk of the House of Representatives, told the Star-Tribune that the Legislature will likely adjourn if lawmakers have confidence that Gordon won’t veto successful bills.
And regardless of what happens this week, bills that did not survive the special session may return when lawmakers reconvene in February to tackle the state budget.
Some lawmakers have already told the Star-Tribune they hope to work on their failed bills between now and the budget session in the hope of improving them for next time.