West Virginia Politics and Government, Second Edition Politics and Governments of the American States

west virginia politics and government, second edition Politics and Governments of the American States

Founding Editor

Daniel J. Elazar

Published by the University of Nebraska Press in association with the Center for the Study of Federalism at the Robert B. and Helen S. Meyner Center for the Study of State and Local Government, Lafayette College richard a. brisbin jr., robert jay dilger, allan s. hammock, and l. christopher plein West Virginia Politics and Government

Second Edition

Library of Congress Cataloging-in-Publication Data West Virginia politics and government / Richard A. Brisbin Jr. . . . [et al.].—2nd ed. p. cm.—(Politics and governments of the American states) Includes bibliographical references and index. isbn 978-0-8032-6243-0 (pbk. : alk. paper) 1. West Virginia—Politics and government. I. Brisbin, Richard A. jk4016.w47 2008 320.4754—dc22 2008028718

Set in Times by Bob Reitz. Designed by Joel Gehringer. contents

Series Preface, vii Acknowledgments, ix Introduction: Mountain State Politics, 1 part 1: the construction of the political agenda

one Sources of the Political Agenda: Geography, History, Economy, and Political Culture, 13

two Public Contributions to the Political Agenda: Participation, Parties, and Elections, 33

three Interest Group Politics, 54

four Intergovernmental Relations and the Political Agenda, 82

part 2: political institutions

five Constitutional Politics, 105

six The Legislature, 121

seven The Governor and Executive Ofﬁ ces, 136

eight The Administration of State Policies, 151 nine The Budget Process, 173

ten The Judiciary, 192

eleven Local Government, 220

twelve Policy Controversies and the Capacity of the State Government, 243

Suggestions for Further Reading, 267 Notes, 277 Index, 317 john kincaid, series editor

Series Preface

The purpose of this series is to provide information on the politics and governments of the fi fty American states, books that are of value not only to the student of government but also to the general citizens who want greater insight into the past and present civic life of their own states and of other states in the federal union. The role of the states in governing America is not widely understood. The national media focus attention on the federal government in Washington dc, and local media focus attention on local government. Meanwhile, except when there is a scandal or a proposed tax increase, the workings of state government remain something of a mystery to many citizens—out of sight, out of mind. In many respects, however, the states have been, and continue to be, the most important governments in the American political system. They are constituents of the federal union, and citizens gain representation through them. The federal government is one of limited, delegated powers; all other powers are possessed by the states and their citizens. At the same time, the states are the empowering governments for the nation’s 87,525 local governments—counties, municipalities, townships, school districts, and special districts. As such, states provide for one of the most essential and ancient elements of freedom and democracy, the right of local self- government. Although, for many citizens, the most visible aspects of state government are state universities, some of which are the most prestigious in the world, and state highway patrol offi cers, with their radar guns and handy ticket books, state governments provide for nearly all domestic public services. Whether elements of those services are enacted or partly funded by the federal government and actually carried out by local governments, it is state government that has the ultimate responsibility for ensuring that Americans viii Series Preface are well served by all their governments. In so doing, all of the American states are more democratic, more prosperous, and better governed than most of the world’s nation-states. This is a particularly timely period in which to publish a series of books on the government and politics of each of the fi fty states. Once viewed as a “fallen arches” of the federal system, states today are increasingly seen as energetic, innovative, and fi scally responsible. Some states, of course, perform better than others, but that is to be expected in a federal system. Each state is unique in its own right. It is our hope that this series will shed light on the public life of each state and that, taken together, the books will contribute to a better informed understanding of the states themselves and of their often pivotal roles in the world’s fi rst and oldest continental-sized federal democracy. Acknowledgments

This introductory study of West Virginia politics and government is a collegial effort by members of the Department of Political Science and Division of Public Administration at West Virginia University. In this edition we discuss the state’s politics using information collected through August 2008. Each author initially drafted chapters in his areas of expertise and then solicited comments from the others. The fi nal product thus refl ects the ideas and research of all four authors. Richard Brisbin wrote the draft of the introduction and chapters 1, 5, and 10; Robert Dilger wrote the draft of chapters 4, 6, 7, and 11; Allan Hammock wrote the draft of part of chapter 2 and all of chapter 3; and Christopher Plein wrote the drafts of chapters 8 and 9. Richard Brisbin and Allan Hammock drafted sections of chapter 2. Richard Brisbin and Robert Dilger drafted sections of chapter 12. We acknowledge the extensive assistance provided by Kevin M. Leyden, director of the West Virginia Institute for Public Affairs of West Virginia University, especially for his support of research related to parts of the chapters on political culture, the legislature, the executive, the budgetary process, and the judiciary. The Institute for Public Affairs, Department of Political Science, Division of Public Administration, and Offi ce of the Dean of the Eberly College of Arts and Sciences at West Virginia University provided funding for the statewide surveys of mass political attitudes referenced in the book and contributed to an article on the survey. Lucinda Potter of the West Virginia University Political Science Department provided us with comments about the fi rst edition that signifi cantly improved this edition of the book. Finally, all of the authors express appreciation to the many current and former state elected and civil service offi cials who provided insights during interviews and discussions about West Virginia politics. The authors also have individual acknowledgments. Richard Brisbin x Acknowledgments

thanks his former graduate assistant Joseph Patten, currently on the faculty of Monmouth University, for managing the 1992 survey of judicial offi cials and for performing other tasks related to the fi rst edition of the book. Thomas K. Bias, assistant editor of the West Virginia Public Affairs Reporter, capably managed the 2005 survey of the public and ably collaborated with Professor Brisbin in the analysis of data from all 2005 surveys. Thanks are also extended to his colleagues John C. Kilwein, who from 1992 through 2005 joined in conducting interviews, gathering data, and drafting the publications from which much of the information on the judiciary was derived, and Susan Hunter, who from 1989 until 2005 collaborated on the research on dispute resolution, civic participation, and land use and environmental policy in West Virginia cited in this volume. For the fi rst edition, chapter 10 was improved substantially by the advice and assistance of Judge Frank Jolliffe, Magistrate Carol Wolfe, and Ted Philyaw and the staff of the Supreme Court of Appeals Administrator’s Offi ce. Finally Professor Brisbin acknowledges Professor Robert L. Hunt, his tutor in West Virginia history and politics at West Virginia Wesleyan College. Robert Dilger thanks Randy Moffett, currently on the faculty of the Savannah College of Art and Design, for his assistance in gathering data on gubernatorial powers and for reading and commenting on several chapters of the fi rst edition of the book. Also, the late John Hoff, director of the West Virginia Association of Counties, Elizabeth Larson, then executive director of the County Commissioners Association of West Virginia, and Stephen Zoeller, then Kanawha County administrator, provided many useful suggestions for improving chapter 10 for the fi rst edition of the book. Allan Hammock would like to thank Professor James Oxendale of the West Virginia University Institute of Technology for assistance in gathering, analyzing, and reporting some of the data in chapter 3 for the fi rst edition of the book. Lee Ann Greathouse, administrative associate of the Department of Political Science, provided great assistance in the electronic preparation of his sections. Christopher Plein extends his thanks to Dolly Ford of the West Virginia University Division of Social Work for helpful comments on draft chapters. Also, he extends a special note of thanks to Sam Gray, a former West Virginia legislative staff member, for a detailed critique of chapters 8 and 9. The fi rst edition of this book featured contributions by our former colleague Christopher Z. Mooney of the University of Illinois at Springfi eld. We have relied heavily on his contributions in our production of the second edition, and we thank him for permission to use these materials. When he wrote these chapters, Chris relied on his graduate assistant, Mei-Hsien Lee, Acknowledgments xi currently on the faculty of the Graduate School of Southeast Asian Studies, National Chi Nan University, Taiwan, for research assistance, and Susan Tewksbury, David Brown, Laura Mooney, and Maude Shunk for important suggestions and assistance. This book is dedicated to the memory of our colleague David G. Temple. Dave, who taught and wrote about West Virginia politics for nearly three decades, participated in the planning of this volume. We miss his gentle counsel and good humor.

The views expressed by Robert Jay Dilger in this book are his alone and are not to be attributed to the U.S. Library of Congress or to the Congressional Research Service. west virginia politics and government, second edition

introduction

Mountain State Politics

From an airliner West Virginia appears to be one vast mountainous forest broken by an occasional cleared valley, with a vista marred only by whiffs of smoke from distant power plants. From an auto West Virginia is again the forest of beech, yellow poplar, sugar maple, oak, and hemlock, either sparkling with dogwood and redbud blossoms in the spring or daubed with gilded maple leaves in the autumn. The forest has made a glorious recovery from the early decades of the twentieth century when timber companies and farmers reduced it to burned stubble. Today West Virginia is the third most heavily forested state in the nation.1 Driving through this forest demands skill and care, for the narrow, twisting roads laid out in hollow bottoms and over gnarled ridges confront the driver with the dangers of the road and the danger from a companion on the road—the tri-axle coal truck. Moreover, the driver is likely to be distracted from the forest’s glories by the abandoned refuse of industrial civilization—piles of coal tailings or “gob” and the strewn remnants of rusted metal around former glass-making, mining, and refi ning facilities that once processed the coal, sand, limestone, natural gas, and oil found abundantly in the state. The people encountered here are exceedingly friendly, helpful, and ea- ger to invite our traveler to a local ramp supper.2 Most of them love West Virginia and are proud to call themselves Mountaineers. However, they are realists. They know that the state’s economy historically has been weak, that per capita income is 24 percent below the national average, and that the state’s poverty rate ranks it among the poorest of the states. Many recognize that their children will most likely have to leave the state to fi nd high-paying jobs.3 Often they blame out-of-state business interests for the state’s economic woes, and they complain that their elected offi cials do little to curb the infl uence of out-of-state coal, timber, and natural gas fi rms. Frequently 2 Introduction

they wonder whether government is working for them or for a few powerful interests. West Virginians suffer from more than just a weak economy. Although the home ownership rate is third highest among the states, the percentage of people residing in mobile homes is also third highest. On average the state’s populace more commonly suffers from health and educational defi ciencies than do residents of other states. The state’s rates of teenage pregnancy, maternal health problems, infant mortality, occupational injury, obesity, and smoking, as well as deaths from the effects of these and other lifestyle choices such as heart disease, cancer, lung diseases, and motor vehicle accidents, are all above the national average.4 Also, many West Virginians are not prepared for employment in white-collar jobs. The state’s population has the fewest college graduates per capita in the nation. Although once at the bottom of national rankings in per pupil expenditures on education, the state is now near the national average. The dropout rate of high school students, once among the highest, is now just above the national average. Recently the state has focused additional resources on primary and secondary education by building new schools, increasing teacher pay, introducing computer-assisted instruction, and providing scholarships for outstanding high school graduates, but the social and economic effects of these policies will probably be noticed only decades in the future. Yet, despite its economic, health, and educational problems, West Virginia has an exceptionally low crime rate, a fact not lost on its citizens.5 West Virginia is a very rural state. Only 46 percent of its 1.8 million people live in urbanized areas or clusters, far less than the national average of 79 percent. Only Vermont has a larger percentage of its population residing in rural areas. There are no large cities; indeed, Charleston, the state capital, is the largest, and it has fewer than 54,000 residents. The state’s population is not growing. Almost 200,000 fewer people lived in West Virginia in 2000 than in 1950. Sixteen of the state’s fi fty-fi ve counties had fewer residents in 2000 than a century earlier in 1900. Also, the state’s population is the third oldest in the nation and is becoming more elderly. West Virginians are overwhelmingly white—95 percent—and ethnically homogeneous. The population is largely descended from North Briton stock, including English from the northern shires, Lowland Scots, and Ulster Scots or Scotch-Irish from Northern Ireland. During the nineteenth century Ger- mans also settled in the state, especially in its northern half. The construction of railroads and the expansion of the coal, glass, and steel industries attracted much smaller groups of Belgian, Carpatho-Rusyn, Greek, Hungar- ian, Irish, Italian, Jewish, Lebanese, Lithuanian, Polish, Slovak, Spanish, Introduction 3 and Welsh immigrants. In the 2000 Census West Virginia had the lowest percentage of foreign-born residents among the states and a very small nonwhite population. In 2000 fewer than 59,000 African Americans resided in the state, 3.2 percent of the state’s population. The Asian population of 9,400 persons is 0.6 percent and ranks next to last in percentage among the states; the Latino population of 12,200 is 0.7 percent.6

ways of interpreting west virginia politics

This book explores how West Virginians cope with life in the Mountain State—how they use politics, govern their communities, and seek collective responses to their problems. Although we use the methodologies of contemporary political science to examine West Virginia state and local politics, we trust that it will be of interest both to scholars and to the state’s citizens. Although West Virginia achieved separate statehood in 1863, few scholars have chronicled its politics and government.7 Moreover, the available literature on its politics and society typically lacks data or confi rmable factual information about its politics, or the authors erroneously leap to conclusions about the state’s political life from a single set of facts or a single factor. This book challenges four of the more popular and traditional explanations of West Virginia’s political life. These four explanations are incomplete because they each employ a single category of social or economic factors to explain state politics and governance. Because they undervalue the infl uence of politicians and political institutions, these explanations fail to capture all dimensions of the state’s political life. They tend to overstate the importance of the unique aspects of West Virginia’s politics and under- state recent changes within the state’s economy and government that have brought the state closer to national norms. Also, they ignore the government’s institutional capacity for generating resources and offi cials’ ability to make political decisions responsive to popular demands.

Appalachian Regional Consciousness

The ﬁ rst of the four incomplete explanations of West Virginia politics is Appalachian regionalism. A reductionist argument, it holds that political activity is a function of, or can be “reduced” to the results of, the geography, climate, resources, or other physical characteristics of West Virginia’s location in Appalachia. The notion of Appalachia as an intellectual construct emerged in the late nineteenth and early twentieth centuries.8 It was viewed as a peripheral region, unique in its natural environment, folk culture, and 4 Introduction

economic life. The region’s political meaning emerged during President John F. Kennedy’s administration. A combination of his political experiences during the 1960 presidential primary campaign in West Virginia, his general social welfare concerns, and the attention that intellectuals and journalists focused on Appalachian life led to the congressional consideration of a regional development strategy for the area. The Appalachian Regional Development Act of 1965 codifi ed the region’s boundaries to include all of West Virginia within an economic development authority called the Appa- lachian Regional Commission.9 West Virginia’s offi cial designation as Appalachian portended both positive and negative political consequences. Positively, it made the state’s organizations and people eligible for any special economic largess that the federal government might devote to the region’s development. Negatively, it assigned a label to the state, and it associated its residents with derogatory economic and cultural stereotypes (barefoot hillbillies, the Hatfi elds and McCoys, or moonshiners) marking its provincialism.10 Politically, however, the offi cial designation of Appalachia did not have signifi cant effects on West Virginia’s politics and government. Other than grants for infrastructure from the Appalachian Regional Commission, being part of Appalachia has not meant the state has received great sums of money from Washington. Also, unlike many other states, there are no large federal military installa- tions in the state to help stimulate its economy. Federal relocation of fbi, Bureau of Prisons, Coast Guard, and Internal Revenue Service operations to the state has come about because of the constituency service efforts of Senator Robert C. Byrd, not because the state is in Appalachia. Moreover, during the past two decades, federal altruism or even attention toward Ap- palachian residents, and West Virginians in particular, by external political interests has paled, even to the point of eliminating most of the funding for the Appalachian Regional Commission. Finally, there is little evidence to suggest that being in Appalachia has affected West Virginians’ political behavior. Less than one-third (29 percent) of the respondents to a recent survey of West Virginia residents said they lived in Appalachia. Nearly the same number (26 percent) said that they lived in the Northeast.11 If West Virginians do not view themselves as being part of Appalachia, it is diffi cult to believe that they could develop a uniquely Appalachian set of attitudes about economic and social policies or a distinctively regional sense of political malaise. Consequently, both as an intellectual and offi cial construct, the idea of Appalachian regionalism as an explanation of West Virginia politics remains problematic at best. Introduction 5

Economic Dependency

Another explanation of West Virginia politics relies on economic dependency theory. This theory assumes that political decisions are primarily a product of the distribution of economic wealth. Possessors of wealth— capitalists—thus control politics. Economic dependency explanations of West Virginia politics have two variations. The fi rst draws on the concept of “internal colonization,” while the second uses the broader logic of socialist political economic theory. The idea of internal colonization sprang from observations about the absentee ownership of the mineral and timber resources in Appalachian states. According to colonial theorists, during the late nineteenth century, West Virginia became a “colony” as external capitalists forced their way into the region and bought up its resources from “illiterate, simple mountain farmers.” The capitalists then redesigned the region’s social life by creating company towns to control the labor needed for resource extraction. The capitalists further secured control through local political organizations that could legislate on community and labor order, mineral rights, taxation, and land use. Their control was abetted by organized political corruption and the creation of a local clientele class. Finally, the external capitalists symbolically dominated the indigenous population by defi ning it as culturally and intellectually inferior.12 The evidence in support of the internal colonization theory as a description of contemporary West Virginia politics is thin. Unlike the internal colonies defi ned in the comparative politics literature, a foreign conqueror or a linguistically dissimilar group has not dominated West Virginia. Moreover, although the control of labor by capital was fairly strong in many of the state’s coal company towns during the early 1900s, that control was never as total as the explanation implies throughout the rest of the state. It quickly eroded after the federal government passed the National Industrial Recov- ery Act (1933) and after the United Mine Workers of America (umwa) increased its power following the passage of the National Labor Relations Act (1935). Also, control of local politics by colonizing external capitalists is unsubstantiated by any empirical study. There is no evidence that the role of external wealth in West Virginia politics differs from its role in the politics of any other state. Thus the internal colonization theory may have had some validity as a partial explanation of West Virginia’s politics during the early 1900s, but it does not describe West Virginia today. According to the second variation of the dependent political economy explanation, politics in West Virginia, and Appalachia more generally, is a product of advanced capitalism’s hegemonic power in the political 6 Introduction

economy.13 According to this neo-Marxist argument, external corporate capitalists use their control of property in West Virginia to direct the state’s governmental policies toward the subordination and exploitation of the working class. Also, these external capitalists drain the state of its capital, labor, and resources to improve their economic advantages in the nation’s urban centers. As with most studies in the socialist and neo-Marxist traditions, it is diffi - cult to test the assertions of the colonial and political economic dependency explanations through the methods of empirical social science. Research on corporate and out-of-state landownership in West Virginia is inconclusive.14 Even the most extensive ownership study claiming external control of West Virginia land, the Appalachian Landownership Study conducted in 1979, had numerous methodological problems.15 For example, it equated political power with acreage owned, not with the market value of the land or its resources. Moreover, the proponents of the colonial and political economic dependency explanations of West Virginia politics have not convincingly illustrated how external corporate domination of land enables external capitalists to control labor, establish corporate hegemony, and dominate day- to- day West Virginia politics. The economic dependency explanations of West Virginia politics might have had some validity in the past when many West Virginians lived in company housing and worked in industries owned by out-of-state interests, but its utility as a summary explanation for contemporary West Virginia politics is dubious. Corporate interests are infl uential, but they do not always present a united front or succeed in their ambitions. Instead, as we argue in chapters 3 and 4, they compete for infl uence over governmental policymaking with many other organizations and interests, including unions, professional organizations, government workers, and the federal government.

Labor-Management Conﬂ ict

Another explanation of West Virginia politics assumes that the state’s policy outcomes are determined by a bipolar confl ict between coal mining fi rms and allied industry trade groups and the umwa and other labor unions. Ac- cording to this explanation, these interests attempt to secure discrete outcomes from state politics through instrumental action designed to provide material and social rewards for their members.16 For several reasons, this explanation of West Virginia politics offers an incomplete contemporary state politics. First, coal mining has become signifi cantly less central to the state’s economy. Employment in mining and its Introduction 7 allied industry groups has dropped sharply. Therefore, miners are far less of a force in elections. Second, the number of active interest groups in West Virginia has increased. Today, as illustrated in chapter 3, the coal industry and the unions compete with other occupational groups such as educators, health care workers, and other service workers, with environmental and public interest groups and with the demands of the federal government in shaping the state’s public policies. Finally, the coal industry and umwa are no longer the unifi ed organizations and adversarial combatants they were for much of the twentieth century.17 Thus, although coal companies and labor unions remain infl uential participants in some arenas of contemporary West Virginia politics such as confl icts about workers’ compensation and civil lawsuit reform, the state’s political environment is far more factional than suggested by the bipolar model.

Backcountry Culture

The backcountry culture explanation of West Virginia politics argues that the state’s political choices are the product of the state’s particular rural mind-set and folkways.18 It suggests that people in the backcountry political culture are apolitical or antagonistic toward political authority and law, concern themselves with only short-term personal gains, infrequently engage in political or civic associations, concern themselves more with the sociability aspects of political participation, use social control mechanisms other than political institutions, and reluctantly engage in organized political activity with long-term goals.19 Although it can be argued that such political behavior is irrational because poor people should use political action to alleviate their economic plight, this political behavior has been hypothesized to be an “analgesic” response to a political environment that continually frustrates their interests and fosters their distrust of the ability of political institutions to address their plight.20 A distrust of politics conditions individuals to rely on tradition, defer to leaders, and isolate themselves from political leaders. Because elected ofﬁ cials never feel pressure to respond to unarticulated popular preferences, such public political behavior encourages stability in public policies. There has been considerable academic criticism of the backcountry culture explanation.21 For example, empirical evidence gathered in two West Virginia counties questions the explanation’s overall viability, and other studies have suggested that Appalachian culture is but a minor variation of the culture of poorer rural Americans.22 Moreover, there is evidence that the Appalachian backcountry is experiencing signiﬁ cant change in cultural 8 Introduction preferences and in normative orientations toward national norms.23 Because of the paucity of convincing empirical data, serious doubt remains about the validity of the backcountry political culture explanation of contemporary West Virginia politics.24 political capacity and political practice in west virginia

Although there is some validity to aspects of the regional, dependent political economy, bipolar confl ict, and backcountry cultural explanations of West Virginia politics, they share a common fault. Without providing reliable empirical evidence, these explanations assume that the political agenda and elected and appointed offi ceholders and bureaucrats are controlled by either a regional perception, cultural values, corporate power, or dominant groups. Nothing is said about the elected offi ceholders’ and bureaucrats’ independent infl uence on the content of public policy and its implementation or their infl uence on public preferences. Moreover, nothing is said concerning the impact of the government’s institutional structure, operating procedures, revenues, and budget on the outcome of public policies. A more complete explanation is needed. Therefore, unlike the four rejected explanations, the explanation guiding this book includes the “supply” of opportunities for governmental action—especially provided by institutions such as legislatures, executive agencies, and courts—as well as “demands” or the preferences of the public, interest groups, corporations, and the federal government. In chapters 1 through 4 we examine political demands or preferences. We argue that the state’s political agenda—the subjects or problems to which governmental and civic leaders pay serious attention—is infl uenced by the public’s regional, historical, economic, and cultural concerns. We also argue that the preferences of public and nongovernmental organizations, including political parties, interest groups, and corporations, further defi ne the political agenda. These chapters refi ne some aspects of the traditional explanations of West Virginia politics. Additionally, the structure of intergovernmental relations in the American federal system greatly affects which issues are included or excluded from the state’s political agenda. In chapters 5 through 11 we discuss the state’s political institutions— focusing on the three branches of the state government and the state’s budgetary process and expenditures. These institutions and expenditures supply opportunities and resources for policymaking and help defi ne politicians’ perception of feasible political choices. Collectively, these chapters enable us to evaluate the capacity of West Virginia political and governmental Introduction 9 offi cials to address problems considered signifi cant by state residents. In assessing the outcomes of institutional rules and organizational activity, both comparisons with other state governments and a broad defi nition of capacity are employed.25 Capacity is defi ned as the extent to which West Virginia’s state and local government offi cials possess the institutional authority and economic resources to represent or “act for” the public and attempt to respond to their expressed needs. Thus we are concerned with the opportunity for public offi cials to make choices that are not “persistently at odds with the wishes of the represented.” This explanation of West Virginia politics assumes both the importance of political institutions (legislatures, executives, and courts) and a public “capable of independent action and judgment” rather than a populace manipulated by the preferences of economic forces or incapable of escaping cultural traditions.26 We fi nd that the construction of West Virginia’s political agenda and the specifi c operation of its political institutions are not exceptionally different from the political and governmental processes found in other states. West Virginia’s political agenda and institutions are not driven primarily by an Appalachian consciousness, economic dependency, the coal industry, or backcountry values. Instead, West Virginia politics features the typical demands for a growing economy, quality public education, and public order. However, as we will illustrate in chapters 5 through 12, West Virginia governments are subject to two distinctive institutional limitations on their capacity to respond to citizens’ demands: severe structural impediments to economic growth that restrict the state government’s ability to generate the revenue essential to respond to demands for expanded or higher quality public services, and constitutional restrictions on local government and public school revenue generation and policymaking powers. The consequence is a politics of making do and scraping by rather than a politics that features state and local governments investing resources in policies that will pay dividends for the people of the state well into the future.

chapter one

Sources of the Political Agenda: Geography, History, Economy, and Political Culture

Politics and public policymaking transpire in a specifi c historical, economic, and cultural environment. In this environment certain aspects of the natural and social world constitute or delimit the range of political options that most persons fi nd appropriate for addressing the agenda of problems that they and their community face. These aspects of the natural and social world are the key ingredients of what has been called the “primeval policy soup.”1 This chapter describes the geographical, economic, and cultural factors and the legacy of past political experiences that condition and constrain West Virginia’s political agenda—the issues of political concern to the public and offi cials—and the alternative policy choices that its public offi ceholders consider.

geography and the political agenda

Without giving much regard to what, in retrospect, makes any geographical, political, or economic sense, federal and state politicians defi ned West Virginia’s boundary during the fi rst years of the Civil War. Instead of trying to create a state with topographical, social, political, or economic integrity, they included several distinctive geographical regions that were more closely bound to economic markets and political infl uences beyond the state than to one another. They did this for several reasons. First, they were more interested in including specifi c counties loyal to the Union than in creating a viable political and economic entity. Second, they were aware of the extent of Union military control in each county. The political machinations of Copperhead (pro-Southern) elements also played a role in defi ning the state’s boundary.2 The result is a state with considerable geographical diversity which affects its politics (see map 1). Located near the center of the eastern United States, many West Virginia Map 1. West Virginia’s Geographical Regions. Sources of the Political Agenda 15 communities are within a day’s auto trip of New York City and Washington dc to the east, Toronto and Buffalo to the north, Cleveland, Detroit, Chi- cago to the northwest, St. Louis and Cincinnati to the west, and Atlanta to the south. Nonetheless, geography has long divided the state and separated it from the rest of the East. West Virginia’s physical geography divides the state into several distinct regions.3 Although there are some topographical differences among the regions, the overall ruggedness of the state’s terrain cannot be overemphasized. West Virginia is mostly steep hill and mountain- side. There is no port, and there is little fl at land available for either extensive commercial agriculture or large manufacturing enterprises. The state’s Eastern Panhandle counties feature rolling valleys, separated by some of the highest mountain ridges in the East. Its most famous town is picturesque Harpers Ferry, where John Brown’s insurrection in 1859 was a pivotal factor in the outbreak of the Civil War. The Eastern Panhandle’s valleys were once devoted to orchards and, further to the west, to chicken and cattle raising. The counties at the eastern end of the Panhandle—Jefferson and Berkeley—are rapidly being transformed into the western suburbs of the Washington dc metropolitan area, and the entire region, with more than 210,000 residents, is growing in population much more rapidly than any other region in the state. The region’s relatively rapid growth makes its local politics unusual in West Virginia. As with most other counties, the Eastern Panhandle counties are concerned about attracting high-paying jobs. But, to avoid threats to the quality of life and the rural heritage of the region, their rapid growth also has forced their governments to deal with problems that accompany growth, such as the construction or extension of water and sewer systems, zoning and land use protection, and traffi c congestion. The rest of the state’s counties, with rare exceptions, feature deep, narrow creek and river valleys or “hollows” and twisted ridges of sandstone and limestone usually 500 to more than 1,500 feet above the valley bottom. Flat lands or “levels” of more than a few dozen acres are nearly impossible to locate. Within these counties are areas geographically identifi able in large part by their association with river valleys. These river valleys serve as continuous avenues of commerce and orient most of the state north and west toward the Ohio River. The Monongahela Basin counties include three small cities—Clarksburg, Fairmont, and Morgantown—and its population of 350,000 residents is growing at a slow but steady pace. The Monongahela River and its tribu- taries and rail and road connections direct most of this region’s commerce northward toward Pittsburgh, Pennsylvania. The region was once famous for its glass industry, but international competition has nearly eliminated 16 Sources of the Political Agenda that industry. Because of the decline of the steel industry in the Pittsburgh region, today the coal industry serves power plants. The counties are consequently among the national leaders in electricity generation. Today various healthcare and pharmaceutical businesses have located in and around the Morgantown area to take advantage of the resources available at West Virginia University’s main campus and its hospital complex, and the fbi complex in Harrison County has attracted assorted service and technological industries to the region. The Northern Panhandle counties are located along the Ohio River in the area west of Pittsburgh. The region’s economy is dominated by steel production and related industries located in Wheeling, Weirton, and Fol- lansbee. Marshall County is also a major coal production area. Since international competition has weakened employment opportunities in steel and other heavy manufacturing industries, the region’s population of approximately 160,000 has been declining slowly. Wheeling is the region’s largest city (31,500 residents). It was once known as the center of American nail production, and its winter Festival of Lights attracts hundreds of thousands of visitors annually. Although Lewis and Upshur counties in the Monongahela Basin produce considerable natural gas, the West Central counties remain the center of the state’s natural gas and oil industry. The region’s population of 179,000, about half of which is in Parkersburg and adjacent areas of Wood County, has remained fairly stable in recent years. With the decline of small-scale sheep raising, dairy and hay farming, and oil production in the region, a decline that began about a century ago, seven of the region’s nine counties today have fewer residents than in 1900. The Charleston and Huntington Metropolitan Statistical Areas and adjacent Mason County, with 420,000 residents, lead the state in manufacturing employment. Charleston, the state capital, and Kanawha County, the state’s most populous county, serve as the center of state government, state banking, and related service employment. Kanawha County is also a coal producer and, along the Kanawha River, is home to an extensive and economically important chemical industry. West of Charleston are Putnam County, site of a Toyota automobile engine plant, and Cabell and Wayne counties in the Ashland (Kentucky) and Huntington Metropolitan Statistical Area. Once a railroad center, Huntington is now primarily a manufacturing center with an increasingly diverse economy. To the northeast of Charleston are the sparsely populated counties (61,000 residents) of Central West Virginia. Isolated until the completion of new highways during the past three decades, these counties have coal Sources of the Political Agenda 17 mining and timber operations. Tourist enterprises are also appearing along the many reservoirs in this region. The Southern Coalfi eld counties are fabled as the site of mine wars, dead- ly family feuds, and coal company towns. The economy is based on coal production, with Boone County leading the state in both underground and surface mining production. Only in Fayette and Raleigh counties, especially around the city of Beckley, have service fi rms and more diverse sources of employment begun to appear. Peaking during the coal boom at the end of World War I, the region’s population has been declining as employment opportunities in the coal industry have weakened because of technological innovations in coal extraction. Fewer than 295,000 residents remain in the region, down from nearly 400,000 in 1980. Resurrecting this region’s once coal-dependent economy remains one of the most perplexing and diffi cult problems facing the state today. Finally, the state’s Southeastern counties have approximately 135,000 residents. Coal production, timbering, and cattle raising dominate their economy. Tourism is also growing. The region is home to the world-re- nowned Greenbrier Hotel and the Monongahela National Forest, which stretches across ten counties. As this summary suggests, with geographical regionalism come differences in economic and social interests as well as potential political confl icts over how to invest the state’s political resources to improve the lives of its citizens. economic regions

West Virginia’s topography has created different areas with different resources separated by physical barriers such as escarpments and steep ridges. This has led to the emergence of independent regional economies. For example, during the 1700s the Monongahela Basin and Northern Panhandle economies became tied to the Pittsburgh market. The Charleston–Hunting- ton and West Central regional economies became oriented toward Cincin- nati. The Southern Coalﬁ eld and Central counties remained undeveloped until the 1780s and 1790s, but the Southeastern counties found markets in Virginia. The Eastern Panhandle counties found markets for their products in Maryland, especially in Baltimore. The completion of the Baltimore and Ohio Railroad (b&o) from Balti- more to Wheeling in 1853 and to Parkersburg in 1857 provided better connections among the Eastern Panhandle, Monongahela Basin, West Central, and Northern Panhandle counties. However, it linked those areas to markets in Maryland, Pennsylvania, and Ohio, not to other parts of the state. 18 Sources of the Political Agenda

The Chesapeake and Ohio Railway (c&o), completed in 1873 through the Southeastern counties, Charleston, and Huntington, reinforced this area’s connections to external markets in the Virginia Tidewater and Cincinnati. The Norfolk and Western Railway, completed into the Southeastern counties in 1883 and into the Southern Coalfi eld counties between 1892 and 1895, tied them to coal markets in the Midwest and the Tidewater of Virginia. It was not until 1906 that a north–south railway connection linked the b&o and c&o service areas.4 Moreover, it was not until the completion of interstate and several Appalachian corridor highways in the late 1970s that automobile travel averaging more than forty miles per hour became common. North–south travel, always extremely slow or requiring roundabout routes, improved radically during the 1970s. The driving time from the Mononga- hela Basin and the Eastern Panhandle to the Charleston–Huntington area and the Southeastern counties was cut nearly in half. Even with improvements in transportation and communication, the historical patterns of economic regionalism remain intact in contemporary West Virginia. For example, the Rand-McNally Company regularly publishes information on trading areas in the United States. In 2004 it listed the Southeastern, Central, Southern Coalfi elds, and metropolitan Charleston– Huntington areas as part of the Cincinnati trading area, the Monongahela Basin and Northern Panhandle counties as part of the Pittsburgh trading area, and the Eastern Panhandle as part of the Washington dc trading area. Most of West Central West Virginia fell into the Columbus, Ohio, trading area, with Jackson and Roane counties listed as part of the Cincinnati area and Gilmer and Tyler counties listed in the Pittsburgh area.5 This information suggests that West Virginia not only is divided into distinct economic regions but also lacks its own core urban center. Unlike most states, West Virginia lacks a city where trade is centered, where investment capital accu- mulates, and from which economic and related political information fl ows to adjacent towns and rural areas. No doubt this has played a signifi cant role in the state’s economic diffi culties and political confl icts over the years.

cultural regions

West Virginia also has cultural regionalism. Some of the alleged cultural differences are curiosities, like the differences between the dialects of northern and western West Virginia and the dialects of the Eastern Panhandle and southern parts of the state, the penchant of southern West Virginia restau- rants for offering coleslaw on hot dogs and barbecue sandwiches, and the probably spurious “sophistication” of northern West Virginians. Such differences have affected politics.6 Sources of the Political Agenda 19

West Virginia’s settlement proceeded in two phases. First, before the American Revolution, settlers arrived in the Eastern Panhandle from south central Pennsylvania. These emigrants, largely of North Briton and Ulster Scots ancestry, occupied the region’s valleys and gradually began to import a small number of slaves for labor. Then, after the Revolution, emigrants from south central Pennsylvania, mostly North Britons, Ulster Scots, and Germans, moved into the Monongahela Basin, West Central, and Northern Panhandle counties. Crossing the mountains on roads through Pennsylvania or via the National Road from Cumberland in western Maryland, they also moved into the northern and western counties and, by means of the Ohio River, into the Kanawha Valley. A third, less extensive stream of North Brit- on and German emigrants from the Shenandoah Valley of Virginia and the Virginia Piedmont moved into the Southeastern counties. African Ameri- cans, as slaves, came with the European emigrants from Virginia. Among the consequences of the immigration were different experiences with slavery and the political institutions and practices of the states from which the immigrants hailed. However, in 1860 only about 3.6 percent of the population in what is now West Virginia were slaves.7 By the time of the Civil War all parts of the state had been settled, but most areas in Central West Virginia and the Southern Coalfi elds remained in near frontier conditions. When the coal industry began its rapid growth after 1880, industrialists sought labor from other states. They recruited British, Italian, Hungarian, Polish, Slovak, and Ukrainian workers for the North- ern and Southern Coalfi elds, Italians for the Monongahela Basin’s glass industry, and various Eastern European ethnic groups for the Northern Pan- handle’s steel industry. They also induced African Americans to emigrate from Virginia and the Carolinas to work in the coal mines. Emigration and changes in the demand for labor led to rapid growth of both the white and black population in the formerly lightly populated counties in the southern half of the state. Yet the emigration did not have much effect on local political leadership until the late twentieth century. The political elites remained representative of the dominant early northern and southern emigrant streams.8 Indeed, only in 2005 with the inauguration of Joe Manchin, of Italian ancestry, did the state have its fi rst governor of Southern or Eastern European ethnicity. The voters have not elected an African American to any state executive offi ce or to the Supreme Court of Appeals. Emigration greatly affected the state’s religious affi liation and the role of religion in politics. The Ulster Scots and other North Britons were pre- dominately Presbyterian, but the lack of strong allegiance to the church, the dearth of ministers, and the lack of towns where stable congregations could 20 Sources of the Political Agenda emerge and support an educated pastorate inclined most of them to elect membership in more evangelical denominations. Historically, the North- ern Panhandle, West Central, Monongahela Basin, and Eastern Panhandle population was affi liated with three predecessors of the modern United Methodist Church—the Methodist Episcopal Church, Methodist Protes- tant Church, and Evangelical United Brethren Church. American Baptist congregants predominated in the Southeastern, metropolitan Charleston– Huntington, and the Southern Coalfi elds areas. A few counties featured large numbers of members of the Disciples of Christ, a church rooted in the evangelical Presbyterian and Baptist traditions. It was founded at Bethany in the Northern Panhandle in 1826.9 A survey of religious membership conducted in 2000 revealed that 35.9 percent of West Virginians are religious adherents (members, regular participants not considered members, or those persons regularly attending services). Only the states of Alaska, Nevada, Oregon, and Washington had a lower percentage of adherents; the national average was 50.2. Only Hancock, Ohio, and Tucker counties exceeded the percentage of the national population who are adherents. Among the religious adherents, approximately 83 percent were Protes- tants—29.8 percent of the state population. Adherents of the United Meth- odist Church (8.3 percent) or the American Baptist Churches (6.0 percent) composed one of the two largest denominations in every county of the state. Both of these denominations are affi liated with the more moderate denominational leadership situated in the northern states rather than a leadership associated with the more evangelical, fundamentalist, and conservative southern Protestant denominations. Roman Catholics adherents, the largest American denomination with 22.0 percent of the national population, composed only 5.8 percent of the West Virginia population. Moreover, the Catholic population has concentrated in the Northern Panhandle and a few counties in the Monongahela Basin. Small numbers of various Orthodox Christian church adherents (4,500), Jews (2,400), and Muslims (1,500) live in the larger towns such as Beckley, Charleston, Clarksburg, Huntington, Morgantown, and Wheeling.10 Politically, the predominance of Methodists and Baptists ensured strong support for the prohibition of liquor, restrictive liquor sales laws, laws against gambling and lotteries, and other morality legislation well into the latter half of the twentieth century. With relatively few Catholics and Southern Baptists, however, abortion has not emerged as the extremely divisive issue it has become in some states. Although settlement patterns and religion do not determine political values, they can affect how people perceive and evaluate political issues. This is true especially when, as in West Virginia, some settlement and religious Sources of the Political Agenda 21 patterns largely cut across the state in directions akin to topography and economic divisions. The importance of these differences must not be pushed to extremes, however. It is important to remember that most West Virgin- ians practice religions with roots in the Protestant tradition. Most live in areas where the processing of natural resources is economically important. Most live in a rugged land distant from the economic diversity, racial and class divisions, and amenities of major metropolitan centers. West Virginia is mostly a rural, white, and Protestant society without distinctive class divisions. Consequently, despite economic change in some regions, it is not surprising that a study found little regional variation in political values or policy concerns among the state’s regions.11

the historical legacy of politics and economics

West Virginia’s political institutions originated in the context of antebellum Virginia politics. At that time, Virginia’s political leadership came from a class economically tied to the agrarian slave labor system. To protect slave labor, they had to protect their control of the state government. Therefore, they supported property requirements for suffrage to reduce the number of voters not owning slaves, and they required that slaves be included in legislative apportionments to increase representation in the state legislature from counties with large numbers of slaves. Because improvements required taxes on agricultural property and slaves, they also opposed internal improvements, including the construction of roads and canals vital to the economic development of the western counties. The inability of western leaders to change these unfavorable constitutional and legislative provisions became a source of intense political resentment. Although Pennsylvania, New York, Ohio, and the other Old Northwest states spent state money on canals and roads, provided widespread public education, and subsidized private railways and industries in their undeveloped regions, Virginia’s western counties did not have these public support for these services. Consequently, their economic and educational development suffered.12

Unionists and Secessionists, 1860–1872

The Civil War divided western Virginia. The referendum on Virginia’s secession from the Union won mixed support in the Eastern Panhandle. Se- cessionists predominated in the Southeastern counties, Central West Vir- ginia, and in the Southern Coalﬁ eld counties. The Northern Panhandle, Monongahela Basin (except Barbour, Randolph, and Tucker counties), West 22 Sources of the Political Agenda

Central counties (except Calhoun, Gilmer, and Roane), and the Charleston– Huntington area voted for allegiance to the Union. Yet, even in the Unionist counties, secessionists and Southern sympathizers known as “Copperheads” comprised approximately 40 percent of the population. The movement for separate statehood for West Virginia began in the Unionist counties, and its supporters originally sought separate statehood for only those counties. However, the state’s boundaries resulted from an accommodation of demands from Congress for a larger state with more area under Union political control and, ironically, Copperhead maneuvers for a proposed state with more Southern sympathizers who might vote against separation from Vir- ginia or at least against the pursuit of the war. Nonetheless, in part because the referendum on statehood took place only in areas under Union military control and because secessionists wanted to avoid the viva voce (oral) method of voting used at the polls, West Virginia voted for statehood in 1863. President Lincoln in April 1863 then signed the act granting statehood, and on June 20, 1863, West Virginia became the thirty-fi fty state.13 Approximately 36,000 West Virginians served in the Union army, and approximately 12,000 served in the Confederate army. After the war, the mix of sentiments about statehood and the war merged into partisan divisions. The Republican Party became dominant in strongly Unionist areas, and Copperheads, Peace Democrats, and secessionists moved into the Democratic Party. Once the federal government eliminated restrictions on the former secessionists’ political activities, the Democrats emerged as the majority party in West Virginia. In 1872 they replaced the state’s fi rst constitution, written by Unionists, with a new one. It featured a states’ rights philosophy, popular election of most public offi cials and judges, and signifi cant restrictions on state and local policymaking powers. Still in force, the 1872 constitution has produced state and local political institutions that lack the time, expertise, and fi scal resources to set assertive policies.14

Industrialists and the Control of Labor, 1873–1945

From the end of the Civil War (1865) through the New Deal (1933–45), the state government’s minimalist approach to policymaking permitted large economic enterprises to dominate the state’s economy.15 Unfortunately, nearly all of the investments made by West Virginia entrepreneurs, such as Johnson N. Camden (oil refi ning and railroads), Henry Gassaway Da- vis and his son-in-law Stephen B. Elkins (coal and railroads), A. Brooks Fleming (oil), and James O. Watson (coal), and by out-of-state corporations focused on the exploitation of the state’s natural resources. Except Sources of the Political Agenda 23 for investment in chemical plants, glass manufacturing, and coke and steel production for the initial conversion of raw materials into semifi nished products, corporate investors directed their efforts on building railroads to isolated mines or forests, developing the mines, or cutting timber. These economic activities did not demand a skilled workforce to produce fi n- ished goods, a centralized pool of labor in a large urban center, or, because of the development of the company store in isolated mining towns, a local commercial district.16 Consequently, government offi cials confronted few demands to invest in public education, supply public services, regulate and police an urban population, or develop market towns in which people could live and do business. Industrialists needed reliable but unsophisticated workers who were willing to accept employment in these dangerous occupations for low pay. They found some in the state’s existing pool of rural agricultural workers who were being displaced by more effi cient farms elsewhere in the world,17 and they imported European immigrant and African American laborers. Espe- cially in the Southern Coalfi elds, employers preferred a “judicious mixture” of these workers so that cultural and language differences and racism would deter unifi ed opposition to management practices. To further control workers, companies throughout the state forced workers to rent company-owned housing in the hollows near the mine. Limited transportation meant that miners had to shop at the company store. In some towns miners were paid in scrip redeemable only at the company store. The company store also gave credit to miners, encouraging debt and a legal obligation to their employer. The mine owners employed detectives and mine guards, frequently a force of thugs, to control labor unrest. In many counties, the mine owners supported or paid local politicians to use their authority in support of their hegemony. Together with local lawyers and men who did business with the mining companies, the local politicians protected the exploitation of labor. Some of the same forms of control over labor emerged in the towns where steel, glass, and chemicals were produced.18 From 1873 to about 1945, industrialists, land speculators, and resource- exploitation fi rms, especially coal companies, used organized political corruption to control the state’s resources and labor for their own private gain. These practices were used throughout the state but were particularly prevalent in the Southern Coalfi eld counties. Payments to local offi ceholders helped to control labor. They also helped the industrialists secure title to land and obtain favorable judicial rulings on their resource exploitation activities. Sometimes the industrialists and speculators funneled money or related economic favors through a county political machine or “courthouse gang.” 24 Sources of the Political Agenda

Whatever the arrangement, the money secured cheap labor for the company because the offi ceholders ejected troublesome laborers and union organiz- ers from company housing, deputized mine guards with salaries contributed by mine owners, legitimated anti-union “yellow dog” contracts with laborers, and enjoined strikes. Money and other favors like railway passes also went to state legislators as an inducement for pro-industrialist legislation on the ownership of mineral lands, responsibility for injuries to industrial and mining workers, and labor union regulation. Before the ratifi cation of the Seventeenth Amendment to the U.S. Constitution in 1913, which provided for the popular election of U.S. senators, the state legislature also selected senators, such as Stephen B. Elkins, who used their own money to obtain offi ce and to infl uence federal laws and policies that affected the exploitation of resources and labor.19 Over time the acceptance of the gift, or the habit of expecting it, became a legitimate political norm.20 Labor-management confl icts rarely fl ared in this environment. The Unit- ed Mine Workers of America (umwa) began to organize about 1897, but unionization took hold slowly because of anti-union injunctions from the federal judiciary and threats from mine managers and guards. When the umwa tried to organize or, when organized, tried to strike, mine management and the guards normally took extreme action: blacklisting strikers, fi ring them, or using physical coercion. Outbreaks of extreme violence resulted, as during the Paint Creek strike in Kanawha County in 1912–13, the shootout between mine detectives and local offi cials friendly to miners in Matewan (Mingo County) in 1920, and the Battle of Blair Mountain in 1921. At Blair Mountain, untold thousands of umwa members, in an attempt to march into Logan County to rally miners, engaged in armed confl ict against a force of mine guards, deputy sheriffs, and state police until federal troops and aircraft forced the miners to abandon the march.21 All of these events contributed to the popular image of West Virginia as a place of extreme violence and continuous confrontation between labor and management. Following the adoption of the federal National Industrial Recovery Act of 1933 and the National Labor Relations Act of 1935, which guaranteed unions certain organizational rights, West Virginia labor overwhelmingly unionized. Suddenly the umwa and, to a lesser extent, unions of steel, glass, and chemical workers became powerful organized political interests in the state.22 However, years of oppression had created deep-seated hostility between the state’s corporate and labor interests that spilled over into the political arena, particularly on issues concerning worker health and safety legislation, the regulation of the largely nonunion surface mining industry, and workers’ compensation. Besides these tensions, the years of industrialist Sources of the Political Agenda 25 hegemony left the state with an economy dependent on a few industries, a poor and poorly educated workforce, and a legacy of political corruption.

Economic Troubles and Transformation after 1945

The West Virginia economy has been in serious trouble since the end of World War II.23 At that time, coal mining began to change for both technical and economic reasons. The fl ow of capital to mine owners, especially those with interests in steel and other businesses during the war, permitted them to purchase mechanical deep mining equipment. The equipment had been invented earlier, but it was not deployed because of cost considerations. The labor-intensive mode of coal seam undercutting by hand followed by blasting and hand loading used until World War II gave way to the use of heavy equipment, such as long-wall mining machines, in underground mines.24 Moreover, the invention and improvement of earthmoving equipment made possible much more effi cient surface or “strip” mining. Meanwhile, the development of strip mining caused severe environmental damage as unregulated, mostly local entrepreneurs cut the hillsides for coal. Finally, the demand for coal began to ease when natural gas became a more competitive energy source. Mine owners thus were in a position where they could and perhaps had to reduce labor costs. umwa leaders recognized these technical and economic trends. In 1950 umwa president John L. Lewis agreed to the mechanization of deep mining and layoffs in exchange for higher wages and benefi ts for the remaining miners, a policy that was continued by his successor, Tony Boyle. Thus the umwa and the coal companies made an uneasy and sometimes quarrelsome marriage of convenience.25 The reduction of West Virginia’s mine labor from approximately 120,000 workers in 1948 to 43,000 in 1962 and 28,100 in 2007, together with related reductions in railway, coal processing, and service employment, created persistent unemployment.26 This led to a massive, steady exodus of people to Michigan and Ohio in the 1950s and, later, to the Chesapeake Bay regions of Maryland and Virginia and to the Carolinas.27 Meanwhile, in the 1948–2004 period productivity per miner increased more than fi ve- fold, and the coal miner became a technician, operating costly earthmoving equipment like huge draglines, long-wall seam cutting machines, and mechanical loaders. Also, the coal miner became the best-paid category of nonprofessional worker in West Virginia, averaging more than $21 an hour plus benefi ts in 2007.28 Miners moved into the middle class, perhaps affecting the old policy agenda with its overtones of antagonism between owners and miners. 26 Sources of the Political Agenda

At the end of 2007, all forms of mining (28,100 employees), construction (41,300), and manufacturing (58,800) together employ approximately 17 percent of West Virginia’s 768,700 nonfarm workers. Professional and business services (62,000 employees) account for 8 percent, wholesalers and retailers (119,500) account for 16 percent, and governments (146,600) account for 19 percent. There are 52,400 employed in the fi nance, insurance, real estate, and telecommunications industries and 26,800 employed in transportation, communications, and public utilities. Although Wal-Mart, headquartered in Arkansas, is the state’s leading employer, the state is no longer as dependent on the whims of external corporations engaged in resource exploitation as it was a half-century ago.29 Change in the West Virginia economy has made the current employment mix of mining, manufacturing, and service industries much more similar to the national employment mix. The state’s employment growth rate, however, continues to lag behind the national average, primarily because the state suffers from several structural impediments to economic growth.30 The state has one of the lowest percentages of college graduates in the nation and relatively few young adults in the workforce. Moreover, although the state has increased its investment in water and sewer infrastructure and in highway construction, the condition of these fundamental building blocks of economic growth continues to lag behind that of surrounding states. The state’s low population density also precludes the development of a major international airport, considered by many to be critical to sustained economic growth in an increasingly global economy. These impediments to economic growth are compounded by the pollution of the state’s waterways by acid mine drainage and the lack of fl at land that could be developed for plant sites. Together, these economic impediments mean that the state is not in an advantageous position to attract high-technology industries, corporate headquarters, or service industries offering high-paying jobs. Consequently, West Virginia’s new economy has become increasingly dependent on government employment and on employment in industries that are subsidized by federal or state government, as in tourism and health services.31 Econom- ic forecasts predict only slow growth in most sectors of the state’s economy and negative growth in mining and some transportation industries. How- ever, as the state’s economy becomes more like the national economy, the forecasts indicate that income growth and economic change will become more like that in the nation as a whole.32 Economic diffi culties have been the top priority on the state’s political agenda for decades. The technological changes in mining forced the state to develop new economic development policies, to increase its spending Sources of the Political Agenda 27 on Medicaid and other social welfare programs to care for the unemployed and poor, and to develop new revenue sources, such as the increased severance tax on coal and natural gas, to cope with the expense of caring for an increasingly aged and government-dependent population. The initial infu- sion of funds from the federal Great Society programs of the 1960s found a warm reception, such as the Appalachian Regional Commission, which helped upgrade the state’s highway infrastructure.33 However, despite federal and state assistance, the economy has not generated a signifi cant expansion in employment. In the past three decades, West Virginia has attempted to address its economic woes, but it has never developed an enduring consensus on exactly what to do. Instead, it has adopted a series of initiatives, one after the other, with relatively little thought given to their cumulative impact. Each initiative, however, has provided state elected offi cials with political support from those who benefi ted from the initiative. They also allowed them to tell the electorate that they were responding to their demands to provide more jobs. During the 1970s, the state’s economic development policy focused on business tax credits and increased funding for highway construction. Dur- ing the 1980s, the state began to address its water and sewer needs, essential for attracting private investment, and continued to expand its business tax credit programs and its highway budget. During the 1990s, the state offered business tax credits amounting to more than $100 million annually, raised the state’s gasoline tax to fi nance even more highway construction (more than $700 million annually), issued $500 million in state bonds to fi nance the construction of elementary and secondary schools, and authorized the issuance of $300 million for water and sewer construction. However, despite all of this activity, most of the economic development initiatives paled in comparison to the efforts in surrounding states.34 Besides affecting economic development policy, the state’s economic plight has had another impact on the political agenda. Slow growth or no growth and low incomes restrict government revenue generation. Lower incomes produce smaller revenues from income taxes and consumption taxes like the sales tax. Consequently, West Virginia’s governments confront a diffi cult economic future. Government investment in the economy and related infrastructure and education policies are necessary to improve the economy, but the state’s economy does not generate the revenue necessary to pursue such policies. This “Catch-22” (where A depends on B, but B depends on A) has left West Virginia economically far behind most other states, even behind other rural mountainous states. During the post–World War II era of economic transformation, West 28 Sources of the Political Agenda

Virginia also underwent important but gradual changes in its institutional politics. Some of the changes included much greater federal participation in the construction of the state’s political agenda, discussed at length in chapter 4, and changes in legislative, executive, judicial, and budgetary procedures, discussed in chapters 5–11.

political culture

Political culture can be defi ned as the shared “set of attitudes, beliefs, and sentiments which give order and meaning to a political process and which provide the underlying assumptions and rules that govern behavior in the political system.”35 Political culture therefore is something of a summation of the general meaning of politics for a people. Political culture is important because community values help to shape the political agenda. A unifi ed political culture might ignore some potential agenda items or policy alternatives, while a fragmented culture might encourage debate and the consideration of more policy alternatives.36 The literature on political culture in the American states has relied exten- sively on a typology set forth by Daniel J. Elazar. He defi ned three types of political subculture in the American states: individualistic, moralistic, and traditionalistic. The individualistic subculture emphasizes the centrality of private concerns and limited government intervention in private affairs. The moralistic subculture emphasizes community solidarity and commu- nal well-being. Government is a “positive instrument with a responsibility to promote the general welfare” through appropriate social and economic regulatory powers. The citizenry has a duty to serve and assist in public affairs. The traditionalistic subculture emphasizes the retention of the existing political order and its governing elite. It is critical of depersonalized, bureaucratic government that devalues social and family ties. Instead, government is to be custodial and to act on policies that maintain the stability of an “elite- oriented political order.”37 A statewide survey conducted in 1992 asked West Virginians to respond to sets of statements drawn from Elazar’s defi nitions of political culture.38 The survey results suggested that West Virginians, particularly those located in the northern counties and in the Eastern Panhandle, hold values associated with the moralistic political culture, with a strong undercurrent of values associated with the traditionalistic political culture. Given geography and state political and economic history, the expression of values consistent with the moralistic political subculture in northern West Virginia and in the Eastern Panhandle is not so surprising. As indicated earlier, Sources of the Political Agenda 29 before the Civil War and during the population boom of the late nineteenth century, emigration into northern and central West Virginia came primarily from northern states that were not dominated by traditionalistic views. As Elazar noted, the Appalachian Mountains defl ected the immigration of the moralistic Scotch-Irish southward from Pennsylvania into West Virginia.39 Emigration into southern West Virginia, on the other hand, came primarily from traditionalistic Virginia. Moreover, the alignment of the state’s major religious denominations with northern rather than southern denominational leadership, and the development of a rural industrial and resource extractive economy not quite like any political economy in the traditionalistic states of the South may also help to explain the moralistic views evidenced in the survey. Also, the northern counties’ economies have always been oriented toward Pennsylvania and Ohio, and the Eastern Panhandle counties’ economies have always been oriented toward the Baltimore-Washington metropolitan region. Pennsylvania, Ohio, and the Baltimore-Washington metropolitan region do not have traditionalistic political cultures. Another factor that may help to explain West Virginians’ moralistic responses to the survey is the nature of the labor-management confl ict that has marked the state’s politics since the early 1900s. umwa members, in their calls for worker solidarity and in their willingness to include persons regardless of their racial or religious identities, often express moralistic themes such as the “exercise of power for the pursuit of justice in public affairs or the betterment of the commonwealth,” and have long advocated active participation in politics and “active government intervention into the economic and social life of the community.”40 The expression of these moralistic themes became particularly strong once the reform movement gained control of the umwa during the 1970s. Consequently, unlike the situation in traditionalistic political cultures, where personal ties outweigh ties to collectives like unions, West Virginia has a long history of collective action. Additionally, West Virginia did not have the kind of racial politics that encouraged deference to traditional elites and induced the strong regional confl ict that once distinguished the northern and southern states. However, the state’s orientation toward the North has not shaken off all vestiges of its past connections to Virginia’s traditionalist political culture. Although West Virginia’s political culture is not as traditionalistic as some southern states, during most of its history its governments acted as if it were. As we will discuss, the state’s constitution contains provisions derived from traditional Virginia politics. These provisions severely limit county, municipal, and other local governments’ capacity to act. Also, powerful corporate elites once used their infl uence to minimize government activity, especially 30 Sources of the Political Agenda

when it involved controlling natural resource exploitation and labor. They recognized that it was not in their interest to allow a broad range of items to reach the policy agenda. Yet today many West Virginians, particularly those residing in the northern part of the state and in the Eastern Panhandle, desire a more policy-oriented leadership than was suggested by the state’s past association with the traditionalistic-individualistic political culture. As indicated by legislative efforts of recent governors Gaston Caperton (1989–97), Cecil Underwood (1997–2001), Bob Wise (2001–5), and Joe Manchin (2005–), they have constituted a political agenda that focuses on problems of the community—jobs and education.

the political corruption problem

West Virginians have long struggled with a tradition of political corruption. However, more recent acts of corruption differ in signifi cant ways from those occurring in the early twentieth century. The use of systematic corruption by resource exploitation fi rms disappeared with the onset of collective bargaining and the change in coal mining technology. Instead, corruption became more individualized. For example, most of the political corruption became individualized illegal acts by “rotten apple” offi ceholders or the abuse of the law to secure votes and money for reelection by a small number of individuals in a few counties in the Southern Coalfi elds.41 During the administration of Governor W. W. Barron (1961–65) and the third administration of Governor Arch A. Moore Jr. (1985–89), the governors, many of their administrators, and state legislators either associated with their schemes to benefi t political supporters or government contractors or were involved in individual acts of corruption. The result was that in the 1980s and early 1990s there were nearly a hundred recent convictions of state and local offi - cials and the parties with whom they exchanged favors. Noteworthy federal convictions included Governor Moore and other executive branch offi cials for extortion, mail fraud, and tax evasion, two presidents of the Senate for the receipt of money in exchange for the support of gambling legislation, several lobbyists, and the top assistant to former state treasurer A. James Manchin for the criminal mismanagement of state investments. Manchin resigned rather than face trial before the Senate after his impeachment by the House of Delegates. There also have been ongoing disclosures and prosecutions of several dozen corrupt local offi cials, mostly for electoral frauds, in Logan and Mingo counties in the Southern Coalfi elds and inquiries into confl icts of interest charges against a few state legislators.42 The federal government, armed with new legal tools like the Racketeer Sources of the Political Agenda 31

Infl uenced Criminal Organizations Act (rico), has led an attack on corruption. Federal prosecutions also resulted in the correction of some of the worst examples of corruption or confl ict of interest. Interventions by state agencies, such as the board of education, attacked corruption in the administration of schools and special districts. Also, both the state and local governments have gradually expanded the civil service recruitment of employees, and federal judicial decisions about patronage hiring and fi ring have reduced opportunities for rewarding or selling government jobs for political gain.43 In 1989 the state legislature adopted the West Virginia Governmental Eth- ics Act. It required yearly fi nancial disclosures by state, county, and school board offi cials and by candidates for offi ce. It prohibited a variety of activities like the giving and receiving of gifts, clarifi ed confl icts of interest, and regulated the contacts between offi cials and private interests and lobbying. It also created a state ethics commission with the power to adopt additional rules, to give advice about government ethics, to investigate allegations of impropriety, and to seek the appointment of a special prosecutor.44 In 2005, the legislature substantially revised the act. The revised act provides for a three-member probable cause review board to evaluate complaints and investigate possible offi cial malfeasance on its own or at the request of the ethics commission. If it fi nds evidence of illegal acts, the review board must hold a hearing to assess the evidence. It then refers its fi ndings to a twelve-member ethics commission, which evaluates the fi ndings of the review board. It can dismiss the complaint or conduct a hearing to consider action. If it fi nds evidence of a violation, the commission can issue a public reprimand or a cease-and-desist order, or it can order fi nes or restitution. More serious violations can result in civil litigation or referral of the case to a prosecuting attorney or special prosecutor. The act also provides a more detailed set of ethical standards, requires fi nancial disclosure statements for public offi cials and appointed employees, imposes more regulation on lobbyists, elaborates on the registration and fi nancial reporting duties of lobbyists, requires ethics training for lobbyists, mandates random audits of lobbyists, and gives the ethics commission the authority to develop additional rules and regulations.45 These legislative efforts suggest that the values of legal authority and honesty have largely replaced the old norms of gift giving, favoritism, and nepotism in West Virginia’s state and local politics.

conclusion

With geographical barriers to transportation and communication eroding, organized corruption under control, a more diversifi ed economy, and the 32 Sources of the Political Agenda mitigation of labor-management confl icts, West Virginians are positioned to express values consistent with a government whose policies address economic, health, and educational problems. Consequently, although geography, history, and economics have closed windows for state and local policymaking in the past, the contemporary political agenda is not constrained by deep-seated, one-dimensional regional cultural patterns of belief or behavior. The historical legacies of minimal government and labor-management confl ict are being replaced by beliefs in the need for government to address the policy agenda facing the state, especially the need to encourage economic growth, provide access to adequate health care, improve education, and protect the environment. chapter two

Public Contributions to the Political Agenda: Participation, Parties, and Elections

American representative government assumes that public ofﬁ cials have the capability and desire to act for the people. This chapter describes the links between the public and West Virginia’s government. It begins with an examination of the extent of West Virginians’ political knowledge, their perception of their government’s legitimacy, their trust in their state and local governments, and their views on the state’s political agenda. Then it discusses how West Virginians try to inﬂ uence politics through voting and membership in political parties.

political values and behavior

The West Virginia public’s commitment to the legitimacy of its state and local government does not run exceptionally deep. Also, the public’s trust in West Virginia’s state and local government ofﬁ cials’ job performance is not especially positive. Elaborated in this section, these conclusions are drawn from surveys of West Virginia residents conducted by the West Virginia Institute for Public Affairs (wvipa) in June 1992 and June 2005.1 These surveys provide the only empirically reliable evidence about the political values and attitudes of contemporary West Virginians.

Political Knowledge and Interest in Politics and Government

Representative democracy presupposes that the public pays at least some attention to political events. If the public ignores political events entirely, it cannot make informed choices among candidates or on ballot measures on election day. In turn, the inattention and lack of knowledge strains the connection between the governed and their elected ofﬁ cials and raises serious 34 Public Contributions to the Political Agenda

questions concerning the public’s assessment of the political system’s legitimacy (sense of accordance with law and sound reasoning). In an effort to determine the extent to which West Virginians pay attention to West Vir- ginia’s political affairs, the surveys asked: “Would you say that you follow what is going on in West Virginia’s government and public affairs most of the time, some of the time, or hardly at all?” In 1992 nearly all of the respondents indicated that they followed what was going on either some of the time (46.2 percent) or most of the time (44.7 percent). Only 7.7 percent indicated that they hardly paid any attention at all to West Virginia’s government and public affairs. The remaining 1.4 percent did not answer the question. The 2005 survey results indicate that these fi gures have hardly changed at all. The 2005 respondents indicated that they followed what was going on either some of the time (45.8 percent) or most of the time (44.8 percent). Only 7.8 percent indicated that they hardly paid any attention at all to West Virginia’s government and public affairs. The surveys found that political party self-identifi cation, liberal-conservative ideology, income, education, and age did not affect attentiveness to state politics. As an additional test of specifi c political knowledge, both studies asked West Virginians to name the governor and the speaker of the West Virginia House of Delegates. National surveys have found that approximately 90 percent of state residents are able to name their governor and approximately 10 percent can name their state legislative leaders. In West Virginia 92.5 percent of the respondents correctly identifi ed Gaston Caperton as the state’s governor in 1992, but in 2005 only 80.4 percent named Joe Manchin as governor. The decline in knowledge of the governor’s identity might exist because Caperton had held offi ce for more than three years at the time of the 1992 survey while Manchin had served only fi ve months at the time of the 2005 survey. Also, 13.7 percent knew that Robert “Chuck” Chambers was the speaker of the House of Delegates in 1992, but 23.2 percent correctly named Bob Kiss in 2005. The responses suggest that most West Virginians pay attention to political events and possess some knowledge of their political leaders. Consequently, they can make at least partially informed choices on election day.

The Performance of Elected Ofﬁ cials

West Virginia’s residents were asked to rate the job performance of elected ofﬁ cials. As indicated in table 1, in both the 1992 and 2005 surveys most West Virginians assessed the performance of the governor, the state legislature, state judges, and local government ofﬁ cials as either fair or good. Public Contributions to the Political Agenda 35

Table 1. West Virginians’ Ratings of Ofﬁ cials’ Performance (in percentages) Local Robert Governor Legislature Judiciary Government Byrd Category 1992 2005 1992 2005 1992 2005 1992 2005 2005

Excellent 2.5 8.4 1.0 1.6 1.9 3.4 0.8 2.4 34.0 Good 23.6 43.8 15.5 28.3 36.6 29.0 30.0 35.4 32.4 Fair 46.0 28.6 56.9 55.1 39.7 38.6 53.6 46.4 17.6 Poor 23.2 5.4 23.2 10.4 8.1 14.2 11.8 12.8 10.4 No response 2.1 13.8 3.5 4.6 2.1 14.8 10.6 3.0 5.6 N=517 (1992), 501 (2005)

Source: West Virginia Institute for Public Affairs Surveys, 1992, 2005.

Although state judges and local government offi cials received a slightly better job rating than the governor and the state legislature, relatively few West Virginians rated any of their political institutions as doing an excellent job: less than 9 percent for all institutions and less than 2 percent for the legislature in both surveys. The governor and legislature received more excellent and good ratings in 2005 than in 1992. The governor’s excellent and good ratings went from 26.1 to 53.2 percent, and the legislature’s excellent and good ratings went from 16.5 percent to 29.9 percent. However, the rating of local offi cials remained roughly the same. The rating of the performance of state judges slipped slightly. By way of contrast, the 2005 survey asked respondents to rate the job performance of Senator Robert C. Byrd. He received 34.0 percent excellent, 32.4 percent good, 17.6 percent fair, and 10.4 percent poor ratings. Nonetheless, despite the lower level of confi dence, it is important to note that public confi dence in state offi cials’ performance is on the rise in West Virginia.

Trust in Government

Most Americans have limited faith that the federal government will do what is right. According to the National Election Studies survey in 2004, only 43 percent of Americans felt they could trust their government to do what is right “most of the time.”2 The West Virginia surveys revealed that West Virginians also have limited conﬁ dence in their state government to do what is right. However, their trust is growing. As in the national survey, West Virginians were asked to indicate how often they could trust West Virginia’s state and local governments to do what is right: most of the time, some of 36 Public Contributions to the Political Agenda

Table 2. West Virginians’ Trust in Government to Do What Is Right (in percentages)

State Government Local Government Category 1992 2005 1992 2005

Most of the time 18.7 26.0 29.4 24.9 Some of the time 53.8 58.6 52.2 54.7 Almost never 24.8 13.2 16.6 17.8 No response 2.7 2.2 1.7 2.6 N=517 (1992), 501 (2005)

Source: West Virginia Institute for Public Affairs Surveys, 1992, 2005.

the time, or almost never. As the information in table 2 illustrates, from 1992 to 2005, trust in state government to do what is right most of the time increased from 18.7 to 26.0 percent, while the almost never category decreased from 24.8 to 13.2 percent. However, trust in local government decreased slightly. Although trust in government might encourage participation in government, the 2005 survey revealed no statistically signifi cant association between degree of trust in state or local government and giving money to a candidate for political offi ce or to a political party, working or doing errands for a candidate for political offi ce, going to political rallies, meetings, dinners, and speeches, or working with others to try to solve some problem in the community. Voters in the 2004 presidential election did, however, indicate signifi cantly greater trust in state and local governments to do what was right most or some of the time (88.7 percent) than did nonvoters (73.5 percent). The public’s general skepticism about governmental performance in West Virginia is also refl ected in their attitudes concerning the honesty of state offi cials. Surveys asked, “Do you think that West Virginia’s state governmental offi cials are very honest, honest, dishonest, or very dishonest?” From 1992 to 2005 the surveys revealed an increase in the perception that state offi cials are honest. In 1992 the majority of the respondents, 54.2 percent, said honest, and 1.7 percent of respondents said very honest. In 2005, 63.2 percent said honest, and 1.0 percent said very honest. Of the 1992 respondents, 27.9 percent said dishonest, and 5.6 said very dishonest; 7.4 percent did not respond. Of the 2005 respondents, 19.4 percent said dishonest, and 4.6 percent said very dishonest; 11.8 percent did not respond. The increased sense of the honesty of offi cials might be associated with temporal distance from the scandals of the administration of Governor Arch Moore. Public Contributions to the Political Agenda 37

Inﬂ uence over Government

West Virginians’ assessment of the representativeness of the state’s political institutions was refl ected in the responses to the question “Would you say that West Virginia’s government is pretty much run by a few big interests looking out for themselves or that it is run for the benefi t of the people?” In 1992 more than three-quarters of the respondents (76.8 percent) indicated that “a few big interests looking out for themselves” ran West Virginia’s government. Only 16 percent of the respondents indicated that it was run for the benefi t of the people; 7 percent did not answer the question. In 2005 a majority of respondents again thought that a few big interests dominated state government, but the percentage had slipped to 57.2 percent. Those who thought it was run for the benefi t of the people increased to 29.2 percent, with 13.6 percent not responding. The wvipa survey also asked, “Who has the most infl uence on your state legislators in Charleston?” Respondents could choose the governor and his staff, special interest lobbyists, the media, the voters who elected him or her, or other legislators. More than one out of every three respondents in 1992 indicated special interest lobbyists (34.6 percent), followed by the governor and his staff (20.1 percent), the media (13.2 percent), the voters who elected him or her (11.6 percent), and other legislators (10.6 percent); 9.9 percent did not respond to the question. In 2005 the number of respondents who thought that special interest lobbyists had the most infl uence over state legislators increased to 38.2 percent, but the infl uence of the voters decreased to 8.4 percent. Respondents’ assessments of the infl uence of the governor and his staff (20.0 percent), the media (11.0 percent), and other legislators (11.2 percent) did not shift much; 11.2 percent did not respond to the question. When coupled with the rather low levels of trust, West Virginians appear to be wary of the intentions of their state and local offi ceholders.

Participation

Despite limited trust in government and a sense that a few interests control state government, do West Virginians value democratic procedures and participate in politics? According to national surveys, less than one-third of Americans perform all of the political acts associated with the ideal democratic citizen—from paying attention to the news and voting to running for or accepting appointment to public ofﬁ ce.3 West Virginians follow this pattern. As table 3 indicates, respondents in 2005 reported more political participation than in 1992. As is typical across the nation, they were most 38 Public Contributions to the Political Agenda

Table 3. Reported Political and Civic Participation in West Virginia during the Previous Four Years (in percentages)

Category 1992 2005

Vote in Presidential Election 70.0 85.0 Donate Money to Candidate or Party 12.8 25.4 Work for Candidate 9.7 17.0 Attend Political Events 17.6 32.4 Community Service 40.0 47.6 N=517 (1992), 501 (2005)

Source: West Virginia Institute for Public Affairs Surveys, 1992, 2005.

likely to report that they voted in the most recent presidential election, followed by (2) working with others in their community to try to solve some problem, (3) attending political rallies, meetings, dinners, speeches, or other events in support of a political candidate, (4) donating money to a candidate for political offi ce or to a political party, and (5) working or doing errands for a candidate for political offi ce. Because the respondents’ self-reporting of voting is much greater than actual turnout, there is reason to be skeptical of the accuracy of their reporting of all categories of behavior.4 Nonetheless, in light of other studies of participation, the ranking of activities is important. The least frequent and least visible form of participation—voting—is the most common activity. The most partisan, public, and time-consuming political activity—working in a campaign—is the least common. The surveys also posed a question about participation in nonpolitical community activities. The objective was to see if there was a connection between general participation in community activities and political behavior. The 2005 data suggest that such a link exists. Persons reporting they had worked with others in the community to solve a community problem more commonly followed state politics most of the time (57.1 percent) than other persons (40.8 percent). Such civic activism was signifi cantly associated with political participation, including voting, contributing money, and attending political events. Also, as discussed in a separate study of nonpolitical participation in community activities and civic organizations in West Virginia,5 having children under age eighteen at home signifi cantly increases community participation (55.0 percent with children report civic activity compared with 45.2 percent of those persons with no children at home). The 2005 survey, however, did not measure the frequency of nonpolitical civic activity, an activity that appears to be in decline. The evidence thus is Public Contributions to the Political Agenda 39 that for a majority of West Virginians, the most effi cacious form of political activity is voting. Other activity that might be expected of citizens in a democracy is much less common.

Important Issues Facing the State

When the 1992 wvipa survey was taken, West Virginia had one of the highest unemployment rates (11.5 percent) in the nation. So it was not surprising that 54.7 percent of respondents felt that the state’s economy and lack of jobs (combined as one category) was the most important problem facing state government. In 1992 public education (6.6 percent) and state fi nances (5.6 percent) were the next most frequently cited issues of greatest concern. In 2005, although unemployment had dropped to 4.3 percent, 37.6 percent of respondents still felt that it was the most important issue. The problem receiving the next most responses was “high taxes” (5.4 percent). While the 2005 respondents indicated that the economy and the lack of jobs was the most important problem facing the state, they most frequently cited education policy (8.4 percent) as the second most important problem facing the state. Respondents also mentioned affordable health care (6.2 percent) and road, highway, or traffi c conditions (5.2 percent) as the second most important problem, and another fi fty-three issues received men- tion by less than 5 percent of the sample. The respondents who did not cite the economy as the major problem facing the state government mentioned it as the second most important problem in both 1992 (15.9 percent) and 2005 (16.6 percent). Thus is appears that West Virginians far and away still regard jobs and the economy as the primary problem that state government must face.

Which Level of Government Can Best Resolve Public Problems?

The wvipa surveys included a series of questions that were designed to determine how West Virginians feel about their state and local governments’ job performance. Despite their lack of trust in state ofﬁ cials, West Virginians apparently have more conﬁ dence in their state government than in either the federal government or local governments. However, there is evidence of growing support for federal solutions to some policy problems. The surveys asked what level of government—federal, state, or local—is best suited to solve West Virginia’s economic problems and provide jobs and improve public education. As table 4 indicates, between 1992 and 2005 40 Public Contributions to the Political Agenda

Table 4. Level of Government Best Suited to Solve Policy Problems (in percentages)

Issue Economy and Jobs Education Environment Health Response 1992 2005 1992 2005 1992 2005

Federal 14.3 34.4 10.3 10.6 33.5 34.4 State 56.7 43.2 61.7 53.2 43.9 43.2 Local 11.6 7.8 17.0 21.6 8.1 7.8 No response 17.4 14.6 11.0 14.6 14.5 14.6 N=517 (1992), 501 (2005)

Source: West Virginia Institute for Public Affairs Surveys, 1992, 2005.

there was a marked shift toward the view that the federal government is best able to solve the state’s economic problems. With public education, there has also been a shift. More people now regard local governments rather than state government as best positioned to improve public education. Notwith- standing the adoption of the No Child Left Behind Act of 2002, only one in ten West Virginians continue to believe that the federal government can best solve problems in their schools. The 1992 wvipa survey asked: “What level of government—federal, state, or local—is best suited to improve the environment and provide clean air and water in West Virginia?” Despite the federal government’s efforts through the Clean Water Act Amendments of 1977 and the Clean Air Acts of 1970 and 1990 to take the leading role in environmental issues and mandate state action, the responses were state government (43.9 percent), federal government (33.5 percent), and local government (8.1 percent). The remaining 14.5 percent did not answer this question. The 2005 survey asked, “What level of government—federal, state, or local—is best suited to improve heath care in West Virginia?” Of the respondents 34.4 percent said the federal government, 43.2 percent said state government, 7.8 percent chose local government, and 14.6 percent offered no response.

Conclusion

Although the 2005 study found a slight improvement in the perception of the honesty of state offi cials and perceptions of the performance of the governor and legislature, the West Virginia public’s commitment to the legitimacy of its state and local government does not run deep. The public’s evaluation does not indicate a positive assessment of West Virginia’s state and local government offi cials’ job performance. The majority are convinced that the Public Contributions to the Political Agenda 41 state legislature is controlled by special interest groups, that the state’s political institutions are run by a few big interests looking out for themselves and not for the benefi t of the people, and that government cannot be trusted to do what is right. West Virginia’s citizens who pay relatively little attention to state governmental affairs might be expected to hold such negative views because of their general alienation from politics. Although individuals who participate in politics seem to trust state offi cials more, it is striking that many of the politically active, politically committed, educated, and well- to- do citizens are also convinced that West Virginia’s state and local governments are controlled by special interests and are therefore untrustworthy. Despite these negative evaluations, West Virginians believe that West Vir- ginia’s state government ought to take the lead in addressing major public problems. Also, despite the federal government’s primary role in establishing monetary, fi scal, international, economic, and health policies, most West Virginians continue to want the state government to assume leadership in addressing the problems of economic development and job creation.

voting

Although democratic politics is ideally characterized by the full involvement of citizens in the political life of the community, state, and nation, as indicated by the data presented above, few West Virginians live up to such expectations. It is a rare exception, then, for the public to be sufﬁ ciently interested in an election to be galvanized even to vote—-the most common of political acts. However, the number of West Virginians registered to vote has increased in recent years. In 1992, 956,172 West Virginians were registered to vote. By 2004, the number of registered voters increased to 1,168,694, although the population in the state remained almost unchanged. It is probable that much of the increase in registration resulted from the passage of the National Voter Registration Act of 1993, which made it easier to register. Moreover, according to the wvipa survey, self-reported voter turnout increased between 1992 and 2004 from 70 percent to 85 percent. The ofﬁ cial turnout rate among registered voters, however, decreased from 72 percent in 1992 to 66 percent in 2004. Although the general increase in voting in West Virginia is encouraging for the political health of the democracy, it is disconcerting to note that West Virginia still ranks 44th among all the states and the District of Columbia in the percentage of the voting age population voting, and the state’s voting rate in the election of 2004 was still two percentage points below the national average of 55 percent.6 42 Public Contributions to the Political Agenda

West Virginia’s relatively poor voting turnout, seventh from the bottom among the states, should not be surprising, given various socioeconomic, at- titudinal, and legal conditions in the state. First, West Virginia is among the poorest states in the union, and lower voting rates have long been associated with citizens of lower socioeconomic status.7 Indeed, in 2000, West Virginia ranked fi ftieth among the states in household income, fi ftieth in median value of housing, and forty-eighth in percentage of adults with a high school diploma, the latter also a measure of lower socioeconomic status.8 These are not statistics that are likely to encourage voter turnout. Second, low turnout is related to the low level of trust in government. Finally, West Virginia’s election laws might also serve to discourage voter turnout. For example, in Minnesota, citizens can register and vote on the same day. In West Virginia, one must register at least thirty days before the election. There is a difference of twenty-four percentage points in the turnout rate between Minne- sota and West Virginia. Voter turnout in West Virginia also is likely to be affected by national political personalities, aspects of a specifi c campaign, and the competitiveness of the parties.9 For example, when Bill Clinton ran for president for the fi rst time in 1992, voter turnout increased in the state by four percentage points, and when John D. “Jay” Rockefeller IV, great-grandson of the founder of Standard Oil Company, and Arch A. Moore Jr., a West Virginia native whose public career spanned three decades, squared off in close, heated gubernatorial contests in 1972 and 1980, the state’s turnout rate in some counties, such as Cabell, increased by as much as nine percentage points. Moreover, it is known that the turnout rate often varies depending on the competitiveness of the parties. In the election of 2000 in West Virginia, for example, the turnout rate of registered voters in two-party competitive counties averaged 74 percent, whereas in one-party dominant counties the average was 59 percent.10

the political party system

American political parties function to select candidates for public offi ces, guide voters, and organize the agenda and operations of legislatures. The two major parties—Democratic and Republican—thus act as transmitter and converter mechanisms that can recognize the participating public’s political preferences and try to turn them into public policy. This section will address fi ve aspects of the transmission and conversion process: party membership, party identifi cation, the party organization and elections, the nature of the competition between the two parties in elections, and the role of parties in state legislative policymaking. Public Contributions to the Political Agenda 43

Party Registration and Party Loyalty

Almost 76 percent of West Virginia’s adult population is registered to vote. Approximately 88 percent are registered with the two main parties—Demo- cratic or Republican—and less than 1 percent with third parties such as the Mountain Party and the Libertarian Party. A growing proportion of the electorate—11 percent—are registered as independents. Although the Mountain Party and the Libertarian Party have mounted statewide campaigns in recent years, they have yet to win a single offi ce. The relatively small percentage of citizens registering as independents is related in part to election rules, especially the “closed” primary that long remained in existence. In West Virginia, until the elections of 2007, independents could not vote in the Democratic primary. Very often, because of the dominance of the Demo- cratic Party, the only election that counts is the Democratic primary. Al- though the Republican Party changed its rules to allow independents to vote in its primary, thus giving independents a measure of infl uence, it is still the case that statewide Democratic dominance offers little incentive for citizens to register as independents. Although the percentage of independents in the electorate might be small compared to partisans, the change in the number and percentage of independents over the last few years is, nonetheless, signifi cant. A decade ago, less than 3 percent of the electorate (approximately 37,000) were independents; today that percentage is 11 percent (about 128,000). This increase adds a degree of uncertainty to elections and requires that the two major parties pay more attention to the independent vote. The increase in the number of independents and third party identifi ers appears to have come mainly at the expense of the Democrats. In 1992, Democrats accounted for almost 66 percent of registered voters; today that percentage is just over 58 percent—a decline of seven percentage points. By contrast, the Republican Party lost less than 1 percent of registered Repub- licans between 1992 and 2004.

Party Identiﬁ cation

Although registration indicates the party that some West Virginians think best represents their political preferences, another indicator of support for a party is self-identiﬁ cation. Registration is a public act that need only occur once in an adult’s life, so the everyday political commitments of the populace are best revealed by a survey of their support for parties, such as the 1992 and 2005 wvipa surveys. 44 Public Contributions to the Political Agenda

Table 5. Political Party Indentiﬁ cation in West Virginia (in percentages)

1992 2005

Democrat 47.6 42.6 Strong Democrat 21.7 24.8 Not a Strong Democrat 25.1 15.2 Other response 1.7 2.6 Republican 26.5 38.2 Strong Republican 9.9 24.6 Not a Strong Republican 16.1 13.6 Other response 0.5 0.0 Independent 21.1 11.4 Closer to Democrat Party 8.9 5.0 Closer to Republican Party 7.7 3.3 Close to neither party 8.7 3.0 Other Party and No response 4.8 7.8 N=517 (1992), 501 (2005)

Source: West Virginia Institute for Public Affairs Surveys, 1992, 2005.

Although Democrats signifi cantly outnumber Republicans among registered voters in West Virginia, the wvipa survey respondents’ choice of a party identifi cation indicates a closer division between the two parties. Note- worthy in the 2005 wvipa survey is the increase in the percentage of Repub- lican identifi ers since 1992. Most of these new Republican identifi ers seem to have come from the ranks of independents, whose numbers dropped nearly by half between 1992 and 2005. What also is striking, as revealed in table 5, is the growing number of strong Democrats and Republicans. Between 1992 and 2005, the number of strong Democrats increased 3.l percent and the number of strong Republicans increased 14.7 percent. Yet the numbers of weak Democrats and Republicans both declined, and the number of independent voters fell by more than 50 percent. This increasingly sharp partisan divide mirrors a national trend.11 As witnessed in national politics during the past decade, more extreme party loyalists and fewer weak partisans and independent voters might make West Virginia elections more divisive and cause consensus policymaking in the legislature to be more diffi cult. Despite the shifts in party identifi cation, the 1992 to 2005 change in political ideology is somewhat less distinctive—even if it is in a more conservative direction. The percentage of very strong liberals even increased slightly, from 2.3 to 3.6 percent. However, in this period the total percentage Public Contributions to the Political Agenda 45 of liberals decreased from 21.8 percent to 18.6 percent, and the percentage of moderates decreased from 32.5 to 26.4 percent. Most of the moderates seem to have moved to a conservative position. All conservatives increased from 33.1 to 42.2 percent of all respondents As might be expected, ideology was signifi cantly associated with party identifi cation. Republican identifi ers ideology was 24.2 percent very strong conservative, 51.1 percent conservative, 19.7 percent moderate, 4.5 percent liberal, and 0.6 percent very liberal. Democratic identifi ers ideology was 7.1 percent very strong liberal, 28.3 percent liberal, 37.0 moderate, 23.4 percent conservative, and 4.3 percent very strong conservative. Independent ideology fell in between these ranges; they were 6.0 percent very strong conservative, 22.0 percent conservative, 50.0 percent moderate, 18.0 percent liberal, and 4.0 percent very liberal. The only statistically signifi cant association between party identifi cation and various demographic measures came with income and religion, not with gender, age, race, or education. As has long been the case nationally and in West Virginia, people with higher incomes were more likely to be Repub- licans and those with lower incomes were more likely to be Democrats. Of Protestants, 43.2 percent were Democrats, 43.2 percent were Republi- cans, and 13.4 percent had no party affi liation. But 55.3 percent of Catholics were Democrats, 31.9 percent were Republicans, and 12.8 percent had no party affi liation. Of those with no religious preference, 42.3 percent were Democrats, 23.1 percent were Republicans, and 34.6 percent had no party affi liation. In sum, the evidence suggests that Democrats remain the largest party in West Virginia, confl ict between the parties has sharpened, and the parties have ideological and religious differences. These differences mirror national divisions between the parties.

Party Organization and Political Campaigns

Across the nation, political parties are organized under state law and party rules. In West Virginia, the two major parties are divided organizationally into state executive committees, congressional district committees, senatorial and delegate district committees, and county committees. The rank- and-ﬁ le party voter in the state’s primary elections elect the members of these committees.12 The organization of the parties underscores their primary function of contesting elections. Ultimately, of course, the winning party must put in place an apparatus for governing, but ﬁ rst a party must win. All else depends on victory at the polls. 46 Public Contributions to the Political Agenda

The leaders of the party at various levels—state, congressional district, senatorial and delegate districts, and county—typically are those who are fi rmly committed to maintaining a viable party organization and successfully contesting elections. In West Virginia, the membership on these various committees exceeds 250. The manner in which political parties mobilize the electorate has changed over the years. Three decades ago, political parties ran like political machines, recruiting candidates to appear on slates, raising money for party candidates, dispensing patronage to supporters, and generally enjoying the spoils of offi ce. Today, with the advent of television and the mass-based campaign, as well as the proliferation of independent groups promoting their favorite candidates, the role of the party has diminished. Nonetheless, the party remains the single most important electoral organization in all states, and some analysts have argued that political parties have actually increased in role and infl uence.13 Political scientists have identifi ed two main types of functions performed by party activists: organizational and electoral. Organizational activities include raising money to pay party expenses (such as the cost of a headquarters), maintaining party harmony, and providing a viable paid staff—all designed to maintain the organization itself. The electoral function involves all those things associated with political campaigns, including recruiting candidates, raising money, registering voters, planning rallies, and contacting voters.14 Early studies of party leaders in West Virginia concluded that they did not devote a great deal of time to party building in the 1960s and 1970s. Gerald Johnson found that only about 35 percent of the activities of party leaders could be classifi ed as “organizational.”15 In a study of Republican party chairs, Thomas Robach found that they devoted only about a quarter of their time to organizational matters and 58 percent to campaign activities.16 In an update of these early studies, in 2005 the authors conducted a survey of local and state party leaders to determine the degree to which party leaders had changed in the focus of their activities.17 The results show that, unlike the earlier studies, party leaders today spend about as much time on organizational activities as on campaign activities. For example, 72 percent of Republican leaders and 67 percent of Democratic leaders report spending “some” or “a great deal” of time on raising money for the party itself (for headquarters, staff, rent, telephones). Likewise, a majority in each party reports spending some or a great deal of time in resolving confl icts within the party organization (58 percent for Democrats; 53 percent for Republicans). Party leaders also report that “fi nding jobs for people” is a major activity for 48 percent of Republican leaders and 32 percent of Democratic leaders. Public Contributions to the Political Agenda 47

Even with a relatively high degree of activity directed toward maintaining the party itself, it is clear from the data that the campaign is still the principal focus of county and state party leaders. More than 70 percent of the leaders in the recent survey report spending some or a great deal of time on such activities as recruiting candidates to run for offi ce (85 percent), raising money for candidates (71 percent), registering voters (76 percent), distributing literature (84 percent), and/or planning rallies (76 percent). Neither party seems to engage in certain activities to any great extent. For example, 43 percent of Democrats and 42 percent of Republicans indicate they spend no time working with candidate-sponsored campaign organizations, and neither party seems committed to providing campaign training sessions for party workers. About two-thirds of the leaders report they spend no time or very little time on this activity. With modern-day trends in campaigning, such as contacting voters through e-mail and working with professional political consultants on conducting polls, producing television ads, and the like, many party leaders report spending little or no time on these activities. Indeed, 69 percent of Democratic leaders and 75 percent of Republican leaders report spending little or no time on working with political consultants. Likewise, 54 percent of Democrats and 49 percent of Republicans report no or very little use of e-mail to contact voters. It is evident that modern-day candidates cannot rely on the party organization to do everything. Candidate-sponsored organizations must raise money, employ campaign consultants, conduct polls, hire campaign workers, and develop an organization that is independent of the party. Thus in West Vir- ginia, in 2004, the Democratic candidate for governor, Joe Manchin, had a statewide organization and an organizing committee that helped raise and spend in excess of $3.5 million in the campaign.18 In 1976, U.S. senator Jay Rockefeller spent $2.8 million in his bid for governor, and in 1980 he spent $12 million to win reelection. Despite the weakness of the Republican Par- ty organization over the years, every successful Republican candidate for governor—Arch Moore and Cecil Underwood—also developed elaborate fund-raising and organizational capacity outside of their party. Special interests and allegedly independent campaign groups (political action committees, or pacs) have also surfaced to infl uence elections in recent years, sometimes even eclipsing the spending and infl uence of political parties. In the election of 2004, for example, the state chamber of commerce and the ceo of Massey Energy, Donald Blankenship, worked independently to defeat “liberal” Supreme Court justice Warren McGraw. Blankenship gave some $3.5 million to a pac called And For the Sake of the Kids. This funded numerous television ads that depicted McGraw 48 Public Contributions to the Political Agenda as a justice who was willing to let convicted child molesters go free or to receive light sentences. Likewise, the chamber of commerce targeted McGraw because of his decisions in personal-injury cases such as medical malpractice. Given that these groups were successful in defeating McGraw, it is clear that no candidate running for any offi ce today is safe from attack by “independent” groups. Likewise, no candidate can expect to win without having access to substantial fi nancial and organizational support from political groups separate from the party.

Party Competition

Few propositions advanced by political scientists, commentators, and political observers alike have found greater acceptance than that political competition among parties promotes good government.19 Although the Democratic and Republican parties have dominated American politics for more than a century, the degree of competitiveness between them has varied consider- ably. Both nationally and at the state level, there have been long periods of one-party rule or domination. Although there were occasional victories by the nonmajority party at various times in history, American national politics was dominated from 1789 to 1800 by the Federalists, from 1801 to 1860 by the Democrats, from 1861 to 1932 by the Republicans, and fi nally, from 1933 to the early 1990s by the Democrats. In recent times, the national Re- publican Party has enjoyed greater success than in previous years. In 1994, Republicans took control of both houses of Congress for the fi rst time in forty years and the Republican Party has won the presidency in fi ve out of the last seven elections. It therefore has been the case that during each of the long periods of one-party rule, the dominant party has won most national and state offi ces and has been able to command the loyalty of a majority of the electorate. With rare exception, West Virginia has followed these national trends. From 1863 to 1872 the Unionist/Republican Party was the dominant party in the state. Between 1872 and 1896 the Democrats were dominant, and between 1896 and 1932 the Republicans were in control. Beginning in 1932, the Democratic Party became dominant once again, continuing its control of most state and local offi ces at least to the modern era. Even with somewhat greater Republican Party success in the twenty-fi rst century, in 2005 the Ranney Index of Party Systems, a standard method of rating party systems, classifi ed the state as a “Modifi ed One-Party State.” The extent and depth of the Democratic Party’s dominance in West Vir- ginia is demonstrated by an analysis of the party’s electoral successes, offi ce Public Contributions to the Political Agenda 49 by offi ce, since 1932. Of the 139 terms of statewide public offi ces fi lled by election from 1932 to 2004 (governor, attorney general, secretary of state, treasurer, auditor, agriculture commissioner, and supreme court justice), all but ten of these terms were captured by Democrats, and three of the ten Re- publican terms were won by Arch A. Moore Jr. Moreover, Democrats have constituted a majority in both houses of the state legislature since 1930 and currently are the majority party in the electorate (as measured by party registration) in all but seven lightly populated counties (Morgan, Grant, Min- eral, Upshur, Doddridge, Tyler, and Ritchie). Also, the Republican majority in fi ve of these seven counties is relatively slim. Until very recently, West Virginians almost always supported the Demo- crats for national offi ce. Since 1932 they have voted for the Democratic candidate for president in every election except 1956, 1972, 1984, 2000, and 2004, and they have sent only two Republicans to the U.S. Senate, in 1942 and 1956. Moreover, of the 184 contests for the U.S. House of Representa- tives between 1932 and 2004, Republicans have won only 25 times. Arch Moore, who served three terms in Congress before becoming governor, secured six of those victories. His daughter, Shelley Moore Capito, won three additional congressional contests. Although West Virginia continues to be dominated by the Democratic Party, there are some signs of an end to Democratic hegemony. Evidence of this change can be seen in the electoral success of the Republican Party in both national and statewide offi ces. Not only did West Virginia support Republican president George W. Bush in his bid for reelection in 2004, as they had done previously with the second term bids of Eisenhower in 1956, Nixon in 1972, and Reagan in 1984, but they also supported Bush in his fi rst election bid in 2000. Likewise, since 2000, Republicans have won two statewide offi ces (secretary of state and supreme court justice); captured one congressional seat (the 2nd Congressional District); and increased its membership in both houses of the legislature, adding eight Republicans to their number in the House of Delegates and six in the Senate since 2000. Though far from reaching the point where West Virginia may be said to be in the midst of a realignment of the support for the two parties, the Repub- lican Party gains clearly point to a revitalized Republican Party and a party system that is more competitive than had been the case previously. For many years, the most elaborate description of the internal composition of political parties in West Virginia was that offered by political scientist John Fenton. In 1957 he concluded that the state’s party system consisted of four parts: three “factions” within the Democratic Party, and the fourth, the Republican Party.20 The factional groupings within the Democratic Party 50 Public Contributions to the Political Agenda

were a “liberal-labor” faction, a conservative “Bourbon” faction, and a “Statehouse/Courthouse” faction. The Republican Party, a clear minority party, was small and relatively unimportant in these early years. Although much has happened in West Virginia since Fenton’s initial analysis, the state of the party system today remains much as it was described in the 1950s. Within the Democratic Party there is a “liberal” faction made up of organized labor, teachers, advocates for women’s rights, trial lawyers, environmentalists, and opponents of the power of large corporations. For years this faction has had as its leaders such public fi gures as Joe Powell, the former head of the afl-cio, Cecil Roberts, president of the umwa, Warren McGraw, former state senator and Supreme Court of Appeals justice, his brother, Darrell McGraw, former justice of the Supreme Court of Appeals and current attorney general, and Ken Hechler, former congressman and longtime state secretary of state. The conservative faction, formerly known as “Bourbons” because of their close affi nity to the South, today consists of traditional economic and social conservatives and counts among its leaders current governor Joseph Manchin III, Robert Kiss, former speaker of the House of Delegates, and various business leaders such as Steve Roberts, executive director of the state chamber of commerce and member of the West Virginia Senate. The fi nal faction is the largely nonideological statehouse and courthouse group consisting of various county offi ceholders (clerks, sheriffs, assessors, county commissioners) and such state offi ceholders and appointed offi cials as state auditor, treasurer, commissioner of agriculture, and highway commissioner. This faction owes its allegiance to the Demo- cratic Party primarily because the party is in a position to determine election outcomes and patronage in most of the counties and in state government. The Republican Party has its factions, too. Nationally Republicans have tended to be split between the religious right and more traditional economic conservatives. This is not the case in West Virginia.21 Rather, the split has tended to be over personality, power, and leadership. In the 1970s and early 1980s, the party had a split between the Arch Moore and Cecil Underwood factions. At times, factionalism simply boiled down to anti-Moore senti- ment based on what some in the party thought was a “cult of personality” exhibited by Moore. In more recent times, the party split has been between pro-Warner and anti-Warner factions.22 Businessman Kris Warner, chairman of the party from 2001 to 2005, took over at a time when the party was struggling fi nancially and in terms of electoral success. Almost singlehandedly he was able to revitalize the party and catch the wave of national Re- publican Party success. However, he was perceived by some members of his party as advancing the interests of his brother, Monty Warner, a candidate Public Contributions to the Political Agenda 51 for governor in the Republican primary in 2004, over success for the party. As a result, he was widely criticized and ultimately forced out of the party leadership in 2005 by what became an anti-Warner faction. The party today is much more unifi ed than in 2005, although potential splits could develop around individual-centered factions within the party, such as between Mor- gantown industrialist John Raese and coal executive Donald Blankenship, both of whom seek personal power and a particular policy agenda favorable to coal and business interests. Or factionalism might emerge between the corporate business and the evangelical religious supporters of the party, as has occurred at the national level on issues such as immigration reform. Although the Republican Party has enjoyed a measure of success in recent years, once all the factions in the Democratic Party are in alignment there is no stopping them. When the factions united in 2004 behind the Democratic candidate for governor, businessman Joe Manchin, he won with 65 percent of the vote. When businessman Gaston Caperton ran as a consensus Demo- crat in 1988 and 1992, he won overwhelmingly. When the Democrats were divided, the Republican candidate, Arch Moore, won against “liberal” Jim Sprouse in 1968 and Cecil Underwood won against “liberal” Charlotte Pritt in 1996. Thus in West Virginia, political party is important, but the specifi c formula for success requires that the dominant party join all its factions together or else the “minority” Republicans will win.

Parties and Policymaking

Once in offi ce as party standard-bearers, offi cials must govern. Scholars have noted that party systems may be either “policy-relevant” or not, depending on whether there are major differences between the parties when their candidates are in offi ce.23 In West Virginia, parties have not had a long history of policy relevance, although in recent times there has been a tendency for the parties, especially the Republicans, to emphasize a few major policy differences about social issues. Owing to the dominance of the Democratic Party in the legislature, most policy outcomes have depended less on party votes than on building a consensus among liberal and more conservative factions within the Democratic Party. Typically, a consensus is built and many bills are passed with large majorities, such as 92–8 in the House of Delegates or 29–5 in the Senate. The reason for the near unanimity and consensus in the legislature is the fact that there has been, at least historically, a commonality among the candidates for governor, whether Democrat or Republican, and a degree of commonality in the platform of the two major parties. That commonality, 52 Public Contributions to the Political Agenda for example, was displayed in 2004 when both candidates for governor emphasized the importance of jobs and a business-friendly environment. Indeed, if there has been a constant policy theme of gubernatorial candidates over the years, it has been jobs, business, and roads. For example, the very fi rst section of the 2004 Democratic Party platform addresses economic development and pledges that the party will work to make West Virginia “Open for Business.” The Republican platform calls for “developing a climate that encourages business investment, job creation, and economic diversifi cation.” Where the two platforms diverge is on taxes (Republicans want to eliminate some taxes; Democrats to restructure them), women’s rights, health care, the protection of workers, tort reform, marriage, and gun control. The Democratic platform emphasizes a woman’s right to choose and major health care initiatives and is silent on marriage and gun control. The Republican Party endorses the “right to life,” tort reform, the right to bear arms, and marriage only between men and women. It is largely silent on health care, human rights, and protection of workers. These issues are certainly suffi cient to generate partisan divisions in the legislature and on the campaign trail, but since many of the issues facing state government are economic and require a give and take on all sides, the tendency is for governors and legislative leaders to emphasize and practice the “art of the possible.” Thereby they minimize the divisions that are clearly apparent on some “hot button” social and moral issues that state government might address. conclusion

Although recent evidence fi nds a slight improvement in the perception of the honesty of state offi cials and perceptions of the performance of the governor and legislature, the West Virginia public’s commitment to the legitimacy of its state and local government does not run exceptionally deep. The distrust of government and politics means that the public’s political participation and infl uence over the political agenda is often confi ned to voting. Voting is a choice between the policies offered by the candidates of the Democratic and Republican parties. The parties represent different groups of West Virginians and communicating different policy programs to the voters during hard fought and adversarial electoral campaigns. Yet in the end they have to grapple with the core concern of the voters: jobs and the economy. In dealing with this issue, elected state offi cials from both parties have limited options in an economic universe governed by global corporations Public Contributions to the Political Agenda 53 and federal monetary and fi scal policies and constrained by the geography of the state, its natural resources, and the educational attributes of its workforce. Consequently, the policy debate on economic issues can only consider a limited range of options on a restricted agenda. In this context, party divisions often cannot provide the range of policy options that will satisfy the interests of the participatory public. chapter three

Interest Group Politics

Interest groups have a strong effect on the state’s political agenda by communicating ideas directly to state political leaders, providing them with incentives to support the groups’ goals, mobilizing mass support for their policy positions, and inﬂ uencing the outcome of elections.1 Increasingly, contending interests also use the courts to inﬂ uence governmental decisions.2 Much like political parties, then, interest groups contribute heavily to the policy agenda by advancing the interests of a vast array of groups in today’s society.

west virginia’s interest group system in historical perspective

Historically the coal industry has dominated West Virginia politics and its interest group system. Indeed, West Virginia’s past reliance on coal as its economic staple has had profound consequences for its political and social institutions, so much so that Sarah McCally Morehouse concluded more than two decades ago that West Virginia was a state “run by a single industry—coal.”3 Although this conclusion does not ring true as much today, coal’s impact on the state’s economy and on its political and social institutions cannot be denied. In fact, the West Virginia Coal Association has boasted in its radio advertisements that “Coal is West Virginia,” and scholars still classify West Virginia as one of only ﬁ ve states dominated by a single interest—coal.4 The coal industry has not been the only economic interest active in West Virginia. Chemicals, timbering, and oil and gas interests have also played a major role in fashioning the state’s political life and public policy. More- over, the state’s economy underwent a fundamental restructuring during the Interest Group Politics 55

1980s and 1990s that resulted in a more diversifi ed economy and a diffusion of interest group power among business groups, public employee unions, environmental groups, health care associations, and representatives of other service industries. Nevertheless, the coal industry, with its exploitative character and its economic infl uence, has molded the state’s political image.5 Unfortunately West Virginia is often viewed as the site of one tragic episode or condition after another, all involving coal: leading the nation in unemployment, much of it in the southern coalfi elds; enduring yet another bitter mine strike; cleaning up after a devastating fl ood, often caused by reckless and unregulated strip-mining; or worst of all, suffering yet again another tragedy of death in the mines, the latest example being the January 2, 2006, Sago Mine disaster in which twelve miners were killed. All of these devastating circumstances are commonly linked to the economic and political power of West Virginia’s coal industry. Therefore, the present interest group system cannot be understood without some familiarity with the history of the coal industry’s political infl uence in the state.6 The coal industry has shaped West Virginia politics in at least fi ve ways. First, following the discovery of large tracts of coal and gas in West Virginia in the latter half of the nineteenth century, representatives from numerous eastern fi rms purchased title to millions of acres in the state’s coalfi elds or, at a minimum, the mineral rights to such lands.7 Because West Virginia did not have a suffi cient population to mine all the coal needed by industry, the coal companies imported miners from southern Europe.8 They also constructed entire communities in which the company owned everything, including churches, homes, stores, medical services, and law enforcement. In 1920, 80 percent of West Virginia coal miners lived in company-owned houses.9 This had an enormous impact on West Virginia’s state and local politics. Coal company power in the company towns and coalfi eld counties was not seriously challenged until the New Deal, when unions were permitted to organize the state’s coal miners. Second, until the 1960s, the coal industry was able to use its infl uence to preclude state regulations that increased the cost of doing business and therefore cut into their profi ts. For example, the coal industry has historically opposed environmental and safety regulations, including ones concerning the omnipresent slag pile or slate dump, which are aesthetically unpleasing and slowly release poisonous fumes into the atmosphere. In some instances these slag piles pose even more immediate danger. In 1972, at Buffalo Creek, an 80,000-ton slag pile created by the Pittston Company released 21 million cubic feet of water, killing 125 people, destroying 1,000 homes, and causing $50 million in property damage.10 The slag pile was unregulated. 56 Interest Group Politics

Indeed, the West Virginia Department of Energy at the time was not noted for its vigorous enforcement of even the most lenient of state regulatory laws. At the time of the Buffalo Creek disaster, there were hundreds of such piles in the coalfi elds, and many continue to exist today.11 Another example of the coal companies’ past infl uence in Charleston involves rock dusting. By 1920, it was known that rock dusting was the best and cheapest way to reduce coal dust and thus prevent explosions.12 How- ever, even though mandatory rock dusting legislation was introduced in the state legislature for years, it was not adopted until 1953. This was a purely symbolic action, however, because the federal government had already required such a practice in 1952.13 Third, the coal mining industry has historically been able to secure favorable tax treatment from the state government. For example, most states early on imposed severance taxes on their extractive industries to generate the revenue necessary to restore the land to its previous condition once the natural resource is depleted and the industry moves on and to deal with such issues as acid mine drainage and the industry’s adverse impact on public health. Even with all these known destructive consequences of mining, there was no serious move to impose a severance tax in West Virginia until 1953. That year, in his fi rst address to the legislature, Governor William Marland proposed a 10 cent a ton tax on coal. The proponents of the tax were formidable, including the United Mine Workers of America (umwa), the American Federation of Labor (afl), the Congress of Industrial Or- ganizations (cio), the West Virginia Education Association (wvea), and the seven-member state congressional delegation.14 The declared opponents consisted of the coal operators, the chamber of commerce, the Republican minority in the legislature, and several newspapers, including the infl uential Charleston Gazette. By a 14–4 vote, the tax proposal was defeated in the state senate fi nance committee. The severance tax battle clearly pointed out the coal industry’s power and labor’s relative weakness as a political force. A modest severance tax was not imposed until 1970, but even then, the coal industry has regularly protested the tax, claiming among other things that the tax interfered with the interstate and foreign commerce clause of the U.S. Constitution. The latter issue was put to rest in 2006 when the U.S. Su- preme Court refused to take up a case in which the West Virginia Supreme Court of Appeals had held that the severance tax did not violate the U.S. Constitution’s restrictions on export taxes.15 In addition, the West Virginia Coal Association, to its credit, in 2006, in a deal brokered by Governor Joe Manchin, agreed to a temporary increase in the coal severance tax to help eliminate the state’s underfunded workers’ compensation fund.16 Interest Group Politics 57

Fourth, the severance tax battle of 1953 demonstrated the extent of coal industry infl uence in both political parties in West Virginia. Historically the Democrat and Republican parties have been closely tied to the extractive industries, and both have been dominated by and had offi ceholders closely associated with mining, railroads, and oil and gas exploration.17 In modern times, coal companies have been in the thick of politics in the state. For example, one prominent coal executive, James “Buck” Harless, chairman of International Industries, a multifaceted coal and timber company located in the southern coalfi elds, played a key role in the election of Republican governor Cecil Underwood in 1996 and George W. Bush in 2000 and 2004.18 In 2005, another coal executive, Donald Blankenship, ceo of Massey Energy, Inc., almost singlehandedly was responsible for the defeat of Justice Warren McGraw, a member of the West Virginia Supreme Court of Appeals whom some considered to be the enemy of the coal companies.19 Fifth, the industry remained infl uential because, in state politics, it faced a quiescent union. For years, the umwa had a conservative leadership that became increasingly friendly to management. For the most part, its leaders’ political concerns were unemployment compensation and workers’ compensation laws.20 The umwa took little action to promote reform, such as reducing mining’s environmental impact, counteracting the industry’s extremely low tax rates, modifying the state’s regressive tax system, or push- ing for basic public services and education facilities in the coalfi elds. This is not to say that such issues were not occasionally raised in the umw Journal, but they were not top political priorities, either in lobbying the legislature or in extracting promises from candidates. After 1965, however, coal industry and umwa infl uence over state politics began to recede, and major changes in interest group activity took place. Like much of the nation, West Virginia was in the midst of signifi cant social and political change. It was an era characterized by consumerism, environ- mentalism, and populism. The umwa especially was unprepared for the movements that hit the state in the late 1960s and early 1970s. The two major reform groups were the Miners for Democracy, which sought to oust the union’s conservative leadership, and the Black Lung Association, which sought state legislation to compensate the victims of pneumoconiosis, a chronic lung disease among coal miners. The change in coal-dominated interest group politics began subtly. In 1967, the legislature passed a relatively strong strip mine bill. Then, in 1967 and 1968, there was agitation for environmental legislation, stronger coal mine safety standards, and compensation for disability. The critical point in the movement was the Farmington Mine disaster in November 1968. An 58 Interest Group Politics

explosion killed seventy-eight miners, generating hostility against mine operators and umwa president Tony Boyle, who supported the claims of mine owners on safety issues, including exposure to coal dust and the origins of black lung disease. In 1969, strikes backed by the Black Lung Association closed virtually every coal mine in the state and fi lled the state capital with coal miners while the legislature debated the black lung bill. Out of fear of political repercussions, the legislature passed it. Later in the year, Tony Boyle ordered the assassination of Jock Yablonski, his reformer rival for the union presidency. The disclosure of Boyle’s role in Yablonski’s death ended Boyle’s leadership and the umwa’s close working relationship with the state business and political establishment. A reform leadership under Arnold Miller, more hostile to the coal fi rms, gained control of the union.21 During the next three years, coal and other business interests suffered three costly defeats in the legislature. New laws imposed a moratorium on surface mining in counties that had no strip mines, stringent and punitive standards for surface mining were enacted, and a severance tax was placed on coal. In addition, after the Sago Mine disaster of 2006, the governor and state legislature moved aggressively to require greater safety practices and oversight in deep mines—practices such as providing workers with wireless emergency communication and tracking devices, requiring the storage of extra supplies of oxygen for miners, and mandating that fi res and explosions be reported within fi fteen minutes of their occurrence.22 Thereafter, the federal government also tightened mine safety laws, including installation of better mine seals.23 All of these actions over time indicate an erosion of the political clout of the coal industry. With the decline in coal power and the increase in competition among contending interests, there is in place today in West Virginia a much more pluralist interest group system, similar to the interest groups systems in many other states.

contemporary interest group politics

In simpler times, state governments throughout the United States dealt with far fewer issues than they do today. Alan Rosenthal notes that instead of becoming less relevant compared to the federal government, states today are at the center of the policy debate and must deal with a whole range of issues, both “big and small.”24 Indeed, West Virginia’s policy agenda today requires that the state government provide the basic physical and educational infrastructure for business, commerce, industry, farming, and the like. It must also protect the environment, control illicit drugs, provide a health care system for the poor and uninsured, promote recreation and tourism, Interest Group Politics 59 manage the confl ict between labor and management, provide a system of elementary, secondary, and higher education, provide incentives for new industries to locate in the state, represent the interest of the state in countries around the world, preserve the integrity and readiness of the state’s national guard, prevent fl ooding, encourage home ownership through low-cost loans, encourage small business development, provide incentives to keep doctors from leaving the state, take care of the poor, build and maintain prisons and jails, regulate gambling, build and maintain highways and roads, enable citizens to live lives free of discrimination based on race, gender, and physical disability (and today, sexual preferences), regulate workplace health and safety, provide for proper sewage and solid waste disposal, maintain standards of conduct for lawyers, doctors, accountants, barbers, beauticians, realtors, social workers, and, in truly “cradle to grave” fashion, the practices of morticians and cemetery and crematorium operators. Moreover, this list, though seemingly exhaustive, still leaves out policy decisions on important issues such as gun control, abortion, the death penalty, sex education, por- nography, gay marriage, religious exercises in the schools, smoking in public places, and the whole range of “family” issues, such as spousal abuse, marriage, and divorce. Given the increased responsibilities of state government, it is no wonder that the state’s interest group structure has changed from what it was when there were only a few interests at stake. John Hurd, a former president of the West Virginia Chamber of Commerce, noted that, prior to the 1960s, the number of permanent lobbyists working the legislature and the executive branch was rarely more than eight to ten, and the undisputed leaders were the representatives from the West Virginia Coal Association, West Virginia Railroad Association, West Virginia Oil and Gas Association, and West Vir- ginia Manufacturers Association. These business representatives had a close relationship with the governor, speaker of the House of Delegates, and president of the Senate, and through them, policies satisfactory to these interests were worked out.25 In addition to these association representatives, particular industries such as coal, railroads, manufacturing, oil and gas, banks, and utilities had representatives at the legislature, but these were not generally full-time lobbyists. In addition to these industry lobbyists, labor unions had permanent representation in the legislative chambers, and according to most observers their impact was signifi cant. Over the years, the afl-cio and the umwa were the dominant labor groups in the state. More recently, however, the West Virginia Education Association (wvea) and the West Virginia Public Employees Union (afscme) have emerged as important labor organizations in the state. Health care and gambling interests 60 Interest Group Politics

have also emerged as major players. As a result, there is a much greater variety of interests at work in the state’s gubernatorial and legislative arenas than ever before. This is refl ected in the number of lobbyists registered in the state. In 1977, there were 121 organizations represented by registered lobbyists in Charleston. In 1993, that number had increased to 581. In 2005 the number had declined somewhat (largely because of the development of umbrella organizations), but still numbered 476.26 The number of lobbyists representing these organizations and groups was 360, or 2.68 lobbyists for each of the 134 members of the legislature. The once dominant coal, oil, gas, and timber industries now share the business infl uence picture with the insurance industry, the health care industry, solid waste enterprises, utilities, various trade associations, and gambling interests. Moreover, the emergence of countervailing groups, such as organized labor, the wvea, and environmentalists also makes for a much more fl uid and dynamic system than was the case just a few decades ago.

lobbyists and lobbying

Lobbying includes a range of political efforts of interest groups to bring their inﬂ uence to bear on governmental policymaking.

Who Are the Lobbyists?

The array of lobbyists in and around the West Virginia state house is quite diverse. Clive S. Thomas and Ronald J. Hrebenar identify fi ve types of lobbyists: contract lobbyists, who are hired on contract for a fee specifi cally to lobby; in-house lobbyists, who are employees of an association, organization, or business; government lobbyists and legislative liaisons, who are employees of state, local, and federal agencies and represent their agency to the legislature and executive branches of state government; citizen or volunteer lobbyists, who represent citizen and community organizations or informal groups, usually on an ad hoc and unpaid basis; and private “hob- byist” or self-styled lobbyists, who act on their own behalf and who are not designated by any organization as an offi cial representative.27 All fi ve types of lobbyists exist in West Virginia, and their effectiveness depends on the issue and the particular political setting in which they operate. The most numerous and effective lobbyists in West Virginia are the contract and in-house lobbyists.28 The major interest groups in West Virginia have long hired lawyers, government relations specialists, former legislators, and former executive offi cials as lobbyists. They recognize that Interest Group Politics 61 successful lobbying, like success in any endeavor, requires both skill and experience. Clearly, prior experience in the state legislature or in the state executive branch enhances the lobbyists’ prospects for success. Moreover, many scholars of American politics have noted that training as a lawyer is most compatible with success in politics and hence success as a lobbyist.29 In 2005, for example, more than three dozen lawyers were hired as lobbyists. They represented 156 individual clients. Prominent among these lawyer-lobbyists were lawyers from the major law fi rms in the state, including Mike Basile and Michael Garrison of Spilman Thomas and Battle (Garrison was briefl y president of West Virginia University in 2007), Edward George of Robinson and McElwee, Jack E. Harrison of Goodwin and Goodwin, Tom Heywood of Bowles, Rice, McDavid, Graff, Love, and Louis South- worth of Jackson Kelly. These high-powered lobbyists from the state’s leading law fi rms represent some of the most powerful interests in the state, including coal, oil and gas, chemicals, health care, gambling, insurance, pharmaceuticals, distilled spirits, solid waste, banking, real estate, and land development. Numerous former legislators and executive offi cials also work as lobbyists. Typical of these is Stephen Haid, former secretary of education and the arts under Governor Gaston Caperton, Larry Swann, former budget director under Governor Arch Moore, Tom Susman, former director of the Public Employees Insurance Agency under Governor Bob Wise, and Michael Gar- rison, former chief of staff under Governor Wise. In 2005, Haid had twelve clients, including American Family Life Insurance (aflac), Bristol-My- ers Squibb, tiaa-cref Insurance, and the Corrections Corp. of America; Swann had sixteen, including the West Virginia Hospital Association, the West Virginia Beverage Association, and Pharmaceutical Research and Manufacturers of America (phrma); and Susman had eleven, among whom were Physicians Mutual Insurance Co., Wheeling and Camden-Clarke Hos- pitals, and the Behavioral Health Association. Two years after leaving the governor’s offi ce, Michael Garrison, a lawyer with Spilman Thomas and Battle, had twenty-seven clients, making him the single most sought after lobbyist in Charleston. Former legislators, too, are often hired as contract lobbyists. Five former legislators alone, Marc Harman (R-Grant), Larry Faircloth (R-Berkeley), Deborah Phillips (D-Putnam), Cody Starcher (D- Marion), and Keith Burdette (D-Wood), represented thirty-one different organizations, businesses, or groups in 2005. Although most contract lobbyists are lawyers, since the mid-1970s corporations and other interests have gradually increased the use of public relations or government consulting fi rms to represent them. Many of these 62 Interest Group Politics

fi rms were created by former executive branch offi cials such as Stephen Haid, Larry Swann, and Tom Susman, noted above, and Linda Arnold, a former staff member of Governor John D. Rockefeller IV and founder of the Arnold Agency, a public relations fi rm in Charleston. Add to these high-profi le public relations and governmental affairs fi rms the prestigious public relations fi rm of Charles Ryan Associates, the single most strategi- cally placed public relations fi rm in the state, with offi ces in Charleston and Washington dc and with many state and national clients, and the array of public relations fi rms serving as lobbyists is truly formidable. In the 2005 session of the legislature, these fi ve fi rms represented fi fty-seven separate clients, mostly businesses, manufacturing, and various professional associations. Only one, Larry Swann, represented a labor group, although Haid and Susman had some nonbusiness clients, particularly in the fi eld of health and health-related services. Business and other groups do not rely exclusively on contract lobbyists as their spokespersons before the legislature; nor do they rely on just a single lobbyist. Many businesses use their own in-house people to make their case before the legislature. For example, the Greenbrier Hotel, Johnson and Johnson Corporation, Norfolk Southern Corporation, CSX Corporation, American Electrical Power, Peabody Energy, E. I. du Pont de Nemours and Company, U.S. Steel Corporation, Georgia Pacifi c Corporation, Mountain- eer Track and Gaming, and Allstate Insurance Co., among others, all have in-house government relations specialists who regularly plough the halls of the state capitol. Moreover, not content to have just one lobbyist, these companies frequently have two, three, and sometimes as many as a dozen lobbyists. For example, Allegheny Energy has four lobbyists looking out after its interests, Dupont and the Banker’s Association, fi ve, the Manufacturer’s Association, eight, and Mountaineer Track and Gaming Resort, nine. In-house lobbyists tend to be the preferred type of lobbyist for organized labor, various trade groups, and professional associations. The afl-cio, American Federation of Teachers (aft), umwa, Affi liated Construction Trades, afscme, and West Virginia Education Association (wvea) are all represented by prominent in-house labor lobbyists. Likewise, in-house lobbyists are often the choice of such organizations as the West Virginia Coal Association, American Petroleum Institute, the American Academy of Family Physicians, Auto and Truck Dealers Association, Contractors Asso- ciation of West Virginia, West Virginia Retailers Association, and the West Virginia Round Table. In-house lobbyists also are frequently used by various “single-cause” groups, such as the National Rifl e Association and the Specialty Vehicle (atv) Institute of America. Interest Group Politics 63

Government associations tend to use their own elected offi cers or executive directors as in-house lobbyists. For example, the West Virginia Asso- ciation of Counties and the West Virginia Municipal League rely on their executive directors to lobby both the legislature and the executive branch, and, of course, though not “registered” as lobbyists, major executive branch offi cials and the governor himself take on the role of lobbyist as they go about the business of running state government and pressuring the legislature on behalf of the executive branch. Governor Joe Manchin has taken this form of lobbying to new heights by actually appearing on the fl oor of the House of Delegates and Senate seeking support for his proposals.30 As is the case in virtually every other state, various “citizen” groups also are represented by lobbyists. Prominent among these are groups such as West Virginia Citizens Action Group, which has as its main goal the preservation of the environment; West Virginia Kids Count Fund, a group pressing for policy decisions that promote early childhood development and enrichment; Citizens for Clean Elections, a group dedicated to overcoming West Virginia’s legacy of political corruption; and the West Virginia Coalition Against Domestic Violence. In general, these citizen groups are far less numerous and effective than lobbyists representing business, manufacturing, labor, trade associations, professional associations, gambling, and the health care industry.

Lobbyists at Work

For much of the nineteenth and twentieth centuries, state governments were known for their corruption. Although the exact form of corruption varied from state to state, much of the corruption resulted from instances when individual contractors, businesses, or other interests sought to gain infl uence by “bribing” public offi cials and legislators. In West Virginia, in the 1980s, two Senate presidents, Dan Tonkovich and his successor, Larry Tucker, were sent to prison for extorting bribes from gambling interests.31 Former governor Arch Moore was convicted in 1990 of giving false testimony in regard to receiving cash campaign contributions from a coal operator.32 And as recently as 2005, Charleston businessman Phillip “Pork Chop” Booth plead guilty to giving cash and gifts to a Department of Education offi cial in exchange for state contracts.33 Understandably, as a result of these instances of corruption, the public is likely to view the role of special interests and lobbyists in the policy process with a degree of skepticism. State government today has come a long way, however, in changing the environment in which state legislators, executive offi cials, and lobbyists 64 Interest Group Politics work.34 State legislatures are much more professional; lobbyists are subject to many more stringent rules; and government ethics and open meetings laws make it much more diffi cult for any single individual, group, business, or special interest to engage in illegalities, corruption, or undue infl uence when it comes to policy decisions. The new transparency in state government has meant that lobbyists advance their causes in ways that are fairly open and above board and known to the public. The work of lobbyists today may be categorized into at least seven basic modes of operation:

1. building relationships. Alan Rosenthal notes that successful lobbying is about “building relationships” among legislators and other government offi cials.35 Personal ties and friendships are at the core of the work of lobbyists. It is no accident, for example, that former legislators and executive offi cials in West Virginia such as Stephen Haid, Larry Swann, Michael Garrison, Debra Phillips, and Marc Harmon, noted above, are successful at what they do. They know the principals in the legislative process. Like- wise, truly successful lobbyists are those who are at the legislature session after session, with the same set of clients, and who have come to know and work with legislators over many years. For example, Tom Heywood, contract lobbyist for the Bankers’ Association and a lawyer with Bowles, Rice, McDavid, Graff, and Love; Mike Basile, a lawyer with Spilman, Thomas, and Battle and a lobbyist for duPont, Honeywell, and AmeriGas Propane; Louis Southworth, lobbyist for the Coal Association and a lawyer with the Jackson and Kelly law fi rm; and Karen Price of the West Virginia Manu- facturers Association, are lobbyists who have cultivated friendships in the legislature for as many as ten, twenty, even thirty years. They meet with legislators in the corridors of the Capitol, in the members’ offi ces, and over lunch. In 2006, for example, lobbyist Steve Haid reported spending $146 on meals and beverages for the Senate Finance Committee chairman, Walt Helmick (D-Pocahontas) and Delegates Kevin Craig (D-Cabell) and Cliff Moore (D-McDowell). Lobbyist Tom Boggs of the West Virginia Chamber of Commerce reported spending $15 each on members in attendance at a series of legislative “briefi ng breakfasts.” Those attending included Senators Evan Jenkins (D-Cabell), Brooks McCabe (D-Kanawha), and Vic Sprouse (R-Kanawha), and Delegates Rick Staton (D-Wyoming) and Charles Trump (R-Morgan), and gubernatorial aides Larry Puccio (chief of staff) and Brian Kastick (policy director).36 Meeting with legislators and executive offi cials in this fashion is a very common practice and one that allows lobbyists to meet one-on-one or in small groups to let members of the legislature and executive offi cials know their views on pending legislation. Interest Group Politics 65

2. entertainment. Entertaining legislators and executive offi cials is another time-worn tradition, though somewhat diminished in recent years. Until the passage of public ethics legislation in 1989, lobbyists routinely wined and dined legislators at legislative “buffets” almost nightly throughout the session, provided tickets and transportation to sporting events, and delivered beer or whiskey to their friends, in addition to their more respect- ed although not necessarily more effective job of supplying information to legislators. Most large groups employed one or more of these tactics. In pre-ethics legislation days, for example, the West Virginia Coal Association had fi ve lobbyists working during the 1988 legislative session. The senior Coal Association lobbyist was Carmine Cann, a former Judiciary Commit- tee chairman, who for years operated the “Coal Suite” in the Daniel Boone Hotel with his fellow Coal Association contract lobbyist, Ned “Big Dad- dy” Watson, descendent of the Consolidation Coal Company founders and former chairman of the House Judiciary Committee. The suite apparently never closed during the legislative session. It was fi tted with a well-stocked bar, food, card tables, electronic game machines, and private areas for legislators to escape from the legislature’s activities. Legend has it that once some legislators enjoyed the accommodations of the Coal Suite, they never returned to the Capitol building. The other four Coal Association lobbyists were permanent employees of the association who specialized in health, tax, and operational aspects of mining. In interviews with lobbyists representing both management and labor over the years, the coal lobby was mentioned by all as being especially effective. Clearly the Coal Association’s fi nancial resources have been a major factor in its ability to provide a panoply of activities in its lobbying efforts. Probably no other group can come close to the expertise and resources marshaled by this organization over the years. The “Coal Suite” may be gone today, but the practice continues of entertaining and socializing with legislators and executive offi cials, albeit on a reduced scale. In 2006, the West Virginia Business and Industry Council spent $11,338 for a reception attended by 371 legislators and other elected offi cials and interested parties. A similar event was held by the West Virgin- ia Society of Certifi ed Public Accountants, attended by 180 persons, including 66 public offi cials at a cost of $10,677. Other notable receptions during the 2006 legislative session were those held by the West Virginia Public Broadcasting Foundation, the state Library Association, the West Virginia Health Association, and the West Virginia County Commissioners Associa- tion.37 The total number of parties, receptions, and dinners for lawmakers and other offi cials reaches upward of 75 each session of the legislature. Not all legislators are happy with these kinds of affairs. Delegate Shirley Love 66 Interest Group Politics

(D-Fayette), who thinks such events should be banned, asked, “If the bankers or Mountaineer Race Track have receptions, don’t you think they are trying to inﬂ uence us?” Delegate Walt Helmick (D-Pocahontas), another opponent of such entertainment, declared: “It takes on the appearance of a conﬂ ict of interest. We can do without the meals.”38

3. legislative rallies. It has become commonplace in recent years for interest groups and their lobbyists to sponsor “A Day at the Legislature.” During these scheduled days, the rank- and-fi le members of special interests “swarm” on the Capitol, hold rallies on the Capitol steps, pigeon-hold legislators, and generally generate as much publicity as they can to demonstrate grassroots support for their issue or cause. Thus physicians fl ock to the legislature on “Doctors” day, public employees on their day, “pro-lifers” on their day, schoolteachers on their day, and so forth. The idea during these days is to try to demonstrate widespread support for an issue by members of the rank- and-fi le in order to infl uence the legislature and governor and certainly the general public. In 2005, for example, Governor Joe Manchin himself addressed a “pro-life” rally at the Capitol. Manchin appeared alongside several legislators and West Virginia Catholic Bishop Michael Bransfi eld, all joining to show their support for West Virginians for Life.39

4. media campaigns. The state’s interest groups also attempt to broaden their infl uence over policy by affecting public opinion, particularly elite opinion. One way they do this is through media campaigns. For example, Steve Roberts, president of the West Virginia Chamber of Commerce, regularly contributes opinion articles to the state’s leading newspapers, the Charleston Gazette and Charleston Daily Mail. The business community also uses the weekly State Journal, the single most infl uential newspaper among business elites in the state, as a mouthpiece for the pro-business point of view. The State Journal is part of a media conglomerate owned by Bray Cary, a former nascar executive. Cary’s four tv stations blan- ket the state, and he himself is featured in the weekly tv program, “Deci- sion Makers,” in which the interest of the West Virginia business community is typically trumpeted. Another frequent contributor to various media outlets is Ted Arneault, the ceo of mtr Gaming Group and owner of the Mountaineer Race Track and Gaming Resort. Arneault is a frequent guest on wajr radio’s Talk Line, a daily talk show hosted by Hoppy Kercheval and considered among the most infl uential of media outlets in the state. Kercheval’s program regularly features prominent legislators, the governor and other executive branch offi cials, business and labor spokespersons, as Interest Group Politics 67 well as political party leaders. wajr and the Dominion-Post newspaper in Morgantown are owned by John Raese, a prominent coal and limestone executive. Raese also has served as state chair of the Republican Party and ran unsuccessfully on the Republican ticket against Senator John D. Rock- efeller IV on two occasions and against Senator Robert Byrd in 2006.

5. drafting legislation. Another common interest group activity is the hiring of temporary staff and the use of outside counsel to draft legislation. West Virginia’s legislature has relatively few full-time employees, and until 1993 its committees had no permanent legal staff. Today, only the House and Senate Judiciary Committees have a permanent legal staff member. Therefore, the legislature routinely hires dozens of lawyers during the legislative session to serve as committee counsel or to work for the leadership. Frequently, these attorneys represent major interests in the state and thus are in strategic positions to infl uence the language of legislation that might affect their clients. For example, the single most important law fi rm involved in infl uencing the legislature over time has been Jackson and Kelly, whose attorneys have served as clerks for both chambers’ Judiciary committees. Jackson and Kelly is the state’s largest, most prestigious, and most powerful law fi rm. Among its clients over the years have been West Virginia-American Water Company, gte, Cabot Corporation, B. F. Goo- drich, Johns-Manville, Ernst and Whitney, Union Carbide, West Virginia Coal Association, Beth Energy, Arch Mines, Ashland Oil, Consolidation Coal, Island Creek Coal, Westmoreland Coal, Cannelton Industries, Carbon Industries, General Motors, and Ford Motor. Occasionally major legislation is written by such outside fi rms. A signifi cant example of this was a 1986 bill that radically restructured coal mine safety and environmental enforcement in West Virginia. The bill created a new Department of Energy from the old Department of Mines and transferred most environmental enforcement to it from the Department of Natural Resources. The new law also removed a confl ict-of-interest provision from the code, thereby permitting the Energy Department director to have holdings in the mine or reclamation businesses. Environmental and union groups opposed much of this legislation. The coal industry strongly supported it. According to a coal executive, the bill made the Department of Natural Resources “more of a coal advocate than an industry antago- nist.” This bill was drafted by the then Charleston law fi rm of Bowles, Mc- David, Graff and Love. Among Bowles clients at the time were Ashland Oil, Bright of America, Cecil Walker Machinery Corp., Midwest Corp., nrm Petroleum, Peabody Coal, Sonate Exploration Company, Taywood 68 Interest Group Politics

Mining, Terry Eagle Mining, Southeastern Gas Company, and the West Virginia Mining and Reclamation Association, a strip-mining trade association.40 Bill drafting of another sort occurs when the state’s leaders seek to bring all parties together to solve a particular policy problem. For example, in 2005 when it became evident that the state’s workers’ compensation system was not working well, the governor and legislative leaders brought together representatives of the Coal Association, Trial Lawyers, Chamber of Com- merce, and other business leaders, and the afl-cio to craft a 400-page reform bill providing for the creation of a new, privatized workers’ compensation system and special taxes (on coal and timber) to pay down unfunded liabilities in the old system.41 A similar bill drafting exercise by the same parties occurred in regard to tort reform legislation passed in 2002 and again in 2005.42 Secretary of State Betty Ireland also used lobbyists to hammer out rules for the state’s new campaign ﬁ nance laws, passed in 2005. Ire- land’s “lobbyist consultants” included representatives of six of the most inﬂ uential interest groups in the state—Ted Hapney of the umwa, Melissa Adkins of West Virginians for Life, Julie Archer of the West Virginia Citi- zens Action Group, Perry Bryant of the West Virginia Education Associa- tion, Chris Hamilton of the Coal Association, and Brenda Nichols Harper from the Chamber of Commerce. At the time, Ireland stated, “This group does not get veto power . . . it does not get voting power. [However], we’re trying to listen to their concerns and what they think should be in the rules. . . . We wanted the stakeholders at the table.”43

6. coalition building When the occasion arises, or as a matter of necessity, separate interest groups engage in coalition building to enhance the likelihood of achieving policy goals. One of the most successful has been that of the Business and Industry Council. bic is composed of more than fi fty of the state’s largest and most important trade associations, businesses, law fi rms, and manufacturers, including the West Virginia Builders Supply Association, West Virginia Contractors Association, West Virginia Indepen- dent Oil and Gas Association, West Virginia Chamber of Commerce, West Virginia Coal Association, West Virginia Manufacturers Association, the West Virginia Retailers Association, and the West Virginia Mining and Rec- lamation Association. The group was formed in 1981 under the leadership of the West Virginia Coal Association and the West Virginia Chamber of Commerce to provide a means for business and the industrial community to consolidate and coordinate efforts regarding legislative, governmental, and regulatory matters in this state. The bic founders had two immediate goals: Interest Group Politics 69 to provide a united business front to the legislature and governor, and to give recognition to those who supported the business philosophy.44 bic fulfi lls these goals in several ways. During the session or at other times bic members, who are lobbyists for their individual and business associations, meet to plan strategy and to decide issues around which to cooperate.45 Occasionally they assign individual lobbyists to selected legislators to make friendships, rally campaign supporters, or solidify constituency relationships. Clearly such a strategy gives the business community, at least those in bic, another important contact in regard to issues and personalities in every legislative session. A second major activity is to conduct public relations campaigns to convince both legislators and the public to support the bic-endorsed policy position. Often this activity takes the form of full- page ads in newspapers. One such ad, “Civil Justice Reform Needed to Stop Lawsuit Abuse and Help Create Jobs in West Virginia,” appeared in the Charleston Gazette at the height of the legislative debate on tort reform in 2005.46 Although business interest groups often cooperate and form alliances such as bic, divisions do sometimes occur among business groups. One of the more fascinating divisions occurred in 1985 between two groups that are ordinarily allies, the coal and railroad industries. Coal companies, which face stiff competition in both their domestic and foreign sales, charged that the railroads were abusing the rail bed monopoly they enjoyed in delivering coal to the eastern seaboard. They did this, it was argued, by charging rates far beyond the cost of haulage. To remedy this, the coal companies proposed that competition be permitted on tracks that pass through the coalfi elds. Obviously, the railroads did not want to share an extremely lucrative market. Such a profound split between these two giants is rare; some would say unprecedented. Given the reputation of these two groups, it was thought that this dispute would produce a major confrontation in the legislature. In the end, there was no contest. The railroads faced united opposition from all groups interested in the mining industry’s health. In the fi nal vote, the railroads lost in the Senate, 34–0, and in the House, 71–27.47

7. formal government decisionmaking Interest groups also exercise considerable inﬂ uence in policy matters through participation on a large number of boards and commissions on which interest groups representatives serve. In many cases, the legislature requires these boards and commissions to include representatives from the groups being regulated. Even if the legislature does not require such representation, the governor invariably follows the practice of appointing regulated industry representatives. Two of the 70 Interest Group Politics

appointed members of the Air Pollution Control Commission, for example, must be representatives of industries engaged in business in the state. Four of the six members of the Board of Banking and Financial Institutions must be executives of banking and fi nancial institutions. The Mine Board of Appeals has three members: one representing industry, one representing labor, and the third selected by the other two. The Reclamation Board of Review, Water Resources Board, and the Coal Mine Health and Safety Board do not have statutory requirements for industry/labor representation, but the boards are invariably dominated by industry and union representatives. A good example of how lobbyists can affect policy through membership on formal decisionmaking agencies is in regard to the state’s Pharmaceutical Cost Management Council. Created by the legislature in 2004, the council is made up of health care executive offi cials and representatives of various health care interest groups. The council’s purpose is to try to control the cost of drugs to West Virginians. Industry representatives on the council include a physician, a representative of the pharmaceutical industry (currently, for example, the government relations director at Mylan Pharmaceutical), and two others representing hmos. Recently, in a 5–4 vote, with industry representatives voting in the majority, the council agreed not to require drug companies to make public all gifts, grants, or payments to physicians.48 On the surface, at least, it looks as if the council caved in to the interests of the pharmaceutical industry and the doctors. Finally, interest groups have signifi cant infl uence on formal policymaking in West Virginia’s executive branch often because the executive branch lacks experienced executive offi cers. This occurs for two reasons. First, West Virginia’s public salaries are among the lowest in the nation, thus leading to high turnover in state government employment. Frequently perceived as a training ground for employment in private enterprise, many public employees move into the private sector where salaries are higher. For example, there has been a steady fl ow of employees from the De- partment of Natural Resources and the Bureau of Mines into the mining industry and of young lawyers from the Offi ce of Attorney General into private law fi rms. Interest groups can take advantage of this situation by pressing claims on inexperienced executive offi cials or contact with offi cials with whom former executive offi cials worked.

Lobbying Regulation

For years, West Virginia had no lobby registration law. In 1976, however, the Senate modifi ed its rules to mandate registration of lobbyists with the Interest Group Politics 71 clerk of the Senate. The Senate rules did not require government or political party personnel to register, but all others were required to do so. Lobbyists were expected to identify the groups they represented, issues with which they were concerned, and their expenditures. However, failure to comply with the rules did not entail criminal sanctions because no statute was involved, and indeed, the Joint Rules Committee, which oversaw lobbying regulations, never dealt with the subject. In 1989, the legislature passed the historically signifi cant Governmental Ethics Act. It mandated a new code of conduct for legislative lobbyists.49 Under this law, lobbyists are required to register with a State Ethics Com- mission and to place on fi le the identity and business of their employer, the general subject of the lobbying activity, and a statement of the contract agreement between the lobbyist and employer. They also must fi le copies of their registration with the clerks of the two houses along with a recent photograph and biography to be included with others in a booklet published by the Ethics Commission and to fi le a report of lobbying activities. In legislation effective July 1, 2006, lobbyists must fi le their reports on three occasions each year: January 1, May 15, and September 15.50 The report requires a list of all expenditures, including meals, travel, accommodations, gifts, and contributions and any expenditures made to or on behalf of government offi cers or employees.51 Formerly lobbyists only had to report expenditures in excess of $25. In one very signifi cant change, the new law requires fi nancial audits of lobbyists to be conducted by the Ethics Commission. Under the new procedure, the Ethics Commission must randomly select lobbyist reports for auditing. Professional auditors must then be hired to conduct the audits in order to ensure compliance with all lobbying laws. The penalty for violating the act is a public reprimand and a civil fi ne up to $5,000. The Governmental Ethics Act also prohibits certain practices. Public employees or appointed or elected public offi cials may not use their offi ce for private gain or use subordinates to work on personal projects or activities during work hours, such as campaigns. Public employees may not have a fi nancial interest in any contract or purchase over which their job gives them control, and with some exceptions like meals, beverages, and ceremonial gifts, public offi cials may not accept or solicit gifts from lobbyists or other “interested persons.” Thus the laws on lobbying went from negligible to a fairly comprehensive system of accountability. With rare exception, most analysts have concluded that the law, coupled with major prosecutions of wrongdoers by the U.S. Attorney’s Offi ce, has been moderately successful. Lobbyists have become more circumspect in offering meals and beverages to lawmakers,52 and the famous “Coal Suite” has now been shut down.53 In 72 Interest Group Politics

1994, moreover, the West Virginia Ethics Commission forced the dismissal and fi ne of a public highway offi cial who had abused the Ethics Act’s private gain provisions, an action that was upheld by the West Virginia Supreme Court of Appeals.54 In 2005 the Ethics Commission penalized a legislator from the Eastern Panhandle for confl ict of interest and for fabricating letters that appeared to exonerate the legislator from any wrongdoing.55

the electoral influence of interest groups

Interest groups have long understood that the best way to infl uence policy is to elect public offi cials who are predisposed to support the group’s policy goals. No group has understood this better than labor unions, which for years have pursued a strategy of “rewarding their friends and defeating their enemies.”56 In West Virginia, for example, dozens of candidates for offi ce have sought the union endorsement of their candidacy, even as the power of unions in the state has diminished in recent years.57 The electoral activities of interest groups have risen to whole new levels in the nation in the last thirty years as a result of the passage of the Federal Election Campaign Reform Act of 1974. Under this legislation, corporations and other groups can now formally and legally enter the electoral arena by forming political action committees (pacs). pacs are organizations legally separate from but closely associated with corporations, businesses, and various advocacy groups. These groups can solicit contributions from their members and, in turn, make contributions to political parties and candidates or spend money on behalf of candidates so long as, in the latter case, that expenditure is not known to the candidate. Following the passage of the federal legislation in 1974, many states followed suit, including West Vir- ginia in 1978.58 Today there are approximately 4,500 pacs nationally and some 425 registered in West Virginia. Virtually every major business, trade or professional association, labor union, or advocacy group has a pac. pacs are signifi cant because of the money they can provide candidates. Money, of course, is almost always critical in election campaigns because it usually means the difference between “winners” and “losers.” In the 2002 election for the state legislature in West Virginia, for example, about $6 million was contributed by interest groups and individuals to candidates for the House of Delegates and Senate. “Winners” received $4 million of this sum, and “losers” got $2 million.59 The 2–1 advantage of money ends up being a clear electoral advantage. On the other hand, money does not always determine electoral outcomes, and the 2002 legislative election also serves to illustrate this point. In that Interest Group Politics 73 election, a little-known Republican candidate for the state senate, Lisa Smith, was able to defeat longtime Democratic incumbent and legislative leader Oshel Craigo. Craigo actually raised more money in his Putnam County district than his opponent, but what the Craigo campaign experienced in the election was a district that had steadily become more and more Republican as people moved to the Charleston suburbs and the fact that Craigo himself was identifi ed as being on the wrong side of a particular issue (video poker) that resonated with many socially conservative voters.60 The 2002 legislative election also illustrates the role of interest groups in election campaigns. In 2002, one of the leading statewide issues in the election was that of medical malpractice reform. This issue had come to the fore because of numerous news stories claiming that doctors were being forced to leave the state because of the high cost of medical malpractice insurance. It was claimed that the high insurance rates were due to excessive jury awards in malpractice cases. As it turned out, this issue served to ener- gize the health care industry. Physicians, hospital executives, and healthcare pacs contributed almost $500,000 to legislative races that year. One medical group, the West Virginia Hospital Association, by itself, contributed in excess of $50,000 to candidates in the election. The Trial Lawyers Associa- tion, which opposed medical malpractice reform proposals, could not match physicians and other health-care providers in their contributions, donating only about $60,000.61 After intense lobbying by the medical community, the state legislature did, in fact, enact medical malpractice “reform” legislation in 2002, which included a $500,000 cap on noneconomic damages in cases involving wrongful death and dismemberment and $250,000 in cases involving lesser injuries.62 Clearly, physicians and insurance companies won the day on this issue. However, the fact that health-care providers gave the largest sum of any group to candidates in 2002 did not in itself guarantee success. Of the fi ve state senate candidates who received the most money from health-care providers, only two won election. Just as money does not guarantee election success, it might not guarantee policy success either. In 2002, three of the top ten contributors to legislative candidates were representatives of gambling interests—Ted Arneault, ceo of Mountaineer Race Track, who gave $33,350 to seventy-three candidates; Jeremy Jacobs of Delaware North Companies, owner of Wheeling Downs Racetrack, who contributed $26,000 to sixty-one candidates; and Herbert Tyner, an owner of Tri-State Race Track and Gambling Center in Cross Lanes, West Virginia, who contributed $17,450 to thirty-fi ve candidates.63 These lobbyists had hoped to persuade the legislature to adopt legislation to permit table games at their gambling facilities. However, in 2007, the 74 Interest Group Politics

legislature eventually passed the legislation. In 2008 the voters approved the operation of the games at three racetracks.64 The political clout of organized interests has never been more apparent than in three very prominent instances involving the elections of 2000 and 2004 and the special election of 2005. In 2000, interest groups played a very signifi cant role in the presidential election. In that election the national Republican Party saw an opportunity to turn normally “Blue State” West Virginia into a “Red State,” thereby reversing the long-term pattern of West Virginia voting Democratic in presidential elections. In fact, West Virginia had not supported Republican nominees for president since 1932, except in the elections of 1956, 1972, and 1984, the second-term election of Republi- can presidents Eisenhower, Nixon, and Reagan. The issues in 2000 that made it possible for the Republicans to win West Virginia included jobs, gun control, and “family values.” The interest group that took the lead in orchestrating the Republican victory was the coal industry, led in this instance by James “Buck” Harless, one of the leading coal and timber executives in the state. When Al Gore, known for his strong environmental views, became the Democratic nominee, Harless became a strong backer of George W. Bush, mobilizing the coal industry as it had never been mobilized before, raising money for the campaign (becoming one of Bush’s leading fund-raisers nationally), and virtually crushing the Democrats on the issue of jobs versus the environment in West Virginia. Bush’s strong support by the coal industry gave him the campaign fi nancial resources he needed. Other issues, summarized by the slogan, “Guns, Gays, and God,” provided Bush with the panoply of issues he needed to appeal to rank-and-fi le, relatively conservative Democrats in the state.65 Thus interest groups—the coal industry, the nra, West Virginians for Life, and other less well known groups, including a Republican Party-backed group that distributed a fl yer which claimed that if Democrats were elected, they would take away the Bible—demonstrated the power that such groups have.66 Emboldened by success in the 2000 presidential election, the coal industry, along with its electoral allies in the 2004 state elections—physicians, insurance companies, and the West Virginia Chamber of Commerce—targeted for defeat West Virginia Supreme Court of Appeals Justice Warren McGraw.67 McGraw was targeted for defeat because he was thought to be too pro-labor, too pro-plaintiff, too pro-criminal defendant, too pro-environment, and too pro-consumer. The effort to defeat McGraw was led by a newly formed independent interest group called “And for the Sake of the Kids.” This had its origin in a Supreme Court of Appeals case in which a sex offender was released and allowed to work in a school. And For the Sake of Interest Group Politics 75 the Kids fi lled the television airwaves with political advertisements blaming Warren McGraw and a “runaway” West Virginia Supreme Court of Appeals with endangering children and generally making for a judicial “hellhole” in West Virginia. McGraw was defeated. When the election was over, it became known that the person who responsible for “And for the Sake of the Kids” was none other than Donald Blankenship, who contributed $2.3 million of his own personal fortune to the organization. Thus it was the coal interest, with a strong assist from the chamber of commerce, corporate law fi rms, businesses, and various “family values” groups, who fl exed their political muscle in what would have normally been a routine reelection of a sitting justice.68 Since that 2004 election, Blankenship has pledged to do whatever he can, including spending large sums of his own money, to defeat others not sympathetic to the coal agenda or to his own political agenda. However, in the 2006 legislative races Blankenship’s expenditure of $2.04 million on Republican candidates failed to unseat thirty-one of the Demo- crats. Indeed, by targeting Republican candidates as instruments of a Blan- kenship “power grab,” the Democrats increased their seats in both houses of the state legislature.69 A third case that illustrates the political power of corporate interests was a proposal in 2005 by Governor Joe Manchin to issue bonds to solve the state’s underfunded pension system. At the time the governor made his proposal, he had just come off a 63 percent victory margin in the 2004 election and, according to polls, was one of the most popular governors in the nation. Manchin’s plan had the backing of the state’s business community, including some coal companies. Again, however, Don Blankenship waged a personal campaign to defeat the referendum. Pouring literally hundreds of thousands of dollars into an advertising campaign to defeat the governor on his proposal, Blankenship was able to persuade a majority of voters to vote against the bond issue, handing the governor a major defeat.70 These cases illustrate well the electoral power of certain economic interest groups in modern-day West Virginia politics.

the relative influence of interest groups

Interest groups and their representatives—the lobbyists—vary in their inﬂ u- ence, depending on time, circumstance, and the particular issues involved. Unquestionably, throughout much of its history, West Virginia’s economic, social, and political life has been dominated by the coal industry and related business groups. Over time, however, as the economy in West Virginia has evolved and as social issues have changed, it is evident that the once 76 Interest Group Politics

Table 6. Legislators’ Perceptions of Group Inﬂ uence in the West Virginia Legislature, 2005

Group Category Mean Score* Rank Order

Higher Education (colleges, universities) 4.268 1 Employee Groups (state employees, teachers) 4.214 2 Natural Resources (coal, oil, gas, forests) 4.071 3 Health Care (hospitals, physicians, dentists, etc.) 3.982 4 Organized Labor (unions) 3.714 5 Business (retail, wholesale, tourism) 3.714 5 Gambling (racetracks, gaming) 3.696 6 Financial Services (banking, insurance) 3.571 7 Manufacturing (chemical, auto, pharmaceuticals) 3.472 8 Local Government (county, city ofﬁ cials) 3.375 9 Law Firms and Associations 3.304 10 Utilities (electric, telephone) 3.268 11 Social Services (youth, seniors) 3.036 12 Transportation (rail, highway, waterway) 2.803 13 Public Interests (environment, good government) 2.750 14

*Mean score is the average of the scores of legislators, rating the degree of infl u- ence from 1 to 5, where 1=very little infl uence and 5=a great deal of infl uence. Source: Survey by the authors.

dominant position of coal has now diminished somewhat, even as it has enjoyed recent electoral successes. There are many more political “players” today in the policy arena than there were previously. To gauge the extent to which there has been change in the relative infl u- ence of interest groups in the state, the authors conducted a survey of state legislators in 2005 and compared the results of the survey with one conducted in 1987.71 Both surveys asked members of the House of Delegates and the Senate to assess the infl uence of registered lobbying groups in the state legislature. Specifi cally, each legislator was asked to rate the infl uence of each group on a scale from 1 to 5 with 1 representing “very little” infl uence to 5 representing “a great deal” of infl uence. In addition, for the 2005 survey, legislators were asked to rate the relative infl uence of broad categories of interest groups, such as business, higher education, gambling, organized labor, natural resources, and the like. Thus, unlike 1987, the 2005 survey produced data assessing the relative infl uence of groups in broad segments of the economy and among various social groupings. Interest Group Politics 77

Taking the 2005 survey results regarding the relative infl uence of broad categories of interests fi rst, as shown in table 6, it is evident that some very traditional interests, such as organized labor and natural resource interests (coal, oil, gas, and timber), are still considered among he most infl uential in the state. Natural resources ranks 3rd in the rank ordering of interest groups and labor as 5th. Joining these traditional power groups at the top, however, are “higher education,” ranked 1st, “employee groups,” ranked 2nd, and “health care,” ranked 4th. With the ascendency of the latter groups, some traditional powerful interests, such as manufacturing (ranked 8th) and utilities (ranked 11th) have declined in infl uence, at least as perceived by the legislators. The ascendency of the new groups no doubt refl ects the ascen- dancy of their issues—education, public employee unionization, and health care—as important in today’s mixed economy. A second tier of interests, groups ranked 6th to 10th, include gambling (6th), fi nancial services (7th), manufacturing (8th), local government (9th), and law fi rms and associations (10th), include both traditional and new groups. The newcomers to this group are gambling, local government, and law fi rms. The emergence of gambling as an important interest no doubt refl ects the legalization of gambling and the dependence that the state now has on gambling as a stream of revenue for state government. As might be expected, given West Virginia’s history, public interest groups are at the bottom of the rankings (14th). Likewise, social services are near the bottom (13th). The 1987 and 2005 surveys provide comparative data on the relative infl uence of specifi c interest groups. These data are displayed in table 7. Analyzing these data, it is evident that there is much that has remained the same in the West Virginia interest groups system over the past two decades, but there is much that has changed as well. Among the constants is the fact that business continues to dominate the interest group system. Of the top 60 interest groups in 2005, over half (35) are groups representing business and manufacturing. In 1987, just under half (22 of 45 ranked groups) were associated with business and manufacturing. Moreover, some businesses, ranked in the middle or toward the bottom in 1987, have moved up con- siderably in perceived infl uence. For example, the West Virginia Beverage Association moved from 31st in 1987 to 3rd in 2005; the West Virginia Motor Truck Assoc. from 30th to 14th; and Blue Cross/Blue Shield moved from 33rd to 16th. In addition, several businesses appeared high on the list in 2005 that did not even make the list in 1987. This is true, for example, of Mylan Laboratories, now ranked 4th, American Insurance Association, now ranked 10th, and Arch Coal Company, now ranked 13th. The 2005 list of the 78 Interest Group Politics

Table 7. Inﬂ uential Lobbying Groups as Perceived by Members of the State Legislature, 1987 and 2005

Mean Score* Rank Order 2005 2005 1987

West Virginians for Life 4.286 1 28 West Virginia Kids Count Fund 4.054 2 --- wv Beverage Association 4.036 3 31 Mylan Laboratories, Inc. 3.875 4 --- wv Medical Association 3.727 5 21 wv Hospital Association 3.593 6 14 wv Trial Lawyers Association 3.589 7 --- National Riﬂ e Association 3.589 7 1 National Organization of Women 3.564 8 35 School Boards Association 3.510 9 --- United Mine Workers (umwa) 3.464 10 --- American Insurance Association 3.464 10 --- Association of Elementary School Pincipals 3.455 11 27 wv Troopers Association 3.410 12 --- Arch Coal Co. 3.396 13 --- wv Motor Truck Association 3.370 14 30 wv Retailers Association 3.327 15 18 Blue Cross/Blue Shield 3.309 16 33 wv Bankers Association 3.292 17 6 wv School Service Personnel Assocation 3.291 18 2 wv Dental Association 3.260 19 36 Dow Chemical Co. 3.259 20 --- American Federation of Teachers 3.224 21 19 Charles Town Races and Slots 3.208 22 --- wv Secondary School Principals Association 3.204 23 --- Columbia Gas Transmission 3.167 24 --- wv Automobile and Truck Dealers Association 3.164 25 15 wv Labor Federation, afl-cio 3.113 26 --- Dominion Resources 3.112 27 3 Verizon Communications 3.093 28 --- wv Wholesalers Association 3.093 28 24 Am. Fed. of State, County, and Municipal Emp. 3.089 29 17 Allegheny Energy 3.074 30 --- Interest Group Politics 79

E.I. Dupont Company DeNemours and Co. 3.074 30 --- Bowles Rice McDanid Graff Love 3.061 31 --- wv Oil and Gas Association 3.055 32 22 wv Magistrate Association 3.054 33 --- Steptoe and Johnson 3.038 34 --- League of Women Voters 3.019 35 29 Area Roundtable 3.018 36 --- Consolidated Energy 3.000 37 23 West Virginia Education Association 3.000 37 4 Sporting Dog Association 2.982 38 --- wv Manufacturers Association 2.982 38 12 wv Highlands Conservancy 2.961 39 40 Hospitality and Travel Association 2.943 40 --- wv Surface Mining and Reclamation Association 2.923 41 13 County Commisioner’s Association 2.907 42 --- Bright Enterprises 2.906 43 --- School Administrator’s Association 2.887 44 --- wv Chamber of Commerce 2.843 45 11 Motorcycle and atv Association 2.840 46 --- wv Farm Bureau 2.804 47 16 wv Municipal League 2.796 48 26 wv Health Care Association 2.796 48 --- wv Tobacco Council 2.771 49 45 Building and Construction Trades, afl-cio 2.769 50 8 Charleston Newspaper 2.760 51 --- Greyhound Owners and Breeders 2.755 52 --- American Petroleum Institute 2.745 53 22 Cigar Association of America 2.729 54 44 Spilman Thomas and Battle 2.725 55 --- Toyota Manufacturing 2.717 56 --- PhRma 2.704 57 --- Massey Energy, Inc. 2.673 58 --- WV Association of Senior Programs 2.646 59 --- WV Railroad Association 2.642 60 37

*The mean score is the average of scores of legislators, rating the degree of infl u- ence of each group from 1 to 5, where 1=very little infl uence and 5=a great deal of infl uence. Source: Authors’ survey of legislators, 1987, 2005. 80 Interest Group Politics

top sixty is notable also for the emergence of gambling interests, the insurance industry, and the continuing presence of coal, oil and gas, and related industries. Of the ten companies or associations doing business in this arena, prominent among them are Columbia Gas (ranked 24th), Allegheny Energy (30th), the Oil and Gas Association (32nd), Consolidated Energy (37th), the West Virginia Mining and Reclamation Association (41st), Massey Energy (58th), and Bright Enterprises (43rd). The most startling decline in infl uence is that of organized labor. The afl-cio has dropped in perceived infl uence from 3rd in 1987 to 27th in 2005; the West Virginia School Service Personnel Association dropped from 2nd to 18th; the wvea dropped from 4th to 37th. These are dramatic declines in perceived infl uence and refl ect, no doubt, the fact that unions have lost membership, coal companies are increasingly being operated with nonunion workers, and the political clout of labor has diminished overall. Part of the reason for the decline of groups like the wvea is the fact that there are many more education groups vying for infl uence in today’s interest group system. In 1987, there were but three main players—the wvea (ranked 4th), the School Service Personnel Association (2nd), and the American Federation of Teachers (19th). In 2005, the number of education- related groups had grown to eight, including West Virginia Kids Count Fund (ranked 2nd), West Virginia School Boards Association (9th), the Associa- tion of Elementary School Principals (11th), the School Service Personnel Association (18th), the American Federation of Teachers (21st), the Sec- ondary School Principal Association (23rd), the West Virginia Education Association (37th), and the School Administrators Association (44th). Aside from the preeminence of business groups, the 2005 list of top lobbying groups shows the rise of new groups. Among these is West Virgin- ians for Life (ranked 1st), Mylan Laboratories (ranked 3rd), the Medical and Hospital Associations (ranked 5th and 6th, respectively), and the Trial Lawyers Association (ranked 7th). The emergence of these groups at the top refl ects the emergence of social issues, health care, and tort reform as important issues on the policy agenda in this new century. Still, the infl uence system in West Virginia is dominated by business, which no doubt refl ects Governor Joe Manchin’s campaign and governing motto: “West Virginia: Open for Business.” conclusion

West Virginia is no longer run by a single industry or locked into a bipolar confl ict between coal fi rms and the umwa. The coal industry remains infl uential, but as the state’s economy has become more diverse and the Interest Group Politics 81 labor movement more coordinated and democratic, no single industry is able to dominate as in the past. Today, businesses and health care providers are clearly the most powerful and best organized interest groups in West Virginia. Labor is competitive but is in no position to formulate a legislative agenda acceptable to more than a handful of legislators. It can, however, prevent legislation that could seriously weaken the labor movement or reduce the benefi ts that it has won in the past. Public employee unions, especially afscme and wvea, also continue to be important participants in state politics, and a number of other interest groups have earned a niche in the policy process and exert a great deal of infl uence on specifi c policy issues as, for example, West Virginians for Life. Thus West Virginia’s interest group system now has more participants than ever before, and while various business interests hold the upper hand on many issues, they are facing increased competition over the shaping of the political agenda from many other groups, especially from those representing environmental concerns, education, and health care providers. chapter four

Intergovernmental Relations and the Political Agenda

Although West Virginia is relatively small in both area and population, it currently has 686 governments operating within the state, not counting the federal government. It has 55 county governments, 55 school districts, 233 municipal governments, and 342 special districts.1 With so many governments providing public goods and services in the state and with 2,854 state and local government elected offi cials (401 state elected offi cials, 442 county elected offi cials, 275 school board members, 233 mayors, 233 city clerks/recorders, and 1,270 city council members) all “in charge,” the extent and complexity of the relationships between and among these governments and elected offi cials is relatively great.2 However, not all of these participants have an equal role in defi ning the state’s policy choices. The state constitution, for example, clearly identifi es the state government as the dominant partner in West Virginia’s state-local government relations, and in recent years the federal government has emerged as the dominant partner in West Virginia’s federal-state-local government relations. To survey how these myriad intergovernmental relations affect the capacity of state and local governments to address public concerns, this chapter will discuss the federal role in West Virginia politics. It especially will evaluate how the federal government sets the agenda for state and local politics about health and welfare policy, state-local government relations, interstate relations, and relations among local governments.

federal-state-local government relations

The federal government has always played an active role in West Virginia’s political system. During the nineteenth century it worked closely with West Virginia’s state and local governments to promote the state’s economic Intergovernmental Relations 83 development. The U.S. Army Corps of Engineers, for example, worked with the state to improve navigation along the Ohio, Monongahela, Ka- nawha, Little Kanawha, and Big Sandy rivers. These improvements were critical for the development of the state’s coal, timber, and petroleum products industries. The federal government also paid for the construction of the Cumberland Road. Completed in 1811, it connected Cumberland, Mary- land, with Wheeling and the Ohio River, changing Wheeling from a small frontier town into the nation’s gateway to the West. In 1867, it granted the state 150,000 acres of land, located mostly in the present states of Min- nesota and Iowa, to establish a land-grant college that offered instruction in agricultural and mechanical arts. The state used the proceeds from the auction of the land to establish West Virginia University.3 Near the turn of the century, and especially following the 1913 adoption of the Sixteenth Amendment, which legalized the federal income tax, the federal government began to offer states intergovernmental grants-in-aid programs to help them pay for such activities as the paving of roads in rural areas that were used by the U.S. Postal Service to deliver the mail and the establishment of agricultural experiment stations.4 West Virginia aggressively pursued federal money whenever it became available, primarily because it was a poor state that needed the money to provide services that its elected ofﬁ cials considered both necessary and desirable. Between 1922 and 1929, for example, the federal government spent over $125 million to establish a series of locks and dams along the Ohio River that were critical to the continued development of West Virginia’s economy. West Virginia also beneﬁ ted from the adoption of federal grant-in-aid programs during the Great Depression that were designed to combat unemployment by hiring people to build public service projects, such as dams and bridges. Federal funding in West Virginia jumped from just $3.2 million in 1932 to $31.6 million in 1934, and the federal government’s Federal Emergency Relief Administration and Works Progress Administration provided jobs for more than 100,000 unemployed West Virginians between 1933 and 1936.5 The number of federal grant-in-aid programs continued to increase after the Depression ended, reaching 132 in 1960. Their cost increased as well, reaching $6.8 billion. Most of the funds were used for relatively noncontroversial purposes having widespread bipartisan support at all levels of government, primarily road construction ($3 billion) and income maintenance ($2.6 billion). West Virginia aggressively pursued federal grants whenever they were made available because they were used for noncontroversial purposes, had relatively few administrative requirements, and provided states with wide latitude of authority concerning project selection and eligibility requirements.6 84 Intergovernmental Relations

The federal grant-in-aid programs’ relatively permissive, noncontroversial nature changed during the 1960s and 1970s. Convinced that state and local governments were either fi scally unable or politically unwilling to address the needs of the poor, combat racial discrimination, or clean up the nation’s water and air, large Democratic majorities in the Congress, committed to Keynesian economics and its advocacy of federal government spending, decided to take action. They attacked poverty and racial discrimination by encouraging states to take a more proactive position in the areas of health, education, welfare, transportation, and job training. They did this by offering an increasing array of intergovernmental grants in each of these areas. Between 1960 and 1968, the number of federal grant-in-aid programs nearly tripled, increasing from 132 to 387. Moreover, the number of grants continued to increase throughout the 1970s, reaching 539 in 1980. Funding also increased dramatically, reaching $18 billion in 1968 and $90 billion by 1980. These new programs expanded the federal government’s involvement in many areas of domestic policy that formerly were handled almost exclusively by state and local government offi cials, including health care (particularly through the adoption of Medicaid in 1965, which funds medical assistance for the poor), education (primarily through the expansion of assistance for educating the economically disadvantaged and for school construction), and social welfare (particularly through the expansion of the food stamp program and additional funding for the Aid to Families with De- pendent Children, now called the Temporary Assistance for Needy Families program). The federal government also supplemented state and local efforts in many areas, especially highway and mass transit construction. In 1965, at the insistence of Senator Jennings Randolph of West Virginia, the federal government also made a special effort to combat poverty in West Virginia and other Appalachian states by forming the Appalachian Regional Commission (arc). During the 1970s and 1980s, arc spent approximately $300 million annually to improve the region’s economy, focusing on the construction of highways to provide Appalachia’s businesses with better access to eastern markets. arc also funded the construction of water and sewer lines, industrial parks, primary care clinics, and vocational schools.7 During the early 1990s, several congressmen from other regions tried to eliminate arc, arguing that its funding was political pork and no longer necessary. In 1995, arc’s budget was reduced to $100 million annually. Today, arc receives $65 million in federal funds for area improvements. In addition, about $470 million is provided annually for the Appalachian Development Highway System. During the late 1960s and 1970s, the federal government issued numerous Intergovernmental Relations 85 regulations and federal mandates to force states to take a more proactive position in the areas of racial discrimination and water and air pollution abatement. Unlike federal grant-in-aid programs, these regulations and mandates were not voluntary. State and local government offi cials who did not abide by the regulations and mandates would either suffer the withdraw- al of federal funds for their jurisdiction or be subject to criminal prosecution. The federal government’s goal was to create what President Lyndon Baines Johnson called the “Great Society” with the promise of giving all Americans an opportunity to compete successfully for gainful employment by providing them with the fi nancial resources necessary to survive while enrolled in school or job training programs designed to provide them with marketable job skills. The federal government’s expansion into domestic affairs has continued. Today the federal government spends more than $2.7 trillion annually, nearly 21 percent of the nation’s gross domestic product, and more than $400 billion annually more than all state and local governments combined. In addition, the federal government’s fi scal and monetary policies, coupled with its regulatory powers, shape the national economy. Moreover, it spends more than $450 billion annually on more than six hundred intergovernmental grant-in-aid programs and enforces thousands of intergovernmental regulations and hundreds of mandates that collectively have a strong effect on the behavior of state and local governments across the nation.8 For example, the federal government stimulates state and local government activity in environmental protection (primarily through intergovernmental mandates concerning the attainment of specifi c air and water pollution standards) and in the areas of income maintenance, health care, and highways and mass transit (primarily by reimbursing them at least half of their program expenses). The federal government also supplements state and local government efforts in many areas of domestic policy, including school construction and provision of remedial education services (primarily through the No Child Left Behind Act), the feeding of the poor (primarily through the school lunch and food stamp programs), and the provision of social services and job training programs. Nationally, the Medicaid program alone accounts for 21.5 percent of state government expenditures. In West Virginia, Medicaid is the single largest budgetary item in the state budget. West Virginia currently spends nearly $2.2 billion on Medicaid ($1.6 billion in federal funds and $570 million in state funds), 13.5 percent of the state government’s total expenditure of $16.3 billion.9 The federal government’s expansion into domestic affairs has had a profound effect on West Virginia and its state government. For many years West 86 Intergovernmental Relations

Virginia has lagged behind national averages on most economic indexes, such as per capita income and labor force participation rates. Because many of these indexes are used as criteria for grant allocation, West Virginia has profi ted from the federal government’s many programs to combat poverty. In addition, because West Virginia has one of the oldest populations in the nation, it has also profi ted from the federal government’s programs to assist the elderly, particularly Social Security and Medicare. West Virginia receives relatively little money from the Defense Department and does not benefi t, as other states do, from the presence of large federal military bases and defense industries. However, in recent years West Virginia’s congressional delegation, especially through Senator Robert Byrd’s efforts, has secured several federal facilities, such as the fbi Fingerprinting Identifi cation Center in Clarksburg and the Treasury Department’s Bureau of Public Debt in Harpers Ferry, which bring millions in federal salaries and procurement dollars into the state.10 Overall, the federal government spent approximately $16 billion in West Virginia: $6.2 billion for retirement and disability, $3.8 billion for grants, $3.5 billion for other direct payments, $1.4 billion for federal salaries and wages, and $600 million for procurement. On a per capita basis, West Virginians received $8,872 in federal payments annually, the 11th highest allocation in the nation.11 Federal expenditures in West Virginia account for approximately 30 percent of the state’s entire gross state product (the national average is 20 percent). The federal government’s intergovernmental grants ($3.8 billion) support almost one-quarter of the West Virginia state government’s total revenue ($18.2 billion).12 The magnitude of these funds makes the federal government a major player in West Virginia’s governmental system, especially regarding the state’s health, education, welfare, and environmental policies.

the federal government’s influence on state health policy

The federal government’s role in shaping the state’s political agenda has an especially signifi cant infl uence on health and welfare programs. As noted in the introduction, West Virginia does not have an especially healthy population, and the diffi culty of dealing with the economic costs associated with delivering health services in thinly populated rural areas continues to confront state policymakers. Although West Virginia does not have an extreme alcohol abuse or aids problem, the state’s infant mortality, adult mortality, cancer, heart disease, pulmonary disease, high blood pressure, and accident Intergovernmental Relations 87 rates are above the national average. The state’s percentages of obese residents, smokeless tobacco users, and smokers are also among the highest in the nation. West Virginia has one of the nation’s highest percentages of residents with a sedentary lifestyle.13 Over the past several decades, the state government has focused on two key public health issues: funding health care for low-income residents, primarily through Medicaid and the Children’s Health Insurance Program (chip) and creating a health care delivery system for the state’s most rural areas. Medicaid was established as a joint federal-state program in 1965 to provide medical assistance to the poor.14 Although associated with public assistance systems, Medicaid’s benefi ts accrue far beyond its service to the poor and needy. Medicaid dollars are used to fund academic medical centers that train physicians and health professionals, provide support for local health departments, underwrite much of the long-term care delivered to the disabled and elderly, cover the overhead of various administrative arrangements, ensure a predictable revenue stream for health care providers, underwrite special education and health promotion programs, and reimburse hospitals for charity care. Although aspects of the program have been modifi ed signifi cantly over the years, it has always specifi ed a list of medical services that must be provided, a list of optional medical services that can be provided, and guidelines concerning participant program eligibility. States determined which, if any, of the listed optional medical services they offered, the nature of health service provider reimbursements, and how the administrative system, with related overhead costs, was structured. Today the Medicaid program features a matching grant formula that ranges from a 1:1 to better than a 3:1 match of federal to state contributions. Poorer states, such as West Virginia, receive a match on the order of 75 percent of program costs. Intuitively, it makes sense for states to leverage this match as much as possible and to shift as many governmental costs as allowable to this program West Virginia has always had a diffi cult time fi nding resources to fully fund its share of Medicaid expenses and to offer desired optional services. In the past, the state’s fi nancial diffi culties often led it to fail to reimburse the state’s Medicaid’s health care providers in a timely fashion. Also, West Virginia, like many other states, has opted to save money by reimbursing health care providers less than the claimed cost of providers’ services. This has caused health care providers to raise their prices, effectively shifting the state’s non- reimbursed cost for Medicaid recipients onto the private sector. Medicaid cost shifting has become a hot political issue each legislative session. West Vir- ginia currently reimburses health care providers about 84 percent of incurred 88 Intergovernmental Relations

expenses for Medicaid recipients. This share, however, has developed after considerable political debate. Indeed, the health care industry considers the raising of Medicaid’s reimbursement rate one of its top legislative priorities, and the West Virginia Chamber of Commerce strongly opposed cost shifting and considers it to be among its top legislative priorities. In 1991, the state’s share of Medicaid’s then–$483 million annual budget reached $120 million. Lacking the funds, the legislature imposed a tax on doctors, hospitals, and other health providers who treat Medicaid patients. In effect, the tax was counted as a cost and was used to attract additional federal matching funds. The added income was then returned to health care providers by increasing reimbursement rates and expanding optional coverage for recipients. However, in 1992, the federal government issued regulations restricting the use of taxes to generate Medicaid matching funds. In 1993, the legislature and Governor Gaston Caperton became locked in a dispute over how to respond to the new rules. Eventually, a special session reduced reimbursement rates to health care providers to about 80 percent and modifi ed the state’s provider tax to comply with the federal government’s regulations.15 Since then, nearly every session of the state legislature has struggled with the desire to expand Medicaid coverage, especially to children, and the diffi culty in fi nding fi scal resources to pay for the expanded coverage. In 1994, Medicaid coverage was expanded to all children in families with income below the federal poverty level and, in 1997, to all children in families with income below 150 percent of the federal poverty level. This increase was paid, in part, by an increased emphasis on the use of managed care arrangements for Medicaid recipients. The desire to provide medical coverage to all poor children became a centerpiece issue during the 2000 gubernatorial election. Challenger Robert Wise accused incumbent Governor Cecil Underwood of not being aggressive enough in implementing the federal chip program.16 Enacted in 1997, it funds medical coverage for children in families that earn too much to qualify for Medicaid but are still considered fi nancially needy. Over time eligibility for the program has changed to expand access to families with incomes up to 300 percent above the poverty level. In 2003, the escalating cost of medical care caused the state to face a potential $225 million shortfall in its Medicaid budget (approximately $55 million in state funds, $165 million in federal funds). Governor Robert Wise persuaded the legislature to increase the state cigarette tax from 17 cents per pack to 55 cents, generating an estimated $60 million in additional state revenue annually. The funds were intended to be dedicated to Medicaid to generate an additional $180 million in federal matching funds.17 Today, Intergovernmental Relations 89

Medicaid’s budget exceeds $2.2 billion, narrowly exceeding K-12 education spending as the state’s largest single budgetary item. In 2007, approximately 300,000 state residents were enrolled in Medicaid, with just over half of them enrolled in a managed care program.18In addition, over 25,000 children are currently enrolled in chip. It costs $40 million annually, $29 million in federal funds and $11 million in state matching funds. Arguably Medicaid has become both the sacred cow and the golden goose of health and human services in West Virginia. With its generous match rate and its extensive reach in the state to thousands of benefi ciaries, many of them children, Medicaid is seen as an important program. Medicaid and chip illustrate the federal government’s infl uence on the state’s policy agenda. Although the state has always provided some resources to meet the poor’s health care needs, through chip and Medicaid the federal government has enabled the state to create a comprehensive health care assistance program for low-income families.19 As these issues were considered, interest groups, especially in the health care industry, became critical players who sought greater coverage and more spending. Caught in the web of federal, interest group, revenue, and budgetary pressures, the governor and the legislature tried various options. Clearly the health care issue remains on the political agenda because the state does not have the fi nancial capacity to fi nance the health care needs of its residents without federal assistance. Rural health care has also been a major problem in West Virginia for decades. The nation’s medical schools produce relatively few doctors who are interested in general practice in rural regions. Rural areas generally provide physicians with less income than urban areas, and they lack the population density necessary to support physicians with medical special- ties. Many graduates of the state’s two largest medical schools, for example, often chose to practice elsewhere. During the 1990s, this led to an emotional debate over which of the state’s two major medical schools, West Virginia University or Marshall University, did the best for the state and deserved the most state fi nancial support. Also, the overhead costs of medical practice in rural areas and the operation of rural clinics are greater than in urban areas because the lack of population hinders the achievement of economies of scale. Although these problems with rural health care, compounded by the state’s high poverty rates, have beset West Virginia for generations, the state’s funding problems precluded major action until 1991. At that time, the state received a $6 million grant from the W. K. Kellogg Foundation to fund a rural health care initiative run by the state’s medical centers. The 90 Intergovernmental Relations

state matched the funds and used the money to fund eight rural clinics and to improve clinical education in general practice, obstetrics and gynecology, geriatrics, and pharmacy. The clinical education program was designed to encourage state medical and pharmacy school graduates to choose a rural practice.20 Since then, the state’s medical schools have initiated a number of changes designed to encourage its graduates to remain within the state. West Virginia University’s medical school, for example, now requires its students to engage in a rural health care experience for at least six months and to have at least one hundred hours of community service in a rural area in order to graduate. Moreover, in 1998, the state received $3.7 million in grant funding (principally from the Claude Worthington Benedum Founda- tion and the Robert Wood Johnson Foundation) to create the West Virginia Rural Health Access Program. The Robert Wood Johnson Foundation gave the program another $1.2 million in 2002. The program promotes access to medical care in twenty-fi ve West Virginia western and southern rural counties by offering patients transportation services, rural health clinics loans, rural communities leadership development programs, and health care providers recruitment programs.21 The West Virginia Department of Health and Human Resources’ Division of Rural Health also administers several mod- estly funded programs to encourage health care providers to locate in the state’s more rural areas. As these examples demonstrate, West Virginia’s state and local governments have had diffi culty offering comprehensive solutions to its public health problems. Because of its fi nancial diffi culties, the state is often forced to rely on the help of others to address these needs. In the process, it surrenders some of its autonomy concerning how its health care programs are structured, whom they serve, and how they are administered.

the federal government’s influence on state welfare policy

Because of the extent of poverty in the state, welfare policy has been on West Virginia’s political agenda for decades. The state has lower labor force participation rates, incomes, and per capita incomes than the rest of the nation. In recent years, the state’s unemployment rate has improved to just a few percentage points above the national average, but that improvement, for the most part, did not result from robust economic growth. Instead, the state’s unemployment rate declined primarily because many residents seeking employment either left the state to seek work elsewhere, or gave up the attempt to fi nd employment and, therefore, were no longer included in the Intergovernmental Relations 91 government’s unemployment statistics. For example, although the state’s unemployment rate is only slightly higher than the national average, West Virginia’s underemployment and poverty rates are among the highest in the nation. In 2006, 15.5 percent of West Virginians were living in poverty, the eighth highest poverty rate in the nation.22 West Virginia has played an important role in the development of federal welfare policy. For example, the federal government’s 1960s “War on Pov- erty” programs (Medicaid, social services, food stamps, expanded welfare program, etc.) developed largely from Senator John F. Kennedy’s selection of West Virginia as the battleground state during the 1960 presidential primaries. He campaigned hard, crisscrossing the state, and defeated Senator Hubert H. Humphrey, the party’s odds-on favorite to win the presidential nomination, in the state’s primary. In the process, Kennedy convinced Dem- ocratic party leaders that he could overcome religious prejudice by winning an election in a mostly Protestant state. He also convinced them that he could attract support outside the nation’s major cities. His campaign effort in West Virginia also raised public awareness of the plight of the poor living in rural Appalachia. Just as important, Kennedy was deeply moved by the extent of poverty in West Virginia’s rural areas and the state’s inability to adequately address the issue. His subsequent efforts to address poverty ultimately led to the federal government’s “War on Poverty.”23 In 1962, the federal welfare program’s focus shifted from providing fi - nancial assistance to poor children to preventing adult welfare dependency. This was to be accomplished through a mix of programs, most of which employed a human capital development strategy to escape poverty. This strategy emphasized the development of the recipient’s capacity to become employed by providing personal support services (e.g., alcohol and drug rehabilitation programs, personal hygiene classes, work preparedness programs, etc.), remedial education, vocational education, job training, and child care assistance. Because the receipt of federal funding (three-quarters of West Virginia’s benefi t costs and half of its administrative costs were reimbursed by the federal government) was contingent on adherence to federal regulations, and these regulations infl uenced all aspects of the program, including eligibility standards, benefi t calculation, and program administration, West Virginia’s welfare program emphasized the human capital development strategy to escape poverty. An exception to this emphasis was the Unemployed Parent program (afdc-up). It had been enacted the previous year on an experimental basis and was renewed in 1962 as a state option. It gave states the option of offering welfare assistance to eligible families with a second parent (father) present. 92 Intergovernmental Relations

Prior to 1961, most states, including West Virginia, excluded men from the program. To appease those who opposed extending welfare assistance to men, afdc-up emphasized the work-fi rst/work attachment strategy. States were required to deny benefi ts to afdc-up families if the unemployed parent refused to accept work without “good cause.”24 West Virginia was one of a handful of states at that time to extend benefi t eligibility to men. West Virginia required its afdc-up recipients to participate in mandatory work and job training activities. As a result, although afdc-up recipients represented a relatively small fraction of all welfare recipients in the state, West Virginia became a pioneer in establishing structured work and job training for welfare recipients.25 It also signaled West Virginia’s desire to emphasize the work-fi rst/work attachment strategy for all of its welfare recipients, but this course of action was precluded by federal regulations. In 1981, the federal government revamped its job training programs, creating a greater emphasis on the work-fi rst/work attachment strategy. Instead of focusing on education programs and job training activities that may take participants months to complete, they were taught job-search techniques and offered short-term training to move them into the workforce as quickly as possible. Although the federal government’s job training programs were available to many disadvantaged groups, their focus was on reducing welfare dependency. Another reform at that time offered states federal funding to operate Community Work Experience (cwep) programs, also called workfare. cwep tested the effi cacy of the work-fi rst/work attachment strategy as a means to decrease welfare dependency by providing welfare recipients work experiences in public or nonprofi t organizations. Instead of receiving wages, recipients continued to receive benefi ts from welfare, Medicaid, food stamps, and other government support programs. West Virginia was one of the states that opted to implement cwep and only one of three states to implement it statewide. In 1984, 40 percent of West Virginia’s adult afdc-up recipients (men) were enrolled in cwep. During the 1980s, West Virginia’s cwep program was considered the model for the nation.26 West Virginia’s participation in cwep signaled, once again, the state’s desire to emphasize the work-fi rst/work attachment strategy for all of its welfare recipients. However, this course of action was precluded by federal regulations. In 1996, President Bill Clinton, after twice vetoing legislation that would have required the implementation of a work-fi rst/work attachment strategy for all welfare recipients, fulfi lled his 1992 presidential campaign promise to “end welfare as we know it” by signing into law the Personal Respon- sibility and Work Opportunity Reconciliation Act of 1996. It renamed the Intergovernmental Relations 93 program (from Aid to Families with Dependent Children to Temporary As- sistance for Needy Families) and shifted its emphasis from the human capital development strategy to escape poverty to an emphasis on the work-fi rst/ work attachment strategy. The new law eliminated welfare’s entitlement status and imposed mandatory work requirements and lifetime benefi t limits on recipients and mandatory work participation rates and maintenance-of-effort requirements on states. For the fi rst time, federal funding was no longer linked to the number of recipients served. Instead, each state received a set amount each year based on its funding levels prior to the new law’s enactment. West Virginia’s share of federal funds was set at approximately $110 million annually, with the state contributing another $39 million. By providing each state a set amount of funding, states were encouraged to experiment with innovative programs to remove recipients from the rolls. In the past, states had little incentive to move people from the rolls because fewer recipients meant less federal funding. Also, most recipients were required to work after they had received cash assistance for twenty-four months. In addition, states were required to demonstrate that ever-increasing proportions of their adult tanf recipients were engaged in a work activity. In fy2002, the overall minimum participation rate reached 50 percent (90 percent for two-parent house- holds). States that failed to meet the mandatory work participation rates were subject to forfeiture of 5 percent of their federal tanf funds during the fi rst year of noncompliance and an additional 2 percent of funding for each consecutive year they continued in noncompliance, up to a maximum of 21 percent of their tanf funding.27 However, a caseload reduction credit provision allowed states to count closed cases as a credit against the work participation requirements. West Virginia’s Department of Health and Human Resources wanted to implement the law’s work-fi rst/work attachment strategy, but its leadership recognized that the state’s lack of jobs was going to make it very diffi cult to meet the mandated federal work participation rate. They also were aware that it was important to Governor Underwood to avoid the political embar- rassment of having the state sanctioned by the federal government. How- ever, they were reluctant to experiment with innovative programs within the state’s welfare program, called wv works, to promote work because federal regulations concerning what counted as a work activity were delayed. As a result, they decided to rely on a combination of cwep and case clearance to avoid federal sanctions. The state had a long history with cwep, making it a relatively easy program to implement, and judged that it was easier and more cost-effective 94 Intergovernmental Relations

in the short term to divert people from welfare than to enroll them and fi nd them employment. As a result, front-line administrators were encouraged to provide new welfare applicants with short-term diversion payments to keep them off the rolls. Also, existing recipients were required to be recertifi ed before being enrolled in wv works. Administrators were encouraged to take a hard line on welfare enrollment. For example, one district required applicants to demonstrate that they had made ten job inquiries or contacts before they were allowed to enroll in the program. The state’s case clearance strategy worked. wv works enrollment fell from 23,821 in January 1998 to 10,205 in January 1999. Moreover, the caseload reduction credit enabled the state to avoid federal sanctions on its overall recipient base even though its work participation rate averaged around 20 percent from 1998 to 2002. However, it did receive relatively small federal sanctions in 1997, 1998, and 1999 for failing to meet adjusted work participation rates for two- parent families.28 Since 1999, the state’s welfare enrollment has grown slightly, and the issuance of federal regulations concerning what counts as a work activity during the fall of 1999 provided the information the state needed to further engage its welfare recipients in work activities. Nevertheless, the state’s experiences with federal welfare legislation, and with Medicaid, demonstrate that while West Virginia has profi ted from the federal government’s largess, it has come at a cost to the state’s autonomy. Although the state continues to make many important policy decisions on a wide range of issues, including capital punishment, gambling, workers’ compensation, and gun control, by accepting the federal government’s money, it must abide by the federal government’s rules and regulations. As in other states, the federal government now plays a crucial role in determining what West Virginia’s state and local governments do in the areas of health and welfare. It also plays a very strong role in determining the state’s environmental policies and an increasingly important role in shaping the scope and nature of the state’s education, transportation, and job training policies.

interstate relations

West Virginia’s economic survival is largely dependent on its ability to sell coal and other products to other states and nations. The federal government’s control over interstate and foreign commerce, coupled with the U.S. Constitution’s prohibitions against interstate trade barriers, has made interstate relations a nonissue in contemporary West Virginia politics. That has not always been the case. In the past, West Virginia was involved in several Intergovernmental Relations 95 major interstate disputes that had to be settled by the U.S. Supreme Court. For example, the Supreme Court settled the dispute between Maryland and West Virginia concerning their boundaries along the Potomac River (1909 and 1911); denied Virginia’s effort to reclaim Berkeley and Jefferson counties (1870); and, in one of the nation’s longest running court battles, settled the dispute over West Virginia’s share of Virginia’s state debt that existed at the time of the state’s formation. This last dispute started in 1866 and was not resolved to the satisfaction of both states until West Virginia made its fi nal payment on the debt in 1939. In recent years, West Virginia’s involvement in interstate cooperative efforts has increased. West Virginia, for example, belongs to 28 of the 155 interstate compacts (excluding border compacts) in force. Among these are the Interstate Commission on the Potomac River Basin (with Maryland, Pennsylvania, Virginia, and the District of Columbia), the Ohio River Valley Water Sanitation Commission (with Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, and Virginia), the Southern States Energy Compact (with fi fteen other states), the Wheeling Creek Watershed Protection and Flood Prevention District Compact (with Pennsylvania), the Appalachian States Low-Level Radioactive Waste Compact (with Delaware, Maryland, and Pennsylvania), the Interstate Compact on Adult Offender Supervi- sion (47 states), and the Uniform Interstate Compact on Juveniles (all 50 states).29 West Virginia’s state and local government offi cials have also increased their interaction with their counterparts in other states through their participation in national organizations, such as the National Governors’ As- sociation, National Conference of State Legislatures, National Association of Counties, National League of Cities, and Council of State Governments. Governor Arch Moore (R, 1969–76, 1985–89), for example, served as chairman of the National Governors’ Association in 1971, and in 1996 Gov- ernor Gaston Caperton served on its executive committee and chaired the Democratic Governors’ Association.30 These organizations offer state and local government offi cials across the nation a means to exchange ideas and lobby the federal government on various issues, such as the scope and nature of intergovernmental regulations, unfunded mandates, and the preemption of state and local government policy prerogatives. In addition, West Virginia has cooperated with other states by joining legal actions against large corporations. For example, in 1998 West Virginia was one of forty-six states that jointly settled their individual lawsuits against the major tobacco companies to recover tobacco-related health care costs (Mississippi, Texas, Florida, and Minnesota had settled their lawsuits previously). Under the 96 Intergovernmental Relations

joint settlement, known as the “Master Settlement Agreement,” the tobacco companies are required to make annual payments to the states in perpetu- ity, with total payments over the fi rst twenty-fi ve years estimated at $246 billion. West Virginia receives $60 million annually. West Virginia places half of the revenue into a Medical Trust Fund to be used for health-related programs, including antismoking education and prevention programs, and half into a Tobacco Settlement Fund to be used for Medicaid, public health programs, health facilities, and the Public Employees Insurance Agency.31 In 2004, the tobacco settlement became a major issue when Governor Robert Wise asked West Virginia’s state legislature to take the settlement funds in a single lump sum of $630 million. He proposed placing $137 million of the settlement funds into the state’s Medical Trust Fund to continue support for tobacco prevention and health care programs and using other funds to eliminate the state’s unfunded liability employee pension and workers’ compensation liabilities.32 The state legislature did not pass the proposal. The fate of tobacco settlement funds has become a perennial issue in the state. Not only has the use of funds been a subject of heated political debate, but tobacco companies have threatened to seek to lower payments because of changing tobacco market conditions. During the late 1990s, landfi ll policy was another interstate issue that jumped to the top of the state’s political agenda and could do so again. During the late 1980s and early 1990s, there were several attempts to build very large landfi lls in West Virginia to accommodate New Jersey’s and other eastern seaboard states’ garbage. For example, one company proposed a 300,000 tons a month landfi ll in Barbour County. To put that single landfi ll request in perspective, at that time West Virginia’s fi fty-one landfi lls accepted about 210,000 tons of garbage a month, with about one-third of that amount (76,000 tons) coming from other states. The landfi ll debate generated a great deal of controversy. In 1991, the state resolved the issue by placing a 30,000 tons per month volume cap on all landfi lls located in the state, with an exception granted to a proposed 50,000 tons a month landfi ll in McDowell County. The volume cap made the proposed mega-landfi lls economically infeasible and was challenged in federal court on the grounds that the state volume cap was an unconstitutional infringement on interstate commerce. The federal courts subsequently ruled that the volume cap was constitutional, but that a ban on out-of-state garbage would violate the U.S. Constitution’s prohibition against state interference in interstate commerce.33 In recent years, the general trend in interstate relations in West Virginia is toward more interaction and cooperation with other states across a wide array Intergovernmental Relations 97 of issues. However, the level of West Virginia’s public offi cials’ interaction with public offi cials in other states is still relatively limited, primarily because other states are often viewed more as competitors for economic development and job creation than as partners in the pursuit of common goals.

state-local government relations

The relationship between West Virginia’s state and local governments is a unitary one. Under unitary systems, all government power is vested in the central government. To expedite the delivery of government services, the central government in a unitary system routinely delegates specifi c powers and responsibilities to constituent units of government. It retains, however, the authority to alter those powers and responsibilities and even to dissolve its constituent units at its discretion. As a result, the state government determines the local governments’ functions, fi nances, and organizational structures. Article IX of West Virginia’s Constitution, for example, details how counties are formed and governed. It specifi es the number, term of offi ce, and powers of county commissioners. It also determines the election, term, and duties of the county clerk, surveyor of lands, prosecuting attorney, sheriff, and assessor. To expedite the provision of government services, forty-eight states, including West Virginia, have adopted home rule provisions that provide at least some of their cities the authority to make their own decisions on certain issues without interference from state offi cials. Thirty-seven states have also enacted home rule provisions for at least some of their counties. West Virginia does not have a home rule provision for its counties.34 In 1936, West Virginia’s home rule provision for cities was adopted as a state constitutional amendment. It grants electors in municipalities with populations of at least 2,000 the power and authority “to pass all laws and ordinances relating to municipal affairs.” However, most mayors and city council members argue that home rule is basically meaningless in West Virginia because municipalities cannot enact ordinances or laws that are inconsistent or confl ict with the state constitution or with the general laws of the state. This is a severe limitation. State statutes determine local government functions and operational procedures, and constitutional provisions place limits on local property tax rates as well as grant the state authority to determine a local government’s other taxing powers. An ongoing intergovernmental tension between the state and local governments has been the state’s refusal to grant local governments the authority to expand their taxing powers, especially the right to impose local sales 98 Intergovernmental Relations

and income taxes. In recent years, the state has provided local governments additional fl exibility in this regard, but not nearly to the extent requested. For example, in 2004, municipalities were given the option to offer a 1 percent sales tax in lieu of a business and occupation tax. However, because a number of businesses, including public utilities, banking, and contractors, are exempt from the optional local sales tax, most municipalities with a business and occupation tax have opted not to impose it. Morgantown, for example, would lose approximately $2 million annually if it replaced its business and occupation tax with the allowed 1 percent sales tax.35 The 2004 law also allowed municipalities with severe police and fi re pension liability problems (defi ned as less than 3 percent of being fully funded) to impose a municipal occupational tax (up to 1 percent of earned income), a municipal sales and service tax (up to 1 percent), and a municipal use tax (set at the same rate as the municipal sales and service tax). The proceeds of these taxes must be used to meet the municipalities’ pension obligations. This provision in the legislation was adopted primarily to address Hun- tington’s severe pension liability diffi culties.36 In 2005, at the urging of the West Virginia Municipal League and several mayors, including Charleston mayor Danny Jones, the state adopted the Pilot Program Local Government Flexibility Act of 2005. It provided an opportunity for local governments in up to seven counties, one county in each of seven legislatively defi ned regions, to apply to the governor for (1) a waiver of specifi c state policies, rules, regulations, or statutory provisions, (2) permission to increase the 3 percent hotel occupancy tax to up to 6 percent (Charleston’s prime legislative agenda item), and/or create a temporary occupational privilege tax of up to 2 percent of earned income. Six of the seven legislatively defi ned regions border another state. The law’s goal is to provide West Virginia’s local governments additional fl exibility in designing their revenue systems to enable them to fi nance programs to enhance their economic competitiveness. Bridgeport, Charleston, Huntington, and Wheeling submitted plans to Governor Joe Manchin prior to the law’s December 31, 2006, deadline. Another continuing state-local government issue has been the state’s refusal to grant the counties’ request to have the authority, like municipalities, to impose business and occupation taxes and utility taxes.37 Despite its home rule provision and recent actions to provide additional fl exibility to its local governments, West Virginia’s state government continues to have a strong unitary relationship with its localities. The lack of local autonomy was illustrated in 1992 when the state Board of Education took control of the Logan County school system. An unannounced audit of the county school district by a state Board of Education accreditation team Intergovernmental Relations 99 revealed that it had over 100 uncertifi ed teachers, dozens of other teachers who were teaching classes for which they were not qualifi ed, and, among other problems, it had altered records to receive $50 million more in state funding than it deserved. The state Board of Education subsequently fi red the Logan County superintendent of schools, hired a replacement, and informed the local school board that it no longer had the power to hire or fi re workers, spend money, set academic standards, or establish a school calendar. The state Board of Education later took over four more school systems: Mingo County in 1998, Lincoln County in 2000, McDowell County in 2001, and Hampshire County in 2006.38 The state government has also issued a number of mandates that have preempted local government authority in several areas. For example, the Regional Jail and Prison Act of 1985 preempted local autonomy in corrections policy by establishing a state Regional Jail and Prison Authority to oversee the operation, maintenance, and construction of a newly designated system of regional jails. Although local government offi cials constitute a majority of the members of the regional jail commissions that make recommendations to the state’s Regional Jail and Prison Authority and the Author- ity has generally followed the advice provided by the regional jail commissions, the act preempts local government control over the operation and maintenance of existing jails and the location and fi nancing of new ones. Similarly, the state has preempted local government authority in the solid waste disposal area by requiring counties to prepare landfi ll location plans, specifying landfi ll capacity limits, and mandating that all landfi lls meet specifi c criteria concerning the collection, removal, and treatment of landfi ll leachate to protect the state’s groundwater from possible contamination.39 State statutes and constitutional provisions have a direct and signifi cant effect on the structures, functions, and operations of the local governments. The state government also indirectly infl uences the behavior of local offi cials by offering them funding through intergovernmental grants-in-aid programs that encourage them to undertake certain activities and provide certain types of public services. In fy2005, West Virginia’s state government provided its local governments with nearly $1.8 billion in grants, 42 percent of all local government revenue in West Virginia. Most of the funds ($1.7 billion) went to school districts.40 This assistance gives the state government a tremendous amount of fi nancial “clout” over its local governments, particularly its school districts. Like the federal government’s intergovernmental grant-in-aid programs, West Virginia’s intergovernmental grants-in-aid have numerous rules and regulations attached to them. Local government offi cials throughout the 100 Intergovernmental Relations

United States as well as in West Virginia often react to their state’s intergovernmental grant-in-aid rules and regulations in the same negative manner that they and state government offi cials react to the federal government’s intergovernmental grant-in-aid rules and regulations. However, given their lack of fi scal resources, local government offi cials throughout the United States and in West Virginia rarely refuse state or federal intergovernmental assistance. This is particularly true in West Virginia because its local governments have extremely limited authority to impose local sales or income taxes, and the Tax Limitation Amendment of 1933 limits property tax rates.41

local government interaction

West Virginia’s local governments sponsor the West Virginia Association of Counties, County Commissioners Association of West Virginia, West Virginia Assessors Association, West Virginia Association of County and Circuit Clerks, West Virginia Sheriffs Association, and the West Virginia Municipal League to foster better communication and cooperation among themselves. They provide a forum for the exchange of ideas for improving local government performance and a vehicle to exchange information with state ofﬁ cials. The state government also has established a number of formal organizational structures to foster greater communication and cooperation among local governments. For example, since 1971 regional planning and development councils have facilitated intergovernmental cooperation and promoted the state’s economic growth and development.42 Also, local governments are allowed to enter into written intergovernmental agreements to provide services or to construct facilities jointly to take advantage of economies of scale. The state has also mandated local government cooperation and interaction in a number of policy areas. As mentioned previously, the state’s Regional Jail and Corrections Facility Authority mandates the creation of regional jail commissions that are composed of members drawn from various local governments. This forces them to interact to produce a corrections policy recommendation for their region. Also, the state has enacted legislation that authorizes and encourages counties to form regional solid waste disposal authorities to take advantage of economies of scale when dealing with solid waste disposal issues. Although the extent of interaction and cooperation among West Virginia local governments is still relatively low, the trend is toward more interaction and cooperation. For example, in 1993, the County Commissioners’ Association of West Virginia, with the Institute for Public Affairs at West Intergovernmental Relations 101

Virginia University, began a very well attended, ongoing series of training and education programs for county commissioners across the state. In 2001, they formed, with the West Virginia Association of Counties and the West Virginia Municipal League, the West Virginia University Local Government Leadership Academy. It provides a forum for both city and county government ofﬁ cials to exchange ideas and best practices, and to learn from policy experts on a host of issues facing local governments in West Virginia.

conclusion

Federal regulations, mandates, and funding strongly infl uence the state’s political agenda and its action on those agenda items. State regulations, mandates, and funding strongly infl uence local governments’ political agenda and their action on those agenda items. As a result, although interstate and interlocal interactions often do not receive much attention in state and local media outlets, they strongly affect the political agenda and the behavior of state and local government offi cials. Consequently, the political agenda at the state and local level is often shaped by individuals and political institutions that reside outside their jurisdiction.

chapter five

Constitutional Politics

In the American political tradition a constitution is the fundamental law established by the public to defi ne the duties of governmental offi cials to serve the civic good and to protect certain individual rights from encroachment. The people of West Virginia, as do all Americans, recognize two constitutions: federal and state. This chapter will discuss the evolution and contents of the West Virginia Constitution as it functions within the federal constitutional arrangement. Unlike most states, political experience under another state’s constitution preceded the formation of West Virginia. West Virginia’s separation from Virginia in 1863 had special signifi cance for the history of constitutional politics in the Mountain State. When West Virginia became a state it retained many of Virginia’s constitutional structures and practices. Many of these structures and practices emphasized a distrust of political offi cials and very limited role for government in the resolution of civic problems. The legacies of these institutional features continue to restrain the use of power and limit the state government’s capacity to “act for” citizens’ demands and address the political agenda.

west virginia and the legacy of virginia constitutions

Between 1775 and 1861 West Virginia was governed under three constitutions of the state of Virginia.1 Adopted before the Declaration of Indepen- dence, the Virginia Constitution of 1776 created a government dominated by the legislative branch. The two houses of the legislature annually elected the governor and also appointed a privy council, the attorney general, and the judges of a supreme court of appeals. The bulk of governmental powers remained in legislative hands. 106 Constitutional Politics

The Declaration of Rights, the fi rst lengthy legal protection of rights in America, accompanied the Constitution. However, the Constitution of 1776 generated sectional controversy within Virginia because it included slaves in the population fi gures used to apportion the state legislature. It also limited suffrage to white males in possession of at least fi fty acres of improved land. These provisions ensured that the eastern or Tidewater counties where slavery and large holdings were more common would dominate the legislature. Despite the erosion of the economic power of the Tidewater, a constitutional convention called through a referendum held in 1828 failed to redesign Virginia government. Approved in 1830, the new constitution only adjusted the property holding restrictions on the right to vote and modifi ed the apportionment of the legislature in a way that still ensured the overrep- resentation of the people living in the eastern counties. Legislative election of governors and justices of the Supreme Court of Appeals remained in place. In 1850 Virginians held another constitutional convention, but the results differed dramatically from those of the 1829–30 convention. During the intervening years a kind of revolution in American political ideas had occurred. As advanced by President Andrew Jackson (1829–37) and his Dem- ocratic Party, these ideas included greater political equality and an end to property ownership restrictions on voting by white males, the election of most public offi ceholders and the appointment of their subordinates by the party in power (“patronage”), weakened central government authority, an end to economic privileges, and economic policies benefi cial to small farmers and aggressive or speculative entrepreneurs. The popularity of Jackso- nian ideas in Virginia made it diffi cult for any elites to oppose direct popular election of public offi cials. The Jacksonian desire for universal white manhood suffrage cast aside the politics of deference to the landed interest and became the new norm. Also, Jacksonian thought meant efforts to limit legislative and corporate power and to ensure the election of most state and local offi cers. In this spirit, the Constitution of 1851 included universal white male suffrage, but continued to a later date any debate concerning the counting of slaves during the legislature’s apportionment. The voters were allowed to elect the governor, other executive offi cials, judges, and local offi cials. Legislative powers underwent more restriction, especially the power to tax slaves. Although the extension of suffrage did provide western counties with more infl uence in the legislature, the state’s history of sectional confl ict and the tensions about slavery set the stage for the west’s secession during the Civil War. Constitutional Politics 107

the creation of a constitution for west virginia

Following Abraham Lincoln’s inauguration in March 1861, Virginia convened a convention to consider secession from the Union. On April 16, 1861, the convention voted for secession and resolved to hold a statewide referendum on the issue. Western delegates at the convention opposed secession, and mass rallies in the western counties against secession occurred. After the Virginia legislature voted for secession, a rally and convention at Clarksburg in May 1861 produced a call for convention to consider the response of western Virginians. On 13 May 1861, 436 irregularly selected delegates met in Wheeling to oppose secession, but they withheld action until the statewide referendum was held in late May. After the election, Union supporters in the Wheeling area covertly arranged the intervention of Ohio and Indiana militia. Dur- ing June and July 1861, these troops, with loyal Virginia militia from the Ohio valley counties, secured Union control of counties along the northern border and in the Ohio, Monongahela, and Kanawha valleys. Nearly all of these counties had voted against secession in a referendum. With security assured, one hundred delegates from thirty-four counties in northwestern Virginia were elected to attend a second convention in Wheeling. The Sec- ond Wheeling Convention created a “Re-organized Government of Virgin- ia” loyal to the Union, authorized a constitutional convention, and laid plans for the separation of western counties from Virginia. Voters in thirty-three western counties approved the plan of separation in October 1861.2 The West Virginia constitutional convention, or Third Wheeling Conven- tion, initially met from 26 November 1861 to 18 February 1862. The fore- most issue was the question of state boundaries. Union support, essential for federal support for the creation of a new state, was strongest in counties roughly northwest of a line running diagonally across contemporary West Virginia from the western end of Maryland through Charleston and on to the Kentucky border, and in Morgan and Berkeley counties in the Eastern Pan- handle. After ten days of debate, the convention ﬁ xed the state’s boundaries in all regions except what is today the Eastern Panhandle and Northwestern Virginia. Those counties were given the option of joining the new state by election. All of these counties, except Frederick County (Winchester, Vir- ginia), subsequently voted to join the state. The other critical issue before the convention was slavery. After debating for over a month, the convention, by one vote (24–23), tabled a proposal for the gradual emancipation of slaves. Instead, they adopted a section prohibiting slaves and free blacks from entering and establishing residence in the state.3 108 Constitutional Politics

The convention debated the remainder of a proposed constitution more briefl y, but it made several changes in Virginian practices through the adoption of language used in Ohio and Pennsylvania constitutions. The Bill of Rights concentrated on free speech, press, and religion and criminal procedural rights. Gone were the broad statements of individual liberty contained in the Virginia Declaration of Rights that were incorporated into the Virginia Constitution of 1851 and the Ohio Constitution of 1851. However, the new constitution contained language about religious freedom taken from the Vir- ginia Statute for Religious Freedom and not from the U.S. Constitution. After much debate about black representation, the convention provided for universal white male suffrage, except for felons, paupers, and the mentally unsound, as in the Virginia Constitution of 1851. Viva voce (oral) voting, used in Virginia, was replaced by the exclusive use of ballots, as in Ohio.4 State senators were given two-year terms, half of the body being elected yearly from multimember districts. Delegates served one-year terms. Both houses were apportioned on the basis of white population. The constitution limited the annual legislative sessions to forty-fi ve days unless three-fourths of the members voted to extend the session. Also, the governor was given a two-year term and was responsible for ensuring the faithful execution of the laws. Two features of the Virginia executive, the lieutenant governor and the Board of Public Works, were eliminated. As in Virginia, the voters elected three other executive offi cers—the secretary of state, treasurer, and auditor—to two-year terms.5 The judicial article provided for three Supreme Court of Appeals justices elected for staggered twelve-year terms and circuit court judges elected for six-year terms. Unlike Virginia, circuit judges did not serve in an appellate capacity.6 Except for the Supreme Court of Appeals, the terms of executive and judicial offi ces were shorter than in the Virginia Constitution of 1851 to allow the public an opportunity to remove their public offi cials more quickly should they abuse their powers. Breaking with Virginia’s practice, the 1863 Constitution provided for governmental subunits in the counties called townships. At a yearly township meeting, the voters were to transact township business, a variation on the New England town meeting, and elect a supervisor, clerk, surveyor of roads, overseer of the poor, and, every four years, a justice of the peace. Al- though Ohio also elected township offi cers annually, none of West Virginia’s neighboring states elaborated on township offi ces in the same fashion as did the West Virginia Convention.7 County government, managed by a board of supervisors composed of the township supervisors, also assigned duties to a sheriff, prosecuting attorney, surveyor of lands, recorder, assessor, and other Constitutional Politics 109 offi cers elected to two-year terms. The 1863 West Virginia Constitution also included articles on taxation and fi nance, forfeited and unappropriated lands, education, corporate charters, and the legality of Virginia laws, legal precedents, and legal actions. Supplemented by township taxes, state funds were to provide for a “thorough and effi cient system of free schools.” The “thorough and effi cient” language drew in part on Article VI of the Ohio Constitution of 1851, but the West Virginia Constitution included a different form of public school management. Finally, amendments had to be proposed and approved by the legislature, and then bound over to the next legislative session for a second vote of approval by both houses before submission to a popular referendum. Several hurdles had to be passed before the fi rst West Virginia Constitu- tion became effective. First the constitution won approval at a referendum held in April 1862. In May 1862, the Re-organized Government of Vir- ginia, also meeting in Wheeling, voted to permit the dismemberment of their state. Then the U.S. Senate took action on a statehood bill. It rejected a proposal to expand the state’s boundaries into the Shenandoah Valley and insisted that the state constitution provide for the gradual emancipation of slaves. The House acted, but President Lincoln took time to act and gave tentative approval to the amended statehood proposal on 31 Decem- ber 1862. However, statehood was granted only if the state constitutional convention adopted a provision to gradually free slaves. Despite some Unionist Democratic opposition, the emancipation amendment, known as the Willey Amendment, was later approved by a recalled session of the state constitutional convention and by a referendum held in March 1863. The vote led to Lincoln’s proclamation of statehood as of 20 June 1863.8 In 1871 the Supreme Court of the United States refused to consider the constitutionality of these actions; it stated that the admission of the state was a matter for Congress and the president to decide.9

the constitution of 1872

Intense factionalism and instability marked West Virginia politics in the decade after statehood. The new state contained about 250,000 persons in its northern and western half, the majority of whom supported the Union. The state’s southern and eastern half and most of the Eastern Panhandle contained about 110,000 persons, the majority of whom were secessionists or Copperheads.10 Until 1870 the Unionists, renamed the Republican Party, controlled the state government. In 1866, they passed a constitutional amendment denying state citizenship and the right to vote to persons giving 110 Constitutional Politics

voluntary aid or assistance to the rebellion. They also passed legislation creating test oaths, or the requirement that offi cials swear allegiance to the Union, and political disabilities for the large number of secessionists and Copperheads who were dissatisfi ed with the conditions of statehood and federal Reconstruction policies. However, the Fourteenth Amendment to the U.S. Constitution in 1868 let former secessionists reenter electoral politics. Coupled with divisions in Republican ranks and controversy over the “Flick Amendment” proposal, which would enfranchise black males, the Demo- crats gained control of the state government in the election of 1870.11 One of the fi rst acts of the new Democratic leadership was to call for a new constitution. In 1871 the voters approved calling a constitutional convention. Held in Charleston in early 1872, the convention had sixty-six Democrats and twelve Republicans. It drafted the state’s current constitution.12 Throughout its original text the Constitution of 1872 echoed Jacksonian themes.13 The initial section rejects secession and recognizes federal supremacy, but the second section attempts to curtail federal power (Art. I §§ 1–2). Using language from the U.S. Constitution’s Tenth Amendment, it states that the federal government has only enumerated powers and not implied powers, a “states’ rights” theme. The following section (Art. I §3) challenges Lincoln’s restriction of constitutional rights during the Civil War by suggesting that any similar actions would be deemed “subversive of good government and tend to anarchy and despotism.” Addressing several topics, Article II defi nes the state’s boundaries, state citizenship, property ownership by aliens, the crime of treason, the forms of state documents, and the state seal with the motto “Montani Semper Liberi”—Mountaineers Are Always Free. The West Virginia Constitution’s Bill of Rights (Art. III) restates the broad guarantees of liberty found in the Virginia Declaration of Rights. These include general statements of liberties to life, liberty, property, safety, and happiness and to participate in the control and defense of free government (Art. III §§ 1–3). In language similar to many American constitutions, the Bill of Rights guarantees rights of freedom of speech, press, assembly, and religion, and provides for no establishment of religion (Art. III §§7, 15–16). It provides for due process of law in the taking of private property for public use and due process for other restrictions on liberty (Art. III §§ 9–10). It contains criminal justice rights such as the writ of habeas corpus, grand jury indictment, jury trial, notifi cation of charges, ability to call and confront witnesses, speedy trial, the right to counsel, and protections against unrea- sonable searches and seizures, double jeopardy, self-incrimination, bills of attainder, ex post facto laws, and excessive bail and fi nes (Art. III §§ 4–6, Constitutional Politics 111

13–14, 17–18). However, the article uses different language and includes additional rights. For example, it states that “standing armies, in times of peace, should be avoided as dangerous to liberty” (Art. III § 12). In these sections the Bill of Rights retains language from the 1863 Constitution or relies on federal or Pennsylvania constitutional language. It also includes a ban on hereditary emoluments, honors, and privileges (Art. III § 19), and a sentence prohibiting the quartering of troops in homes that almost exactly duplicate sections of the Ohio Constitution of 1851 (Art. III § 12). Only the section that prohibits political and religious test oaths (Art. III § 11), a reaction to the test oaths required of former secessionists, was a wholly new creation of the West Virginia Convention. The 1872 Constitution article on elections establishes universal male suffrage, except for mental incompetents and felons, and contains provisions about the age of offi ceholders, the process for removal from offi ce, impeachment processes, and the operation of electoral processes (Art. IV §§ 1, 3–9, 11–12). Marking the resurgence of Virginian concepts of government, voters could choose between viva voce and ballot voting. However, the convention replaced a provision of the Constitution of 1863 permitting the registration of voters, perhaps designed to discourage voting by secessionists, with language allowing a person to vote without registering (Art. IV §2). Finally, it stated that persons who engaged or assisted in dueling could not hold any state offi ce (Art. IV § 10). Unlike the U.S. Constitution but similar to most state constitutions, the West Virginia government provides for a “distinct” separation of the legislative, executive, and judicial branches of government (Art. V). Article VI of the 1872 Constitution changed the 1863 document to require biennial legislative sessions of forty-fi ve days, but a session could be extended by two- thirds vote of the membership and the governor could call extraordinary legislative sessions for special purposes. The Legislature of West Virginia, as it is titled, was to have two houses. Members of the House of Delegates were given two-year terms and senators were given four-year terms, with half of the Senate being elected every two years. Members of each house would stand for election in districts composed of one or several counties in which they resided. Initially, the Constitution did not allow legislators to hold two offi ces or a position as a “salaried offi cer of any railroad company” (Art. VI §§ 1–13, 15). Article VI (§§ 14, 16–34, 41–42) also devotes considerable attention to the specifi cation of legislative procedures related to the passage of laws and the regulation of the behavior of legislators. Following the Jacksonian desire to control privilege, it contained more elaborate restrictions on special 112 Constitutional Politics

legislation for specifi c interests than previous Virginia constitutions (Art. VI § 39). As in the 1863 Constitution, there was a section requiring laws to address a single topic (Art. VI § 30). It also required state contracts be let to the lowest responsible bidder, and it required the legislators to meet in Charleston unless a law designated another meeting place. Following a provision in the 1863 Constitution, the 1872 Constitution authorized the legislature to prohibit liquor sales (Art. VI § 46). It was also authorized to adopt married women’s property acts, one of the fi rst policies to promote the political empowerment of women (Art. VI § 49). Under the 1873 Constitution (Art. VII), the executive branch consists of the fi ve elected offi ces established in the 1863 Constitution: a governor serving a four-year term but ineligible for an immediate second term, a state superintendent of free schools, a treasurer, an auditor, and an attorney general. The secretary of state was a gubernatorial appointee. The most important change from Virginia practice and the 1863 Constitution was the creation of the gubernatorial veto and the line item veto for appropriation bills (Art. VII §§ 14–15). The governor was also authorized to fi ll vacancies in the other elected executive offi ces, and these offi ces were required to provide the governor with a semiannual report of their receipts and disbursements (Art. VII §§ 6–8). The 1872 Constitution (Art. VIII) expanded the Supreme Court of Ap- peals to four elected members and defi ned in more detail the jurisdiction of the elected circuit court judges. It also provided for justices of the peace to be elected for four-year terms in districts within a county, and it limited the power of justices of the peace to seize and sell property for actions related to the prosecution of the Civil War. The 1872 version of Article IX on county government replaces the township governments created in 1863 with county courts composed of a president elected to four-year terms and at least two justices of the peace. The county courts perform police, fi scal, and selected judicial functions in probate and the appellate review of a single justice of the peace’s decisions at bimonthly meetings. Also, county voters selected a sheriff for a single term, a surveyor, a prosecuting attorney, assessors, and constables. The county court selected the coroner, overseer of the poor, and surveyors of roads. Article X describes state and local taxation powers. Today it is much amended, but the 1872 text established requirements for equal and uniform property taxation, placed limits on taxes, and permitted privilege, franchise, and income taxes. It also limits the state’s borrowing of money and extending its credit to other public bodies and private persons. Other provisions govern the taxation and debt of counties and municipalities. Constitutional Politics 113

In Article XI the Constitution provides for the regulation of corporations. It requires a general corporate law so that legislators cannot bestow special privileges on some businesses, and it sets forth the voting rights of stockholders. Other sections address the operation of street railways, banks, and railroads. Article XIII addresses land titles, forfeited lands, and wastelands. Largely amended out of existence in 1993, its primary purpose was to ensure that deeds issued by Virginia remained in force in the new state. Similar to the 1863 Constitution, Article XII requires the legislature to establish a “thorough and effi cient system of free schools.” Although schools are to be supervised by a state board of education and a state superintendent of schools, the primary responsibility for school operations and funding was left to the purview of county school boards and superintendents. The Con- stitution also charges the legislature with the provision of special schools for the disabled and for other kinds of intellectual and scientifi c improvement. The Constitution of 1872 signaled a return to the institutional forms of the 1851 Constitution of Virginia and its Jacksonian idea of popularly controlled but limited governmental power. Jacksonian ideas of states’ rights, the election of multiple executive offi cers, judges, and local offi cials, several independent offi cers, limitations on offi cial authority and taxation, and limitations on state investments all appear in the 1872 West Virginia Constitution. Con- stitutional sections on topics like married women’s property acts, judicial divorce, general incorporation acts, banking provisions, and railroads refl ect the antipatriarchal ideas and the hostility toward special privileges that surfaced among some Jacksonian factions. Overall, the Constitution of 1872 signals a distrust of government and a fear that, without proper institutional restraints, the people’s voice would be excluded from state policymaking.

constitutional amendments and reform campaigns

Modifying provisions in the 1863 document, Article XIV provides for its amendment either by a convention called by a majority of both houses of the legislature and approved in a subsequent referendum, which has never been used, or by two-thirds approval of an amendment by each house of the legislature and approval by a majority of voters at a referendum held at least three months after legislative approval. Since 1872 the legislature has proposed 122 amendments to the state constitution. By 2006, 76 of these amendments had been ratiﬁ ed by the voters. Fifteen of the amendments, mostly about the bonded indebtedness of the state, are listed at the end of the constitution. But, unlike the U.S. Constitution, most amendments have been incorporated into its text. 114 Constitutional Politics

Preamble

In 1960 the voters approved an amendment containing a preamble to the constitution. It cites “Divine Providence” as the source of liberty, reaffi rms “faith in and constant reliance upon God,” and states that the constitution is to promote government “for the common welfare, freedom, and security of ourselves and our posterity.” Other proposed amendments fall into one of seven general categories: the protection of personal rights and political representation; legislative operations; executive organization and operations; judicial operations; county and local governance; state fi nance; public education; and the claims of special interests. The majority of the amendments were designed to improve government management; however, the state’s constitution still retains many provisions refl ecting the Jacksonian political ideas found in the 1872 document.

Personal Rights and Political Representation

West Virginia voters have approved several amendments to the state’s bill of rights, but these have not radically diminished the state’s historical commitment to personal rights. The section on jury trial was amended in 1880 to allow for six-member jury trials in civil cases of more than $20 in value before a justice of the peace; in 1974, to replace language on justices of the peace with “courts of limited jurisdiction”; and in 1956, to make women eligible for jury service. In 1986, the voters ratifi ed a right to bear arms for “defense of self, family, home, and state, and for lawful hunting and recreational use” (Art. III § 22). The article on elections and offi cers was amended twice: in 1884 to change the date of the fall election from October to the Tuesday after the fi rst Monday in November, and again in 1902, to require the legislature to adopt voter registration laws, a change designed to control corrupt party machines and, in some states, to prevent blacks from voting. In 1934, the voters rejected conditioning the right to vote on the payment of a capitation tax, a tax often associated with denying blacks the right to vote. An amendment requiring a period of private contempla- tion, meditation, or prayer in the public schools was approved in 1984, but a federal district court quickly held that it was an unconstitutional violation of the U.S. Constitution’s First Amendment.14

Legislative Operations

The voters have approved several amendments to increase the legislature’s capacity to make policy and address public needs. In 1953 biennial Constitutional Politics 115 legislative sessions were replaced with annual sessions, and in 1970 the Legislative Improvement Amendment excluded state employees and other governmental offi cers from legislative service, permitted salaried railroad company offi cers to run for the legislature, and set the start of the annual session on the second Wednesday in January (except for every fourth year after 1973, when it would convene to open election returns, adjourn, and reconvene on the second Wednesday of February). The 1970 amendment also fi xed the date for the governor’s submission of a budget, established a legislative session of sixty calendar days that the legislators could extend by a two-thirds vote, and created a commission to submit resolutions on legislative compensation and expenses for legislative approval. In 1936 the voters ratifi ed an amendment to eliminate the immunity of county and local governments and offi cers from garnishment and attachment actions to collect debts. The voters amended the section on lotteries in 1980 to give counties an option to legalize bingo games and raffl es for charitable purposes and in 1984 to provide for a state lottery that has become an important source of state revenues. An amendment adopted in 1912 prohibited the manufacture or sale of liquor, but it was repealed in 1934 in favor of state regulation of liquor sales and consumption.

The Executive Branch

Amendments to the executive department article, ratifi ed in 1902, 1958, and 1970, have incrementally changed the election and eligibility requirements for several executive offi ces. The 1902 Amendment provided for the election of a secretary of state, the 1958 Amendment allowed the governor to appoint the state superintendent of free schools instead of having that offi ce fi lled by an election, and the 1970 Amendment permitted the governor to hold two successive terms and adjusted the list of offi ces for which the governor could fi ll a vacancy. Various amendments to unify the executive branch operations under the governor and eliminate the independent election of the attorney general, secretary of state, treasurer, and commissioner of agriculture failed to win voter approval in 1930, 1940, 1946, and 1989. West Virginia thus lacks the kind of single executive system exemplifi ed by the federal presidency.

The Judicial Branch

In 1880 the voters ratifi ed an amendment that rewrote the entire text of Article VIII on judicial power, making minor changes in sections on the Supreme Court of Appeals, circuit court jurisdiction, the number of circuit 116 Constitutional Politics court sessions per year and circuit court district boundaries, and the duties of court clerks. It also removed the justices of the peace from the county court. The county court became a body of three elected commissioners with no judicial duties except in probate, family law, and election disputes. The civil small claims jurisdiction of the justices of the peace was also adjusted. The Judicial Amendment of 1902 increased the size of the Supreme Court of Appeals to fi ve members. However, other attempts to change the judiciary’s organization failed in 1888 (to change jury trial provisions), 1910 (to change the number of Supreme Court of Appeals justices), 1930 (to provide probate commissioners and to redistrict the circuit courts), 1940 (to provide summary courts in each county), and 1966 (to change circuit judge assignments and authorize different duties for courts established by the legislature). In 1974 the voters approved a judicial reorganization amendment that completely replaced the then existing language of Article VIII. It redefi ned the jurisdiction of the Supreme Court of Appeals and the circuit courts, left circuit court redistricting to the legislature, gave the Supreme Court of Appeals extensive supervisory power over the administration of the courts and the bar, abolished specialized courts established by the legislature, established systems for judicial discipline, retirement, and removal, phased out the county court’s judicial duties, and replaced the justices of the peace with elected magistrates’ courts for each county. With the exception of the retention of an elected judiciary, the amendment made judicial organization parallel the simplifi ed, professional pattern emerging in other state constitutions. In 2000 the voters ratifi ed a family court amendment (Art. VIII § 16) to provide a special venue to address the rapidly growing volume of divorce and child custody and support cases. The voters elect family court judges for eight-year terms to perform duties assigned by the legislature and supervised by the Supreme Court of Appeals.

Local Governance

There have been relatively few efforts to amend the state constitution to strengthen the capacity of West Virginia’s local governments to make public policy and serve local interests. The Judicial Reorganization Amend- ment of 1974, for example, stripped county commissioners of most of their judicial duties. The 1932 Tax Limitation Amendment limited property tax rates on both personal and real property and, in the process, severely restrained local governments’ capacity to raise revenue. In 1936, the voters did ratify an amendment giving home rule to municipalities with more than Constitutional Politics 117

2,000 residents, but, as discussed in chapter 11, the provision is essentially meaningless. Voters rejected amendments to increase commissioners’ salaries (1908, 1916), to repeal or alter the sheriff’s succession amendment (1982, 1986, 1994), and to permit the reorganization of county government, to merge or reorganize county and municipal government with voter approval, and to expand county legislative powers (1989). They did approve an amendment in 1973 to allow sheriffs to serve two consecutive terms.

State Finance

Most of the amendments affecting the state’s fi nances affect fi scal management; they do not to increase state revenue. Before 1918 there was no state budget. In 1918 the Budget Amendment created a Board of Public Works, composed of the (then) seven elected state executive offi cers, to submit annual budgets to the legislature for the two forthcoming fi scal years.15 A 1954 amendment provided for an annual legislative session and called for legislators to meet for thirty days in even numbered years to consider the budget. Voters rejected other amendments to the budget and appropriations process in 1926, 1940, and 1962, but in 1968 they approved the Modern Budget Amendment. This amendment required the governor to submit a detailed executive budget, with itemized information on proposed expenditures, to the legislature for its consideration. The governor was also required to submit to the legislature a budget bill containing proposed appropriations for its consideration. Today the legislature can amend this bill so long as it does not create a defi cit, change offi cial salaries in midterm, decrease the judiciary’s budget, or increase estimated revenues. If the legislature fails to act on the bill, the governor can extend the legislative session for its enactment. Once the legislature approves the bill, the governor can sign the bill into law, veto the entire bill, or veto parts of it. Budget lines subjected to a line item veto can be overridden by a two-thirds vote of both houses. Supplementary appropriations can be made later if taxes are not increased. Although West Virginia has moved to centralized budgeting, constitutional amendments have severely restricted state and local governments’ ability to raise revenue. An amendment to limit tax rates was rejected in 1926, but the 1932 Tax Limitation Amendment limited tax rates on both personal and real property. Efforts to increase taxes beyond these limits require a special levy vote that must be approved by 60 percent of the voters within counties or municipalities and, as amended in 1982, 50 percent for school districts. However, the same amendment permitted a state income tax. Other amendments have imposed additional constraints on revenue 118 Constitutional Politics

generation and spending by the state and, especially, local governments. For example, the Homestead Exemption Amendment of 1982 exempts the fi rst $20,000 in value of owner-occupied homes from the property tax if the owner is at least sixty-fi ve years old or is disabled. Also, some amendments channel state revenue to specifi c ends, such as a 1942 amendment on taxation for highway construction and a 1946 amendment on the use of a severance tax on harvested trees. Many of these amendments were designed to improve fi nancial management, but as a group they have not eliminated the constitution’s Jacksonian logic about the necessity for direct, popular control over public spending. Only with the ratifi cation of an amendment in 1986 that permitted more options for the investment of state revenues and a 2002 county and municipal economic development amendment, which allowed local governments to issue bonds to generate funds for public projects, have the voters removed some restraints on elected offi cials’ management of state revenues.

Public Education

Efforts to amend the constitution’s education article have focused on school ﬁ nance. In 1902, the constitution was amended to require more revenue to be placed in an “irreducible” school fund. The fund’s interest would be spent on schools. Amendments in 1950 and 1958 expanded the ability of school districts to ﬂ oat bonds to raise funds with voter approval, and a 1982 amendment changed the required voter approval from 60 percent to a simple majority. An amendment permitting a bond issue for school construction and renovation was approved in 1972. Efforts to provide more money for schools through bond issues in 1966, 1978, and 1986 failed to win voter approval. To improve school administration, a 1958 amendment established a state board of education appointed by the governor, with Senate approval, to supervise state schools and select a state superintendent of schools. In 1986, an amendment provided for nonpartisan election of county school board members and geographic diversion of representation within the county served by the school boards. Efforts to amend the constitution to provide for more uniformity in school funding (1988) and to place educational administration under legislative discretion (1989) were rejected by the voters.

Claims of Special Interests

A few constitutional amendments provide benefi ts to special interests or concerns. The provision on bank corporations was amended in 1938 to Constitutional Politics 119 eliminate the liability of bank stockholders to creditors and to provide for a general incorporation law for banks. A 1958 amendment allowed corporations to issue more varieties of stock, including nonvoting shares. Together, these two amendments adjusted West Virginia law toward uniformity with the corporate law of other states. Special constitutional amendments adopted in 1920, 1928, 1948, 1964, 1968, 1973, and 1996 permitted the state to sell bonds to pay for highway construction, but voters rejected similar amendments in 1981, 1984, 1986, and 1988. An amendment to sell bonds for water and sewer projects passed in 1994. Other amendments authorized the sale of bonds for bonuses to veterans of World Wars I and II, the Korean War, the Vietnam War, the confl icts in Grenada, Lebanon, Panama, and the Persian Gulf, and for veterans’ housing. The electorate also approved a few miscellaneous changes in the constitution. For example, an amendment was adopted in 1960 that allowed the legislature to provide for succession to offi ce and continuity of government in times of “enemy attack.”

federal constitutional law and the west virginia constitution

Federal constitutional amendments and judicial decisions interpreting the U.S. Constitution have resulted in the de facto amendment of some state constitutional provisions. For example, the denial of implied powers and the states’ rights emphasis contained in the state constitution have been rendered essentially meaningless by several decisions of the U.S. Supreme Court.16 Also, unlike the U.S. Constitution, the West Virginia Constitution of 1872 lacked an equal protection clause, contained language prohibiting women from voting, and required racial segregation of the schools. The prohibition against women voting was nulliﬁ ed by the Nineteenth Amendment of the U.S. Constitution in 1919, and federal court decisions rendered void the provision for the racial segregation of the public schools.17 The voters formally repealed the school segregation section in 1994. Constitutional amendments and the decisions of the U.S. Supreme Court about legislative apportionment and voting rights also have resulted in de facto amendment of the West Virginia Constitution. The Twenty-sixth Amendment to the U.S. Constitution (1971), the right to vote at age eighteen, clariﬁ ed the exclusion of “minors” from the vote in West Virginia. Federal judicial interpretations of residency requirements for voting imply that the one-year residency requirement to qualify for voting and the ban on voting by members of the military stationed in the state have no force.18 Although an amendment to rewrite constitutional apportionment provisions 120 Constitutional Politics

was rejected in 1962, federal intervention secured fairer apportionment. In 1964, the apportionment procedures for House of Delegates and Senate districts to ensure equal representation came under regular federal judicial scrutiny after the U.S. Supreme Court decision in Reynolds v. Sims.19 Final- ly, because state judges recognized the supremacy of federal judicial con- structions of rights, federal judicial interpretation of federal constitutional rights has normally guided the West Virginia judiciary in its interpretation of similar rights, especially personal liberties of speech, press, and religion and the rights of criminal defendants.

other aspects of west virginia constitutionalism

West Virginians have not followed the lead of many other states and centralized their executive branch operations in the governor’s offi ce, and they have refused to establish a full-time, professional legislature. On the other hand, they have avoided nationally popular antilegislative measures such as initiative and referendum, recall, and term limitation amendments. The amendments that the voters ratifi ed ensured a less chaotic and more centrally directed budget process, made county and local governments focus more on services than on adjudication, and rationalized judicial operations. These changes were designed to improve state managerial capacity, especially in judicial administration and budget preparation, but the Jacksonian princi- ples of limited government and popular electoral control remain embed- ded in the constitution. Thus the constitution refl ects a traditional political design based on nineteenth-century political ideas, but this framework of political institutions is overlaid with and exists in tension with more recent provisions designed to provide state offi cials with greater and more fl exible policymaking authority. chapter six

The Legislature

In constitutional theory the state legislature is the primary representative of the public’s interests. During the past thirty years many states have developed their legislatures into mini-Congresses, with career-oriented legislators, increased staff and salary, and nearly year-round sessions.1 West Virginia’s legislature, however, reﬂ ects Jacksonian political thought, which holds that elected ofﬁ cials should be “average” citizens who are closely in touch with the public’s needs. Although a full-time governor and bureaucracy can be necessary to cope with the complex nature of modern government operations, bright people from a wide range of professions come to the capitol for a few months out of the year to act for their constituents.

the citizens’ legislature

As with all states except Nebraska, West Virginia has a bicameral, or two- house, legislature. Its Senate has thirty-four members, and the House of Delegates has one hundred members. Senators are elected to four-year terms. Delegates are elected to two-year terms. The state is divided into seventeen senatorial districts (two per district) and ﬁ fty-eight delegate districts (ranging from one to seven per district). Although the Republican Party’s representation in the legislature has increased in recent years, the Demo- cratic Party has been the majority party in both the Senate and the House of Delegates since 1930. In 2006, there were twenty-one Democratic senators, thirteen Republican senators, sixty-nine Democratic delegates, and thirty- one Republican delegates. Short legislative sessions, low legislative salaries, low levels of legislative staff, limited legislative facilities, and high turnover among members mark West Virginia’s legislature. The annual regular legislative session’s 122 The Legislature

maximum length is only sixty calendar days. Although this is more than the alternating sixty-day and thirty-day annual sessions held before 1973 and the biennial sixty-day sessions held before 1955, it means that legislating is a long way from being a full-time occupation for legislators. The legislature convenes on the second Wednesday in January,2 and it works at an increasingly hectic pace until the second week in March. The session can be extended by gubernatorial order and by concurrent resolution adopted by the legislature. Before 1990, most sessions ended near the sixty-day limit. Since 1990, the governor has extended every legislative session, typically for a week or two, to complete the budget or act on items that he considered to be essential.3 The two most important effects of having limited sessions are that the legislators spend most of their time back in their home districts and therefore are less likely than other state lawmakers to become deeply indoctrinated into the “capital culture,” and they are probably less knowledgeable about the policies they debate than they would be if they had longer sessions. Legislative salaries in West Virginia, at $20,000 per year plus reimbursement for some expenses, are relatively low. Although this salary is consider- ably better than the $6,500 per year they made before 1995, or the $500 per year they made before 1955, it is far less than the income most legislators could make in their chosen professions. The assumption behind having low salaries is that legislators should have another job to support themselves. In this way, they will have regular and close contact with people other than their fellow legislators, giving them insight into the problems that ordinary citizens face. The need to earn additional money, however, also diminishes their ability to legislate thoroughly and impartially because their “regular” job often takes their attention away from their legislative duties. There may even be subtle conﬂ icts of interest, such as when an insurance agent/legislator has to vote on a bill regulating the insurance industry. Further, the types of jobs and professions that allow a person to take off work for two months every winter is limited and not representative of the entire job market. For example, it is much easier for an attorney to rearrange his or her schedule to serve in the legislature than a coal miner working for an hourly wage. The legislature provides its members and committees with few full-time, year-round staff, another indication of its citizen legislature status. Nation- ally, state legislatures have 28,067 full-time employees, 561 per legislature.4 West Virginia employs 195 year-round staff in various support agencies, including the Legislative Auditor, Legislative Automated Systems Division, Post Audit Division, Performance Evaluation and Research Division, Leg- islative Rulemaking Review Committee, Legislative Services, Legislative The Legislature 123

Reference and Information Center, and Court of Claims. The Offi ce of Leg- islative Manager, created in 1993, oversees these support agencies.5 The legislature relies mainly on temporary staff to support its members and committees during the sixty-day regular legislative session. In 2003, the legislature had 215 session-only employees to assist it in its legislative responsibilities. Nationally, state legislatures had, on average, 136 session- only staff.6 By relying on temporary help during the legislative session, the legislature does not become dominated by a full-time, year-round professional staff that may have a political agenda of its own, a concern raised both in Congress and in some other state legislatures. But the lack of full- time, year-round staff for members and committees also makes for less informed decisionmaking. The legislature’s facilities in the capitol building have improved greatly over the years, but they are still limited. During the 1950s, members had only their desks on the chamber fl oor to call their own. Today senators have small private offi ces, and delegates have private offi ces if they hold a committee chair or are a party leader, or they share an offi ce with up to three other delegates. The lack of extensive private facilities keeps legislators from feeling too much “at home” in the capitol, but it also impinges on their ability to organize their fi les and meet privately with colleagues, constituents, and lobbyists. Finally the legislature’s nonprofessional nature is refl ected in the high rate of membership turnover. Typically, about one-third of the House and one- quarter of the Senate seats change hands following each election. Although some turnover results from members losing an election, most of it is voluntary. Few see the legislature as a career opportunity. This is likely true, at least in part, because of the fi nancial and personal hardship involved with campaigning and serving. Although high turnover allows a variety of citizens the opportunity to serve in the legislature, it also reduces the experience and institutional memory that can be brought to bear on the state’s public problems.

representation

Because individual state legislators represent far fewer citizens than the governor and other elected state offi cials, they are in a good position to assess and refl ect their constituents’ opinions. The quality of that representation, however, is diffi cult to measure. It can be evaluated along two dimensions: how well the legislature refl ects the public’s social and economic characteristics, and how many constituents each representative serves. 124 The Legislature

Social and Economic Characteristics

Most West Virginia legislators are white male lawyers or businessmen. In 2006, 15.7 percent of the legislators were women (21 of 134).7 The national fi gure was 22.5 percent. Also, although 3.2 percent of the state’s population is black, in 2006 only two of the legislators were black. Nationally, 12.5 percent of the population and 8.1 percent of state legislators are black. Con- sequently, the legislature underrepresents both women and African Ameri- cans.8 However, women are better represented today than in the past. In 1967–68, for example, only 5.2 percent of the legislators were women. Most state legislatures have a higher percentage of lawyers and business owners than in the population generally.9 This disparity is understandable given the time and money required both to run for and to serve in the legislature. Lawyers and business owners often have more fl exible schedules and the fi nancial resources to accommodate these demands. Also, legislative service can be advantageous to the careers of lawyers and certain types of businessmen, encouraging them to seek a legislative seat.10 West Virginia also has a high number of teachers in the legislature, perhaps refl ecting the state’s key role in setting teachers’ salaries, determining teacher retirement benefi ts, funding school construction, and infl uencing school consolidation decisions.

Constituency Size

Unlike most other states, West Virginia uses multimember legislative districts in its House of Delegates. There are fi fty-eight districts for the hundred-member House of Delegates. These districts are represented by one to seven delegates, with thirty-six districts having one delegate, eleven having two delegates, six having three, three having four, one having fi ve, and one having seven. Most of the multimember districts are located in the state’s more heavily populated areas, such as Monongalia, Wood, Kanawha, and Cabell counties. Opponents of multimember districts argue that they are more diffi cult to represent than smaller, single-member districts because they typically have a more diverse constituency. Kanawha County’s seven-member district, for example, has over 128,000 constituents, about seven times more than the typical single-member district. Kanawha County’s constituents include a diverse set of interests, making the elected delegates’ task of understanding and representing their needs more diffi cult. Moreover, on election day, voters in multimember districts are usually presented with a long list of candidates, making the voter’s job of differentiating among the candidates’ The Legislature 125 views more diffi cult than the voter in a single-member district who is asked to choose from a much shorter list. There is also evidence that multimember districts make it more diffi cult for minorities to get elected and easier for women to get elected.11 Only four other state senates and fourteen other state houses currently have any multimember districts, and almost none use them to the extent found in West Virginia. The legislature began using multimember districts because the state constitution mandates that county lines serve as boundaries for all Senate districts and that districts be equal in population. Although the constitution does not require the House of Delegates to be apportioned along county lines, counties have been used as the starting point for the districting of that chamber as well. The use of multimember districts has persisted over time because, as a practical matter, it is easier to divide the state into fewer districts that are proportional in population than two or three times as many districts that are equal in population.12 In addition, most delegates in multimember districts oppose the move to single-member districts because they worry how the change might affect their reelection prospects. Other delegates, sensitive to their colleagues’ electoral concerns, have not pressed the issue.

legislative procedures

The two most important aspects of the legislature’s day- to-day operations are the leadership’s strength and the use of the committee system. The leadership in West Virginia is especially powerful because of the legislature’s nonprofessional nature. Party Leadership

Next to the governor, who sets the legislative agenda through the executive budget request, the president of the Senate and the speaker of the House of Delegates are by far the most important players in the legislative process. As one longtime participant in the legislative process once put it, “If they [the speaker and president] decide to paint the chambers polky dot, then they will likely be painted polky dot.” This is a typical pattern in citizen legislatures because most members are too busy with their full-time jobs to spend the time necessary to understand the entire context of legislative action.13 The leaders, however, are compensated an extra $150 per legislative day plus another $150 per day for working when the legislature is not in session. The extra compensation is intended to allow them to focus their time and effort on the legislature. Also, the short legislative session means that 126 The Legislature

a strong authority is required to keep members on track to complete their legislative business.14 Sixty days pass quickly when there is much work to do, and a well-deﬁ ned agenda is needed so that legislators can have some direction to their activities.

how leaders are selected The House speaker and Senate president are elected by a majority vote in their chamber at the beginning of each session. Practically speaking, however, the election takes place in the majority party caucus. Candidates woo their colleagues with promises of committee seats or chairs and other perks, and there is much discussion of the candidate’s policy preferences and his or her proposed “leadership team” (the members who will be infl uential if that candidate succeeds). Once a candidate gains the support of a majority of the party caucus, the selection is ratifi ed on the fl oor of the chamber with all majority party members voting for the consensus candidate, whether or not they supported him or her in caucus. Once elected, tradition holds that the speaker or president serves as long as he or she holds a legislative seat and wishes to serve as a leader. Robert Kiss (D-Raleigh County) was elected to the House of Del- egates in 1988 and served as the fi fty-fourth speaker from 1997 until his retirement in 2006. The current Senate president, Earl Ray Tomblin (D-Logan County), served for six years in the House before being elected to the Senate in 1980. He has served as the Senate’s forty-eighth president since 1995.

legislative power The House speaker and Senate president’s powers fall into two general categories: procedural controls and colleague benefi ts. Both leaders, but especially the speaker, control the fl ow of legislation through his or her procedural powers. They both control fl oor debate as their chamber’s presiding offi cer and as chair of their chamber’s rules committee. It decides when legislation will be taken up on the fl oor for fi nal debate and which bills are given special rules that allow them to jump ahead of other bills on the regular calendar. Special rules are important because there is never enough time for the full chamber to take up all the bills reported out of the substantive committees. The rules committee is therefore a powerful checkpoint in the legislative process. The speaker and president not only chair their respective chamber’s rules committee, but they also appoint all of its members, giving them great control over its actions. Both leaders also garner strength from the benefi ts they distribute to their colleagues. For example, they appoint all committee memberships and chairs in their respective chambers. Because members care very much about these assignments, leaders can trade them for future favors. The The Legislature 127 leaders can also craft the chamber’s committees to refl ect their policy preferences by putting like-minded individuals in key chairs and on key committees. Near the end of the 2004 legislative session, after a particularly hectic day that saw action on more than one hundred bills, Kiss took the unusual action of calling together the chairs of all major and minor committees into his offi ce for a closed door meeting. Kiss reprimanded members of his team for abandoning the leadership’s position on several bills. Several chairmen offered their resignations, but none were accepted. News of the meeting soon leaked to the press. Kiss later commented on a statewide radio talk show that he told the members of his leadership team that if they did not want to be part of the team and a part of the process, they should “get off the bus.”15 Such reprimands have rarely been necessary in the past. Delegates know who is the boss. One possible explanation for the need for the meeting is the recent increase in the number of Republicans in the House chamber. Their presence has increased partisan divisions within the state legislature and the need for the majority leadership to hold tighter reins over its membership to ensure victory. The rebellious actions of the majority party’s leadership team may have been a byproduct of an increasingly divisive and partisan legislative session where all members feel an increased need to express their particular views. At the same time, it was also widely known that Speaker Kiss was looking at other career opportunities. For example, he was considered for an appointment to the West Virginia Supreme Court of Appeals. This may have led to the impression that he was a lame duck and might not have the political will and/or political clout to prevent them from straying from the party line. In either case, the meeting suggests that the internal dynamics of the House of Delegates has changed in recent years. Rank-and-fi le members are now more likely to be legislatively active from day one, and they are more resistant to leadership’s efforts to get them to follow the party line. Moreover, the Repub- lican Party’s recent electoral gains have added a partisan fl avor to fl oor debate that has not been seen in the state legislature for many decades. For example, during the 2004 legislative session’s debate on school funding, Democratic delegates denounced the federal No Child Left Behind Act. In very strong, partisan language, they blasted the program by characterizing it as a Bush administration fi asco. If spectators of the fl oor debate closed their eyes, they could easily imagine themselves listening to the fl oor debate in the House of Representatives in Washington dc rather than in the state house in Charleston. 128 The Legislature

Legislative Committees

There are three distinct types of committees: standing, conference, and interim. Standing committees exist from one legislative session to another. They are divided along substantive policy lines, except for the rules committee, and do the bulk of the legislative processing. There are sixteen standing committees in the House, with most of them having from twenty-two to twenty-fi ve members. There are seventeen standing committees in the Sen- ate, with membership ranging from seven to seventeen. The chamber leader refers each bill to at least one standing committee for review. The standing committee’s job is to investigate bills, amend them, and make recommendations to the full chamber. However, because of the large volume of bills that are introduced each session (2,301 during the 2006 legislative session), most bills die quietly without any debate.16 It is largely up to the committee chair to determine which bills are discussed. The chair has great authority in setting the committee’s agenda, and although the other committee members may overrule the chair’s decision not to consider a bill, it is rarely done. When deciding which bills to bring before the full committee, the chair considers the quality of the legislation, the bill’s “passability” (since they do not want to waste precious time on a sure loser), the leader’s wishes, and his or her own political and policy concerns. Public hearings are typically held only for the most important bills, and most of them consist of testimony from only the bill’s sponsor and the executive offi cial responsible for implementing the bill. The offi cials’ opinions often carry decisive weight, given their expertise and the lack of legislative staff to provide alternative information. Committee members, of course, take seriously the testimony by interest group representatives and the public, but the vast majority of legislation creates little interest outside of the capitol building. Conference committees are formed to reconcile the inevitable discrepan- cies between bills passed by each chamber. A bill must pass both chambers in identical form before it can be sent to the governor for fi nal approval and passage into law. Once a bill is passed in each chamber, the speaker and president appoint members of their respective chambers to serve on the bill’s conference committee. These members are usually the chairs and key members of the standing committees that had initial jurisdiction over the bill, plus other interested or important members, perhaps including the bill’s sponsor. Conference committee members try to keep the fi nal bill as close to their home chamber’s version as possible, but their ultimate goal is to achieve a The Legislature 129 compromise that will pass both chambers and be signed by the governor. Once the committee reaches an agreement, it is sent to each chamber, where it must be considered on an up or down vote, with no amendments. The fact that bills reported out of conference committees routinely pass on the chamber fl oor is an indication of both the conference’s importance and the quality of the conferees’ negotiating skills. Interim committees are joint committees used by the legislature as a way to get around its limited session. Created during the 1940s as an ad hoc way to study issues away from the legislative session’s hectic environment, interim committees are now an integral part of the legislative process. They meet for a few days each month between regular legislative sessions. Interim committee members are appointed by the chamber leadership. In the past, the number of interim committees was relatively small, and appointment to an interim committee was considered prestigious. Today the number of interim committees has expanded to forty-seven, and nearly all legislators serve on at least one interim committee. Often meeting in the months prior to a legislative session around the state and holding hearings with citizen testimony, they serve as an important fact-fi nding tool for legislators. They also play an important role in the refi nement of the agenda for the upcom- ing session and in collecting information and overseeing the operation of existing state programs.

legislative capacity

The legislature’s capacity to represent public demands affects the quality of state governance and the quality of life for its citizens. Measuring legislative capacity is difﬁ cult because it is a multidimensional concept. Some scholars have measured it as the level of resources at the legislature’s disposal, using such measures as legislative pay, the extent of legislative staff- ing, and the legislature’s annual budget.17 Although these kinds of measures identify the legislature’s capacity to attract capable personnel, inform them about policy alternatives, and retain experienced legislators, focusing exclusively on them is misleading. Money-based scales are biased against poor rural states. It therefore should be no surprise that West Virginia, Wyoming, North Dakota, and Arkansas consistently rank at the bottom of these scales, while wealthy urban states like California, New York, Massachusetts, and Pennsylvania rank at the top. Although money and the things a legislature can purchase with it, like year-round professional staff, are undeniably important, legislatures have other attributes that cost no tax dollars and can be used to improve their 130 The Legislature

legislative capacity. For example, a legislature can improve its policymaking capacity by creating a committee system that facilitates decisionmaking, by establishing rules and procedures that expedite bill processing, and by empowering its executive oversight committees.

The Committee System

State legislatures vary dramatically in the number of standing committees they employ, from sixty-nine in the New York legislature to only ten in Maine. During the 1960s and 1970s, political reformers worked to get legislatures to reduce the number of its committees. They argued that when there are too many committees, the legislature is a confused place, with members running from committee meeting to committee meeting, taking energy away from legislating. West Virginia’s legislature reduced the number of committees in both chambers between 1955 and 1969 from fi fty-four to twenty-eight. Today West Virginia has thirty-three legislative committees, which is the national median.18 The House and Senate have a tacit designation of primary or “major” and secondary or “minor” substantive committees. The primary committees— fi nance, education, judiciary, and government organization—receive most of the important legislation. This expedites the consideration of key legislation, but it does not take full advantage of the potential effi ciency that a fuller division of labor into committees could provide. Two aspects of this primary/secondary committee arrangement likely militate against any signifi cant loss of effi ciency, however. First, each member is traditionally appointed to at least one primary committee. This gives every member an opportunity to get involved in important legislation. Also, legislators traditionally serve on no more than one primary committee in the House and no more than two in the Senate. This prevents any member from becoming overburdened by these chores. The second mitigating factor is the regular use of subcommittees to divide up the workload. Subcommittees allow members to specialize in their work, as is done in Congress. The use of subcommittees in both the West Virginia Senate and House of Delegates is an important, positive aspect of the legislative committee system. West Virginia has a long history of using subcommittees. In 1990, West Virginia’s Senate was one of only twenty-three state senates to use subcommittees. The West Virginia House of Delegates was one of only thirty state houses to use subcommittees. Today forty-one state senates and forty-two state houses use subcommittees.19 The amount of experience that members and chairs have on their The Legislature 131 committees is another important resource. Although the legislature’s high turnover rate does not bode well for its committee stability, there is a tradition of members staying on the same committees throughout their careers, with less committee-hopping than is found in most other legislatures.20 This suggests that, although a signifi cant number of new committee members arrive with each new legislature, a block of experienced members usually provide continuity and expertise. Finally, the level of committee autonomy also conditions the capacity of the legislature. Highly autonomous committees a fi rm control over their own agendas and a large degree of input concerning the laws the legislature produces in their policy areas. This gives both committee members and other actors interested in that policy area an incentive to work within the committee structure, where legislative specialists make the decisions. In Congress, where committees are extremely autonomous, the chamber leadership’s role is largely one of traffi c control. State legislatures, on the other hand, have traditionally been dominated by their chamber leaders. As mentioned previously, West Virginia’s chamber leaders dominate the committees. This is not necessarily bad, however, because a strong leader can coordinate the legislature’s activities and outputs, resulting in more effi cient legislating.

the legislative process

Legislatures can improve their policymaking capacity by establishing rules and mechanisms that expedite and streamline bill processing. The Council of State Governments has identifi ed several such mechanisms: establishing deadlines for bill introduction, for committee action on bills, and for fi rst house action on bills (house of origin); allowing for the pre-fi ling of bills and for companion bills; allowing the use of committee bills; and allowing bills to carry over from the fi rst to the second session. These mechanisms make bill processing more effi cient by reducing duplication of effort, regu- larizing the process, and decreasing end-of-session logjams.21 The House of Delegates uses six of these mechanisms (all but the use of companion bills). Senate rules include deadlines for bill introduction and for fi rst house action on bills, and pre-fi ling of bills. Nationally, the median state legislature uses seven of these mechanisms. West Virginia’s use of nine of these mechanisms ranks it tied for fourteenth highest in the nation.22 As a result, although the legislature does not take full advantage of its committee system, it does rank among the better legislatures in the country in the processing of bills. Along these same lines, the quantity of legislation introduced in state 132 The Legislature legislatures has increased dramatically since the 1960s. Some state legislatures have responded to this increased workload by essentially abandoning their deliberative role and passing legislation into law at a high rate. For example, the Virginia and Arkansas legislatures pass into law nearly 60 percent of the legislation introduced in them. West Virginia is different. During the 2006 legislative session, the legislature considered 2,301 bills and 335 resolutions, close to the national average, but adopted only 266 bills and 138 resolutions, or 15.3 percent, of them. This was much lower than the national average of 26.7 percent.23 If it is assumed that the quality of the bills introduced is reasonably constant across the states, this indicates that the legislature takes its deliberative role as seriously as any legislature in the country. Another measure of the level of scrutiny each bill receives in the legislature is the number of bills passed per legislative workday. The more bills that are passed each day, the less consideration each is likely to receive. Although the length of deliberation does not necessarily equate with quality of deliberation, these are likely to be correlated. During the 2003 regular legislative session, state legislatures produced an average of 8.3 enrolled bills (passed by both chambers) per legislative day. West Virginia’s production rate of 5.3 enrolled bills per legislative day in 2003 (4.4 per legislative day in 2005 and 4.4 per legislative day in 2006) was far lower than average, again boding well for the level of legislative deliberation. Another way legislatures can improve their policymaking capacity is by facilitating public access to its members. West Virginia’s legislature, like all others, typically holds its regular sessions during weekday business hours, making it diffi cult for many members of the public to participate in the legislative process. To make the legislature more approachable, the West Vir- ginia state legislature allows organizations to set up informational displays in and around the Rotunda within the capitol building. This gives organizations an opportunity to showcase their activities or cause. Typically, these organizations will schedule the presentation of the informational display to coincide with a “Day at the Legislature” for their employees. For example, the annual “Friends of Coal Day” attracts thousands of miners and others affi liated with the coal industry to the state capitol. The annual “Higher Education Day at the Legislature” attracts hundreds of higher education employees. These employees meet with their legislative representatives, attend committee meetings of interest, and, weather permitting, typically hold a rally on the capitol grounds. The presentation of informational displays and the sponsorship of legislative days are effective ways for these organizations to highlight their legislative interests and to remind legislatures of The Legislature 133 their presence and importance to the state. It also provides information that legislators can use to improve the quality of their deliberations during the legislative process.

oversight of the executive agencies

The legislature maintains partial control of policy outcomes through its oversight of the agencies of the executive branch. Although many state legislatures did not systematically engage in meaningful executive oversight prior to the 1970s, most state legislatures now attempt to oversee the bureaucracy because they have come to realize its great infl uence and discretion in implementing state public policy. The Council of State Governments has identifi ed fi ve powers that legislative committees charged with overseeing administrative rules can have, including whether it can review existing and/or proposed rules and whether it can suspend a rule with or without the full legislature’s agreement. The West Virginia Joint Legislative Rulemak- ing Review Committee, a statutorily defi ned bipartisan committee that has the primary responsibility for legislative oversight, has two of these fi ve powers (the ability to review proposed rules and the requirement of explic- itly approving each rule). This is the median level of control of oversight committees for all state legislatures.24 The legislature also regularly calls bureaucratic agency heads to testify before its committees, during the regular legislative session and especially during its interim meetings. The West Virginia legislature has forty-seven interim committees, most of which focus on executive oversight during the interim meetings. Another way to infl uence the bureaucracy is through sunset laws. They require a thorough, periodic reevaluation of an agency (typically every fi ve to ten years), with an explicit legislative reauthorization if the agency is to continue. Sunset legislation was designed to force legislatures to oversee agencies more closely (if only periodically) and to cause agencies to be more aware of their accountability to the legislature.25 West Virginia is one of twenty-eight states that has regularized sunset legislation. Nine states have comprehensive sunset legislation; West Virginia’s legislation applies only to selective agencies. This places the legislature in the median category nationally.26 In almost every state legislature, consideration of the governor’s proposed state budget is the session’s single most important activity. The budget is one of the best tools the legislature has to control the governor and the bureaucracy. West Virginia’s legislature gives as much attention to the budget as is 134 The Legislature

possible in its limited session. One indicator of this is the level of legislative experience of those serving on the House and Senate fi nance committees, which are given principal responsibility for the budget bill. These committees are made up of legislators with more experience in the legislature and on these key committees than is the norm for their chambers. For more than forty years the legislature also exerted infl uence over the bureaucracy through its actions on the “Digest of the Enrolled Budget Bill.” The Budget Digest defi ned, in more explicit detail than the budget bill, how the legislature intended agencies to spend their funds. For example, the FY2005 Budget Digest Bill directed $27 million in state spending on more than 1,500 items, ranging from $501,808 for an e-learning program in Fairmont to $500 apiece for an American Legion Post in Braxton County and the Lewis Coun- ty Story Telling Festival. In addition, dozens of Fourth of July celebrations across the state were given from $10,000 to $20,000 each. These items were culled from thousands of requests from state legislators, largely relayed from constituents, that totaled well over $100 million. The FY2005 Budget Digest included $4.1 million in local economic development assistance, $4.7 million for the Legislative Initiatives for the Elderly program, $2.8 million for senior centers and programs, and $1.9 million for fairs and festivals.27 The Budget Digest was created by the legislature’s conference committee on the budget bill, typically composed of members of the House and Senate fi nance committees. Offi cially, no recommendation contained in the Budget Digest was to be construed as legally binding. Despite its lack of the force of law, bureaucrats knew that, if they failed to consider the Digest’s directives very carefully, the legislative leaders would take that into consideration when they put together the agency’s budget the following year. This process was controversial because of the power it provided to a small group of legislators and concerns that the Digest’s real purpose was not to ensure that the bureaucracy understood legislative intent. Instead, it was seen as yet another way for the House speaker and Senate president to reward those who voted the party line and to punish those who did not.28 Dislike of this power eventually produced the repeal of the Budget Digest in 2006, but legislators added many expenditures similar to those once in the Digest to the fy2007 budget. Legislative oversight of the executive branch is diffi cult to document in ways that allow for cross-state comparisons. However, the evidence indicates that the legislature understands its oversight responsibilities and pur- sues them in a moderately rigorous way. Despite its below-average legislative resources, it appears to oversee the bureaucracy at a level comparable to the average state legislature. The Legislature 135

conclusion

Overall, West Virginia’s legislature’s structures and operations are not signifi cantly different than most other state legislatures. Given the state’s economic diffi culties, this “average” ranking is quite an accomplishment. The one area where the legislature lags behind others is legislative resources. With little money to spend, the state ranks low on staff and overall expenditures used to maintain a capable membership with access to a variety of sources of policy information and technical expertise. Also, the use of multimember districts makes it more diffi cult for some members of the House of Delegates to understand and accurately represent their constituents’ values and opinions. chapter seven

The Governor and Executive Ofﬁ ces

Regardless of partisan affi liation or margin of victory, the governor is the central fi gure in West Virginia’s political system. In acting to represent popular demands, the governor is expected to establish the state’s legislative agenda through the preparation of the executive budget request, actively participate in the legislature’s deliberations on budgetary matters and state policy initiatives, promote and direct the state’s economic development efforts, champion the state’s interests against encroachments by the federal government, lead his or her political party, and provide both moral and policy guidance for both the state legislature and the general public. Moreover, state executive departments expect the governor to establish and enforce the state’s administrative goals and implementation strategies. The relatively high expectations placed on the governor puts him or her in a somewhat precarious situation. The governor is often praised or blamed for what occurs within the state’s borders, regardless of his or her role in determining the outcome of those events. Often these events are infl uenced by forces far beyond the governor’s control, like national economic trends and natural disasters that can have a signifi cant effect on the state government’s fi scal capacity to provide public services. Moreover, the governor operates within a federal system increasingly dominated by federal policymakers. The state’s budget priorities are often determined, at least in part, by the availability of federal grants-in-aid or by federal mandates. Federal intergovernmental grants ($3.3 billion) account for almost a third of West Virginia’s total revenue of $10.5 billion. In addition, federal conditions attached to these grants often shape the state’s implementation strategies and administrative procedures.1 The governor’s authority is also limited because he or she shares and com petes for political power with the state legislature and the state judiciary. The Governor and Executive Offi ces 137

Although the governor has a number of institutional and political weapons at his disposal to infl uence the legislature’s behavior, such as the line item veto and the ability to award or refuse to award coveted administrative appoint- ments to individuals recommended by state legislators, he does not possess the authority to enact a bill. He is forced to work with the legislature to achieve his or her policy objectives. Although West Virginia’s governor and legislative leaders are usually all Democrats, making disagreements over policy objectives and strategies a matter of degree rather than of kind, the legislature rarely “rolls over and plays dead.” Bargains must be struck and compromises consummated, sometimes in favor of the legislature, sometimes in favor of the governor. Moreover, although the courts typically stay out of the day-to-day politics in Charleston, they occasionally play a role in redefi ning state policy. In 1982, for example, Judge Arthur Recht ruled in the Lincoln County School case, Pauley v. Bailey, that the system of fi nancing the public schools was unconstitutional because its reliance on property taxes rendered it discriminatory against children in poorer counties. This decision forced the state to revamp its funding policies for schools and to reform its property tax system. The governor also shares and competes for power with independently elected heads of the state’s major executive departments, including the secretary of state, attorney general, state treasurer, state auditor, and commissioner of agriculture. In many instances, they do not share the governor’s views on public policy, they are not necessarily even members of the governor’s political party, and they often have gubernatorial ambitions of their own. In 1992, two of the state’s elected executives ran against Governor W. Gaston Caperton. Caperton defeated the state’s attorney general, Mario Palumbo, in the Democratic primary. The state’s commissioner of agriculture, Cleve Benedict, a Republican, then attempted to unseat Caperton in the general election. Caperton won, but the attempts to unseat him clearly signaled that he could not count on the heads of the state’s executive departments to follow his lead. When Governor Cecil H. Underwood took offi ce for the second time in 1997, Democrats headed all of the other elected executive departments. Although Underwood’s relationship with the other elected executives was cordial, they often disagreed with the governor’s policies. Given these potential checks and balances, it is appropriate to ask whether the governor has the institutional powers necessary to alter the course of state government. It is also appropriate to ask whether the governor’s offi ce is a reliable and responsive mechanism for West Virginia’s citizens to have their views on public policy translated into government action. 138 The Governor and Executive Offi ces

historical context

Before the 1960s, it was commonplace for journalists, political scientists, historians, and others familiar with the workings of state government to ridicule the performance of state offi cials and especially the performance of governors. Among the terms used to describe many of the governors who served during the fi rst half of this century were “fl owery old courthouse politicians,” “political machine dupes,” “political pipsqueaks,” and “good-time Charlies.”2 Of course, not all governors who served at that time were described in such acerbic terms. For example, six of the ten governors named to the mythical Twentieth-Century Statehouse Hall of Fame in 1982 served before 1950.3 For the most part, however, it is generally accepted by state government scholars that most of the approximately one thousand governors who served during the fi rst half of the 1900s were second-rate politicians. They did not generate much notice outside of their state, and once their tenure in offi ce was completed, they were not long remembered even within their state. Although there have been and continue to be notable exceptions to the general rule, it is now accepted by most gubernatorial scholars that contemporary governors are more capable, creative, hard-working, forward- looking, and experienced than their predecessors.4 (A list of these individuals appears in table 8.) This turnabout is partly a refl ection of the increased responsibilities that states have assumed since the federal government launched its “war on poverty” during the 1960s. Individuals interested in al- tering social and economic conditions in American society recognized that state governments had become viable mechanisms to achieve those goals. This elevated the stature of state government service as a career. More- over, state government service became more attractive, and reformers were transforming the governor’s offi ce in many states from that of a symbolic fi gurehead to a powerful chief executive whose powers rivaled and, in some instances, surpassed the powers of the state legislature. Gubernatorial terms were lengthened, veto powers were expanded, the short ballot was imposed (electing the governor and lieutenant governor as a team rather than on separate ballots and restricting the number of executive offi cials that are elected), appointment and removal powers were strengthened, control over the budget was centralized, and reorganization powers were expanded.5 Moreover, between 1965 and 1975, twenty states restructured their executive branches and another twenty-four states reorganized at least one executive agency or department in an attempt to strengthen the governor’s capacity to act in a decisive manner.6 The Governor and Executive Offi ces 139

Table 8. West Virginia Governors, 1950–2005 Governor Party Afﬁ liation/Term Previous Position

Joseph Manchin III Democrat, 2005– Secretary of State Robert Wise Democrat, 2001–2005 Congressman Cecil H. Underwood Republican, 1997–2001 Businessman W. Gaston Caperton III Democrat, 1989–1997 Businessman Arch A. Moore Jr. Republican, 1985–1989 Governor John D. Rockefeller IV Democrat, 1977–1985 College President Arch A. Moore Jr. Republican, 1969–1977 Congressman Hulett C. Smith Democrat, 1965–1969 State Bureaucrat William Wallace Barron Democrat, 1961–1965 State Attorney General Cecil H. Underwood Republican, 1957–1961 College Vice President William C. Marland Democrat, 1953–1957 State Attorney General Okey L. Patteson Democrat, 1949–1953 Gubernatorial Assistant

West Virginia also strengthened its governor’s powers during this period. In 1968, West Virginians approved a state constitutional amendment that substantially strengthened the governor’s budgetary powers. The Modern Budget Amendment shifted the power to prepare the state budget proposal from the Board of Public Works, which consisted of the governor, secretary of state, auditor, attorney general, treasurer, commissioner of agriculture, and superintendent of schools, to the governor alone. It also empowered the governor to determine the state government’s projected revenues for the ensuing fi scal year and prohibited the legislature from appropriating funds in excess of that amount without the governor’s approval. In 1970, West Virginians approved the Governor’s Succession Amend- ment, increasing the governor’s power by permitting two consecutive four- year terms.7 This reduced the likelihood of West Virginia’s governor being perceived by members of the state legislature and by other political organizations as a “lame duck” during the third and fourth years of the fi rst term in offi ce. This, in turn, strengthened the governor’s bargaining power with both the legislature and other political organizations interested in infl uencing the direction of state government policies. As gubernatorial powers grew throughout the nation, many men and wom en who otherwise would not have considered it worthwhile to expose themselves to the physical and emotional trials and tribulations that accompany a modern campaign for the governor’s offi ce decided that it was a prize worth pursuing. One indication of the governorship’s increased value 140 The Governor and Executive Offi ces is the escalating cost of gubernatorial campaigns. The typical gubernatorial candidate in small population states like West Virginia (2 million people or less) spends between $1 million and $5 million to make a serious bid to become a governor. In high population states, such as California, Texas, and New York, it is not unusual for gubernatorial candidates to spend more than $30 million during the primary and general election campaigns. Over the past twenty years, the cost of gubernatorial campaigns has more than doubled.8 Although West Virginia is a relatively small state in both population and geographic size, its gubernatorial campaigns have featured some of the highest expenditures per voter in the nation—even when the immensely wealthy John D. Rockefeller IV was not a candidate. For example, in 1984, Republican Arch A. Moore Jr. and Democrat Clyde See spent a combined total of $9.7 million running for the governor’s offi ce. Four years later, Democrat Gaston Caperton spent $4.6 million, much of it his own money, in his successful bid to unseat Moore. Moore spent $2.4 million that year. In 2000, Democrat Robert Wise spent nearly $3 million to unseat incumbent Republican governor Cecil Underwood. In 2004, gubernatorial candidate Lloyd Jackson spent more than $3.4 million, most of it his own money, in his unsuccessful bid to win the Democratic primary. Joseph Manchin III, the Democratic primary winner and later general election winner, spent more than $2.1 million during the primary.9

the plural executive

West Virginia’s constitution, like most others, mandates a plural executive. This consists of the governor, secretary of state, attorney general, state treasurer, state auditor, and commissioner of agriculture. Each is elected in presidential election years to a four-year term, and with the exception of the governor, each can serve an unlimited number of terms in succession. Unlike most other states, West Virginia does not have a formal offi ce of lieutenant governor. The president of the Senate is charged with the responsibility of fi rst successor to the governor in the event the governor is unable to exercise the powers and discharge the duties of the offi ce. Therefore, the president of the Senate is additionally designated the title of “lieutenant governor” in acknowledgment of the president’s responsibility as fi rst successor to the governor. The secretary of state’s main duties are to supervise elections, campaign fi nance, and voter registration, maintain the state’s records and documents, fi le state agency rules and regulations, register charitable organizations and corporations, and publish the state government’s administrative rules and The Governor and Executive Offi ces 141 regulations. The offi ce has about fi fty-four staff members. In 2005, Betty Ireland became the fi rst woman elected to the state’s executive branch when she won the secretary of state’s offi ce.10 The offi ce is considered a step- ping-stone to the governorship primarily because it enhances the occupant’s name recognition. Governor Manchin, for example, was secretary of state immediately prior to being elected governor. The secretary of state’s duties are primarily custodial, not political, in nature. However, the secretary of state sometimes becomes directly involved in major political controversies. For example, in 1994, Secretary of State Ken Hechler set off a fi restorm of controversy by attacking the state tax department’s method of assessing the value of natural resources (primarily coal) for property taxation. He claimed that the department’s appraisal methods undervalued natural resources at the expense of homeowners. Governor Caperton defended the tax department’s methods, but disclosures concerning errors in the department’s tax books forced the governor to order a comprehensive reassessment of the tax department’s appraisal methods. The attorney general’s primary duties are to provide legal advice, when asked, to state government agencies, county prosecuting attorneys, and the state legislature, interpret state statutes and regulations, serve as appellate legal counsel for the state, administer consumer protection programs, adjust or prosecute consumer complaints, and litigate antitrust and some civil rights cases. The attorney general’s offi ce is also considered a prime step- ping-stone to the governorship. The offi ce’s role in interpreting state statutes and regulations and representing the state on legal matters provides the attorney general an opportunity to comment on and infl uence the direction of state legislation. This, in turn, attracts newspaper and television coverage that can be used by the attorney general to increase name recognition and to create an image as an important policymaker who can handle the responsibilities of the governor’s offi ce. Since 1993, West Virginia’s attorney general, Darrell McGraw Jr., has focused a great deal of attention on consumer protection cases. For example, the offi ce’s Consumer Protection Division generates more than $9 million annually in settlements of consumer fraud cases. Moreover, the state receives $60 million annually from a 1998 multi- state settlement against the nation’s major tobacco companies.11 The state treasurer is responsible for receiving and depositing the state’s revenue in fi nancial institutions, maintaining a record of all appropriations made by the legislature, endorsing state checks, and investing any of the state’s available funds in fi nancial institutions. The treasurer’s offi ce has about 130 staff members. Since 1997 State Treasurer John D. Perdue has expanded the offi ce’s duties to include the administration of the state’s West 142 The Governor and Executive Offi ces

Virginia Prepaid Tuition Trust Fund Act, which helps parents pay for college. He also spearheaded an effort to reduce expenses by replacing checks with electronic transfers and to implement the national Unclaimed Property Act.12 Although the treasurer’s duties are custodial in nature, the importance of this offi ce became evident when the state’s Consolidated Investment Fund, headed by the treasurer, lost $279 million in investments in “junk bonds” and speculative trading options between 1987 and 1989. The House of Delegates impeached the state treasurer, A. James Manchin, who had previously served as secretary of state, on 29 March 1989, by a vote of 65 to 34. He resigned on 9 July 1989, before the Senate voted on whether he should be removed from offi ce. The state eventually recovered $55 million from lawsuits against nine New York brokerage fi rms involved in the losses. Manchin, who was Governor Joe Manchin’s uncle and one of the state’s most colorful political fi gures, made a political comeback in 1998 by being elected to the state legislature. Known for his folksy manner and his black fedora, he died of a heart attack in 2003. His funeral attracted thousands of political supporters.13 The state auditor is the state government’s offi cial bookkeeper. The auditor has a staff of about 170. He determines whether claims presented to the state for payment are valid and, along with the state treasurer, endorses state checks, administers social security payments and a savings bond program for state employees, receives state tax revenues that are collected by sheriffs, and collects and distributes public utility taxes for the state and counties. Since 1992, state auditor Glen B. Gainer III has also added governmental training for both state and local offi cials to the auditor’s duties. The commissioner of agriculture has a staff of 350 and is responsible for inspecting agricultural products, regulating pesticides, disseminating statistical data on soils, climate, natural resources, and market opportunities in the state, and publishing and distributing reports on all phases of agriculture and forestry. In 1989, a state constitutional amendment to allow the governor to appoint the secretary of state, commissioner of agriculture, and treasurer was soundly rejected by the state’s voters. Respondents to a statewide survey taken shortly after the vote indicated that it failed because the voters were convinced that it would give Governor Gaston Caperton too much power.14 As a result, although West Virginia’s constitution declares that the chief executive power shall be vested in the governor and requires the governor to take care that the state laws be faithfully executed, the governor shares this authority with others and must rely on his or her reputation, popularity, The Governor and Executive Offi ces 143 knowledge of what should be done, and ability to communicate effectively, especially with the state’s electorate, to persuade others in the executive branch to do what he or she believes must be done.

the governor’s management resources

Governors have three types of management resources available to them when they interact with others in state government: personal, enabling, and institutional. Personal resources include the governor’s general intellectual, political, and verbal skills, including charm, charisma, and sense of humor. These resources refl ect the governor’s ability to persuade others to take actions that the governor believes must be taken. Many knowledgeable observers of West Virginia politics, for example, would argue that former Republican governor Arch Moore Jr. was the most charismatic governor in West Virginia’s modern history. He not only did battle gladly with the Democratic legislature, vetoing twenty-six bills in his fi rst term alone, but even went so far as to personally argue a case before the West Virginia Su- preme Court of Appeals, the only governor ever to do so. Many considered Moore’s speaking ability to be second to none, and his speeches always generated loud and enthusiastic applause.15 Personal resources vary from governor to governor, with some being more charismatic than others, some being more assertive than others, and, unfortunately, some being less honest than others. The governors’ personal resources refl ect, at least in part, their previous life experience and play a role in determining their governing “style.” Governor Caperton, for example, was a corporate executive and was accustomed to a hierarchical command style. When he became governor in 1989, he persuaded the legislature to adopt a sweeping executive branch reform initiative that expanded the governor’s control over state agencies.16 Instead of dealing directly with more than one hundred departments, commissions, and boards, Caperton appointed seven “super secretaries” to head the Departments of Administration, Commerce, Education and the Arts, Health and Human Services, Public Safety, Tax and Revenue, and Transportation. The seven super secretaries, who collectively formed Caperton’s gubernatorial cabinet, reported directly to the governor and, along with the governor’s personal staff, were his primary source of ideas on policy alternatives, budgetary matters, legislative strategy, and implementation decisions.17 When Governor Underwood took offi ce in 1997, he eliminated the word super from his cabinet posts, recommended to the legislature that several of the posts be eliminated (none were), and took his time nominating his cabinet, signaling to the legislature and others that 144 The Governor and Executive Offi ces

the super secretaries’ role in his administration would be diminished. Hav- ing been an educator (he served as vice president of Salem College and as president of Bethany College), Underwood preferred a more deliberative, decentralized management style, relying more than his predecessor on multimember “blue ribbon” commissions and task forces to examine policy alternatives and to offer him policy advice.18 When Governor Wise took offi ce in 2001, there were ten cabinet posts—the seven department super secretaries, plus the secretary of the Department of Environmental Protec- tion, the commissioner of the Bureau of Commerce, and the commissioner of the Bureau of Senior Services. Wise held weekly cabinet meetings. However, after having spent many years in Congress interacting with his congressional staff, he was accustomed to relying heavily on his personal staff assistants for policy advice, and he continued that practice during his term of offi ce. In 2003, he asked the legislature to reduce the cabinet by eliminating the post of commissioner of the Bureau of Commerce and com- bining the posts of the secretary of the Department of Administration and the secretary of the Department of Tax and Revenue. The legislature did not approve his request.19 In 2005, Governor Manchin, a former businessman, state senator, and secretary of state, fostered a different management style. Calling himself the state’s chief executive offi cer (ceo) and referring to the legislature as the board of directors, he asked for, and received, legislative approval to centralize the state’s economic development efforts by creating a new cabinet-level Department of Commerce and giving it jurisdiction over several agencies that had been insulated from direct political infl uence in past administrations. The executive reorganization law also made the governor or his representative the chairperson of the board of these agencies, which included the Economic Development Authority, Water Development Authority, and the School Building Authority. He also made a special effort to meet with legislative members, going as far as to appear personally on the House fl oor during debate on several issues addressed during a special legislative session held soon after his taking offi ce to address the state’s workers’ compensation debts.20 The governor’s personal resources cannot be changed by the deliberate action of state government. West Virginia’s gubernatorial enabling and institutional resources, on the other hand, are directly affected by state government policy. Enabling resources include staff assistance, funding for the governor’s offi ce, access to information, and time. They refl ect the governor’s ability to process information in a way that enables him or her to reach decisions independently from other organizations that compete for power, such as The Governor and Executive Offi ces 145 interest groups and the state legislature. West Virginia’s gubernatorial enabling resources have been improved in recent years. The governor’s staff size has increased steadily since the 1960s, reaching forty-eight members in 1993 and fi fty-three in 2008.21 The governor’s staff not only helps the governor to keep track of legislative and administrative details, they have also become an important source of ideas about legislation, budgetary matters and administrative strategies. Also, the governor now has ready access to a state automobile, helicopter, and airplane to assist him or her in attending meetings. Although much of this traveling is done for political purposes, such as dedicating a new bridge or speaking before the local rotary or chamber of commerce, the ability to travel the state allows the governor to “keep in touch” with the people who live outside of the Charleston area. Another important enabling resource, often overlooked, is the proximity of the governor’s mansion to the state capitol building. The stately, brick mansion is located on the edge of the capitol grounds, within easy walking distance of the capitol. Moreover, the governor is provided a suite of offi ces within the capitol itself, on the ground fl oor of the main unit. This makes it fairly easy for the governor to interact with members of the legislature on a face-to-face basis both at work and at home. Sometimes these meetings are just friendly get-togethers and, at other times, an opportunity for the gover- nor to have a frank and private discussion with the legislators about specifi c state policies and state politics. Finally, institutional resources vary with the issue at hand and the audi- ence the governor is addressing. They typically include knowledge of the issue being discussed, familiarity with the political environment surrounding the issue, and the authority to act, either from state statute or the state constitution. These resources refl ect the governor’s ability to force others to take actions that the governor believes must be taken.22

the governor’s institutional powers

All governors have the authority to issue executive orders to declare emer- gencies or to create advisory commissions and task forces, to grant pardons and to commute sentences, either unilaterally or in conjunction with a state pardoning board, and to act as commander in chief of the National Guard. However, governors’ other institutional powers vary widely from state to state. In 1965 Joseph Schlesinger developed a scale to measure the extent of governors’ institutional powers. Professor Thad Beyle has revised and continued to update the scale.23 The scale consists of six indices, including the 146 The Governor and Executive Offi ces governor’s tenure potential (length of term and ability to seek additional terms), appointment powers over administrative and board positions within the executive branch, budgetmaking powers, the number of separately elected executive branch offi cials, veto powers, and the governor’s party’s control in the state legislature. The fi rst four indices measure the governor’s power to infl uence the executive branch’s actions. The last two indices measure the governor’s power to infl uence the state legislature’s actions. The indices reveal that governors’ institutional powers have increased overall. However, the growth in gubernatorial power has been uneven. Overall, governors have experienced increases in their powers relative to tenure potential, appointive powers over administrative and board positions, number of separately elected executive branch offi cials, and veto powers. They have experienced decreases in their powers relative to budgetmaking authority and political party control in the legislature. The governor’s institutional powers increased dramatically between 1965 and 1985. On a scale with scores ranging from 6 to 30, West Virginia’s institutional powers score jumped from 18 in 1965 (tied with fi ve other states for thirty-sixth place) to 26 in 1985 (tied with New York for third place).24 This was the largest increase in institutional powers recorded in the nation and can be attributed primarily to the adoption of the Modern Budget Amendment of 1968 and the Governors’ Succession Amendment of 1970. The Modern Budget Amendment increased the governor’s authority over the executive budget request, and the Governors’ Succession Amendment increased the governor’s tenure potential. The governor’s institutional powers continue to be among the strongest in the nation. In Professor Beyle’s latest update to the gubernatorial institutional powers scale, West Virginia’s governor’s offi ce was rated the fourth most powerful in the nation (behind New York, Illinois, and Utah).25 The gover- nor’s offi ce received a score of 4 (strong) for tenure potential. Although the governor can serve an unlimited number of four-year terms (which would have generated a score of 5), he or she is prohibited from serving more than two of those terms in succession (dropping the tenure potential score to a 4). The governor’s offi ce scored a 4 (strong) for executive appointment powers (based on the governor’s control over the appointment of six major administrative department heads), a 5 (very strong) for budgetmaking authority (the governor has total control over the creation of the state executive budget), a 2 (weak) for number of separately elected executive branch offi cials, and a 5 (very strong) for veto powers (the governor can use the package, item, and reduction veto, and it takes a two-thirds majority of elected members in both legislative houses to override a line item veto of an appropriation bill and a The Governor and Executive Offi ces 147 majority of elected members in both legislative houses to override a package veto of a nonappropriation bill). Finally, the governor’s offi ce scored a 4 (strong) for party control over the state legislature (a majority—but less than 75 percent—of the seats in both the House of Delegates and Senate are held by members of the governor’s party). West Virginia’s cumulative score of 24 on the latest update of the gubernatorial institutional powers scale indicates that its governor enjoys relatively strong institutional powers when compared to those held by governors in other states. The national average was 20.7. The institutional framework clearly exists for the governor to exercise a very strong infl uence on state government. If the governor is unable to alter the course of state government, he or she cannot blame this failure on the offi ce’s lack of institutional powers.

persuasion and gubernatorial influence over policy

Recent studies have suggested that governors who have served during the latter half of the twentieth century, as a group, exhibited stronger interpersonal skills and have been more adept than their predecessors at persuading others in state government to do what they believe must be done. Moreover, the governors’ leadership abilities are refl ected in their career paths once their tenure in offi ce has expired. As a group, they are now more likely than their predecessors to move on to other important political jobs, particularly the U.S. Senate and the presidency. Nationally, former governors are now also more likely than ever to be appointed to federal government cabinet positions and major ambassadorships, as well as federal and state government judgeships.26 However, just as beauty is in the eye of the beholder, there is no univer- sally accepted defi nition of what constitutes a successful governor. Some of the factors that must be considered are the governor’s ability to focus public and legislative debate on selected policy alternatives and, ultimately, to persuade the legislature to alter state policies. Of course, given the complexity of policymaking, it is diffi cult to measure the precise nature of any governor’s impact on the state’s political agenda or on specifi c policy outcomes. However, it is generally accepted that the governor’s ability to set the agenda and alter state policy outcomes is strongly related to the gover- nor’s institutional powers. Although having strong institutional powers does not guarantee that the governor will be able to alter the course of state government, lacking them makes that task nearly impossible. West Virginia’s governors do not have this problem. Their institutional powers are among the strongest in the nation. 148 The Governor and Executive Offi ces

However, having the institutional power to get some things accomplished does not necessarily mean that the governor will be successful in persuading the legislature to enact key policy changes. West Virginia’s recent governors have had a mixed record of success. Each has had his share of accomplishments. Moore, for example, was instrumental in promoting highway construction, increasing welfare benefi ts, and increasing funding for teachers’ salaries. Rockefeller eliminated the 3 percent sales tax on food and increased funding for secondary highways. Caperton resolved the state government’s revenue problems during the early 1990s by raising taxes, including the return of the sales tax on food. He also increased teachers’ salaries and funding for school construction and shepherded through the legislature complex environmental legislation that regulated landfi lls and protected groundwater supplies. Underwood funded an expansion of the highway system, spearheaded the effort to approve the controversial Corridor H highway project connecting north central West Virginia with Virginia, increased funding for schools, and funded teachers’ pay raises. Wise led the effort to create the higher education promise scholarship program and to increase cigarette taxes to fund Medicaid expenses. He also proposed several long-range solutions to the state’s burgeoning fi nancial diffi culties with the workers’ compensation, teachers’ retirement, and public employee retirement systems. Although many of Wise’s proposals were not enacted during his tenure in offi ce, he placed the resolution of these unfunded liability issues on the state’s political agenda. Manchin’s governorship got off to a strong start, with the legislature adopting all fi ve of his legislative proposals, including one reforming the state’s workers’ compensation program, during a special session called at the outset of his tenure in offi ce and then passing twenty-three of his twenty-fi ve legislative proposals during his fi rst year as governor, including his proposal to hold a statewide referendum to authorize the sale of bonds to fi nance over $5 billion of unfunded liability in the teachers’ retirement system, the state police retirement system, and the judges’ retirement system and a controversial tort reform proposal to limit third-party bad faith lawsuits against insurers.27 Unfortunately, it can be argued that the national trend toward more capable and persuasive governors has not held in West Virginia. On the positive side, all eleven governors who have served in offi ce since 1950 have been, arguably, well trained for the job. All had earned an undergraduate degree, four had a law degree (William C. Marland, William Wallace Barron, Arch Moore Jr., and Robert Wise), and two had earned a graduate degree (Cecil Underwood) or had additional graduate education (John “Jay” Rockefeller The Governor and Executive Offi ces 149

IV) prior to becoming governor. In addition, each had distinguished himself either as a successful businessman (Okey L. Patteson, Hulett C. Smith, Cap- erton, and Manchin), as an attorney (Marland, Barron, Moore, and Wise), or as an educator (Underwood and Rockefeller) prior to being elected gover- nor. Five had served in the West Virginia House of Delegates (Underwood, Barron, Moore, Rockefeller, and Manchin), two served in the West Virginia Senate (Wise and Manchin), and two had served in the U.S. House of Rep- resentatives prior to his election to the governor’s offi ce (Moore served for seven terms, and Wise served for nine terms).28 On the other hand, two of them, Barron and Moore, were indicted, convicted, and sentenced to prison for criminal acts committed while in offi ce. In 1971, a federal court judge sentenced Barron to twenty-fi ve years in prison. Previously he was found not guilty of bribery and conspiracy charges concerning his role in rigging state purchasing contracts while he was governor. However, Barron was imprisoned after the jury foreman revealed that he had received $25,000 in cash from Barron’s wife, who delivered the bribe in a brown paper bag to ensure that the jury’s verdict would be not guilty. Barron’s sentence was later reduced to twelve years in prison plus a $50,000 fi ne. He was released after only four years.29 Moore received a sentence of fi ve years and ten months plus a $170,000 fi ne in 1990 for extortion, mail fraud, tax fraud, and obstruction of justice. The charges stemmed from Moore’s fi ling false campaign statements during his 1984 gubernatorial campaign, receiving a $573,000 kickback in 1985 from a coal company in exchange for a $2.3 million refund from the state’s black lung disease fund, failing to report on his federal income tax form the $573,000 as income as well as another $70,000 he received from lobbyists in 1984 and 1985, and asking his campaign manager and the representative of the coal company who provided the kickback to lie to federal investigators about his campaign contributions and spending.30 Barron and Moore’s convictions make it diffi cult to argue that West Vir- ginia’s recent governors have lived up to the enhanced reputations that governors have earned in other states. However, even if those two governorships are dismissed as aberrations, the career paths of the state’s most recent governors, as a group, have not fared particularly well when compared with governors in other states. Only Rockefeller was subsequently elected to another public offi ce (the U.S. Senate). Smith and Underwood were appointed to a state commission, Wise chose not to run for reelection after admitting to an extramarital affair, and Marland, recovering from alcoholism, wound up driving a taxicab in Chicago.31 150 The Governor and Executive Offi ces

conclusion

Despite their accomplishments, West Virginia’s recent governors have not always been well regarded and admired by either the electorate or state legislative leaders. Barron and Moore’s criminal convictions have had a particularly denigrating effect on the public’s perception of politicians in general and elected state offi cials in particular. Wise’s affair with an employee of the West Virginia Development Offi ce also did little to inspire public confi dence in the offi ce. West Virginia governors’ relatively strong institutional powers have provided the tools and weapons necessary to alter the course of state government. However, past experience indicates that it is the governor’s personal resources, especially his or her honesty, vision, and ability to inspire others to follow his or her lead, that ultimately determines whether they are remembered as a success or as a failure. chapter eight

The Administration of State Policies

Of the institutions in West Virginia, it is the state’s administrators who provide the most immediate and enduring face of government. Highway development and maintenance, education, corrections, and health and human services are the responsibility of “the bureaucracy.” It is easy to overlook the role of state bureaucracy in meeting citizens’ demands and to consign it to the backdrop of events and circumstances surrounding governors, the legislature, the courts, and the electoral process. Yet the administrative capacity of the state bureaucracy is crucial to understanding West Virginia politics and government. Governors and legislators must rely on this administrative structure to advance their agendas and to achieve their policy goals. Assessments of the performance of the bureaucracy, whether in the form of press coverage, legislative or executive oversight, or some other means, often result in public issues that elected offi cials must respond to or that the courts must address. Because various parts of the state’s bureaucracy must also answer to federal agencies, state administrators can fi nd themselves having to balance competing state and federal demands. The bureaucracy is often referred to as the “fourth branch of government.” This appellation recognizes the substantial power, authority, and autonomy held by the various departments, agencies, and bureaus that make up administrative structures. But the term is very much a misnomer not only in constitutional terms but also as a practical description of the way government functions. Administrative systems are highly complex, decentralized, and uncoordinated networks of individuals and institutions. It is often forgot- ten that, when fi rst described as a “fourth branch” in the 1930s, those who penned the name referred to it as a “headless” branch of government.1 At the state level, things are even more fragmented because agencies must answer 152 The Administration of State Policies to a multitude of governmental actors, or principals, at the state and federal levels. At the same time, these administrative structures give continuity and form to government. They are the day-to-day essence of government. This chapter examines the West Virginia state bureaucracy, focusing on the themes of change and complexity. A recurring theme running through the state’s bureaucratic history has been the desire to implement administrative reform and reorganization in an effort to change and improve program coordination, implementation, management, and the capacity to deliver public services. This chapter examines how this theme has surfaced over time and how the system has responded and changed in the face of reform efforts. It also examines the complexity of administrative arrangements both within the state and as evidenced through the intergovernmental relations that exist between state agencies and federal principals. Through comprehension of the complexities of state bureaucratic structures, it is possible to appreciate why the desire to reform and change the system is so prominent in the political process. At the same time, it is possible to appreciate how diffi cult, if not illusory, signifi cant change can be.

“reform” in west virginia bureaucracy: an enduring theme

In the early 1950s, a university scholar, Albert Sturm, noted that the level of professionalism and capacity of West Virginia’s administrative structures lagged woefully behind other states: “Organizational defi ciencies exist in the gubernatorial offi ce, the staff and internal control mechanism, the general departmental structure, the fi nance and personnel procedures, and in the system of responsibility.”2 More than fi fty years later, an editorial appearing under the headline “Bureaucracy: Endless Problem,” published in the state’s leading newspaper, called for legislation to overhaul the state bureaucracy, stating that “job-protecting laws and grievance procedures make it nearly impossible to remove Statehouse workers who don’t perform adequately” and that “government is wasteful, compared to private business operations.”3 Some complaints and concerns do seem endless and enduring. The assumption that state bureaucracies and administrative systems are poorly functioning and mishandled seems to be a truism among those who comment on government and politics. But there is an important distinction about the complaints issued then and now. Fifty years ago the argument was more about professionalizing state government to help it reach par with its con- temporaries. Today it is a general critique grounded on the assumption that business and market models are better than public bureaucracy and policy. The Administration of State Policies 153

Although criticism continues, it is clear that in the past fi ve decades the state has made signifi cant advancements in its capacity to provide services and administer the state’s programs. The increased professionalism and capacity of the administration of policies is the product of many factors. Mirroring the experience of other states, much of the change is a function of increased federal involvement in the core areas of administrative activity—public works and infrastructure, education, and health and human services.4 As described in chapters 4 and 7, important developments in intergovernmental arrangements and reforms that have strengthened gubernatorial powers—as evidenced in the Budget Modernization Act of 1968—and closer legislative interest in program administration and management have helped to improve the function of state government. What has marked the improvement of the state’s administration of policies? In West Virginia government, and indeed in all the states, there has been the desire to reform bureaucratic systems to be more rational, effi cient, and accountable. For generations, reformers appear to have been guided by an assumption that logic and design can create a machinery of government that is centrally accountable to a chief executive. Hence the attraction of executive-centered and businesslike models and analogs for preferred operations. A more realistic perspective recognizes that state administrative systems are the product of political and legal forces that have little to do with rationalized structures and systems. This tension in reform efforts has played out for decades, prominently in the 1950s and 1960s when calls for modernizing state governments gained popularity nationwide and more recently in the “reinventing government” movement that swept through states in the 1990s. In the end, however, the reformist ideals of administrative effi ciency and the responsibility, legitimacy, and accountability of administrative processes exist only when compatible with constitutional design and the goals of elected politicians.5 In West Virginia, the shape and form of the state administrative system is largely defi ned by the state constitution. Advocates of governmental reform have long pointed to the decentralized nature of executive power in the state as a complicating factor in effective administrative operations.6 Nominally, executive powers are shared and disbursed through the state’s Board of Public Works, comprising the governor, auditor, treasurer, secretary of state, attorney general, commissioner of agriculture, and state superintendent of schools. Such decentralization is seen as anathema to effective and effi cient administration. But as noted in chapter 7, as recently as 1989 a constitutional amendment to convert elective offi ces on the board to appointive positions, as suggested by administrative reformers, was defeated by West Virginia voters. 154 The Administration of State Policies

Since for all intents and purposes the vast weight of executive control over the bureaucracy rests with the governor, his actions also can reform or shape the administration of public policies. Although there have certainly been episodes that limit gubernatorial power, these serve more as exceptions in a trend toward consolidation of executive control over the state administrative process in recent decades. If the governor dominates the bureaucracy, it is because the areas of policy administration that are constitutionally under his direct or tacit control, such as education, public infrastructure, and health and human services, are crucial to the function of modern government. It is with these functions that the lion’s share of public programming takes place and fi nancial transfers from the federal government occur. However, it is important to note that the bureaucracy serves more than one master. Accountability to the legislature is very important. In West Virginia the legislature keeps a tight rein on administrative discretion through oversight arrangements and controls over the administrative rulemaking process. It therefore also has responsibility for the management and adoption of reforms of the state’s administrative agencies and the delivery of public services and the enforcement of its laws. To serve its political interests and its constituents, the legislature consequently can refuse to consider or block efforts to rationalize administrative agencies and practices. The struggle over the reform of state administration thus reveals a contest between political desires for rational and effi cient management and sometimes countervailing efforts of elected offi cials to have an administration that serves their own and their constituents’ political objectives. The political effort to control and shape the bureaucratic administration of state policies thus has resulted in a complex bureaucratic structure and executive- legislative confl icts.

politics and the evolution of west virginia’s bureaucracy

The watershed event in the development of West Virginia’s administrative structure was the Great Depression and the federal and state response to its effects through New Deal policies. Early on, researchers recognized how the New Deal had reshaped the scope of West Virginia state government. Albert Sturm noted the explosive growth of linked state and federal government roles, fi nancing, and programming in the 1930s, 1940s, and 1950s.7 Other scholars noted that the scope of administrative functions grew dramatically as a result of the state taking over county highway, school, and pubic welfare systems during the Great Depression.8 Unable to provide the The Administration of State Policies 155 resources necessary to operate these programs during a period of economic strife, counties lost their authority over these crucial areas of administration and service. Mary K. Foy has described how the federal government fi rst operated employment security functions in West Virginia crucial to meeting the needs of the unemployed and dislocated during the 1930s. They were integrated into the state administrative structure by decade’s end.9 More recently, Jerry Bruce Thomas has noted that the state’s public welfare system was among the earliest to organize along lines that conformed with the So- cial Security Act of 1935, which provided for public assistance and other programs.10 Although the Great Depression was central to the emergence of a more active administrative structure, antecedent developments during the progressive reforms of the early twentieth century helped improve administrative capacity and prepare the ground for more active government. In 1913, the state established the Public Service Commission to regulate public utilities. The workmen’s compensation fund was established the same year.11 In West Virginia, as in other states, during the 1920s some state regulation of business and industry began.12 Indeed, these and other experiences across the nation provided the initial state level structure and capacity that allowed New Deal policies to be implemented.13 It has been said that the New Deal “was a series of improvisations” with little planning or forethought.14 The same can be said of West Virginia’s response to new federal grants and programs that required state administrative implementation. There appears to have been very little coordination in incorporating these programs at the state level.15 This haphazard process of adjusting state systems to meet new federal demands was and continues to be a feature of the political landscape, much to the consternation of those reformers and specialists who would like to see great order in the organization of government. By the 1950s and 1960s complaints alleged that the modernization of West Virginia government had proceeded without design and was woefully incomplete.16 For these critics, more needed to be done to successfully uti- lize the instruments of government to address the needs of West Virginia. Chief among the concerns raised in the 1950s and 1960s was that there was a lack of clarity in government organization, insuffi cient staff and resources, and the enduring legacy that patronage rather than merit often had the upper hand in public personnel hiring and retention decisions. These criticisms of a half century ago, grounded in a reform movement that sought to affi rm the positive role of government and management science in society, still resonate today but in a much different context. Public 156 The Administration of State Policies

administration proceeds from a defensive position. All too often government is seen as “part of the problem, rather than the solution.” Arguments for rationalizing the organization of government tend to focus on scaling back the size of the bureaucracy, cutting waste, eliminating redundancy, and moving government out of areas of regulation and service that are best left to the marketplace. Governors make political hay by arguing that bureaucracy needs to be reformed to “run more like a business” and to be accountable to its “customers”—the taxpayers who pay for programs and the members of the public who receive these services and beneﬁ ts.

current administrative arrangements

The structure of West Virginia’s bureaucracy, as noted above, is shaped and defi ned largely by constitutional requirements and political restraints. Cur- rent arrangements also refl ect some accommodation and response to reform efforts aimed at imposing some level of cohesion and coordination in the process. West Virginia’s governor currently oversees ten major departments or bureaus of government. In addition there are numerous independent boards and commissions, but only some of these are directly accountable to the governor.17 Departments and constituent bureaus, agencies, and offi ces cover the range of major programming and services that are typically associated with state governmental functions. They include the Department of Health and Human Resources, the Department of Transportation, the De- partment of Education, and the Department of Military Affairs and Public Safety, which together provide the bulk of services and account for the majority of general revenue expenditures in the state.18 Other departments and bureaus that provide important services but whose size and scope of activities are smaller include the Department of Environmental Protection, De- partment of Commerce, and Bureau for Senior Services. The Department of Education and Arts is a catchall unit that provides nominal oversight over the state’s public broadcasting system, museums and cultural programming, and libraries. It also plays a coordinative role with the higher education system by having representation on the latter’s policy commissions and by coordinating the state’s promise scholarship program, which provides guaranteed support for academically qualifi ed state residents. Key support departments, responsible for the administration of government and revenue planning and coordination, are the Department of Administration and De- partment of Revenue. In addition to major departments and bureaus that are headed by a single senior administrator, there are various boards and commissions that have Table 9. West Virginia State Government Cabinet Level Departments

Governor

Department of Department of Department of Department of Department of Department of Department of Department of Department of Bureau of Administration Commerce Education Education and Environmental Health and Hu- Military Affairs Revenue Transportation Senior Services The Arts Protection man Resources and Public Safety

Source: Adapted from West Virginia State Budget Ofﬁ ce, Department of Revenue, State of West of Virginia, May 1, 2008 http://www.wvbudget.gov/charts/orgchart.pdf 158 The Administration of State Policies

governing bodies that set policy and priorities. Among the most signifi cant of these are the Higher Education Policy Commission and the West Vir- ginia Council for Community and Technical College Education. Many other commissions exist: some are of the self-regulatory mode for professional organizations and groups, while others are dedicated to specifi c programs and activities. An observer of state administrative organizational charts might remark that there has been considerable simplifi cation and consolidation over time. Although there has defi nitely been an effort to coordinate and consolidate agencies within a more coherent departmental structure, complexity is still the order of the day. Organizational charts from the 1950s and 1960s reveal a complex web of agencies, bureaus, departments, and commissions with little sense of order.19 Contemporary charts portray less complexity, but it is perhaps because they do not include the detail that previous depictions provided. It is quite easy to camoufl age the complexity of government functions by identifying only the controlling department in a government chart. It goes without saying that the scope and responsibilities of state government today are much greater than were found in previous decades. Clear and transparent lines of control, command, and communication are the holy grail of those reformers and administrators who believe that government can be organized around rational rather than political lines. Experiences at the federal level and across the states suggest that this is an illusory quest. The current departmental structure of state government is largely the legacy of reorganization efforts implemented by Governor Gaston Caperton in the late 1980s. Among his efforts, he adopted or promoted recommendations by reorganization task forces commissioned by the fi rst and second Moore administrations in the 1960s and 1980s.20 He also unsuccessfully championed the repeal of popular election for such offi ces as attorney general, secretary of state, treasurer, and the commissioner of agriculture. How- ever, he was successful in advancing legislation resulting in the creation of cabinet level departments, which brought many disparate activities and functions under a handful of large departments, and installing what came to be known as “super secretaries” to head these entities. The genealogies of the departments and bureaus that make up state government are varied. Some date back well into the last century. For example, the Department of Education was established in 1958. Others, such as the Department of Commerce, are of more recent vintage, having been raised to department level status in 2005. Six of the departments were either created or substantially reorganized in 1989, when Governor Caperton convened a special legislation session to reorganize state government and place “super The Administration of State Policies 159 secretaries” at the helms of these broad and far-ranging departments. By centralizing authority and merging a wide array of programs and units, Ca- perton’s reform effort sought effi ciencies. Yet at the same time he created what other analysts in other governmental contexts have called a “holding company” department—an entity so large that command and control become diffi cult. The 1989 reorganization effort constitutes a major event in the history of government reorganization in West Virginia. It represents an approach to centralization of administrative function that continues to shape bureaucratic control and function in the state. They also represent the major services provided by government. The Department of Administration has a broad portfolio, with responsibility for fi nancial planning, public employee personnel and insurance systems, and the administration of various service and staff supports.21 The Department of Revenue, another major support department, has, in addition to general tax and revenue functions, responsibilities for the supervision of the state’s Insurance Commission and Budget Offi ce.22 The Department of Education and Arts was established in 1989 to coordinate among largely autonomous and semiautonomous entities ranging from the library commission, to the state public broadcasting authority, to the state museum and cultural center, to the state historic preservation offi ce. It also coordinates with the state’s higher education institutions in various education-related programs. However, higher education remains autonomous under separate commissions for community and technical colleges and four-year colleges and universities. The responsibilities for the state’s elementary and secondary school systems remain the responsibility of the Department of Education.23 The Department of Military Affairs and Public Safety coordinates correction, emergency response, homeland security, state police, and investigations functions along with the West Virginia National Guard. The Department of Transportation’s mandate includes highway construction and maintenance, the Division of Motor Vehicles, and the state’s port and rail authorities.24 Perhaps the most notable among Caperton’s reform efforts was the reorganization of the state’s various public health, public assistance, and welfare functions into a new Department of Health and Human Resources (dhhr) in 1989. It is one of the more important developments in West Virginia administrative reform because it highlights some of the driving motivation behind such action, illustrates the complexities involved in running a “super department” that interacts closely with federal authorities and whose 160 The Administration of State Policies

functions are highly visible, and reveals some of the diffi culties involved in reorganization. The experience also suggests that administrative organization tends to be a “work in progress” requiring adjustment and change over time. The dhhr accounts for approximately 20 percent of the state’s general revenue expenditures. In fy2006, over $685 million was appropriated to the dhhr for programming.25 In addition, the dhhr receives appropriations from other state funds outside of general revenue and draws down billions in federal funding to operate various public assistance and health care programs. For example, of the approximately $3.69 billion in federal intergovernmental transfers anticipated for fi scal year 2006, an estimated 60 percent of these funds was directed to programs operated by the West Virginia De- partment of Health and Human Services.26 The dhhr has responsibility for public health functions, vital statistics, child protective services, adoption services, public assistance, the management of major publicly funded health insurance programs, and a host of other program responsibilities. Perhaps the most notable public aid programs in its portfolio are Medicaid, food stamps, and Temporary Assistance for Needy Families, which replaced the decades-old Aid to Families with Dependent Children “welfare” program in the late 1990s. The dhhr itself is organized into various bureaus and offi ces. Headquartered in Charleston, it also provides direct services in each county through a system of fi eld offi ces. During the Caperton administration, the dhhr experienced four signifi cant reorganizations. The most signifi cant was the establishment of the dhhr by special legislation in 1989. In 1992, its welfare and public assistance functions were redesigned to better concentrate efforts at the fi eld level. This involved assigning program directors at a regional level to oversee different programs and services. When it became apparent that this effort at coordination fell short because functions became too separated, creating the program “silos” and “smokestacks” that management and policy analysts warn against, the system was further reorganized. In 1995, four regional directors were appointed to coordinate the functions of the regional program managers and to better integrate services at the fi eld level. In 1997, the system underwent a basic redesign with the implementation of a new welfare-to-work program, called wv works, which saw fundamental changes in front-line staffi ng functions and positions (see chapter 4).27 Such continuing alteration of administrative structure has occurred in other departments, often when a new governor arises or the federal government adopts new requirements for the state programs it funds. Consequently, as with dhhr, the evidence supports the assertion that state administrative The Administration of State Policies 161 organization tends to be a “work in progress” that is frequently being restructured. Indeed, soon after his election, Governor Joe Manchin employed a private consulting fi rm to locate ineffi ciencies that might help him fulfi ll a campaign promise to make state government operate more like a business.

administrative discretion and rulemaking

Attention to the structure of the administration might lead an observer of government to assume that public policy is only made by elected offi cials, especially through the legislative process. Many persons do not understand that state legislators allow agencies to set the agenda for legislative action, defi ne the law through the adoption of administrative “rules,” and use their discretion to enforce the law. This occurs as administrators infl uence the shape of authorizing legislation, engage in administrative rulemaking, and interpret legislation and use their discretion to execute its routine enforcement with little gubernatorial oversight. Consequently, legislators and executives create a zone of independent political authority for administrators.

Agenda-Setting

In West Virginia, departments, bureaus, and other administrative entities play an active role in shaping and authorizing legislation. Indeed, because of a lack of professional staff, the legislature is particularly dependent on agencies for information and advice used in the development of public policy. A telling example of this can be found in the redevelopment of the state’s public assistance program in the midst of national welfare reform efforts. In the mid-1990s, states across the union received permission from the federal government to overhaul their public welfare systems. These new welfare-to- work programs were designed to tie beneﬁ ts to work and training requirements, break the perceived cycle of dependency among those on welfare, and provide more administrative ﬂ exibility in dealing with needs of welfare clients. Following the lead of other states, West Virginia’s Department of Health and Human Resources began to craft a plan for such a program in 1995 and 1996. Although still on the drawing board, federal events overtook state intentions, and a new national welfare reform act was passed in August 1996. This new Personal Responsibility and Work Opportunity Act replaced the Aid to Family with Dependent Children program with a new public assistance block grant called Temporary Assistance for Needy Families. tanf was patterned along welfare-to-work programs developed in the states. To participate, West Virginia had to pass new legislation that complied with 162 The Administration of State Policies reformed federal guidelines and expectations. The legislation authorizing West Virginia’s new wv works program was based primarily on plans developed by the West Virginia dhhr.28

Rulemaking

Since the 1930s, administrative rulemaking has become a key feature of the public policy process and a central mechanism in the capacity of government to implement public policy, adjust to new conditions and realities, and respond to immediate needs. Simply put, administrative rules have the same authority as other laws. State agencies can promulgate rules and enforce them. At the federal level, rulemaking power is broad and considerable, though it has been brought under tighter congressional and presidential control in recent years.29 In the states, the rulemaking process has been more controlled. Indeed, it is common for “ex ante” controls to be imposed on the rulemaking through requirements that mandate legislative review and approval before an agency can promulgate a new rule.30 West Virginia is among those states where rulemaking power is tightly circum- scribed through legislative oversight. In 1964, the West Virginia legislature adopted its Administrative Proce- dure Act, modeled after federal law passed in 1946. Like its federal antecedent, the act’s purpose was to bring some sense of coordination and conformity to the exercise of administrative power to ensure accountability in the system. The act establishes guidelines for the exercise of rulemaking powers by agencies and aims to provide parameters for adjudicating confl icts between citizens and agencies in the administrative setting.31 In establishing the rulemaking process, the legislature opted to retain close oversight over the process. Apart from special short-term emergency rules and a narrow range of rules expressly exempt from legislative review, to become effective the West Virginia legislature must enact a rule into law.32 For decades, this oversight power has been delegated by the legislature to its Legislative Rulemaking Review Committee and, for educational matters, with the Leg- islative Oversight Commission on Educational Accountability—both joint committees.33 This has provided an opportunity to thwart the promulgation of rules, but it has also given select legislators the opportunity to shape the form and content of fi nal rules as they are prepared. This exercise of the “legislative veto” has been the subject of court challenges, with the legislature having to amend some of its practices in the rule review process. In the face of challenge, the legislature has tended to tighten control rather than acquiesce to those arguing for greater administrative discretion.34 In 1995, The Administration of State Policies 163 the Supreme Court of Appeals ruled that aspects of the legislative review process were unconstitutional.35 The legislature responded by making corrections to the procedures to satisfy constitutional concerns. The power of the legislature’s rulemaking committee remains substantial and considerable. Promulgating a rule is a complex process that provides opportunities for legislative infl uence and control. The legislature essentially sets the calendar and the process by which rules are made. Under the West Virginia Administrative Procedure Act, agencies are required to fi le proposed rules with the Legislative Rulemaking Review Committee, which takes up proposals during committee hearings convened when the legislature is out of session. Because of the statutory calendar, proposed rules must be submitted to the committee by late July or August of the year preceding the legislative session in which they will be considered for approval. The power of the joint rules review committee is substantial. They may approve the rule as unmodifi ed, request that the agency withdraw the proposed rule, or direct that the agency make modifi cations.36 This last option allows considerable infl uence over the rulemaking process, and the revised content of the rules may signal the expressed preferences of affected interests who have made their desires known to committee members. Once a rule passes muster by the review committee, it is submitted to both legislative houses during session. Proposed rules are converted to bills that are subject to committee referral and amendment and subsequent fl oor amendment during bill consideration. In each house, the bills are “bundled” together in broad omnibus legislation grouped by general policy areas, such as public safety, local government powers, or environment and natural resources, and then voted on by both houses. Differences between House and Senate omnibus bills must be reconciled through conference committee, with the fi nal version then approved by both houses and sent to the governor for signature.37 Because many rules are bundled together under one bill, the governor has little latitude in vetoing a rule. Vetoing one rule would require vetoing the entire “bundled bill”—the political and practical consequences of which might not be worth the effort. Efforts to exert legislative control over the rulemaking process suggest that the potential for administrative infl uence over policy development is substantial. Political attention tends to gravitate toward those centers of decisionmaking that have substantive consequences. In recent years, intense political attention has followed the state’s rulemaking in environmental regulatory matters. Not only has the substance of rules been at the center of debate, but so too have the particular administrative bodies and commissions responsible for rulemaking. After contentious debate, legislation 164 The Administration of State Policies was recently passed that shifted environmental regulatory power from an independent board to the state’s Department of Environmental Protection. A number of commentators and critics suggest that the latter is more “industry friendly” and sympathetic to mining, timbering, housing development, and manufacturing interests.38 In West Virginia, administrative discretion and control over the rulemaking process has been kept on a relatively short tether, especially as compared to federal rulemaking practices. Across the states, legislative control over the rulemaking process has provided an important tool for shaping policy implementation and program delivery.39

Implementing and Enforcing the Law

The capacity to infl uence public policy, either through participation in the legislative process or through rulemaking, is a signifi cant factor in the exercise of bureaucratic power and control. Once delegated the responsibility for implementation, agencies and their administrators exercise considerable discretion in interpreting and applying law and policy. Such leeway is necessary if the ends of modern governance are to be achieved. However, the exercise of such discretion can be the cause of complaint and controversy. By returning to our discussion of West Virginia’s recent welfare reform experience, we can illustrate how such controversy can emerge. Once wv works was adopted, the Department of Health and Human Resources had signifi cant leeway in interpreting and implementing the law. Taking cues and learning lessons from other states, the Department initiated practices that were designed to reduce welfare caseloads. This included “diversion” tactics that greatly complicated the application process. Potential applications were required to make multiple visits to the state’s fi eld offi ces simply in order to qualify to apply. Concerns were raised that those truly in need of public assistance were getting the “runaround.” Departing from practices found in other states, West Virginia’s Depart- ment of Health and Human Resources also suspended a long-standing practice that allowed those receiving federal Supplemental Security Income (ssi) to receive public assistance as well. This had been accomplished by exempting ssi benefi ts from eligibility determinations. When the practice was reversed, this income was factored into eligibility calculations, dis- qualifying many who had previously been enrolled on the public assistance rolls.40 Although administratively desirable, such actions were short-term fi xes to long-term challenges that the state continues to face. The dhhr gave the impression of pursuing these discretionary actions at the expense of the The Administration of State Policies 165 broader public interest and the needs of those seeking public assistance.41 With time, some of these practices were ameliorated and changed. The many checks on the exercise of administrative discretion led to new practices. Court challenges, closer scrutiny from legislative oversight committees, and public awareness about the harsher aspects of welfare reform administration led to the partial reversal on the ssi eligibility issue. Long-term study of the effects of reform and the needs of those still at risk contributed to more proactive policies aimed at providing help to those in need.

civil servants and the “hollowing” of administrative agencies

In West Virginia, as in all states, many administrative duties are assigned to civil servants. With few exceptions, through the 1960s the quality of state employees was held as suspect across the nation. This helps to account for concerns in the 1960s and 1970s that called into question the capability and desirability of state involvement in new public policy initiatives focusing on social equity, environmental policy, and other reforms.42 It also explains why these decades saw frequent calls for the modernization of state governments. West Virginia was no exception to this. In the view of those closely monitoring state administration, the situation was dire. Vestiges of patronage, a lack of professionalism, and a lack of clear lines of leadership, control, and coordination contributed to a less than ideal situation.43 In the early twenty-fi rst century, the situation is much improved. In West Virginia and elsewhere this is the function of a variety of factors, including a more highly trained workforce and the advantages of national professional associations that provide training and inculcate values. Today’s public service is best understood as a complex employment system made up of those “classifi ed” employees in the regular civil service system and those who are appointed to their positions at the “will and pleasure” of the governor. The state’s classifi ed personnel system mirrors that of other states. One of the legacies of reform and reorganization in the state has been to more centrally coordinate the civil service system within the state government. Since 1989, the Division of Personnel within the Department of Administration has carried out these functions. In March 2002, there were approximately 29,500 full-time or part-time state employees, exclusive of the state’s higher education system. Of these, approximately 21 percent were employed in health and human services. Approximately 17 percent were employed in transportation services, most notably in highway maintenance and administration. The remaining 62 percent were engaged across a wide spectrum of 166 The Administration of State Policies

activities ranging from general administration and fi nancial management to regulatory compliance and public safety.44 State employee salaries in West Virginia are approximately 78 percent of the national average. In 2002, average monthly wages for noneducational state employees were approximately $2,679 per month, compared to a national average of $3,434. Only three other states paid less on average, these being Arkansas, Mississippi, and Missouri.45 Research has found that about 40 percent of state positions are held by women and 60 percent by men. Like other states, West Virginia has also faced a “glass ceiling” question as the salary differential between men and women is decidedly against the latter.46 Leadership positions in West Virginia state government tend to be reserved to those who serve at the “will and pleasure” of the governor. The chief executive’s appointment powers extend deeply into the bureaucracy, allowing for considerable reach. Perhaps more important than allowing the governor to have his “team” extending his agenda throughout the bureaucracy, the will and pleasure system in the state’s large departments allows secretaries the opportunity to have infl uence over the appointment of their own senior management teams across the various bureaus, offi ces, and agencies. Despite West Virginia’s gains in professionalizing its civil service, the state does not stand out in national indices and rankings. One study, conducted under the auspices of Governing magazine, found the state lacking in such areas as professional development and training and in long-range planning for staffi ng needs. The latter is of pressing concern, as 42 percent of West Virginia’s civil servants will be eligible to retire in the next ten years. As a result of these and other concerns and challenges, West Vir- ginia’s personnel systems earned a “C” on a national report card.47 However, the real story for public service employment is to be found outside of the agency. Perhaps the most important issue affecting the state bureaucracy and its personnel is the growing popularity of outsourcing, contracting, or otherwise retaining the services of third parties to develop, manage, implement, and evaluate public programming. Although there is not yet a full inventory of the types of programs and functions that nongovernmental actors are carrying out under contract, the scope of such activities as illustrated by select examples is broad indeed. Signifi cant inroads in contracting have been made in such areas as corrections, workers’ compensation systems, and health and human services. For example, in health and human services, contracts and grants have been used to secure the services of various community-based organizations to provide The Administration of State Policies 167 job training and other support services for the unemployed and those on public assistance. The state also contracts services for referrals under West Virginia’s subsidized childcare system. This reliance on local providers is a common and long-established practice. However, signifi cant in-roads have been seen in other functions traditionally carried out by state workers. For example, some food stamp operations involving eligibility review and case management have been contracted out. Most signifi cantly, various consultants have been retained in recent years to assist the state in designing new arrangements, regulations, and services in the state’s Medicaid and welfare programs.48 Reliance on contractual arrangements has grown over time. In doing so, this has illustrated the hazards of limited and weakened state administrative capacity. In recent years there have been a number of instances where the grants and contract management process has failed or has fallen short. This is a concern for the contracting movement in general. As noted by Philip Cooper, the movement to transfer or “hollow out” government is not without its dangers. As he notes, “At some point, government becomes dependent on contractors for operational support and service delivery.”49 Unfortunately, West Virginia has provided illustrations of the limitations of relying too much on nongovernmental entities to develop policy and deliver programs. Throughout the early 2000s, various controversies emerged over poor contract oversight in state government. In 2000 and 2001, the dhhr had contracted with various nonprofi ts to operate a car-leasing program for welfare recipients. A lack of control and oversight appears to have led to mismanagement over purchasing and servicing the cars for the lease program and in managing the lease arrangements. The program was shut down in 2003.50 Another high-profi le episode involved the use of state funds to support a senior service center in the southern part of the state. Investigative reporting found that the center’s executive director was making an exorbitant salary and that the quality of some programming was poor. The Bureau of Senior Services was the responsible oversight agency in this case. By 2004, the issue of accountability among businesses and nonprofi ts conducting activities under state grants and contracts led to a decade-old law being revisited and revised. This law, which requires self-reported audits by grant and contract recipients, has not been fully followed. Amendments to the law are aimed at requiring better reporting, but as pointed out in one press account, there is little guidance as to how to comply under the revised policy.51 As a matter of practice, contracting requires a level of capacity to prop- erly manage arrangements where programs and services are funded with 168 The Administration of State Policies

public dollars but are carried out by nongovernmental actors. Reliance on third-party administration has become very popular in the United States. Both federal and state laws enable such arrangements. Management theory often backs this means of service delivery, and politics often dictates such arrangements as a form of distributing benefi ts and resources to preferred interests and constituencies. However, there are concerns that governments are ill-prepared to handle the complexities of contract management, leading to calls for greater understanding and capabilities.52 Some offi cials at the federal level have warned of the lack of accountability systems and mechanisms operating at the state and local levels.53 The shift to contracting and privatization extends beyond procurement and services delivery to broader strategic decisions regarding the purposes and design of public policy. Like other states, West Virginia has begun to experiment with market-based approaches to public policy management and implementation. In the 1990s, the state embarked on an ill-conceived effort to convert much of its Medicaid program to a health maintenance organization (hmo) system. At this time, many states were experimenting with “Medicaid managed care.” Successful programs were found in states with established hmo sectors, metropolitan areas that provided for concentrated enrollment bases, and relatively good health status demographics among their populations. These were all attributes that West Virginia was lacking. Compared with other states, West Virginia faired poorly in its attempts to convert its Medicaid program to a more market-oriented approach.54 West Virginia has retreated, but not fully abandoned, its hmo program and has augmented it with other practices that are more appropriate for a rural state. Although adopting a managed care system for West Virginia’s Medicaid program was ultimately a political decision, the form and content of the plan was largely the work of consultants who made recommendations for design and implementation based less on the state’s needs and realities than on “industry” standards.55 The lack of success in applying this model in a rural state forced West Virginia to retreat and regroup in its approach to Medicaid managed care. It moved toward a more fl exible model of managed care that would allow for both hmo-based providers and looser networks and alliances of primary care providers, specialists, hospitals, and other types of health providers. The state is now moving into another venture in market-based program implementation. Concerned over the unfunded liabilities that were near- ing $3 billion, Governor Bob Wise advanced and the legislature passed a law in 2003 authorizing that some functions of the Workers’ Compensation Commission be outsourced. In early 2005, legislation signed by Governor The Administration of State Policies 169

Manchin further advanced the concept of privatization. The legislation authorized the chartering of a state-sponsored “private mutual company” ostensibly owned by those fi rms and employers paying workers’ compensation premiums. Effective July 1, 2005, all new policies were issued under this entity. The underwriting functions of the Workers’ Compensation Com- mission have now been subsumed by the newly chartered BrickStreet Mu- tual Insurance Company. Under legislation, this entity has exclusive rights to issuing workers’ compensation insurance to private employers in the state through July 2008. This exclusive franchise extends through 2012 in issuing policies to state and local government entities. The market will be opened to other insurance carriers in these markets after these respective dates. The company was also given an exclusive contract to manage the state’s existing caseload of claims and benefi ts incurred before July 2005—without being assigned any liability for these past cases.56 The short tenure of the privatized workers’ compensation has not been without controversy. While elements of the program are comparable to practices in other states, they have not been fully embraced, and there have been a number of political stumbles in the program’s implementation. Early on, concerns were raised that a consulting company had been given prefer- ential treatment by the governor’s offi ce in its selection to head up transition efforts from the old to the new system.57 Another controversy fl ared when a number of well-known senior state level administrators left their positions in government to take key management jobs with BrickStreet. Among these was the former director of the workers’ compensation program, under whose watch the privatization initiative was launched. The contentiousness of their migration to the company was intensifi ed in early 2006 when many of these were among a growing number of early retiring employees who “cashed out” remaining accrued leave, which may eventually cost the state up to $780 million. The move of some fi ve hundred former state employees to the company helped to precipitate awareness of this issue.58 A lack of congruence between policy and administrative authority was revealed by BrickStreet’s management of existing claims. The regulatory authority of the workers’ compensation system remains in the hands of the state government, wielded by the Insurance Commission. In early 2006, the company ceased the state’s existing practice of providing lifetime benefi ts to widowers and widows who did not remarry after the death of the covered spouse. Instead, benefi ts would be terminated on the sixty-fi fth or seventi- eth anniversary of the decedent’s birth. The company cited authority to do so from an existing policy guidance developed under the state program by general counsel now employed by the mutual insurance company. Critics 170 The Administration of State Policies claimed that the legislature had never approved of such a policy and that it could not now be implemented by the company. After considerable press attention and the threat of a state supreme court challenge, the issue became a political football that was resolved by the governor ordering that the policy not be implemented.59 Perhaps of more lasting concern with the privatization of the workers’ compensation system is whether public policy purposes can be achieved by converting what essentially has been an adjudicative function in determining eligibility and claims to a private party. Traditionally, disputed workers’ compensation claims have been fast-tracked from the administrative law system to the courts. In West Virginia, the court of original jurisdiction for workers’ compensation claims has been the West Virginia Supreme Court of Appeals, no less. Although these procedures remain, those appealing administrative decisions will fi rst have to navigate the company’s processes and contend with an entity that is strongly committed to defending challenges.60 As reported in a news article, one advocate for the private system noted that disputed claims make up “about 60 percent” of cases in the court, which contributes to overall premium burdens on employers.61 It is anticipated that private insurers will have a greater interest in contesting appeals and minimizing challenges. The promise of privatization appears to be aimed at providing savings on claims and premiums. There may be at- tendant concerns that preserving procedural safeguards may not be ensured under such arrangements. While West Virginia is hardly a pioneer in privatizing workers’ compensation, but the state’s recent experience highlights the diffi culties involved in transition. By transferring a once public function to the marketplace, government’s role shifts from that of provider to that of regulator. The controversies described above suggests that workers’ compensation continues to be perceived as a public function. As such, elected offi cials will be held accountable for program performance. Some in the legislature have recently called for stricter oversight and control of the new system. The governor has resisted this move, threatening to veto any proposed legislation and warning that new laws would have a chilling effect on insurers interested in entering the workers’ compensation market.62 The idea of reforming government by running it more like a business has lost none of its allure under the Manchin administration. As quoted in one press release, “During my campaign for governor, I promised that if elected I would run state government like a business—and that’s exactly what we are doing every day.” This and other periodic press releases trumpet successes in improving practices and procedures aimed at saving money. The The Administration of State Policies 171 achievements tend to focus on the mundane, such as calibrating the amount of cinders and salt that are spread on roads during snowstorms; clarifying rules for the use of cell phones by state employees; and converting the state’s payroll system from a paper-based to electronic transfer system.63 Whether these are business practices that have been successfully adopted or just sound twenty-fi rst-century public administration is subject to whatever thin debate that might follow. In sum, they are little more than surface events in comparison to the more seismic changes facing governance that outsourcing, contracting, and privatization present.

intergovernmental relations and the future of state bureaucracy

Finally a challenge faces West Virginia administrators as they respond to policy changes initiated at the federal level that mandate changes in state programs. Over the past decade substantial changes in intergovernmental relations have resulted in states having more fl exibility to operate policies traditionally directed and funded through federal transfers. At the same time there has been a trend to slow and contain the amount of monies originating at the federal level for state programs. The result has been a time of uncertainty and controversy for American federalism. Partisan politics, budgetary concerns, and the popularity of decentralizing governmental functions have converged to make what is now called “devolution” popular. This movement has gone hand-in-hand with reforms for “reinventing government” and otherwise making it more “businesslike” and reliant on contracting and outsourcing for service and program delivery.64 State bureaucracies stand at the center of this changing intergovernmental environment. They are key links in the intergovernmental relations of programs and policies that join together state and federal actors. Senior administrators in the state bureaucracy often fi nd themselves in the position of having to balance competing demands placed upon them by state executive and legislative authority—as well as federal regulatory or administrative authorities. This is not an enviable position. Recent reforms in major program areas, especially those dealing with health and human services administration, pose signifi cant challenges for the states. However, these reforms have not necessarily moved in concert. Different pieces of legislation and various federal rules and regulations that have followed tend to converge in the implementation process. The inevitable controversies and diffi culties encountered in administering revised programs bring the focus of scrutiny squarely on the bureaucracy. 172 The Administration of State Policies

conclusion

A true test for state bureaucracies is their capacity to adjust to new demands regarding what government should do and how this will be accomplished. The story of West Virginia’s bureaucracy is much like that of other states. Since the New Deal, the state has, both independently and through active interaction with the federal government, delivered the programs and services that we have come to associate with modern American government. In this context, there has been a constant demand that the delivery of these services and the systems that manage them should be more effective and ef- ﬁ cient. The evolution of West Virginia’s bureaucracy is noteworthy for the demands for change and reform that have been nearly constant for over ﬁ ve decades. Substantial reorganizations and adjustments have resulted. These demands are as strong as ever as the state explores ways to privatize and contract out program administration while responding to new demands in intergovernmental relations. The capacity of states like West Virginia to respond to these changes will test current and popular notions of governance. At the same time, state experiences may help inform future practices and considerations in the management of public programs and services. chapter nine

The Budget Process

There may be no subject in government that is more important yet arcane than public fi nance and budgeting. However, knowledge of public fi nance is crucial to understanding the capacity of government to meet the public’s demands. Familiarity with fi scal and budgetary matters is therefore central to understanding the characteristics and content of state politics. Budget issues tend to drive state politics. Campaigns and elections turn on where candidates stand on spending and taxes. Interest groups mobilize when there is talk of budget cuts and the scaling back of programs and services. In any year, the casual observer of politics and state government will fi nd public fi nance issues front and center. In recent years, fi scal issues have dominated West Virginia politics. Among the major issues have been concerns over the state’s ability to fi nance its long-term obligations to its pension and workers’ compensation programs, tough choices over how to cut Medicaid programming to bring the program back into the black, lobbying for pay raises for state employees, active debate over the state’s sales tax, and proposals to allow for “table gaming” that would generate new sources of revenue.1 The study of public fi nance is ultimately about the study of revenue and costs—and all that goes on in between. The purpose of this chapter is to provide a brief overview of revenue sources, budgeting processes, and long-term fi scal pressures facing West Virginia. Understanding this topic is no simple task. Conventional treatments tend to focus primarily on the politics and processes of the general budget process. More comprehensive reviews require an exploration of the many components that make up the overall fi scal picture. This includes revenue sources, federal transfers, general and special budgets, and those aspects of public fi nance, such as long-term unfunded or underfunded debt, which will infl uence the shape of things to come. In this chapter we will examine each of these themes 174 The Budget Process

in turn. After providing a general overview of revenue sources and budget processes, we will examine intergovernmental transfers through a brief case study of the Medicaid program. We will then explore budgetary politics through the lens of budget preparations and deliberations for the 2004 state ﬁ scal year budget. We will conclude by highlighting the serious challenges that states like West Virginia face in meeting long-term unfunded and underfunded debt obligations.

how does the money come and go? general revenues and appropriations

The heart and soul of the state’s fi nances is the general revenue fund. This revenue base is generated largely by personal income taxes, consumer sales and use taxes, business and occupation taxes, corporate net income and business franchise taxes, severance taxes, and insurance taxes. Together these provide about 92 percent of state tax revenues in West Virginia. Spe- cial excise taxes round out the general revenue base and are levied on such products as alcohol and tobacco and such activities as horse and dog racing and estate transfers.2 Recent analysis fi nds West Virginia relying more on personal income and consumer and use taxes than on business taxes. In addition, the overall tax burden per capita tends to be higher in West Virginia than in contiguous states.3 Given the relatively small population of West Vir- ginia, its weak job base, and generally poor economic situation, this greater burden is not surprising. The state has been forced—often by crisis—to fi nd new ways to fund services, programs, and the functions of government. These have usually been in the form of special use fees, discrete taxes on specialized products or activities, and permit fees. Also shaping the tax landscape is a legacy of strong corporate infl uence in the state, especially from coal, timber, and natural gas businesses. These interests have long been able to either hold back or limit severance taxes on the extraction of natural resources. They continue to fi ght such taxes to this day.4 A quick history of West Virginia’s taxation system reveals both paral- lels and differences to the systems of other states. Prior to the 1930s, many governmental functions were local and the scale of services was limited. Most tax burden was at the local level. The most signifi cant statewide tax was the business and occupation privilege tax adopted in 1921. In the midst of the Great Depression of the 1930s, state presence in providing services and programming increased. This increase was the product of two factors. First, local governments lacked the capacity to deliver programs in the face The Budget Process 175 of the unprecedented challenges posed by the economic situation. Second, in its response to the economic crisis, the revolutionary New Deal programs of the Roosevelt administration relied on states for management and implementation. The federal government lacked the administrative capacity and the legal power to operate many of these programs directly. The state’s takeover of highway and welfare functions in the 1930s coincided with constitutional limits on local property taxation.5 The 1930s saw the adoption of state sales tax as well as excise and use taxes on licenses, alcohol, automobiles, and racing. Through the next three decades the state would rely on these and incremental adjustments in special use and excise taxes. In 1961 the state adopted the personal income tax—a major shift in revenue policy. This tax was followed by a corporate income tax in 1967. The 1970s and 1980s saw the adoption of other revenue measures, including a new coal severance tax in 1987. The same year also saw the near complete repeal of the statewide business and occupation tax, limiting it to public utilities and electric power production.6 The 1987 actions were in large part the product of recommendations offered in a report by the West Virginia Tax Study Commission in 1984. Working under a charter from the state legislature, the commission held that “the structure of business taxes in West Virginia is in need of reform,” and noted that the business and occupation tax was an ineffective and unfair means of taxation. By suggesting a severance tax, the commission saw this as an improvement on the existing business and occupation tax, which had acted as a de facto severance tax on natural resource extraction.7 Taxes and other revenue-producing instruments are directed, of course, to the functions of government and the delivery of public programs and services. Policymakers must engage in a balancing act between action required to raise revenue and expectations that services will be delivered. In recent years, general revenue appropriations have topped over $3 billion in the state. For the 2006 state fi scal year, $3.19 billion was appropriated.8 General revenue appropriations were directed across the wide spectrum of governmental functions. However, as noted in table 10, most of the funds were budgeted to three broad areas of government programs and services: (1) education and higher education, (2) health and human services, and (3) public safety and corrections. This is a common trend across the states and has been consistent in West Virginia in recent years. Another common trend has been upward cost pressures in the areas of health and human services and public safety and corrections. As in many other states, West Virginia’s Constitution requires that state appropriations not exceed revenues. This restriction has become largely a 176 The Budget Process

Table 10. General Revenue Fund Appropriations

State Fiscal Year State Fiscal Year 2005 2006

Education $1,611.3 million $1,632.4 million (52.5%) (51.2%) Higher Education $284.3 million $287.2 million (9.3%) (9.0%) Health and Human Resources $603.4 million $685.1 million (19.7%) (21.5%) Public Safety/Corrections $238.6 million $250.6 million (7.7%) (7.8%) Other $332.4 million $335.0 million (10.8%) (10.5%)

Source: West Virginia State Budget Ofﬁ ce, “Appropriations,” http://www.wvbudget.gov/recommnd.htm (April 2005).

fi ction because of creative, and perhaps detrimental, fi nancing devices that defer the balance due on various obligations well into the future. Nonethe- less, the general revenue budget is constrained by its revenue base. The lion’s share of the general revenue base comes from consumer sales taxes and personal income taxes. Collections for both have shown appreciable growth in recent years. For consumer sales and use taxes, collections in 2002 stood at approximately $863 million and in 2005 at an estimated $1.07 billion. In the same period, personal income tax receipts increased from approximately $1.03 billion to $1.10 billion. Future estimates through FY2008 suggest that this general trend will continue.9 Table 11 provides revenue estimates for these major sources of tax collection, as well as other major revenue sources. Many people associate West Virginia with coal mining. West Virginia’s severance tax on coal and other natural resources extracted from the state is important. The severance tax is a policy instrument that contributes to the state’s general revenue coffers and returns revenue to the counties on a formula basis. It is levied largely on coal production—accounting for 84 percent of all returns—but also on natural gas, timber, oil, and quarry production. Throughout the 1990s and early 2000s, the severance tax was the third most important revenue stream in the general revenue fund. But, because of vagaries in domestic and international coal markets, it is diffi cult to project The Budget Process 177

Table 11. General Revenue Tax and Fee Sources, Fiscal Year 2006

Estimated Revenue Percentage of (in millions) Revenue

Personal Income Tax $1,152.3 35.3 Consumer Sales and Use Tax $1,068.8 32.8 Severance Tax $248.0 7.6 Corporate Net Income Tax and $244.5 7.5 Business Franchise Tax Business and Occupation Tax $178.0 5.5 Insurance Tax $103.0 3.2 Other Taxes and Fees $267.8 8.1

Total $3,262.4 100

Source: West Virginia, Governor’s 2006 Executive Budget (Charleston: State of West Virginia, 2005), 55–62. future returns on this tax. For example, in 2003, it was common wisdom that severance tax revenues would decline steadily in the years to come. State fi scal year 2002 collections stood at approximately $167 million, and collections for 2003 were estimated to fall to $156 million. Although the 2003 projection proved to be relatively accurate and $162 million in revenues were actualized, returns seem now to be on the increase. In 2004 and 2005 revenues increased signifi cantly. It is estimated that the severance tax will contribute $248 million to the state’s coffers in 2006. Although energy demand seems to be at an all-time high, market changes remain diffi cult to forecast. Additionally, although the tax has been signifi cant source of revenue since its inception, some have argued that it is anemic and should be increased.10 Corporate resistance to severance taxes has long been a theme in West Virginia politics. The overwhelming infl uence of coal and other extractive industries in the political process accounts for success in fi rst denying and then limiting severance taxes. During the early part of the twentieth century, organized interests successfully killed severance tax proposals.11 When a progressive governor took up the issue again in the 1950s, a proposed coal severance tax died in the legislature.12 Pressures continued in the 1970s, with the voice of popular protest equating nonexistent or low-severance taxes with neocolonialism in West Virginia and Appalachia as a whole.13 In 1971, tentative steps toward a severance tax were taken when levees on coal production rates were increased under the state’s business and occupation 178 The Budget Process

tax system.14 It was not until 1987 that substantive action was taken to establish a severance tax on natural resources. The prospects of raising the tax now are limited because of competitive pressures in coal production from other states and abroad. In addition, organized opposition to the tax remains. In 2005, ten energy companies fi led suit arguing that the manner in which the severance tax is levied violates the import-export clause of the U.S. Constitution regarding limits on state taxation powers. The West Vir- ginia Supreme Court of appeals eventually sided with the state and against the energy companies.15 In its ruling, the West Virginia court upheld a lower court opinion that tax practices are consistent with past practice and did not “offend” the U.S. Constitution.16 In June 2006, the U.S. Supreme Court let the West Virginia court’s decision stand by not granting an appeal to the energy and steel interests.17 Tax reform, especially as it relates to pronouncements that tax rates to key constituencies will be cut and reduced, is a popular route to take among those seeking and hoping to retain offi ce. Upon taking offi ce, Governor Manchin set into motion a new Tax Modernization Project to recommend reforms for the state. The group undertook a comprehensive review of the state’s tax system, both historically and in the contemporary context, and issued a lengthy report in October 2006 in preparation for a special legislative session on tax reform. The reforms that were adopted were more incremental and technical than those of the 1987 reform initiative. Passed into law by the legislature in late 2006, these reforms included a downward adjustment to the state’s sales tax for food purchases, changes in income tax withholding in special income categories, adjustments to special tax credits for venture capital and tourism projects, and a slight reduction in business and corporate taxes.18

special revenue sources

Special revenue sources are adopted and used for a variety of purposes. In recent years, the reliance on special revenue sources in lieu of raising traditional taxes to cover increasing governmental costs has become a common fi xture in public fi nance and budgetary politics.19 The most familiar sources of such revenue are from the lottery, video gaming parlors, horse and dog tracks, and other gaming receipts. To make offi cial sanctioning of gambling politically palatable in otherwise morally conservative political cultures, it is common for proceeds to be specifi cally earmarked for such social positive programming as education, senior services, and the arts. West Virginia follows this practice with most funds directed toward public and higher education and a homestead property tax exemption for seniors.20 The Budget Process 179

In addition to lottery fund revenue (which includes revenue from the lottery, video gaming parlors, and racetrack slot machines), there is a revenue category called the “excess lottery fund.” This is activated once a threshold of receipts has been reached in the regular lottery fund. Under the excess lottery fund, revenues are used for a wide spectrum of activities. In addition to supporting education and senior services, these funds can be directed to economic development, infrastructure investment, and the general revenue fund. When West Virginia designed its lottery system, it established a threshold that would have to be met before revenues could be allocated to the excess lottery fund. Today that fi gure stands at about $170 million. Originally envisioned as a “windfall” account, proceeds now going to this fund greatly exceed those directed to the regular lottery fund. Over $306 million went to the excess fund in 2004, while approximately $177 million went to the regular lottery fund.21 West Virginia has enjoyed a substantial growth in lottery proceeds in recent years. In fi scal year 2002 net lottery revenues totaled $294 million. By fi scal year 2004, net revenues had increased to $483 million.22 In 2001 legislation regulating various forms of gaming was instrumental to this increase. These surplus revenues have grown signifi cantly. In turn, this has provided more fl exibility for policymakers in their public fi nance decisions. For example, in 2004, the state legislature directed that $50 million from the excess lottery fund be used for educational purposes to substitute for what would have normally been a general revenue appropriation. In turn, the $50 million from the general revenue fund was freed up for other programming areas, including health care.23 Overreliance on lottery funds might create unrealistic expectations about the future. These and other short-term fi nancing instruments can allow policymakers to defer hard decisions about the fundamentals of a state’s economy, tax policies, and obligations. Raising taxes is rarely a popular move. In recent years there have been no across-the-board increases in personal income or sales taxes. In fact there has been a recent limit placed on sales taxes. In 2005, the governor was successful in championing legislation that cut back the application of the state’s consumer tax on food items from six to fi ve cents. Lottery proceeds tend to be grouped with other “one-shot” or “short-term” revenue enhancement methods, such as excise taxes, user fees, and specialized taxes, that are politically attractive but may be fi scally unsound in the long run. These special revenues constitute a major part of the state’s revenue base. For example, in state fi scal year 2004, 14 percent of the state’s general budget was estimated to come from lottery funds alone. Another 25 180 The Budget Process percent was estimated to come from user fees, excise taxes, and a special tax on health care providers.24 It is generally accepted that gains from lottery revenues will not meet overall funding needs as program costs continue to grow in health, education, and other areas. Budget projections offered by the Department of Revenue suggest that lottery revenue has already peaked and that returns will decline in years to come.25 Consequently, in 2007 the legislature provided for local option table gaming in four counties to ensure gaming revenue. Special revenue funds, such as those provided by the lottery, can supplement programs and services that are largely funded through the general revenue fund. There are also special revenue funds that are dedicated to a specifi c purpose or narrow range of activities. The most notable of these is the state road fund. Federal funds, transferred to the state for highway construction and improvements, average about 44 percent of the fund. The remainder is generated from motor fuel taxes, title license fees, and motor vehicle registration fees.26 The motor fuel tax was fi rst established in 1923, and these revenues were directed to fi nance road construction. The state road fund was established as a special revenue fund in 1942 through a constitutional amendment.27 Special revenue funds that are used to fund other government services and programs often come from user fees, fi nes, and other sources of incidental revenue. Among these are special funds used to fund the operation of the Division of Motor Vehicles and the Department of Natural Resources.

intergovernmental transfers

Total state budgets refl ect more than the sum of general and special revenue funds. They also include intergovernmental transfers. Indeed, once federal transfers are factored, West Virginia’s budget more than doubles. It is estimated that in state fi scal year 2009 approximately $3.94 billion in federal funds will be transferred to the state government.28 These transfers require the implementation of federal mandates and policy priorities by the states through what is known as “fi scal federalism.” The federal dollars are for special purposes and have restrictions on their use. Their intent is to further policy ends and objectives of the national government and to respond to state needs.29 Most federal transfers are directed to health and human services. In 2009, it is estimated that 60 percent of all funds coming from the federal government to the state will originate from programs under the jurisdiction of the U.S. Department of Health and Human Services. The next largest category The Budget Process 181 of transfers is funding provided by the U.S. Department of Transportation. The state uses these funds primarily for road and highway projects, and these constitute 12 percent of federal transfers to the state. Another 10 percent of federal transfers come from the U.S. Department of Education and are used primarily for elementary and secondary education.30 Among the many health and human services programs funded by federal dollars is Medicaid. As described in chapter 4, this joint state and federal program provides much of the health care coverage and infrastructure in the states. In 2007, Medicaid expenditures in West Virginia exceeded $2.17 billion with the state’s share being approximately $608 million.31 An advantageous match rate creates incentives for states to maximize their federal drawdowns and to seek to include as many programs and services as possible under the aegis of Medicaid. West Virginia has been particularly adept at raising funds for the “match.” Like other states, West Virginia has utilized special provider taxes and fi scal transfers from other programs to increase the funds available to draw down federal dollars through its match. In recent years, the federal government has taken action to close loopholes and restrict state discretion in using these “creative fi nancing” techniques. Further, for over a decade some in Congress have taken an interest in capping federal obligations by use of a block grant for Medicaid. Although not yet a reality, this option has gained considerable traction and serious consideration, especially during the George W. Bush administration. At the same time, politics at the state level has forced some reconsideration of creative fi nance mechanisms. Not all providers, for example, are pleased to contribute to a special “provider tax” to raise additional funds to pull down federal dollars.32 Another consequence of the Medicaid program is that Congress and presidents have used Medicaid to expand health coverage and services in ways that have often weighed heavily on state fi scal capacity. They also have placed some limits on where states might otherwise direct health care dollars under Medicaid.33 In addition, rising health care costs, largely beyond the control of state and federal authority, have bitten deep into the discretionary benefi ts of the Medicaid program. By the early 2000s, drug costs and long-term care accounted for 36.5 percent of expenditures in West Virginia’s Medicaid program.34 These costs represent a population that is growing older but not necessarily richer in West Virginia. The state’s demographics suggest even greater pressures on the Medicaid budget in the future. In short, the federal equation should never be discounted when looking at public fi nance in the states. The federal government presents both opportunities and responsibilities that the states must respond to. State public 182 The Budget Process

fi nance systems are designed with federal transfers in mind. There is little doubt that state administrative and fi nancial capacity depends on federal transfers. But part of the bargain is that monies come to states with “strings attached” as part of the grant-in-aid strategy that defi nes American intergovernmental relations.35 There remain substantial challenges in West Virginia in meeting governance expectations from the fi scal point of view. Concerns become even more attenuated in West Virginia and elsewhere as federal funding, relative to state responsibilities, has fallen in recent years.36

budgetary processes: the design

In a comprehensive analysis of the West Virginia state budget process, a political scientist once noted, “A cross section of budget activity on any given day would reveal people working on the budgets of at least three different fi scal years. Some people would be planning next year’s budget, some would be administering this year’s budget, and some would be assessing the administration of last year’s budget.”37 Indeed, each successive year’s budget is affected by past performance and constrained by future considerations. Like most states, West Virginia’s budget year starts on July 1 and ends on June 30. This stands in contrast with the federal fi scal year that runs from October 1 to September 30. Within any specifi c annual budget cycle, the pace and dynamics of activity is often hurried and complex. Numerous actors have a role to play in the budgetary process. On the executive side, the governor relies on his staff and line agencies directly responsible to him to plan and develop a budget. In turn, they are somewhat dependent on various departments to provide budget requests and justifi cations from the many agencies, bureaus, and offi ces that make up state government. On the legislative side, senior members of the House and Senate play a key role in shaping the fi nal budget. They in turn are assisted by other members and staff and must attend to demands placed upon them by various interest groups during the legislative session. In short, the process plays out in phases, shifting from the gubernatorial to the legislative arena and then back to the gubernatorial arena. In West Virginia, budget planning is the responsibility of the governor, who presents a detailed budget report to the legislature early in the session. Lacking in internal capacity to conduct analysis, the legislature relies on the executive for fi scal information. For many years, budget preparations were coordinated by the Department of Administration. By executive order in 2003, Governor Bob Wise transferred this function to the Department of The Budget Process 183

Revenue.38 To keep track of revenues and expenditures, other reports are released on a regular basis. Currently, the Department of Revenue remains in charge, but the Department of Administration still plays an important role in the budget development process. As with other states, West Virginia’s history has shown a general trend to consolidate more authority for budget preparation in the hands of the executive branch. In 1918 this power was fi rst concentrated within the Board of Public Works, establishing an intermediary between agencies and the legislature in budget requests. Although a weak arrangement, this set a precedent for executive control over the budgetary proposal process. West Virginia’s and other states’ experiences helped to inspire the federal government to centralize budgetary control with the Budget and Accounting Act of 1921. The state’s Modern Budget Act of 1968 further centralized executive power over the budgetary process by giving the governor “the sole authority to prepare the budget proposal for the legislature and to estimate future state revenue.”39 Although this authority is in place, it has not stopped the other constitutional offi cers from resisting this power from time to time. In Sep- tember 2002, when preparations were under way to prepare the 2004 fi scal budget, Governor Wise requested that his colleagues on the Board of Public Works cut their budgets by approximately 10 percent for the coming year. Although eventually acquiescing to the request, some constitutional offi cers made a show of their displeasure.40 Budget planning and development is a lengthy process. A key step in the budget preparation is soliciting budget requests and justifi cations from departments and their constituent agencies and bureaus. All necessary preparations need to be concluded by December of the year prior to session. To meet this deadline, months of preparation are required. During the summer months, various bureaus, offi ces, and divisions within departments are busy preparing budget plans in response to initial appropriation request guidelines that are issued in July by the Department of Revenue at the governor’s behest. From these guidelines requests must be fi led with the Department of Revenue and its State Budget Offi ce by September 1, and then over the course of October and November, meetings are held with budgetary and agency principals to iron out fi nal requests that will be bundled together in the governor’s budget bill. By December the stage is set for department secretaries to make their fi nal formal requests to the governor and for the chief executive’s staff to begin fi nal preparations for the budget bill.41 Through December, the governor’s offi ce prepares the formal budget request that will be presented to the legislature early in the new year. However, this set process can be interrupted by political and economic 184 The Budget Process

events that can speed up or disrupt the planning calendar. A typical example can be found in the development of the 2004 state budget. In 2002, the Wise administration began to set the budgetary agenda for fi scal year 2004 by requiring all departments and other units, such as higher education, to revise budget requests to refl ect a 10 percent reduction from fi scal year 2003 allocations. The governor ordered that these requests be submitted by October 2002. As the foregoing suggests, the governor is able to exercise considerable control over the budget requests offered by agencies and departments. How- ever, because these entities are required to make formal budget presentations and requests to both the governor and the legislature, they have an opportunity to make their voices heard to different power brokers and interests. One senior staff member in the West Virginia Senate has suggested that agency and department heads often disagree with the governor’s funding agenda and should make their sentiments known to the legislature. The staff member also noted that the vagaries of the budget planning process often leave senior agency personnel with a certain sense of apprehension and uncertainty that complicates coordinated long-term planning. Sympathetic supporters in the legislature are seen as a beacon of hope when prospects are unclear. As the staffer noted, “Agencies use every opportunity to better their organizations, and the budget process is not an exception.”42 The budget serves as both the keystone and the bookends of the legislative session. The governor, in his state-of-the-state address, sets the agenda by presenting his budgetary proposal early in the session. The state constitution sets deadlines by which the budget must be presented.43 After the proposed budget is delivered, its consideration dominates the legislative process during session. The all-powerful Senate and House fi nance committees play the key role in dissecting and deliberating on the budget bill. Because the general budget must be revenue neutral, the governor has the upper hand in setting the agenda by fi rst laying out his spending preferences. Legislators must work within these confi nes, realizing that increasing spending in one area must be purchased at the cost of cutting or shifting resources from another area.44 Present in the back of their minds is the fact that the governor reserves the right to line out or reduce appropriations for specifi c items in the budget after it has been passed. The fi nal days of the legislative session are dominated by budget deliberations. This is where the desire to authorize and the need to appropriate converge. With this, some legislative goals are realized while others are dashed. In the closing hours of the legislature, both houses concentrate on the budget bill. However, because fi nal passage cannot be achieved until the The Budget Process 185 reconciliation process is completed in conference committee, it has now become customary in West Virginia for the governor to call a short extended legislative session, usually lasting about a week, at the end of the regular session.45 As a senior Senate committee staff member noted, “The short extended legislative session has come into being not so much because the two houses disagree, but to ensure that there is proper funding for legislation that has fi scal implications that passes during the last few days of the session.”46 In short, this device allows for fi nal budget reconciliation and passage. With passage of the budget bill, the center of gravity shifts again to the chief executive. The governor must sign the bill into law, and he reserves the right to delete specifi c items in the budget bill. Because many of the appropriations in the budget bill are for “unclassifi ed expenditures” in the agencies’ budget lines, considerable discretion is delegated to the governor and agencies in the directing expenditures and setting priorities. After the legislative session, the governor’s offi ce issues expenditure schedule guidelines in April to which agencies must respond within a month’s time. These are further reviewed by the administration and are subject to approval or revision. Although the spotlight shifts back to the governor at the end of session, this does not mean that the legislature has left the stage. The oversight process provides an important tool in maintaining bureaucratic accountability. In addition, there are times when the legislature must meet in special session—called by the governor—to make budget amendments in the form of supplemental appropriations. In recent years, supplemental appropriations have been used to plug holes in health and human services, especially those dealing with Medicaid and social services.47

budgetary politics: a case study of its practice

In early 2003, West Virginia’s legislators took up the issue of the 2004 fi scal year budget amidst national concerns about fl agging stock markets, growing federal defi cits, and the worst fi scal situation seen in the states since the Great Depression. Analysis provided at the national level told a story of daunting fi scal diffi culties in 2002 and 2003. Some ascribed the problems to rising costs for education, health care, and corrections. Compounding these problems has been an increasing shift of the burden of federal program costs to the states through various federal policy reforms and changes initiated in the latter part of the twentieth century.48 West Virginia was, relatively speaking, in better shape than most states. A combination of good revenue forecasting and prudent appropriations actions had prevented the state from 186 The Budget Process overextending itself in the boom years of the late 1990s.49 But the challenges for the year ahead seemed daunting. Projected shortfalls in the Medicaid program, the continuing pressures of having to service debt on long-term obligations in the state pension and workers’ compensation systems, continuing demands for increased teachers’ salaries, and concerns over falling tax collections created a situation of stress and strain that highlighted the pressures of budgetary politics at the state level. The battle over the 2004 state budget is memorable and serves as a useful case study that illustrates West Virginia budgetary politics. Concern over the state’s fi scal health and the politics of the time combined to create a sometimes strained atmosphere. West Virginia’s Demo- cratic governor, Robert Wise, elected in the fall of 2000, had failed to build the type of productive working relationships with the legislature that had been characteristic of his last Democratic predecessor, Gaston Caperton. Even though West Virginia is primarily a Democratic state, cordial relationships between Democratic governors and legislative leaders are by no means assured. Governor Wise was also at loggerheads with other constitutional offi cers of the same party on the Board of Public Works—some of whom would rebuff him in his budget requests. Also, because one party dominates the state, the all-important primaries set for May 2004, which would fall within the fi scal year budget under consideration, added to the mix of politics and positions. By the fall of 2002, it was apparent that the state would face a signifi - cant shortfall for the 2004 fi scal year. The general estimate of the shortfall ranged between $200 and $250 million. Governor Wise expressed his interest in belt tightening by requiring that departments preparing their budget requests shave off 10 percent from their previous year’s budgets. The governor also signaled a willingness to increase excise revenue by raising the cigarette tax to 55 cents per pack. In turn, in the run-up to the 2003 session, legislative leaders expressed support for selective cutbacks in agency budgets, were ambivalent about the cigarette tax, and signaled an unwillingness to entertain any increases in sales or income taxes.50 As the session got under way, it became apparent that much of the budgetary debate would concentrate on the governor’s proposed cigarette tax. A proposal for an increase of the soft drink tax—originally implemented in 1951 to support hospital and medical center construction in the state—was quickly tabled. The governor had allied himself with a tobacco tax increase in late fall and began building his proposed budget under the assumption that the legislature would adopt a thirty-eight-cent increase in the tax. While this raised the hackles of some legislators and others, it was an effective The Budget Process 187 agenda-setting device. It allowed the governor to send a message to the public of what would be “denied” to the state if the legislators refused to act. As originally proposed, revenues from the tax were to be used to enhance the state’s Medicaid matching fund pool. The expected $60 million in revenue would be used to leverage an additional $180 million in federal funds. Attractive as this seemed, the proposal generated considerable resistance and reluctance among powerful interests and legislators. Various committee machinations threatened the bill at times. The tobacco lobby was active in arguing that the tax would hurt revenues in convenience stores and gas stations, which depended on cigarette sales. Convoluted arguments followed that sales tax and gas tax revenues would decline as a result of fewer out- of-state consumers crossing the state’s borders to buy cigarettes.51 Because the tobacco lobby and its allies had been successful in holding back tax increases since 1978, there was considerable speculation that Governor Wise’s initiative would fall short.52 The proposed cigarette tax generated press coverage and became the topic of talk radio chatter for much of the legislative session. The governor put on a full court press to generate support for the legislation. The Department of Health and Human Resources prepared and distributed analyses of the economic impact of a Medicaid shortfall on the home districts of legislators. It released a press release that equated Medicaid with economic development, noting that an academic study had found that the program contributed to job development. The press release notes, “Medicaid spends $1.5 billion each year in West Virginia and generates 32,681 actual jobs,” and that a failure to pass the tax would lead to program costs that would result in a $225 million loss to the economy and 4,906 lost jobs.53 When the dust settled at the end of the 2003 session, legislative leadership was confi dent that the budget crisis had been averted.54 The 2004 fi scal year budget of $3.041 billion represented approximately $111 million in spending increases over the 2003 fi scal year budget. The budget was “balanced” through cost reductions and revenue enhancements. The tobacco tax, which was increased to 55 cents a pack, as well as more specifi c and arcane special taxes and fees for goods and services ranging from liquor licenses to dog track racing, were adopted to raise additional revenue. Faith was placed in higher lottery returns—which turned out positively. Also, cuts were made in the operating budgets of various state agencies and programs. But there was work still to be done. The legislature had addressed short- term concerns, but looming long-term debt issues would eventually move to center stage in 2004 and 2005. One of the most important legacies of the 2003 session is that the legislature substantively acknowledged the 188 The Budget Process

challenges ahead for retiring the state’s massive debt in its teachers’ pension program and in its workers’ compensation program. At the time, the state’s debt was estimated to be $7.9 billion—more than twice the state’s current year budget.55 The debate over the 2004 fi scal year budget during the 2003 legislative session is notable in that it helped to surface the issue of long-term unobligated fi nancial commitments in West Virginia. During the session, the speaker of the House noted that servicing the $4.6 billion “unfunded liability” in the state teachers’ pension system required “an additional $30 million in the 2003–04 budget.”56 One newspaper editorial noted, “The $302 million pension plan payment in 2003–04 represents almost one in fi ve of the state’s public education dollars, none of which will reach the classroom.”57 The debates of that session set the agenda for policy consideration and actions that are currently shaping West Virginia politics.

west virginia’s long-term debt issues

West Virginia ended its 2005 fi scal year with a small surplus. But the challenges facing West Virginia’s public fi nances were far from over. As the speaker of the House was quoted in a newspaper article, “While things look real good now, if you look two or three years down the road, it doesn’t look so good.” In recent years, the speaker has played the role of Cassandra, warning that the state must be prudent in its expenditures and cautious about rolling back or reducing taxes. For him and many other leaders in the state, the memories of the state’s fi scal crises of the late 1980s are still fresh. In 1989, the state adopted a 6 percent sales tax and other revenue enhancements. The budget crisis of 1989 is held in the same awe as a blizzard or horrible storm that is recalled for generations.58 One of the factors contributing to the 1989 crisis was the near bankruptcy of the state’s pension system. The state eventually responded to this with a court-ordered fi nancing scheme that allocated a portion of each year’s budget to debt management for both the workers’ compensation and state pension programs. In 2005, approximately $350 million or 11 percent of the state’s general revenue was directed toward debt service.59 Overhauling both the state’s workers’ compensation system and fi nding a way to better fi nance these unfunded liabilities took precedence with Governor Joe Man- chin when he entered offi ce in January 2005. All states acquire debt to invest in the future and, at times, to cover short- term obligations. State-issued bonds are a common feature in public fi nance and have created a market sector in the fi nance industry.60 Because state constitutions generally prohibit defi cits in the annual budget process, it is The Budget Process 189 necessary to fi nd other funding methods. It is common for states to issue bonds to fund long-term obligations focusing capital investments and special programming. Bonds are a fi nancial instrument redeemed over a set period of time. The benefi t to the investor is a return on interest and a high degree of certainty that the state issuing the bond will not default on its obligation. In West Virginia, general obligation bonds can only be authorized through a constitutional amendment that must be put to the voters for approval. Most of the state’s general obligation bonds are used for road construction, the most recent being a $550 million bond issuance in 1996. Bonds have also been used to fund school construction and general infrastructure development. Since 1950, there have been bonds authorized for special veterans’ bonus programs. All told, by 2006, the state had approximately $772 million in general obligation bond debt.61 Unfortunately, states also increasingly carry unfunded liabilities that have not been secured through general obligation bonds or other means. It is these liabilities that pose some of the greatest fi scal challenges to the states. Generally, unfunded liabilities are found in state pension and workers’ compensation programs. West Virginia is no exception to this. By July 2004, the state had over $6.15 billion unfunded liability in its various pension programs. At the same time it had an approximately $2.96 billion unfunded liability with its workers’ compensation fund.62 Of the twin crises of long-term debt, workers’ compensation generated more attention in the historic 2003 legislative session. There was debate on how to fund the short-term shortfall and how to redesign the system to make it more stable in the long run. A rare fi libuster at the end of session prevented new legislation from being passed. At stake were concerns over higher employer premiums. This contentious act by a maverick Republican was seen as out of step with the traditions of the legislature. It has ceremoni- ally used the fi nal night of the session as a showcase for comity and stature. A special session was eventually held, and the fi nal legislation passed in June 2003, providing a stopgap measure allowing the state to maintain the program for the short term without having to raise employer premiums. The package authorized $225 million to cover current program expenses. Most of the money was appropriated from the state’s black lung disease account, with the balance coming from general revenue, special revenue accounts, and other sources.63 In addition, new legislation paved the way for the program to become “privatizated” by charging a new Workers’ Compensation Board of Managers to explore ways of contracting out plan administration and transferring risk to private market interests. This was followed up with legislation passed in 190 The Budget Process

2005 abolishing the state-run workers’ compensation plan as of 31 Decem- ber 2005. Now in its place is a “private employer’s mutual insurance fund” that has exclusive rights to operate the program through June 2008. After that time, insurance companies will be invited to offer workers’ compensation insurance in a regulated market arrangement. Existing debts remain the state’s liability. These shortfalls will be made up under the supervision of the state treasurer and funded through tobacco settlement funds, severance taxes, excess lottery revenues, and taxes levied on insurers.64 As detailed in chapter 8, the privatization of workers’ compensation is further evidence of the “hollowing out” of West Virginia state government, and it has raised questions about the appropriateness of relying on market mechanisms for workers’ protections. The 2003 session also raised consciousness about the long-term implications of the state’s $6.15 billion liability with its various pension funds. The most serious of these is the teachers’ pension fund, which has left the state exposed to over $5 billion in debt.65 During the 2004 legislative session the issue largely lay dormant among election-conscious delegates and senators, and a lame duck governor did little to advance the issue. But because this payment plan eats away at increasing amounts of the state general revenue budget, interest gained traction after the 2004 election, and both the newly elected governor and legislative leadership would champion a new solution to the pension problem. During a special session in 2005, the legislature endorsed Governor Manchin’s plan to sell bonds to fund the program. As required in the constitution, the acquisition of new debt required approval by the voters. On June 25, 2005, a special election was held in West Virginia. Voters were asked to decide a ballot issue that would amend the state’s constitution to allow for the sale of bonds that would help to fi nance unobligated long- term debts associated with the state’s pension plans. Under the proposed plan, the state would take a calculated risk of debt fi nancing through stock market investments. The election results took many observers by surprise, as the proposed amendment went down in resounding defeat. Although stung by defeat at the ballot box, the issue of long-term debt remained at the center of the governor’s and the legislative leadership’s agenda. A number of forces converged to sustain their efforts. First, the speaker of the House, who prided himself on being a fi scal conservative, saw aggressive debt reduction as a legacy he wanted to leave upon retiring from the legislature. Second, the governor had promised to instill fi scal order in the state as part of his campaign platform. Finally, unexpected revenue surpluses and sources provided the opportunity to pay down some of the debt. The Budget Process 191

In recent years, West Virginia’s revenues have surpassed estimates and expenditures. This has provided the opportunity to apply these monies to the long-term debt associated with the state’s teachers’ pension system. By 2006, the teachers’ pension system was 22 percent funded, as compared to a national average of 70 percent. Surplus appropriations that year raised the level of funding to 30 percent.66 The governor and the legislature also backed efforts to tap into new sources of revenue to address the long-term debt crisis. In 2007, the state “securitized” funds owed to West Virginia through the historic Master Tobacco Settlement resulting from litigation by forty-six states against major tobacco companies.67 As a party to this settlement, West Virginia’s share was estimated at $1.3 billion to be paid out over two decades. Like many other states, West Virginia decided to convert the long-term payments into one lump-sum by securitizing or issuing bonds covered by the payments. In doing so, the state gave up the full payment for a partial but guaranteed and immediate sum of $807 million. By applying most of this to the teachers’ retirement system, it closed the gap to full funding to 49 percent.68 The state’s efforts to address long-term liabilities gained positive reviews from various national authorities.69

conclusion

In its budgetary politics and its debt problems, West Virginia’s situation is extreme but not exceptional. The state, as with most states, must operate in a political environment that is hostile to revenue generation through new taxes. At the same time, years of neglect have left a long-term debt. Public ﬁ nance and budgeting is a contingent and uncertain function and responsibility of state government. Revenue must be raised, and costs must be covered. Budgets must be developed that allocate scarce resources among many interested parties. While federal transfers help greatly in state budgeting, revenue resources must be drawn from state sources as well. Debate and discussion over tax structures and the hard realities of how to allocate costs that will accrue from future obligations are among the most daunting questions facing states in the early twenty-ﬁ rst century. chapter ten

The Judiciary

The just resolution of disputes is one of the most important services provided by government. State judiciaries resolve almost all criminal and civil disputes. This also affects public policymaking and the creation of an order- ly social and economic life. If parties bring cases before them, judges can determine the constitutionality of actions of the legislature, governor, and local governments. They can interpret the often vaguely or imprecisely written acts of the legislature and local governments—sometimes in ways that legislators and executives might not prefer. They can use the common law tradition of judge-made law to settle disputes on issues, such as personal liability for injuries, where legislatures have not deﬁ ned the law. Also, they can establish their own operating procedures, including the deﬁ nition of the rights of the parties before them. Case by case, judges make policies about the control of wealth, the power of governments, the rights of individuals, and the duties of individuals to one another.

the structure of the west virginia judiciary

State constitutional provisions and state law defi ne the organizational structure of West Virginia courts. A state constitutional amendment, the Judicial Reorganization Amendment of 1974, established a “unitary” or hierarchical judicial system. The amendment replaced the disorganized judicial system that had been in place under the 1872 West Virginia Constitution as amended in 1880 and 1902 with a three-tier judicial system: Supreme Court of Appeals, circuit courts, and magistrate courts. The Supreme Court of Appeals is the state’s only appellate court and its court of last resort. As with eleven other states, there is no intermediate court of appeal. The constitution charges the Court’s fi ve justices with the The Judiciary 193 responsibility for reviewing trial court decisions and certain other adjudications. A case can be fi led with the Supreme Court of Appeals on “original jurisdiction” when it has not been heard by another court. These cases are often on technical legal matters called writs of certiorari, mandamus, or prohibition as well as habeas corpus petitions from prisoners who seek to challenge the reasons for or the conditions of their incarceration. Much more frequently the Court considers appeals, including civil cases with more than $300 at issue, criminal cases, and occasionally family court cases in which both parties have agreed not to appeal the case to circuit court. It also can hear appeals from decisions of the executive agency that adjudicates workers’ compensation cases. All appellants (persons and corporations seeking review) must petition the justices to docket (schedule) the case for consideration. By granting or denying these petitions by majority vote, the Supreme Court justices have complete discretion over the cases they hear.1 With jurisdiction over criminal matters, civil matters with claims of more than $300 in damages, claims in equity (including injunctions and protective orders), and juvenile matters, West Virginia’s thirty-one circuit courts serve as the state’s comprehensive trial courts of general jurisdiction. The judges can hold jury or bench trials in these matters and consider appeals fi led by lawyers about the decisions of family, magistrate, and municipal courts and state administrative agencies, except from the Workers’ Compen- sation Board of Review. The administrative appellate duty is most common in Kanawha County, the home of most state agencies.2 Circuit judges also refer matters of involuntary hospitalization and guardianship of the interests of the mentally ill to the mental hygiene commissioners of each circuit or county. The commissioners are lawyers who preside over hearings that adjudicate these issues.3 The state’s fi fty-fi ve magistrate courts have countywide jurisdiction over criminal misdemeanors, preliminary investigations in felony cases, traffi c violations, emergency protective orders in domestic violence cases, and small civil claims that seek less than $5,000 in damages. The legislature specifi es the magistrate’s duties, salaries, and other requirements, and it has prohibited immediate family members from serving as magistrates in the same county. Also, the legislature requires magistrates to complete a course of instruction after their election and to attend continuing education sessions or be subject to penalties imposed through the state’s system of judicial discipline.4 The Reorganization Amendment allowed cities and towns to establish municipal courts with jurisdiction over municipal ordinances, especially local traffi c and parking ordinances. Appeals of their decisions go to circuit court.5 194 The Judiciary

In 1986 the legislature created a family law master system to fulfi ll its responsibilities under the federal Child Support Enforcement Amendments of 1984. Dissatisfaction with the role of the masters resulted in the adoption of a constitutional amendment to create family courts in 2000. The courts began operation in 2002. Family court judges are attorneys who are selected in partisan elections for twenty-six circuits for six-year terms. Beginning in 2009, terms will be for eight years. Between one and four judges serve each circuit. At present there are thirty-fi ve judges, but the number will increase to forty-fi ve in 2009. They can hear divorce, annulment, separate maintenance, child custody, child visitation rights, and paternity cases and can perform marriages. They consider appeals of domestic violence protection orders from magistrate courts.6 The Reorganization Amendment of 1974 allowed the legislature to determine the number of circuits and circuit judges, at present sixty-six judges assigned to thirty-one circuits. Governor Manchin vetoed an increase to seventy-three judges. Although court is held in every county, fourteen circuits include more than one county. In 2007, eleven circuits had only one judge; the maximum number is eight in the Thirteenth Circuit (Kanawha County, including Charleston). There were 158 magistrates in 2007. Today, the constitution apportions at least two magistrates to each county and provides the more populous counties additional magistrates through an apportionment scheme so that today ten serve in Kanawha County. The Supreme Court of Appeals retains the authority to reassign judges and magistrates from one circuit or county to another on a temporary basis. Also, to reduce caseloads, the Court can assign senior circuit and Supreme Court of Appeals judges to try cases.7 Several offi ces provide administrative support for the judiciary. The most important of these is the Administrative Offi ce of the Supreme Court of Appeals. It manages the funds appropriated for all courts and determines judicial branch personnel policies, including compensation, job classifi - cation, and health and retirement policies.8 Circuit courts receive most of their fi nances from the state, but county commissions provide bailiffs and security personnel, courtrooms, and offi ce space. Recently the state has provided young attorneys to serve as law clerks to assist the circuit judges with legal research, document drafting, and related matters. The clerk of courts, an elected county post, manages case fi lings and records and collects court fees.9 Circuit judges can appoint commissioners in chancery and general receivers, offi cial reporters, and jury commissioners.10 Offi cial court reporters are employees of the Supreme Court of Appeals and are subject to its “regulation, control, and discipline.”11 The Judiciary 195

Magistrate court clerks, assistants, and deputy clerks can be assigned to serve the magistrate court by the judge or chief judge of the circuit court for that county. Probation offi cers assist the circuit courts by providing investigations, drug screening, and pre-sentence reports on criminal offenders. They also monitor offenders sentenced to probation and manage programs for the rehabilitation of juvenile offenders and drug abusers. In recent years the Supreme Court of Appeals has supported programs designed to facilitate the settlement of cases. The Workers’ Compensation Mediation Program provides a forum for the settlement of these cases after the fi ling of their appeal with the Supreme Court of Appeals. Parties can choose mediation or fi nd their case assigned to mediation by the court. About half of these cases result in settlement rather than further appeal. Family courts have coordinators who screen cases and refer about a fi fth of family court fi lings for the mediation parenting issues. The mediators must be college graduates who have completed certifi ed training programs. Harrison, Marion, Monongalia, and Wood County magistrate courts operate mediation programs designed to settle selected cases. Kanawha, Cabell, and Wayne counties have employed juvenile referees to intervene and resolve these cases. A Mental Health Court Diversion Program exists in the North- ern Panhandle counties. Three counties offer teen court, where teenagers adjudicate minor offenses allegedly committed by their peers.12

judicial personnel

The Judicial Reorganization Amendment of 1974 retained the historical process of electing all of West Virginia’s judiciary by partisan ballot. The justices of the Supreme Court of Appeals serve staggered twelve-year terms. Circuit judges serve eight-year terms (with all circuit judges being selected in the same election year). Supreme Court of Appeals justices must have practiced law for ten years prior to election, while circuit court judges must have practiced for ﬁ ve years.13 A 2005 survey of the state’s circuit judges revealed that they had an average of 12.2 years of service as a judge and an average of 25.0 years of legal practice. Most of the judges (80.0 percent) were in private practice immediately before their election as judges.14 Magistrates are not required to possess a law degree. In the 2005 survey, only 2.6 percent of magistrates reported that they possessed a law degree. The majority of magistrates (44.7 percent) had a career as civil servants, while 32.9 percent were in the private sector and 10.5 percent held other elected ofﬁ ce. Family court judges reported in the survey that they had largely been attorneys prior to selection to their post (85.0 percent) or civil 196 The Judiciary

servants (15.0 percent). Several had previously served as family law masters, so they averaged slightly over six years of service. The survey also revealed that West Virginia’s circuit judges and magistrates are not totally isolated from politics. In 2005, 20.0 percent of the circuit judges and 25.1 percent of the magistrates said that they considered themselves to be politicians. No circuit judges said that they were very involved with their county party organization, and only 28.6 percent said that they were involved to some extent. Of the magistrates, 4.2 percent reported they were very involved with their county party organization, and 44.7 percent reported they were involved to some extent. However, magistrates reported they spent more time campaigning for offi ce, averaging 17.4 hours per week, than did the circuit judges, who averaged 10.9 hours a week. Family court judges are somewhat different. Although all are elected, only 25.0 percent of the family court judges faced a challenger in the primary or general election. They reported little or no involvement in county party organization (80.0 percent) and spent less than fi ve hours a week on their campaigns. Nonetheless, even if they do not consider themselves to be politicians, because they run in partisan elections, circuit and family judges and magistrates cannot escape politics. West Virginia’s judiciary, like the judiciaries of other states, remains over whelmingly white and male. Franklin Cleckley became the fi rst black justice of the Supreme Court of Appeals when he was appointed to fi ll a vacancy in 1994. None of the family court judges and magistrates responding to the 2005 survey chose black as a racial identity, and no circuit or family judges or magistrates identifi ed themselves as members of another nonwhite racial group. Despite the election of female justices to the Supreme Court of Appeals, as of 2005 there were only two female circuit judges. However, 64 (40.5 percent) of the 158 magistrates were female. Of the circuit judges responding to the survey, 71.4 percent had attended the West Virginia Uni- versity College of Law, the state’s only law school, and they had acquired their initial perception of the role of attorneys and the law in the same legal community. Finally, the circuit judiciary refl ected the dominance of the Democratic Party in state politics—52 of the circuit judges holding offi ce from 2001 to 2009 were Democrats and 13 were Republicans. As with most states, West Virginia has taken steps to train new judges. The Supreme Court of Appeals has encouraged and fi nancially supported the training of circuit judges in various out-of-state programs like the Amer- ican Academy of Judicial Education (attended by 54.3 percent of judges responding to the survey) and the National Judicial College (attended by 74.3 percent of judges responding to the survey). These programs offer courses The Judiciary 197 on the procedural and operational management of courts. Also, each year the Supreme Court of Appeals requires circuit judges to attend two three- day state judicial conferences that feature presentations on changes in current state law, federal decisions affecting state court procedures, and other timely topics. Magistrates must attend yearly conferences and scheduled training sessions run by fi rms under contract to the Supreme Court of Ap- peals or face disciplinary action.

politics and community relations

Judges and magistrates are signifi cant public fi gures in any community, and because they are elected offi cials, they may desire to maintain their prestige as a resource for use in a reelection bid. When surveyed about external scrutiny of their activities, 90.8 percent of respondent circuit judges, 63.2 percent of the magistrates, and 50 percent of family court judges reported some or extensive newspaper or television coverage of their court. Because of their offi ce’s prestige and their desire to meet voters, the judiciary spends time associating with segments of the public. The judicial surveys indicated that most of the circuit judges average 7.5 hours per month, magistrates 4.6 hours per month, and family judges 3.2 hours per month on civic activities.

the courtroom work group

The phrase “courtroom work group” is often used to describe the representatives of the various independent offi ces that interact to adjudicate or settle legal confl icts. What is striking about the majority of courtroom work groups in West Virginia is their small membership. The small number of circuit judges in West Virginia means that judges generally handle a case throughout its adjudication, from the initial pleadings to the enforcement of a civil remedy or criminal sentence after adjudication. West Virginia has a small bar of about 5,700 active attorneys, of whom approximately 28 percent practice privately or work for the government in Charleston and adjacent communities in Kanawha County. A majority of the state’s attorneys graduated from the West Virginia University College of Law. Approximately 70 percent of the state’s attorneys are in private practice, and they work in small fi rms or partnerships with ten or fewer lawyers or as solo practitioners. The most common area of practice is personal liability law (accident cases).15 The effect of a small bar is seen in the composition of courtroom work groups. The magistrates reported an average of 16.9 attorneys appeared before them a month. Circuit judges saw an 198 The Judiciary

average of 60.5 attorneys a month. Especially in criminal cases, the circuit judges and magistrates see the same prosecuting attorney or assistant prosecuting attorney in criminal case after criminal case. Family court judges saw an average of 23.4 attorneys a month. When compared to data from a national judicial survey, the number of lawyers appearing before each West Virginia court indicates greater familiarity of judges with attorneys than in more urbanized states.16 Elected on a partisan ballot to serve a county, the fi fty-fi ve prosecuting attorneys operate in an isolated environment. Their criminal practice is not regulated by any state agency or individual except, indirectly, the circuit judge and, on rare occasions, the grand jury. They do not follow any statewide standard operating procedures or documentation practices, and they have no institutionalized method of communication about specifi c criminal cases with prosecuting attorneys in other counties. Additionally, they often have to advise the county commission on civil matters.17 Currently, criminal defense counsel for indigent (poor) persons is provided either by one of the public defenders offi ces, a set of seventeen nonprofi t corporations providing services in twenty-eight counties, or by judicially appointed attorneys. The public defender system is a recent addition to the court system. Only three public defender offi ces operated prior to 1990, and the establishment of a branch of this system in all circuits remains incomplete. Data from the 2002–3 fi scal year indicate that the 119 public defenders appeared in 29,106 criminal cases heard by circuit and magistrate courts. Also, there are two attorneys who provide counsel for indigents’ appeals to the Supreme Court of Appeals. The public defender system is directed by a small state agency called Public Defender Services. It also operates a Crimi- nal Law Research Center. Circuit judges appoint criminal defense counsel for indigents, who appeared in 22,665 cases in 2002–3. However, Public Defender Services compensates and audits the expenses of the judicially appointed defense counsel.18 In the 2005 survey of the judiciary, 91.4 percent of the circuit judges and 92.8 percent of the magistrates reported that the counsel provided for indigent criminal defendants met defendants’ needs adequately or very adequately. Counsel in civil cases largely serves on a fee-for-service basis. For poor people, the federal legal services corporation provides partial funding for the offi ces of Legal Aid of West Virginia. lawv staff provides counsel or arranges pro bono (free, for the public good) counsel by private lawyers in domestic, housing, government benefi ts, and debt disputes. Despite using various sources of federal funds, interest on lawyers’ trust accounts (iolta), money supplied by the State Bar, and grants from charities, lawv does not The Judiciary 199 have enough resources to adequately address all the civil legal needs of the state’s poor.19 The results of the 2005 survey of the state judiciary reinforce this point. Of the circuit judges, only 37.2 percent rated the provision of counsel to poor civil litigants as adequate or very adequate. They also indicated that the legal needs of poor civil litigants are not met by either lawv or pro bono assistance provided by the bar (7.7 percent of legal assistance). The result is that 44.2 percent of litigants are not represented by an attorney and appear pro se (unrepresented) or are represented by a lawyer who will take a contingency fee (a percentage, averaging 33 percent, of any settlement or remedy. Although 54.0 percent of magistrates report that the legal needs of the poor are met adequately or very adequately in their courts, pro se appearances are even greater among poor civil litigants in magistrate court (61.0 percent). Family court judges responding to the survey also indicated limited access to attorneys by parties in divorce, custody, and domestic violence disputes. Attorneys represented the parties in a reported 44.0 percent of divorce cases, thirty percent of other domestic relations cases, and 14.0 percent of domestic violence cases. Although representation might be diminished because the family mediation program provides settlements for judicial approval, 60.0 percent of the judges indicated that the needs of indigent parties were met inadequately or very inadequately. They reported that 68.6 percent of indigents appeared pro se or without representation, lawv represented another 11.6 percent, and free, pro bono, assistance by lawyers accounted for another 9.0 percent. Many of the judges responded to an open-ended question by stating support for expanded legal assistance for the poor. They also thought that the efforts of the Supreme Court of Appeals to assist pro se litigants were inadequate (60.0 percent).

the work of the judiciary: circuit judges and magistrates

In the judicial surveys, circuit judges, magistrates, and family court judges were asked to estimate the time they spent on various tasks during a typical work week. Table 12 reports this information. When compared to data from a comparable national survey, the time spent by circuit judges on various tasks per week, such as presiding at trial, hearing motions, arraignments, and other pretrial or post-trial arguments, processing administrative work, preparing decisions, holding conferences, reading ﬁ les, and keeping up with the law, is roughly equivalent to the time spent by judges in other states, 200 The Judiciary

Table 12. Activities of West Virginia Judges

Reported Hours per Week Activity Circuit Judges Magistrates Family Judges

Reading case ﬁ les 5.9 4.7 3.7 Keeping up with the law 3.3 3.7 1.5 Preparing/writing decisions, 7.1 6.1 judgments, orders, warrants, 8.3 and related documents Administrative work: budgeting, 2.1 1.1 1.4 scheduling, personnel Settlement conferences 1.3 1.0 0.7 Calendar: motions, defaults, 11.3 15.3 3.7 preliminary hearings, etc. Conferences not related to 2.1 0.8 1.6 settlement Presiding at non-jury trial 3.6 5.7 24.3 or hearing Presiding at jury trial 6.6 2.1 N/A Waiting time 1.9 3.3 1.9 Other 0.3 9.1 1.1

Source: West Virginia Institute for Public Affairs Survey, 2005.

with the exception of less time spent in case-related conferences and in presiding at trials.20 The ultimate measure of the quality of any judiciary is the effi cient and effective settlement of personal disputes and the penalization of criminal law offenders. In the period between 1978 and 2001, both the circuit and the magistrate courts in West Virginia saw an increase in case dispositions. The increase in cases was most noticeable in the number of criminal cases, especially because statutes redefi ned some traffi c offenses involving alcohol use as crimes. However, the creation of family courts in 2002 signifi cantly reduced the work of the circuit courts, and since 2000 the number of fi lings has begun to stabilize. In 2005 there were 48,535 cases fi led in the circuit courts, and there were 717 appeals from the family courts. Of the cases fi led, 32,754 (67.5 percent) were civil cases, 8,612 (17.7 percent) were criminal cases, and 7,169 (14.8 percent) were juvenile cases. Of the crimes, 6,187 were felonies and 380 were appeals from magistrate court. Of the juvenile cases, 3,642 raised The Judiciary 201 the question of delinquency and 2,186 were about child abuse or neglect. Circuit judges refused 43 percent of the appeals from family court and remanded (returned) 21 percent of appeals to the family court for disposition. Issued related to child support payments was the most common reason for appeal. The number of nonfamily fi lings in the circuit courts has remained fairly stable during recent years.21 In 2005 there were 321,921 cases fi led in magistrate courts. Motor vehicle cases (155,447 cases, or 48.3 percent of all cases) composed the largest proportion of their business, followed by other criminal misdemeanors (72,040 cases, or 22.4 percent), worthless check cases (44,117 cases or 13.7 percent), and civil small claims (44,936 cases, or 14.0 percent). As the fi g- ures reveal, much of the business of these courts is processing traffi c tickets and ensuring that creditors can collect debts.22 Most of the cases on the dockets of circuit judges and magistrates do not go to trial and are settled out of court. For example, in 2004 circuit judges disposed of 2.1 percent of adjudged cases (44,525) by bench trial and 0.5 percent of all cases by jury trial. The average circuit court judge sat in 18.3 trials leading to a verdict, including 3.6 trials before a jury and 14.7 bench trials, and disposed of 685 cases. Magistrate courts made 38,975 of their total of 300,473 dispositions by bench trial and 208 by jury trial. The average magistrate presided over 246.7 bench trials and 1.3 jury trials. However, most cases ended with a disposition arranged by the parties, including 97.3 percent of the cases fi led in circuit courts and 87.0 percent of the cases fi led with magistrates. Prosecuting attorneys negotiate a guilty plea in most of the criminal cases, and lawyers settled most civil cases by negotiation or the cases were not pursued by the parties or were dismissed by judges.23 The West Virginia judicial survey asked about case settlement tactics. West Virginia rules of criminal procedure prohibit judicial participation in plea bargaining to settle criminal cases,24 so none of the circuit judges and only 13.1 percent of the magistrates reported that they participated in some way in criminal plea negotiations. The circuit judges also reported that they almost always let parties devise settlements in civil cases on their own (91.4 percent), but 94.3 percent also indicated that they actively encouraged mediation or arbitration of disputes. Magistrates less commonly let parties devise civil settlements on their own (68.4 percent) and more commonly intervened to suggest or recommend a settlement agreement (15.8 percent). Also, probably because of a lack of institutional support, magistrates less frequently (50.0 percent) actively encouraged mediation or arbitration of disputes. Because of settlement practices, the disposition of cases without trial is 202 The Judiciary

enormous. Even if a trial occurs, magistrates and circuit judges primarily manage the routine disposition of disputes and enforce legislative policies. However, the public generally does not recognize the limited nature of the judicial role, the relative rarity of litigation, and the frequency of settlement. Also, the 2005 wvipa survey of state residents found that respondents thought that the majority of lawsuits in West Virginia were not justiﬁ ed (56.0 percent). However, 77.1 percent of the circuit judges indicated there had not been an “explosion of frivolous litigation,” 20.1 percent reported a slight increase in frivolous litigation, and none agreed with the explosion thesis. They also thought that existing court procedural rules adequately deterred frivolous suits (82.7 percent). Magistrates had a divided assessment of the frivolous explosion thesis—21.1 percent thought there was an explosion, 34.2 percent indicated they saw a slight increase in frivolous litigation, and 42.1 found no increase in frivolous litigation. They also were much less likely to think that existing court procedural rules adequately deterred frivolous suits (29.0 percent). When coupled with data on the relatively stable trends in caseload, use of settlement, and lack of trials, this data suggests that popular conceptions of West Virginia courts are often inaccurate.25

the work of family courts

In 2005 West Virginia’s thirty-fi ve family court judges considered 39,180 case fi lings. Of these fi lings, 13,383 (34.2 percent) were divorces, 15,552 (39.7 percent) were domestic violence issues, and 10,245 (26.1 percent) addressed other domestic issues such as separation agreements, custody, name changes, and paternity.26 A divorce case starts with a fi ling of a petition that claims either irrec- oncilable differences (no-fault) or grounds (fault) for divorce such as the other party’s cruelty, adultery, substance abuse, abandonment, or separation for a year. After process is served on the defendant, a specially trained family case coordinator screens cases. In cases without claims of domestic violence but with the care of minor children at issue, the parties must attend a parent education class and develop a parenting plan that addresses child custody and decision making after the divorce. Parties who cannot agree on a plan are referred to mediation by a trained mediator to settle parenting issues.27 Parties also must fi le a fi nancial statement with the court. In the majority of divorces, the attorneys settle any disputed issues. Then they appear before the family judge at an uncontested hearing at which the judge grants the divorce. In contested hearings the judge addresses issues that the parties cannot resolve and issues an order. Orders can be appealed to circuit The Judiciary 203 court. Survey data indicates that circuit judges usually support family court judge rulings (55 percent). Most family judges indicate that circuit judges facilitate their work effectively.28 As indicated in table 12, family court judges spend much more time on the bench than circuit judges and magistrates. The hearing might involve the review and ratifi cation of a settlement or the hearing of a problem about custody, child support payments, or domestic violence. Most family judges let the parties devise settlements on their own (75.0 percent) or offer suggestions about the dimensions of a settlement (15.0 percent). They especially report (80.0 percent) that the family court mediators are effective in facilitating the resolution of divorce and domestic relations issues. The judges also would like to see more state funding for mediation (55.0 percent). In civil cases about domestic violence, the family judge commonly considers requests for protective orders to keep the disputants apart. Hearings must occur before the issuance of such orders.29 The judges also consider cases in which a divorced individual wishes to adjust a parenting plan or modify child support payments, or when one of the divorced parties has failed to abide by the parenting plan or order or agreement on the fi nancial aspects of the divorce. The judge additionally can consider petitions for separate maintenance that fall short of divorce and grandparent visitation. Any violation of any of the orders of the court can result in the judge citing a party for contempt of court. To protect the interests of children, the Family Court must report sus- pected child abuse or neglect to the state’s Department of Health and Hu- man Resources local child protective services unit. They defend the interests of the child in such cases.30 Also, the state trains volunteers for its Court Appointed Special Advocate (casa) program. Found only in some parts of the state, casa volunteers are assigned to learn about the problems of specifi c abused or neglected children, provide information about such children to the judge, and ensure that court orders affecting the child are obeyed.31 Most family court judges think that the establishment of family courts in 2001 was a positive step. Only 20.0 percent reported that it had not resulted in signifi cant changes in family law practice. They indicated that the change provided more expert resolution of domestic violence cases (85.0 percent), allowed more expert resolution of divorce and domestic relations cases (60.0 percent), and eased the burdens of case review by circuit judges (65.0 percent). Consequently, the creation of the family court signifi es the state’s commitment to a policy of improving the keeping of peace and 204 The Judiciary order in personal relationships and ensuring the welfare of children when parental confl icts exist.

judicial performance, ethics, and discipline

West Virginia has established organizations to ensure an ethical judiciary. The Supreme Court of Appeals can control circuit judge behavior through appellate review of legal matters and through its power to hold circuit judges in contempt of court for actions counter to Supreme Court of Appeals orders. It can also censure or temporarily suspend any justice, judge, or magistrate for violation of ethical rules, or it can retire judges when eligible or physically or mentally incapacitated.32 Recommendations for disciplinary action against justices, judges, and magistrates begin with complaints received by the state’s Judicial Inves- tigation Commission, a panel of three circuit judges, a magistrate, a family court judge, a mental hygiene commissioner, and three members of the public appointed by the Supreme Court of Appeals. After consideration of the evidence about a complaint mustered by its counsel, the commission can choose one of three courses of action. It usually dismisses the complaint. If the complaint alleges psychological or mental incapacitation, the Judi- cial Investigation Commission will refer the complaint to the three-member Judicial Commission on Assistance and Intervention. It can recommend treatment, rehabilitation, or retirement. When there is evidence of serious misdeeds, the Judicial Investigation Commission can, by majority vote, fi le formal charges with the Judicial Hearing Board. The board considers the complaint and will hold a public hearing if the complaint cannot be resolved by prehearing action. If it fi nds an ethical violation, it can recommend the judge’s admonishment, public or private reprimand, temporary suspension from duties for up to a year, or a fi ne. The Supreme Court of Appeals then decides whether to enforce the Judicial Hearing Board’s recommendation. Magistrates can be removed after conviction of a felony, a misdemeanor involving moral turpitude, or a willful violation of statutory duties or court rules established by the Supreme Court of Appeals.33

the supreme court of appeals: personnel and politics

The Supreme Court of Appeals is the court of last resort for disputes arising under the laws of West Virginia. It is the state’s only appellate court, with the power to review and possibly correct the decisions of the state’s circuit courts and some administrative agency decisions. With two exceptions, all The Judiciary 205 of the justices elected to the Court since 1930 have been Democrats, and most of them were active in partisan politics prior to their election. Eight of the nine Republican justices selected to serve on the Court were initially appointed by Republican governors Arch Moore and Cecil Underwood to fi ll vacancies. With one exception, they lost their seats in the next general election. The elected Republican soon thereafter resigned to accept a federal judgeship. Elected in 2004, Brent Benjamin became the fi rst elected Republican justice since 1930. Since a decided majority of the registered voters in West Virginia are Democrats, often the most important electoral contests for seats on the Court have occurred in the Democratic primary. The 1988 Democratic primary earned a dubious place in the folklore of the state’s legal community. In contrast to previous elections, the Court’s policy role was a prominent campaign issue. The candidates’ sizable campaign expenditures also made the election unusual. The three challengers (Fred Fox, John Hey, and Marga- ret Workman) labeled the two incumbent candidates (Darrell McGraw and Thomas Miller) as “activists” who made decisions that went beyond proper limits of judicial power. The incumbents were accused of using the Court to make policies that aided special interests like labor unions, personal injury claimants, workers’ compensation claimants, and criminal defendants. The Democratic challengers all promised to act in a more restrained manner if they were elected to the Court. The candidates spent $749,000 during the primary, forcing many of them to seek fi nancial and other assistance from various interest groups.34 In 2004 the election of a justice became even more heated. In his bid for reelection, Justice Warren McGraw fi rst faced a challenge from Cir- cuit Judge James Rowe in the Democratic primary. With support from the Chamber of Commerce, Rowe alleged that McGraw’s votes on economic issues, especially workers’ compensation, had cost jobs and contributed to economic problems in the state. McGraw defeated Rowe in the primary, but then faced off against relatively unknown Republican Brent Benjamin, a Charleston workers’ compensation attorney, in the general election. Al- though the West Virginia Chamber of Commerce’s Court Watch project, a dozen Charleston attorneys with ties to corporate interests and the Re- publican Party, had identifi ed a series of cases they thought hindered economic growth, the entry of the Chamber of Commerce into the election changed its context. Launching a media campaign, the Chamber tried to portray McGraw as voting to impede job retention and growth in cases about employee discharges, insurance coverage, and workers’ compensation. However, even more critical was the entry of a shadowy political action 206 The Judiciary

committee called And For the Sake of the Kids. Funded with an estimated $3.5 million from Don Blankenship of Massey Energy, a fi rm long known for its hostility toward unions and frequent citations for environmental law violations, this group ran commercials attacking McGraw’s vote to overturn a circuit court decision that jailed a convicted sex offender. McGraw, running a traditional campaign that involved speaking to civic groups, posting yard signs, and winning endorsements from attorneys, was overwhelmed by the negative media blitz against him. He lost the election.35 The 1988 and 2004 elections suggest that West Virginia’s judicial elections are not always low-key political events. When organized and well- fi nanced interests perceive that a justice has damaged their interests, they will move to oust that justice. In this regard, the 1988 and 2004 Supreme Court of Appeals elections were not unusual when compared with the costly nonpartisan Supreme Court elections in Ohio or Supreme Court judicial retention elections in California. Nevertheless, the cost of running for offi ce concerns the justices of the Court and the members of the State Bar. For example, one former justice said, “I don’t like the idea of having to raise the kind of money we have to raise.” Despite their recognition that the cost of campaigns can create potential confl icts of interest, they indicated that elections have a positive side. As one former justice has noted, “In general, elected judges tend to be slightly more populist than appointed judges. In general, elected judges tend to be more substantially accommodating to the people who appear in their court because they’re also their constituents.”36 However, in the 2005 survey of the judiciary, only 25.7 percent of circuit judges favored retaining partisan election. They favored either nonpartisan election (34.3 percent) or gubernatorial appointment followed by a retention election in which a judge would face a retain or remove from offi ce vote rather than an electoral opponent (31.4 percent). Magistrates favored partisan election (46.1 percent) over nonpartisan election (44.7 percent). A 2004 survey of the state bar indicated that lawyers preferred a change in the method of selection to nonpartisan election (31.7 percent), gubernatorial appointment (23.7 percent), or gubernatorial appointment followed by a retention election (19.0 percent).37

appellate review procedures

The fi ve members of the Supreme Court of Appeals determine the scope and pace of their work. As amended in 1974, the West Virginia Constitu- tion gives the Supreme Court of Appeals jurisdiction in cases in which appellants petition for appeal, petition the justices for relief by seeking legal The Judiciary 207 documents called writs of certiorari, habeas corpus, mandamus, or a prohibition that affects state executive branch operations or the enforcement of the law, and request certifi cation of a legal question from a case under consideration by a circuit court. The justices decide by majority vote whether to grant these petitions or other documents necessary for the initiation of review. Thus the justices have complete discretion to fi x their docket or the list of cases that they review.38 A court’s role in public policymaking is dependent on the kinds of disputes it confronts. In recent years, there has been an increasing demand on American courts for the resolution of all sorts of public and private disputes, and the Supreme Court of Appeals has not been immune to this trend. Ap- plications for review fi led with the Supreme Court of Appeals rose from 1,159 in 1983 to 2,865 in 2003. Much of the increased demand for review came from parties seeking review of workers’ compensation cases. In 1983, 10 percent of the cases fi led with the Court were workers’ compensation cases, but these cases were 54.9 percent of the fi lings in 2003. Other fi l- ings in 2003 included civil appeals (559, or 19.5 percent), criminal appeals (186, or 6.5 percent), habeas corpus petitions (5.9 percent), and other cases (certifi ed, certiorari, ethics, prohibition, etc.) (380 or 13.3 percent). Since the 1980s, the Court has heard more cases, increasing both the number of petitions for review granted and the number of cases docketed for decision. As the press of business increased, the justices changed from the constitutionally mandated two sessions a year to nearly continuous sessions. In 2005 parties fi led 2,983 cases with the Court. The justices disposed of 2,396 cases in which the parties petitioned for review. In 1,399 (46.9 percent) they refused a petition for review, and another 83 (3.5 percent) were dismissed, 63 (2.6 percent) were withdrawn, 58 (2.4 percent) were held moot (lacking an issue for consideration), and 37 (1.5 percent) were disposed by order. In the remaining cases granted a resolution, the justices issued 84 signed opinions (longer explanations of decisions written by a specifi c justice, 3.5 percent of all dispositions) and 672 by per curiam opinion or memorandum order (brief statements, 28.0 percent of all dispositions). Of the cases granted review, 844 were workers’ compensation cases, 393 were civil cases, 167 were criminal cases, and 82 were habeas corpus petitions.39 Data collected by the National Center for State Courts in 2003 indicate that West Virginians fi le more appeals per capita (147) than in any state except Louisiana. Also, the Supreme Court of Appeals ranks fi rst in granting discretionary petitions for review among the state courts of last resort in the nation.40 These fi gures suggest that the justices are creating greater opportunities for the Court to affect a wide range of law and policy matters. Indeed, 208 The Judiciary

they sometimes even accept petitions for review from pro se litigants dissatisfi ed with a circuit court ruling. They have deliberately chosen to be readily accessible to litigant demands. The Court’s procedures deserve special attention because they determine if and how fi nal policy disputes are considered. For the most part, applications for review reach the Court from one of four arenas: the circuit courts, the Workers’ Compensation Board of Review, the Judicial Hearing Board, or the Hearing Panel Subcommittee of the West Virginia State Bar. A very few cases are remanded (returned for further consideration) to the Court by federal appeals courts or are certifi ed to the Court by federal courts seeking a defi nitive interpretation of West Virginia law. To take a case to the Court, litigants must fi rst fi le copies of a petition for the appropriate form of relief with the Clerk of the Court. Those seeking a writ must also offer any exhibits or affi davits that support their need for a writ, a memorandum on the legal authority for the writ, and a list of the persons on whom the writ is to be served within four months of the circuit court decision or other action in the case. All respondent parties or their attorneys must then be served with copies of all documents fi led by the petitioner. The respondents can then fi le a response of up to fi fty pages in length with the clerk or move to dismiss the appeal. Respondents in request for writs might enter into a procedure called discovery to specify the dispute’s material facts for the Court. Petitions for review are evaluated not just on the basis of initial briefs or written summaries of their claim but also, at the appellant’s request and the court’s approval, at a “motion” or petition hearing before the justices. Petitioners must request the hearing on the Court’s motion docket within thirty days of the fi ling of a petition. Currently scheduled for what appear to the justices to be more legally signifi cant issues, these hearings are mostly scheduled early in one of the Court’s two yearly terms, which begin in Sep- tember and January. At the hearing, the justices inquire into the reasons why the appellant’s counsel thinks that the docketing of the case is necessary. Over thirty motions are heard on a typical day when the motion docket is scheduled, and some motions are also heard on days when oral arguments are heard or when a petitioner seeks an extraordinary session. Despite the rapidity of the hearings, they give attorneys an opportunity to emphasize the merits of their petition directly with the justices or to show cause why they need to have the Court issue a writ. Rarely, pro se petitioners will present the merits of their petition. The justices report that they fi nd the motion hearing to be of great value when determining their vote for review, and some of them indicate that they rely on it far more than the written briefs The Judiciary 209 when evaluating the case’s merits. This procedure is not used in federal appellate courts. Workers’ compensation cases are normally selected for review without oral presentations.41 The Court’s staff plays a very important role in processing cases. For example, staff attorneys, known as writ clerks, prepare summaries or “bench memoranda” on petitions for review that are not presented on the motions docket. Workers’ compensation clerks summarize the workers’ compensation appeal petitions in memoranda, as they are a special group of cases excluded from the motion docket. Writ clerks present the memoranda to the justices. At scheduled conferences, the writ clerk is requested to report to the justice’s conference room where she or he stands at the end of the conference table opposite the chief justice and addresses questions about the petitions for review and memoranda. To facilitate this process, workers’ compensation cases clerks might meet individually with justices to answer their questions. The justices normally do not receive oral presentations from the writ clerk unless initial briefs disclose a novel issue. After the motion hearing or the writ clerk’s presentation on the petition and brief, the justices decide by majority vote whether to grant the docketing of a petition for appeal, certifi cation, or a special writ. Two votes for review will suffi ce when a justice is recused or is incapable of participating because of illness or special circumstances. The vote occurs at its regularly scheduled conference in reverse order of seniority on the Court. Once the Court grants a petition for review, the petitioner must fi le information about previous adjudications with the clerk. Transcripts must be made available to the Court after a petition is granted. Petitioners, now called appellants, must also fi le a brief, a summary of the legal arguments in favor of their claims of error in the lower court or agency, with the Clerk and the respondent party. Respondents, now called appellees, have fi fteen days to fi le a brief in response. The Court can sanction parties who do not fi le a brief in the required time. The Court also will allow parties not involved in the litigation to fi le briefs, called amicus curiae (friend of the court) briefs, to enlighten the justices about the ramifi cations of the case. The Court’s rules provide that state offi cials and agencies do not need the Court’s permission to fi le an amicus brief. Normally amicus curiae do not participate in oral argument.42 Some less signifi cant and routine cases feature per curiam or brief opinions signed “by the Court” after the consideration of briefs but without oral argument. One of the justices assumes the task of sorting out cases for per curiam disposition. Normally these cases raise no novel issues of law and demand no clarifi cation of existing law. The drafting of the per 210 The Judiciary curiam opinions or orders per year is then assigned in rotation to one of the per curiam clerks, staff attorneys of the Court who are assigned to each justice. When the Court is in session, it hears motions for review and considers oral arguments on docketed cases, called the “Argument Docket,” on Tues- days and Wednesdays. The amount of time dedicated to hearings and oral arguments decreases during the course of a term as more time is spent on the preparation of opinions. Oral arguments in cases granted review are heard in the courtroom in the east wing of the state capitol. At oral argument, counsel speak from a podium for periods of up to twenty minutes supervised by the chief justice, but unlike the U.S. Supreme Court, the chief allows occasional latitude in presentation time. Appellants are also allocated up to ten minutes of rebuttal time. Appellees have no rebuttal time. The justices typically intervene in counsel’s presentation with numerous questions about the case, so much so that counsel often try to state the key themes of their argument in simple declarative sentences at the opening of their presentation. Thursdays are reserved for the argument conference. At the conference, the justices, after ruling on petitions for review, consider the cases argued that week. The discussion of cases opens with the justice assigned the case and then proceeds with the comments of the other justices in reverse seniority and additional colloquy that the justices describe as both open and frank. Once the discussion of a case is concluded, a vote is taken in reverse order of seniority. A justice in the majority then writes the Opinion of the Court for the case. The assignment of opinion writing duties rotates sequentially so that each justice normally writes in every fi fth case in which she or he is in the majority. They can also write dissenting opinions, and they can write concurring opinions that support the majority’s decision but for different legal reasons. The Court’s opinions are similar in form and length to those of other state supreme courts.43 Each justice has personal law clerks to assist with the review of petitions and the accompanying briefs and the drafting and documentation of opinions. When a justice has a draft Opinion of the Court ready, it is circulated to the other justices. The justices usually discuss their opinions with each other before releasing the fi nal opinion. Almost all cases are disposed of either during the term in which they are fi led or within six months of the initial fi ling of the case with the clerk. Although many state courts of last resort rotate the chief justiceship, West Virginia’s Supreme Court of Appeals is the only one that does so yearly. (However, this procedure was not followed in 2006.)44 Because the chief justice lacks the internal control of opinion assignment held by the chief The Judiciary 211 justice of the United States and because the Court is such a small body, the West Virginia chief justice’s primary duties are administrative. The chief manages the conduct of oral argument and the conference, keeping track of votes and case assignments at conference. The chief justice assumes the supervision of the budget and personnel and oversees the agenda of special projects, such as improving court security, for the year.

building support for the court

The justices engage in several activities to ensure the Court’s independence and the preservation of its duties. The concern for reelection encourages the justices to keep in touch with the public. For example, unlike the members of the Supreme Court of the United States, they are often very willing to speak with members of the media. They are also more likely to agree to make presentations at public events and are even willing to submit themselves to interviews from university students and faculty researchers. The justices indicate that they continue contacts with members of the bar and politicians after they ascend to the bench, but they all avoid any discussion of specifi c cases. The justices also maintain an informal liaison with the state legislature and regularly communicate with the president of the Senate, the speaker of the House, and the chairs of the House and Senate fi - nance committees about the judicial branch budget and legislation affecting the courts. They also report occasional informal contact with the governor’s staff and, more rarely, with federal judges and the judiciary of other states. They frequently interact with circuit court judges at judicial conferences, bar meetings, social events, and when the judges come to the capitol to attend to business with the Administrative Offi ce. In West Virginia, judicial independence does not appear to be threatened by the Court’s partisan election or by its contacts with other offi ceholders. However, the partisan electoral system does produce justices with an acute awareness of the political nature of their actions and with openness to the public. A second important function of the Supreme Court of Appeals is the development of policies about the management of the state judiciary and State Bar. These duties include the establishment of policies in situations of procedural rulemaking, fi scal and staff management, and oversight of the ethics of the bench and bar. The justices’ decisions on court management seemingly affect only the internal work of courts, but they have an important but rarely visible effect on West Virginians’ ability to fi nd relief for their grievances in court. The Judicial Reorganization Amendment of 1974 gave the Supreme Court of Appeals broad authority to determine policy on 212 The Judiciary

a wide range of the procedural aspects of judicial administration. The Court was empowered to “promulgate rules” and to exercise “general supervisory control” over all state courts. The supervisory power permitted the creation of what is commonly called a “unifi ed court system” in which administrative authority for the judiciary is vested in a single court or individual. Us- ing this power, which also made the chief justice the administrative head of all courts, the Supreme Court of Appeals has substantially altered the conduct of judicial business in the state.45 The Court has used its capacity to promulgate procedural rules to defi ne public access to the courts, court operations, court costs, and the evidence that a party might present in arguing its case.46 The 1974 amendment also gave the Supreme Court of Appeals control over its personnel and some authority to establish policies governing many of the state courts’ nonjudicial employees.47 The head of the Administra- tive Offi ce, the administrative director, manages the Court’s personnel and fi nances and handles minor inquiries about the Court. The director also prepares with the justices the budget for all courts, discusses the budget with legislative leaders, and prepares new and modifi ed court rules. The Supreme Court of Appeals was granted responsibility in a 1945 state statute for the regulation of legal practice and the creation of an “administrative agency of the supreme court of appeals . . . known as ‘the West Vir- ginia State Bar.’”48 Consequently, the Court can establish policies affecting the nature and availability of legal services in the state. The Board of Law Examiners, an arm of the Supreme Court of Appeals, supervises lawyers, who must join, pay dues, and submit to the West Virginia State Bar’s regulations. A quasi-governmental body, the State Bar’s tasks include the supervision of legal ethics, its “highest priority,” the management of programs for the twenty-four hours of continuing legal education required yearly for all bar members, the management of a program that provides funds for free civil legal assistance in the state, the pro bono legal assistance referral project, and the pursuit of proposals for legal or judicial reform suggested by its many committees.49 Also, to fulfi ll the Court’s supervisory responsibility, the chief justice meets at least quarterly with the leadership of the State Bar. The administrative director of the Court and the executive director of the State Bar also meet on matters of concern to them. This informal supervision and consultation with the State Bar appears to be similar to or more intensive than that in the other integrated bar states. The Supreme Court of Appeals also has the responsibility to police the West Virginia State Bar. It established Rules for the Admission to the Practice of Law in 1973 and Rules of Professional Conduct.50 The Judiciary 213

The State Bar receives complaints about lawyers’ behavior. Its Offi ce of Disciplinary Counsel screens complaints to eliminate those without merit, arranges an investigation, and assigns them to its Investigative Panel to assess and dismiss, mediate, or direct formal charges on the complaint. If formal charges are issued, a separate hearing panel subcommittee has a hearing, a sort of nonjury trial. If charges are not dismissed, written fi ndings and recommendations about lawyers’ ethical problems are sent to the Supreme Court of Appeals. The Court will afford the lawyer in question a hearing and an opportunity to raise objections to the fi ndings. Then the Court can order a reprimand, suspension, or removal of the lawyer’s license to practice law in the state.51 In this way, the justices can maintain the reputation of the state’s legal profession.

the supreme court of appeals and public policy

The Supreme Court of Appeals has emerged as a signiﬁ cant entity in state policymaking on a number of important issues.52 For the purpose of evaluating the contemporary Court, its decisions since the Reorganization Amend- ment went into effect in 1976 were categorized as being either innovative, incremental, reinforcing, or involutional (compounding the complexity of the law). When the Court created a new legal doctrine or overruled an old doctrine about the power of government or personal rights, its decision was placed in the innovative category. When the Court’s decision expanded or contracted an existing doctrine, it was placed in the incremental category. When the Court’s decision reiterated existing interpretations and doctrine, known to lawyers as stare decisis, it was placed in the reinforcing category. When the decision involved the progressive complication of the law or the elaboration of existing doctrine in greater and greater detail, it was placed in the involution of policy category. Examples of each of these forms of policy choice are presented to provide evidence of the Court’s role in public policymaking. The justices’ most common choices generate policy reinforcement or involution. For example, the justices have chosen to reinforce and rarely change interpretations in the meaning of the law concerning sales and related trans- actions in the state.53 Another example of reinforcement is the treatment of cases that several members of the Court call “screw ups” or obvious legal mistakes. These cases are also sometimes called “home cooking,” or errors indicating bias in favor of a local litigant and against state administrative actions. These are cases where the circuit court or agency erred in the application of existing doctrine or procedures and failed to practice stare decisis. 214 The Judiciary

Most of these errors occur in the case’s procedural or evidentiary aspects, and the Supreme Court of Appeals recognizes that the constitutional requirement of due process of law demands that they point out these errors and, normally, order a new trial or administrative hearing. Also, the Court has tended to elaborate on the dictates of the U.S. Constitution and the standards set by the Supreme Court of the United States. This is especially true for cases involving the federal Fourteenth Amendment’s privileges and immunities clause, its exclusionary rule standards, and federal Miranda rules (requiring police to notify persons in custody of their right to counsel and their right not to incriminate themselves).54 For example, in rejecting “palimony” cases, the Court has refused to develop new doctrine fashioned by other state courts when the doctrine contravened West Virginia common law and statutes.55 Finally, as with its support of most aspects of the state legislature’s preparation of a budget digest, it can choose to avoid policy pronouncements about important legislative practices.56 Most of the Court’s decisions thus either reinforce established policies about adjudication or elaborate on the approved models of procedure and evidentiary analysis. Incremental policymaking includes the adjustment of legislative action, especially the interpretation or clarifi cation of statutory language, and the adjustment of common law doctrines. The justices engage in incremental policymaking in one of three ways: the supplementation or adjustment of policy on a topic of legislative interest and activity, the elaboration of legal standards set by the Supreme Court of the United States or other federal courts, or the restriction of the elaboration of legal standards set by the Su- preme Court of the United States or other federal courts. Although much of the Supreme Court of Appeals’ work involves the interpretation of statutes, it occasionally complements, in increments, the legislative policy included in state statutes. For example, the Court clarifi ed statutes on the assignment of real property and fi nancial contributions for child support.57 The Court also complemented child custody law by adopting the primary caretaker rule. The rule effectively met legislative guidelines eliminating gender-based presumptions in awarding custody, but because mothers normally are the primary caregivers, it complemented the statute by introducing an additional policy guideline often favorable to maternal custody.58 The justices also complemented child support statutes by permitting circuit judges to exercise extensive contempt powers to enforce child support orders.59 The justices read custody law so the fathers of illegitimate children could have standing to seek visitation rights.60 Finally, the justices modifi ed the common law on the equitable distribution of property upon divorce to fi t modern notions of marital partnership.61 The Judiciary 215

The American judicial system permits state courts to develop policy standards that are not in confl ict with the U.S. Constitution as interpreted by the Supreme Court of the United States. Consequently, the Supreme Court of Appeals has made incremental changes in some federal rulings. Examples include the Court’s development of two tests to determine whether state tax law contravened the commerce clause of the U.S. Constitution as interpreted by the U.S. Supreme Court62 and the Court’s elaboration of the federal and state right to petition and to protest the behavior of a fi rm to the government without fear of defamation suits.63 The Supreme Court of Ap- peals also independently used state law or construction of the state constitution to provide different readings of rights than the U.S. Supreme Court did when construing the U.S. Constitution.64 These incremental adjustments of federal rulings include the Supreme Court of Appeals’ recognition of a right to the equal funding of education in all state public schools, a right to pro- portionality in the sentencing of habitual offenders, a right to media access to pretrial hearings, a due process protection against punishment for addic- tion to alcohol, and a right to privacy that prohibits the police from sending an informant into the home of another person without a search warrant to conduct electronic surveillance. All of these decisions afforded greater protection of rights than that offered by the U.S. Supreme Court.65 The Court’s decisions reveal that the justices engaged in innovative policymaking. They can do this by making doctrinal changes and by forcing other state policymakers to address political problems. Often the Court has engaged in innovative policymaking through doctrinal change in cases about personal injuries. For example, the justices directly adopted a modifi ed comparative negligence doctrine for the remedy of personal injury claims that greatly affected the ability of injured parties to recover money damages in auto accidents.66 This doctrine rejected prior rulings that prohibited injured parties from any recovery for an accident if they incidentally or partially caused the accident. The new doctrine allowed a more generous proportional recovery for parties contributing to an accident. The Court also innovated and revolutionized products liability law. The Court adopted a rule of strict liability that made the manufacturer responsible for harms caused by all types of products, not the narrow range of products called “inherently” dangerous by the old common law of torts.67 Additionally, the Court adopted the “crashworthiness doctrine,” which is more liberal to plaintiffs in automobile products liability cases.68 Through changes like these, the justices have steered West Virginia’s law to favor injured parties. Although a source of friction with the business community, the justices 216 The Judiciary

have also signifi cantly liberalized the ability of workers to recover for injuries by narrowing the immunity of employers from suits by injured workers. For example, the Court has held that workers can sue for injuries caused by intentional employer negligence or wanton, willful, and reckless misconduct in addition to the compensation achieved through workers’ compensation. The justices have permitted suits against employers for invasion of privacy when employers require injured workers to take drug and alcohol tests to keep their jobs. They have permitted employee suits against employers who fail to control unwelcome and pervasive gender and same-sex harass- ment on the job.69 In a related matter, the justices have held that they will construe any ambiguity in the terms of employment in favor of employees. This ruling forces employers to be specifi c in any employment policies or else face litigation.70 The Supreme Court of Appeals has engaged in agenda-setting. For example, in Pauley v. Kelly, parents in Lincoln County fi led a class action lawsuit against the state treasurer contending that the state education funding system denied their children their Fourteenth Amendment right to the equal protection of the laws and contravened state constitutional provisions on education fi nance. The Court, relying on a provision in Article XII §1 of the state constitution requiring a “thorough and effi cient system of free schools,” upheld the parents. After a lengthy historical analysis and review of other states’ treatment of the issue, the Court concluded that the constitutional provision demonstrated that education is a fundamental constitutional right in the state. Any discrimination or classifi cation with regard to the exercise of the right can stand only if there is a compelling state interest to justify the unequal classifi cation. Turning to the pattern of state fi nancing and the Lincoln County system, the Court ordered the circuit court that had tried the case to examine inequities in state fi nancial assistance formulas that governed the distribution of state aid to local districts, in supplemental state aid for local districts, property tax appraisal, allocation of funds from the state school building fund, and the roles of state and local offi cials in affecting the effi ciency of the school’s operations.71 Later, the Court also interpreted the state constitution to require the state to provide a preliminary factual justifi cation before reducing appropriated funding for public schools.72 Later the Court would require that county boards of education provide free of charge to all students whatever items, such as books, deemed necessary to accomplish the goals of a school system and that serve as a fundamental part of public elementary and secondary education.73 These decisions forced the issues of state and local school fi nance, taxation for education, and education operations onto the state’s political agenda. The Judiciary 217

The school ﬁ nance case is not the only example of the Court engaging in agenda-setting. The Court forced the state to reconstruct its prison system, establish alcohol treatment and detoxiﬁ cation programs, and provide emergency care to the state’s homeless.74 The justices thus can play a critical role in the evolution of public policy.

the limits of judicial power

Not all government offi cials think or act alike, yet offi cials temper their confl icts out of concern for the future of the regime; they are not interested in its destruction. However, sometimes within the federal structure of American government and the separated powers system of West Virginia government, confl icts arise that restrict or revoke the policy choices made by the Su- preme Court of Appeals. Despite the Supreme Court of Appeals’ ability to engage in a variety of forms of policymaking, its justices sometimes fi nd that their policy choices meet rejection. The West Virginia legislature has acted to overturn or to adjust some laws to comport with Supreme Court of Appeals decisions. For example, when the Court determined that the procedures for the selection of the members of a state Economic Development Grant Commission violated the separation of powers and other sections of the state constitution, the legislature rewrote the law to provide for a constitutional means of selection.75 The U.S. Supreme Court invalidated an important property assessment decision reached by the Supreme Court of Appeals in 1987. Several coal companies had challenged Webster County’s property assessment practices. After paying the taxes, the companies then challenged the assessment process. The Court let stand the decision by the Webster County commissioners, sitting in their capacity as the county’s Board of Equalization, that the coal companies could not seek to lower its assessment from full market value, even though other property in the county was assessed at only a fraction of its full value. Instead, the coal company could seek to have the other properties in the county reassessed at full market value.76 The companies appealed the Court’s decision to the U.S. Supreme Court. It unanimously held that the disparities in the assessment of the properties did not satisfy the state’s requirement of a uniform tax rate. Additionally, the intentional lack of uniformity created by the county commissioners violated the equal protection clause by picking out some individuals for discriminatory treatment.77 The U.S. Supreme Court’s decision not only chastened the Supreme Court of Appeals but it also placed property assessment practices on West Virginia’s political agenda. Soon the legislature radically revised the assessment process. 218 The Judiciary

Consequently, the Supreme Court of Appeals can ﬁ nd its choices rejected or restricted when it chooses policy stasis, as in the coal land assessment case, as well as when it chooses policy innovation. Indeed, the mere knowledge of the cost of rejection likely limits the policy choices that seem feasible to a judge or magistrate. The perception of the costs of rejection might thus promote policy stasis or involution and a degree of stability in the law.

the court of claims

The Court of Claims is technically an agency of the state legislature that performs adjudicatory functions. It therefore is not under the supervision of the Supreme Court of Appeals. This court is composed of three judges appointed by the president of the Senate and the speaker of the House with the advice and consent of the Senate. It hears personal injury and property damage claims against state offi cers and employees, claims for unjust ar- rest and imprisonment, and claims for compensation by victims of crime.78 Because of a legal doctrine known as “sovereign immunity,” citizens cannot sue the state for such claims in the circuit or magistrate courts. They must go to the Court of Claims. Parties who seek relief from the Court must fi le either a petition using a standard form or a special Crime Victims Compensation Fund Application with the clerk of the Court. With general claims, the clerk reviews the claim and screens out those in which the party must ask for compensation by the state’s insurance carriers. The remaining claims are mostly claims about nonpayment for goods and services sold to the state, claims by inmates at state institutions, and road hazard claims for damage caused by potholes in state roads. Once screened, the claim is sent to the appropriate state agency and the assistant attorney general assigned to handle claims for that agency. They often investigate the claim and attempt to settle it. In claims that are not settled, the court requests briefs and holds a settlement conference; if no settlement is possible, a hearing is held at one of several venues in the state. Once the Court entitles a party to an award, they must await approval of the award by the state legislature. The state judiciary cannot review the approval, modifi cation, or denial of awards. The distribution of awards occurs at the beginning of the next fi scal year. With criminal victimization compensation claims, the deputy clerk of the Court of Claims reviews docketed claims to ensure that the crime was reported to police and examines hospital and physicians’ records and police reports to ascertain that the victim was physically injured, was innocent, and was not engaged in “contributory misconduct.” Investigators handle much of the detailed inquiry. The deputy clerk then prepares a recommended The Judiciary 219 opinion or claim order for the approval or disapproval by a judge of the Court. Claimants dissatisfi ed with the evaluation of their claim can seek an adversarial hearing before a judge of the Court. If the claim is not dis- allowed, an approved award is included in a report to the legislature and legislative approval. The money awarded from the Crime Victims Compen- sation Fund is paid directly to health care providers, to lawyers in the rare cases where the claimant incurred legal fees in seeking the award, and to the claimant if the award covers lost wages or pain and suffering. Although the maximum award is $25,000 for a victim, $35,000 for a death, and $4,000 in burial expenses, the average award is between $5,000 and $6,000.79 The Court of Claims thus fi lls a void in the relief available to individuals injured by the state or injured by criminals whose behavior the state has not been able to control. conclusion: judicial branch capacity and responsiveness

Although West Virginia courts have the capacity to act on major policy problems when people, fi rms, or interest groups see a potential advantage in judicial action, the courts often can provide only limited remedies for people’s problems. They work best in acting on interpersonal problems— such as disputes about debts, divorce arrangements, child custody, and auto accidents where a simple order or allocation of monetary damages can resolve the dispute—or in deciding criminal cases. Therefore, the West Vir- ginia judiciary has concentrated its efforts on the effi cient processing of ordinary confl icts in ways that do not work innovations into civil or criminal legal law or policy. As indicated, the outcomes of the state’s judicial process suggest that it has the capacity to complete this task even if it lacks the administrative accoutrements and budget of most state court systems. chapter eleven

Local Government

There are 685 local governments in West Virginia: 55 county governments, 55 school districts (one for each county), 233 municipal governments, and 342 special districts.1 In 2007, collectively they spent more than $5 billion: $725 million by counties, $3 billion by school districts, $800 million by municipalities, and $340 million by special districts.2 They are led by 2,453 local government elected offi cials: 442 county elected offi cials, 275 school board members, 233 mayors, 233 city clerks/recorders, and 1,270 city council members. They also employ more than 60,000 people, including 40,000 schoolteachers and support staff.3 Although elected to act for the public, West Virginia’s local governments and their respective elected offi cials are subject to the legislative controls established in the West Virginia Constitution. These checks limit their autonomy and imposes institutional rules, organizational structures, and fi scal constraints that make it diffi cult for them to be innovative and creative. Thus, despite the existence of a home rule provision for municipalities with populations of 2,000 and more since 1936, and recent attempts by West Virginia’s local government offi cials to gain additional fl exibility, the capacity of West Virginia’s local governments continues to be defi ned by the state government.

county governments

The current structure of county government was put into place by a state constitutional amendment adopted in 1880. It clearly established that counties were administrative arms of the state government, not autonomous political entities. The counties’ main constitutional duties are to record deeds and other papers presented for record within their geographic boundaries, Local Government 221 conduct elections for county and district offi cers, serve as judges when the outcome of county or district elections is contested or when the qualifi cations of those running for county or district offi ce are challenged, and assist the state government in the administration of justice by enforcing state laws within the county’s boundaries. They are also allowed to construct and maintain county roads, bridges, public landings, ferries, and mills and to set levy rates on property located within their boundaries to pay for these services. Although the state government has historically been reluctant to expand county responsibilities, counties have been granted additional authority in several areas over the years. Counties were authorized to fund public libraries in 1915. In 1929, they were allowed to construct, lease, own, and operate airports. In 1949, they were authorized to construct waterworks, sewer systems, and wastewater treatment plants and to improve streets, al- leys, and sidewalks that are not in the state road system. In 1951, counties were allowed to maintain and operate fi re stations and fi re prevention units and to establish park and recreation commissions. In 1955, they were given permission to provide garbage disposal services in areas outside of municipalities and operate landfi lls. In 1959, they were allowed to create county planning and zoning commissions. In 1968, counties were allowed to establish building and housing codes. Since then, counties have been authorized to construct fl oodwalls and make navigation improvements to protect their citizens from fl oods (1975), provide emergency ambulance services (1975), and fund hospitals and long-term care facilities (1989). They are also allowed to perform services related to the maintenance of law and order and the protection and enhancement of public health and welfare.4 Although the state has granted counties additional responsibilities over the years, the state constitution continues to deny counties home rule. The state constitution and subsequent court rulings have established that counties possess only those powers which are expressly granted to them by the state constitution or by state statute.

County Ofﬁ ces

When West Virginia amended its constitution in 1880, it not only denied counties home rule but it also divided the county’s governmental powers among seven independently elected offi ces: the county commission, county clerk, circuit clerk (not discussed here because its primary duties are with the court system), county sheriff, county assessor, county prosecuting attorney, and county surveyor of lands. The amendment refl ected the Jacksonian 222 Local Government belief that governments with many elected offi cers exercising separate powers are less likely to violate the public trust than governments with few elected offi cials and unifi ed powers. However, creating a plural government, with seven elected offi ces as opposed to a single elected offi ce, also makes it more diffi cult for government to respond to citizens’ demands for services because there is no centralized mechanism to coordinate the various functions performed by the independently elected offi ces. The state constitution allows county voters to elect three commissioners on a countywide partisan ballot. (Jefferson County is allowed to elect fi ve commissioners.) The commissioners act as the county’s legislative body and serve six-year terms. Their terms are staggered so that one commissioner is elected every two years and no two commissioners can reside in the same magisterial district. The state constitution requires commissioners to meet at least four times a year at the county courthouse. At the fi rst meeting each year, they elect a president from among themselves to preside over meetings. The commission’s president is authorized to call a special session, with the concurrence of at least one other commissioner, whenever he or she believes that the public interest requires it. Most of the county commissions in counties with less than 10,000 people meet once or twice a month, most of the county commissions in counties with populations between 10,000 and 50,000 people meet weekly, and most of the commissions in counties with populations exceeding 50,000 people meet twice a week. Two commissioners constitute a quorum. The commission’s primary duties are to determine the annual county budget, submit a balanced budget to the state auditor’s offi ce for approval, set the county’s levy rates on property to pay for the provision of county services, and serve as the board of equalization of review, which hears appeals concerning the appraisal and assessment of real and personal property in the county. They also appoint members to numerous advisory boards and commissions and are often involved in economic development projects. They also serve as members of the county court, but the Judiciary Amendment of 1880 limited the court’s jurisdiction to probate, the appointment and qualifi cation of personal representatives, guardians, and curators, and the settlement of accounts. In 2004, with the consent of the County Commissioners’ Association of West Virginia, the state shifted responsibility for appointing guardians for minor children to the family court system. That system was established by a state constitutional amendment ratifi ed in 2002. State statutes also require all county commissioners, clerks, assessors, and sheriffs to attend annual in-service training programs sponsored by the state auditor’s offi ce. Local Government 223

County commissioners are considered part-time employees. The actual time spent on their duties, however, varies widely from commissioner to commissioner. Some commissioners attend the county commission’s meetings and are otherwise rarely seen in the courthouse. Most commissioners devote more than forty hours a week to their duties, have an offi ce in the county courthouse, and keep fairly regular offi ce hours. The differences are primarily attributed to the commissioner’s individual preferences and are not related to county population or to the size of the county budget. The county commissions in the state’s middle to larger population counties typically appoint a county coordinator or administrator to handle the day-to-day operations of county governance. Most county coordinators or administrators make personnel decisions (subject to the consent of the county commission), assist in the preparation of the county budget, and make recommendations on policy issues before the commission. County commissioners are currently paid an annual salary that is determined by the total amount of assessed valuation of property in the county. As of 2008, commissioners’ salaries range from $19,800 in Class X counties (assessed value of property less than $200 million) to $36,960 in Class I counties (assessed value exceeding $2 billion). The county clerk is also elected on a countywide partisan ballot to a six- year term. The clerk serves as the custodian of all county records, including birth and death certifi cates, probated wills, transfers of property titles, lists of fi duciaries, deeds of convenience, and deeds of trust. They also are responsible for the issuance of licenses required by state government, including business and marriage licenses, and for the general management of elections, including registration of voters and the maintenance of voting machines. County clerks in Class I to V counties are required to be full-time employees. However, most county clerks devote at least forty hours a week to their duties. As of 2008, their salaries ranged from $42,240 in Class X counties to $55,440 in Class I counties. The county sheriff is elected to a four-year term on a countywide partisan ballot. The sheriff is the only county elected offi cer who is subject to term limitations. Primarily because of corruption and mismanagement in the past, the state constitution formerly prohibited sheriffs from succeeding themselves in offi ce. Moreover, they were not allowed to serve as a deputy or hold any other public offi ce for at least one year after their term had expired. In 1973, a constitutional amendment relaxed these restrictions somewhat, allowing sheriffs to serve two consecutive terms. Another amendment that would have allowed sheriffs to serve an unlimited number of terms was soundly defeated at the polls in 1982 and again in 1994. 224 Local Government

The sheriff’s primary duties are to enforce the law and maintain order in the county. However, they have other responsibilities that have been associated with the offi ce since colonial times. For example, the sheriff is the ex offi cio county treasurer for both county government and the local school district. As county treasurer, the sheriff receives, collects, and disburses all moneys due to the county and the local school district and is required to keep an accurate account of all receipts and disbursements. Also, as an offi cer of the circuit court, county court, and any other court of record in the county, the sheriff is responsible for executing process, summoning and im- paneling juries, and attending most, if not all, of the circuit court’s sessions. The sheriff is the county jailer and, until the recent shift to a regional jail system, had custody of all prisoners in the county jail. The sheriff also auc- tions off delinquent lands, serves as ex offi cio county sealer of weights and measures in the absence of a regularly appointed county sealer, and appoints one of his deputies to serve as the county humane offi cer. The humane offi cer is responsible for investigating all complaints concerning the cruel or inhumane treatment of animals within the county. Sheriffs in all but Class X counties are required to be full-time employees, as are all sheriffs with more than four deputies. Also, they are subject to strict guidelines concerning other employment to ensure that they are not subject to a confl ict of interest when performing their duties. Their base salaries range from $38,280 in Class X counties to $44,880 in Class I counties as of 2006. According to the West Virginia Sheriffs’ Association, all fi fty-fi ve county sheriffs are employed on a full-time basis. Sheriffs are also eligible for an annual salary supplement of up to $15,000 if, in their capacity as the county tax collector, they collect more than a predetermined amount established by the county commission. The county assessor is elected to a four-year term on a countywide partisan ballot. The assessor’s primary duties are to appraise at full market value real and personal properties owned in the county as of July 1, keep an accurate account of all appraisals in the county cadastre (record book), and defend their appraisals when appealed to the county commission sitting as the county board of equalization and review. The county assessor is also responsible for assessing and collecting a “head” tax on all dogs in the county. With the consent of the county commission, they can appoint deputy assessors to assist them in their duties. County assessors currently receive the same base salary as sheriffs, ranging from $38,280 in Class X counties to $44,880 in Class I counties. As an incentive to collect taxes, they also receive a 10 percent commission from all proceeds from the dog tax and a 10 percent salary increment for Local Government 225 conducting the farm census for West Virginia’s Department of Agriculture, and they are eligible for an additional duties compensation amount ($15,000 annually in Class I-V counties, $10,000 annually in Class VI and VII counties, $9,000 in Class VIII and IX counties, and $6,500 in Class X counties) if they meet certain criteria established in state statutes (completing a sales ratio analysis, supplying a list of new businesses added to the assessment rolls, etc.) and certifi ed by the State Tax Department. State statutes require county assessors in all but Class X counties to be full-time. State statutes also require the county assessor’s offi ce to remain open throughout the year. This latter requirement, coupled with the responsibilities of the offi ce, has caused all fi fty-fi ve county assessors in West Virginia to devote at least forty hours a week to their duties. The county prosecuting attorney is elected to a four-year term on a countywide partisan ballot. They are the only county elected offi cers who are not required to reside in the county they serve. Although the state constitution and enabling legislation do not specifi cally require the county prosecuting attorney to be an attorney, the state’s courts have ruled that the wording of state statutes imply that they must be an attorney licensed to practice in the state.5 The county prosecuting attorney’s primary duty is to prosecute violators of the state’s criminal laws. They also provide legal advice to the county commission and school district and represent the county in all civil actions. With the permission of the county commission, governor, or circuit court, they can offer rewards for the apprehension of people charged with crimes. Also, with the permission of the county commission, they can appoint full-time and part-time investigators to supplement the efforts of the county sheriff and other investigative agencies. The prosecuting attorney is also required by state statute to assist the state attorney general in performing any legal duties that are not inconsistent with their duties as the legal representative of their county. County prosecuting attorneys are the highest paid county elected offi - cials, ranging from $46,200 in Class X counties to $96,600 in Class I counties. Prosecuting attorneys in Class I through V counties are required by state statute to be full-time employees. Prosecuting attorneys in smaller population counties can become full-time employees with the consent of their county commission. Most of the prosecutors in the state’s smaller population counties prosecute crimes and advise the county government on legal issues on a part-time basis while they operate a private civil litigation practice on the side. West Virginia’s prosecuting attorneys employ assistant prosecuting attorneys to help manage their caseload. Typically, prosecuting attorneys in 226 Local Government

smaller population counties employ fewer assistants than those in larger population counties. In 2005, for example, Kanawha County’s prosecuting attorney employed twenty-four assistants, Preston County’s prosecuting attorney employed three assistants, and McDowell County’s prosecuting attorney employed one assistant. In 1995, the state created the West Virginia Prosecuting Attorneys Insti- tute. It provides county prosecuting attorneys and staff with generalized and special training programs, legal research, and other technical assistance.6 The county surveyor of lands is also elected to a four-year term on a countywide partisan ballot. Although the county commission can hire any state-licensed surveyor to conduct its work, the county surveyor typically conducts most of the county’s land surveys, usually involving right-of- ways and alignments of roads and the sale or purchase of county or school district land. The surveyor is also available to resolve disputes over boundary lines, keep all records, except for those that are in the deed books, including road maps, plats, and tracings, compile tax maps for the use of the county assessor and board of equalization and review, and perform any other duties that the county commission deems necessary. Unlike other county elected ofﬁ cials, the state does not mandate the county surveyor’s compensation or indicate whether they must be either full-time or part- time employees. County surveyors work on a part-time, on-call basis. After performing a requested service, they charge the county or school district a fee. As a result, their compensation varies from year to year according to the amount of work that they do in each county and the willingness of the county commission to pay what the surveyor requests.

Policy Activity

West Virginia’s fi fty-fi ve county governments spent about $725 million in 2008, nearly triple the amount spent in 1995.7 The extent of county services varies signifi cantly from county to county, depending primarily on its population. In 2005, West Virginia’s ten counties with less than 10,000 people (Calhoun, Doddridge, Gilmer, Pendleton, Pleasants, Pocahontas, Tucker, Tyler, Webster, and Wirt) spent, on average, less than $2 million each. Near- ly all of that money was spent on salaries, supplies, and offi ce expenses for the county’s elected offi cials and the maintenance of the county courthouse. These counties had relatively few employees, ranging from fi fteen in Wirt County to forty-six in Pleasants County. In 2005, West Virginia’s thirty-fi ve counties with populations between 10,000 and 50,000 spent, on average, about $5 million each. Most of that Local Government 227 money was spent on salaries, supplies, and offi ce expenses for the county’s elected offi cials and their staff and on the maintenance of the county courthouse. They did, however, provide a greater variety of services than counties with populations below 10,000. They were more likely than smaller population counties to fund physical and mental health services, ambulance services, fi re protection services, industrial parks, libraries, and visitor bureaus. They also had more employees, ranging from 35 in Monroe County to 267 in Boone County. In 2005, West Virginia’s ten counties with populations exceeding 50,000 (Berkeley, Cabell, Harrison, Kanawha, Marion, Mercer, Monongalia, Put- nam, Raleigh, and Wood) spent, on average, about $20 million each. Ka- nawha County, the state’s most populous county with 195,413 residents, spent $32 million and had approximately 600 full-time county employees. Cabell County, the state’s second most populous county with 95,043 residents, spent $16 million and had approximately 470 full-time county employees. With Kanawha County removed, the next nine largest population counties spent, on average, about $15 million each.8 The state’s ten largest population counties offer a broader range of services than the state’s other counties. Most of them provide fi re protection services, sponsor industrial parks, offer library services, fund visitors’ bureaus, subsidize the local magistrate courts, subsidize the local circuit court, rent or own government buildings besides the courthouse, fi nance physical health services, provide mental health care services, and sponsor ambulance services. However, salaries, supplies, and offi ce expenses for the counties’ elected offi cials and their staff and maintenance of the county courthouse still account for more than half of their total expenditures. West Virginia’s counties, particularly its smaller population counties, do not provide a particularly wide range of services when compared with counties in most other states. Forty years ago, a scholar studying West Virginia’s county government concluded that it was not very important and that its few functions did not require so many elected offi cials and clerks.9 Today, counties provide many valuable services for their residents, but our assessment of county government’s role in West Virginia’s governance still applies to many of the state’s smaller counties. The lack of county government services is explained, at least in part, by the relatively large number of sparsely populated counties in the state. However, the state government has also played a key role in limiting the extent of county services. It has imposed a plural government structure on counties that inhibits their ability to respond effi ciently to citizen demands for services. It has also restricted their capacity to raise revenues and, by 228 Local Government denying them home rule, has forced them to seek permission from the state government before they can offer new services.

Revenues and Policy Activity

West Virginia’s Constitution places relatively severe fi scal restraints on West Virginia’s counties. Like counties in most other states, West Virginia’s counties are required to have a balanced operating budget. To account for unforeseen circumstances, counties are allowed to incur a “casual defi cit,” not to exceed its state-approved levy estimate by more than 3 percent, provided that the defi cit is satisfi ed in the succeeding year. They also must follow strict state guidelines when incurring a defi cit for capital expenses. For example, West Virginia’s Constitution limits all local governments’ individual aggregate outstanding bonded indebtedness to 5 percent of the local government’s total assessed value of taxable property. Also, all local government debts must be retired within thirty-four years. In addition to these typical restraints on county revenue, the state government also prohibits counties from imposing either an income tax or a sales tax. Moreover, the Tax Limitation Amendment of 1932 placed relatively severe limits on the ability of counties, and all other local governments, to raise revenue through the property tax. The amendment divided real and personal property into four classes and established maximum property tax levy rates for each class, ranging from 50 cents per $100 of assessed value for personal property used in farming to $2 per $100 of assessed value for commercial properties located within municipalities. These property tax levy rates are far below the national average. The Tax Limitation Amendment of 1932 also established maximum property tax levy rates for each type of local government within the overall limits. For example, the state constitution established a maximum property tax levy rate of $1 per $100 of value for Class II properties, which include farm real estate and owner-occupied homes. Counties are allowed to impose a property tax levy rate of up to $0.28 per $100 valuation on Class II properties, school districts are allowed to impose up to $0.459 cents, municipalities up to $0.25 cents, and the state up to $0.005 cents. Approximately 21.3 percent of property tax revenue in West Virginia goes to counties, 71.5 percent to school districts, 7 percent to municipalities, and 0.3 percent to the state government. The amount sent to each government type and the percentages vary somewhat from year to year depending on changes in the value of properties within each class. The only way to exceed the maximum property tax levy rates set by the Local Government 229

Tax Limitation Amendment of 1932 is through voter-approved excess levies. Counties and municipalities can exceed their maximum property tax levy rates by up to 50 percent for a period of up to fi ve years if 60 percent or more of the county’s or municipality’s voters approve the excess levy. Several of the state’s larger population municipalities and counties rely on excess levies to fund various public services including libraries, ambulance services, and their 911 emergency telephone number. School districts can exceed their maximum property tax levy rates by up to 100 percent for a period of up to fi ve years if a majority of the district’s voters approve the excess levy. Forty-three of West Virginia’s fi fty-fi ve school districts currently have excess levies, with most raising an additional 75 percent to 100 percent in additional property tax revenue. The Property Tax and Homestead Exemption Amendment of 1982 further limits local governments’ property tax revenue by exempting the fi rst $20,000 of assessed value of any residence owned by a citizen of the state who is at least sixty-fi ve years old or who is permanently and totally disabled. In addition, since 2003, low-income individuals who receive the homestead exemption credit are allowed a refundable tax credit equal to the taxes paid on up to the fi rst $10,000 of taxable assessed value. Counties rely heavily on the property tax for revenue. In 2004, counties had about $660 million in revenue, $590 million from taxes and fees, $43 million from the state, and $14 million from the federal government. Nearly 40 percent of the counties’ own-source revenue (taxes and fees) was generated from property taxation ($210 million). Hospital revenue ($83 million) was the counties’ second largest revenue source.10

Policy Outcomes and the Capacity of County Government

State offi cials have placed restraints on county governments for a number of reasons, including some that defy objective analysis, such as a desire to maximize their personal power, control, and prestige. However, by having a history of political corruption and mismanagement, county elected offi cials have made it relatively easy for state offi cials to justify their dominance of state/local government relations on the grounds that county government offi cials cannot be trusted with power. For example, during the 1980s, the U.S. attorney for West Virginia’s Southern District successfully prosecuted over seventy locally elected offi cials. Many of those convicted were county offi cials, including one sheriff who paid $100,000 to his predecessor to ensure his election and was later caught covering for a local drug dealer.11 Also, between 1986 and 1991, the state Board of Risk and Insurance Management 230 Local Government

paid more than $1 million in claims against local elected offi cials, most of them county offi cials, for fi ring employees for political reasons. The U.S. Supreme Court ruled in 1976 that government employees fi red for political reasons can sue for damages.12 Examples include fi ve deputies fi red by the Clay County sheriff, nine deputies fi red by the Lincoln County sheriff, and fi ve Mingo County courthouse employees all fi red for political reasons.13 Since then, the incidence of criminal prosecution of county government offi cials has become rare. Nonetheless, the public’s concern about the integrity of its county offi cials has been reinforced by the relatively common practice of county elected offi cials hiring their relatives to work in their offi ces. Al- though legal, and perhaps even understandable given the diffi cult employment market in many smaller population communities, when West Virginians go to the county courthouse and see the sons, daughters, nephews, nieces, or cousins of county elected offi cials behind the counter, they cannot help but be reminded of the old style of politics of the “county courthouse gang.” Despite county government’s limited fi scal capacity and the persistent concerns about the integrity of county offi cials, there is evidence to suggest that county governance is improving. Many county elected offi cials are hard-working, public-spirited citizens committed to ending the stereotype of the politically motivated and corrupt courthouse gangs of the past. Their statewide organizations, especially the West Virginia Association of Coun- ties and the County Commissioners’ Association of West Virginia, have supplemented their traditional roles as lobbying organizations by undertaking a number of education and training efforts to improve the capacity of county elected offi cials to make more informed decisions. For example, in 1993, the County Commissioners’ Association of West Virginia and the Institute for Public Affairs at West Virginia University initiated an ongoing education and training series for the state’s county commissioners that included workshops and presentations on all aspects of county governance. In 2001, these two organizations partnered with the West Virginia Association of Counties and the West Virginia Municipal League to form the West Virginia University Local Government Leadership Academy. It sponsors two week- end retreats each year where offi cials from across the state share best practices and participate in workshops covering all aspects of local governance. Obviously, West Virginia has many dedicated public servants in its county courthouses who are interested in improving their skills as policymakers and administrators. However, when confronted with a problem or a demand for additional county services, they are often prevented from acting because they lack either the authority or the fi nancial resources to respond. In recognition of a need for an expansion of West Virginia local govern- Local Government 231 ment’s authority and funding, in 2004 Governor Robert Wise created by executive order a twenty-seven-member blue ribbon panel, the West Virginia Commission on Governing in the Twenty-fi rst Century, to examine local government structures and functions in the state and to make recommendations for improvement. The panel’s chair, State Senator Brooks McCabe (D- Kanawha), had previously recommended the consolidation of counties, the merger of cities, and regional forms of local government service delivery. The panel met throughout the year and faced resistance to organizational change from local offi cials worried about losing their authority and from citizens worried about losing their sense of identity with their respective towns and counties.14 In 2006, legislation was adopted to allow county- county, city-city, and city-county consolidations. These consolidations can be initiated by a resolution adopted by the affected governments or by a petition signed by at least one-quarter of the voters in each affected county or city. The consolidation must be approved by at least 55 percent of the voters in each affected area. Proponents argued that consolidation would increase West Virginia’s chances of attracting large corporations, enhance the merged governments’ opportunities to attract federal funding, and generate cost savings through the consolidation of government services. In related legislative action, the West Virginia Municipal League and several mayors, including Charleston’s Danny Jones, led an effort in 2005 to provide West Virginia’s local governments with additional fi nancial fl exibility. Their efforts led to the passage of the Pilot Program Local Government Flexibility Act of 2005. It provided an opportunity for local governments in up to seven counties, one county in each of seven legislatively defi ned regions, to apply to the governor for (1) a waiver of specifi c state policies, rules, regulations, or statutory provisions, (2) permission to increase the 3 percent hotel occupancy tax to 6 percent (Charleston’s prime legislative agenda item), and/or create a temporary occupational privilege tax of up to 2 percent of earned income. Six of the seven legislatively defi ned regions border another state. If more than one county in a region applies, the one with the largest population is to be selected. The law’s goal is to offer West Virginia’s local governments additional fl exibility in designing their revenue systems and to determine whether those changes enhance those counties’ economic competitiveness.15

school districts

Funding is the perennial issue facing West Virginia’s ﬁ fty-ﬁ ve school districts. Organized along county lines, West Virginia’s school districts are 232 Local Government

re sponsible for providing public education services, primarily to children. They spend about $3 billion annually, nearly double the amount spent in 1990. At that time, West Virginia ranked 43rd in the nation on spending for elementary and secondary education on a per capita basis. In 2005, it ranked twenty-third in the nation on a per capita basis, eighteenth on a per pupil basis, and third as a percentage of personal income.16 This improvement in national rankings has come about primarily because of state judicial rulings reaffi rming state constitutional responsibilities for public education. Another important factor has been the political clout of teachers and other school personnel. In many counties, the public school system is the county’s largest employer. School districts in most other states receive most of their revenue from local taxes. This is not true in West Virginia. School districts in West Vir- ginia receive almost two-thirds of their revenue from state government and only one-quarter from property taxes. The remainder is derived from federal grants and other taxes and fees. Their relatively heavy reliance on state grants is partly explained by the previously mentioned restrictions on property taxation. It is also partly explained by state court decisions that mandate state government action to equalize school district revenues throughout the state. This requirement, fi rst articulated in Pauley v. Kelley (1979) and refi ned in Pauley v. Bailey (1982), is based on the state constitution’s requirement that the legislature provide “a thorough and effi cient system of free schools.” Altogether, state money and state law give the state government a very important role in defi ning school districts’ policy agenda.17

Procedures

Each school district is run by a county board of education with fi ve members who are individually elected on a countywide nonpartisan basis to four-year terms. Their terms are staggered so that no more than two members of the board are elected during a single election. No more than two members can be from the same magisterial district, and all must reside in the county. They must also possess at least a high school diploma or general educational development certifi cate. All board members are also required to complete at least seven clock hours of training in areas pertaining to boardmanship and school performance issues. This training must be certifi ed by the West Virginia Board of Education. At their fi rst meeting following an election, the school board members select a president from their membership to preside at their meetings. The president holds that offi ce until the next biennial election. A quorum consists Local Government 233 of at least three members, and all decisions are reached by majority vote. Most school boards meet twice a month, and all school board members are considered part-time employees. The state has set their compensation at not more than $160 per meeting attended, with a limit of up to fi fty meetings per fi scal year. The state also permits school board members to be reimbursed for travel, provided the member submits an itemized sworn statement indicating that the travel was conducted on offi cial business. Each school board is given the authority to engage in twenty specifi c activities. Included in the list is controlling and managing all existing schools in the county; deciding, subject to the approval of the West Virginia Board of Education, whether to open new schools or to close or consolidate existing schools (a very contentious issue in rural counties); providing transportation services to its schools; and employing administrators, teachers, and aides. The county superintendent of schools handles the school district’s day- to-day operations and is appointed by the county school board. State statutes require that the superintendent be hired for a term of at least one, but not more than four, years. There is no limit on the number of terms they can serve. State statutes require that all superintendents must hold a professional administrative certifi cate endorsed for superintendent by an accredited institution of higher education, or a fi rst-class permit endorsed for superintendent. Those holding a fi rst-class permit may be appointed for one year only and may be reappointed twice after receiving an annual satisfactory performance rating from the school board. Those having a doctorate and having completed three years of teaching in a public school or the equivalent of three years of management or supervisory experience after employment by the school board are granted a permanent administrative certifi cate. The superintendent’s salary is set annually by the school board and varies from school district to school district. In the state’s more populous counties, annual compensation currently ranges from $80,000 to $100,000.

Policymaking Capacity

State statutes provide county school superintendents with eleven specif- ic duties, including nominating all personnel to be employed; assigning, transferring, suspending, or promoting teachers and all other school district employees; closing schools when conditions are detrimental to the pupil’s health, safety, or welfare; certifying all expenditures; and attending all school board meetings. The state government also establishes guidelines for nearly all aspects of public education, either through the adoption of state statutes (such as maximum teacher-pupil ratios, school entry ages, the 234 Local Government

length of the school year, etc.) or through the actions of the West Virginia Board of Education. The West Virginia Board of Education has twelve members, including the state superintendent of schools, the chancellor of the West Virginia Higher Education Policy Commission (West Virginia and Marshall Universities, their branches, and their medical schools), and the chancellor of Commu- nity and Technical College Education, who sit on the board as ex ofﬁ cio members and are not allowed to vote. The governor appoints the remaining nine members, with the advice and consent of the Senate, for staggered nine-year terms. To ensure partisan and geographic balance, no more than ﬁ ve of the nine voting members can belong to the same political party and each congressional district is represented by at least two, but not more than three, members. The board meets monthly. School districts are, by far, the most regulated and controlled local government in West Virginia. Their relationship with the state government is a nearly perfect example of a classic unitary relationship in the organization of local governance. The state Board of Education’s takeover of the Logan County school district in 1992, Mingo County in 1998, Lincoln County in 2000, Mc- Dowell County in 2002, and Hampshire County in 2006 are examples of the extent of the state government’s control over public education in the state.

municipalities

West Virginia does not have any large metropolitan cities. The population of the state’s largest city, Charleston, is only 51,176. Moreover, only 14 of the state’s 233 cities have a population over 10,000.18 As a result, city politics in West Virginia is far different than city politics in most other states. It is essentially small town politics, where the great issues facing America’s major cities—drugs, the homeless, crime, pollution, urban decay, and race relations—are generally not issues of great concern. Although these problems exist, the scale is much smaller and less severe than in America’s larger cities. As a result, city politics in many of West Virginia’s cities is much more provincial than in most other states. For example, elections in many of the state’s smaller cities (especially those with populations under 10,000) are often decided on the basis of the contestants’ personalities and name recognition rather than on their positions on issues. This is not surprising given the relatively limited powers and resources available to city offi cials and the absence of earth-shattering issues to excite the electorate. The one problem that West Virginia’s municipalities share with Ameri- ca’s larger cities is their relatively weak fi scal condition. Like cities in most Local Government 235 other parts of the nation, West Virginia’s cities have the authority to impose property taxes. However, their ability to generate revenue from property taxes is restrained by the provisions of the Tax Limitation Amendment of 1932 (which limits property tax rates) and the Property Tax and Homestead Exemption Amendment of 1982 (which provides exemptions to older property owners and those with disabilities). West Virginia’s municipalities can also impose a business and occupation tax (B&O tax) on the gross income of businesses operating within their city limits. They are the only local government in West Virginia with this authority. However, the relatively anemic nature of West Virginia’s economy limits the B&O taxes’ ability to generate signifi cant amounts of revenue, especially in smaller population municipalities where the local business community’s economic health is impaired. Nevertheless, the B&O tax is one of the major revenue generators for West Virginia’s municipalities, not because it is a robust, elastic revenue genera- tor but because, unlike many other cities across the county, West Virginia’s municipalities’ authority to impose local sales and income taxes is severely limited. As mentioned in chapter 4, in 2004, municipalities were provided the option of offering a 1 percent sales tax in lieu of a business and occupation tax. However, because a number of businesses, including public utilities, banking, and contractors, are exempt from the optional local sales tax, most municipalities with a business and occupation tax would lose revenue if they made the switch. The local sales tax option does provide small population municipalities, many of which do not have a B&O tax in place, an additional means of generating revenue to pay for essential public services. In 2005, Williamstown’s city offi cials became the fi rst West Virginia municipality to indicate an interest in adopting a local sales tax. However, city offi cials postponed their request after the state Department of Reve- nue announced that it lacked the capacity to administer the add-on sales tax. The Department announced that its computer system which handles business-related taxes had not been updated since 1974 and lacked the capacity to account for the municipal sales tax. Therefore, in the absence of a major computer upgrade, costing an estimated $22 million, the compu- tations would have to be done by hand, requiring the hiring of additional state employees. The Department of Revenue also indicated that it would have to notify 30,000 to 50,000 companies with sales tax accounts statewide that they would have to charge the extra 1 percent sales tax on any goods shipped to Williamstown.19 Overall, West Virginia’s municipalities receive about 6 percent of their revenue from federal and state grants. Of their own-source revenue, about 41 percent is generated by the B&O tax, 29 percent by charges and fees (for 236 Local Government

hospital services, refuse collection, parking, use of parks, ﬁ re and police protection fees, etc.), 21 percent by the property tax, 6 percent by excise taxes on utilities, and 3 percent by other taxes (coal severance tax, hotel occupancy tax, etc.).20 Structure

Prior to the Home Rule Amendment of 1936, each time a municipality was formed and each time a municipality wanted to revise or amend its charter, it had to convince the state legislature to approve the action through the adoption of a state statute.21 The Home Rule Amendment abolished this practice for municipalities with populations over 2,000. They are allowed to create, revise, and amend their charters without state government approval. However, they are still required to meet specifi c requirements and follow detailed procedures established by state law. For example, state statutes dic- tate that municipalities can no longer be formed in areas that contain less than 100 inhabitants (if smaller than one square mile) or 500 inhabitants per square mile (if larger than one square mile). Also, municipalities cannot be formed in areas that are currently part of an existing municipality. Munici- palities granted charters prior to the adoption of the Home Rule Amendment of 1936 were exempted from these requirements. Currently, 72 of the 233 municipalities in West Virginia have less than 500 residents and could not meet the population requirements.22 State statutes also specify how charters are to be created, revised, or amended. Residents interested in creating a municipality must petition their county commission to hold a special election to determine if the area should incorporate as a municipality. The petition must be signed by at least 30 percent of the residents in the area to be incorporated. If a majority of qualifi ed voters within the area vote in favor of incorporation, the county commission is authorized by the state government to declare that area a municipal corporation. If the newly incorporated area has a population exceeding 50,000, it is classifi ed as a Class I city. If its population is between 10,000 and 50,000, it is classifi ed as a Class II city. If its population is between 2,000 and 10,000, it is classifi ed as a Class III city. Finally, if it has less than 2,000 people, it is classifi ed as a Class IV town or village. There are 2 Class I cities (Charleston and Huntington), 12 Class II cities, 47 Class III cities, and 173 Class IV towns and villages. Transition from one class to another occurs automatically depending on its population as determined by the U.S. Census count or by a special census authorized by the state legislature or municipality. Following the election for incorporation, voters elect a charter board to Local Government 237 draft the municipality’s charter. The charter determines the city’s government structure and operating procedures. The state allows the charter board to choose from among fi ve structures: the mayor-council plan, the strong- mayor plan, a commission government, the city manager plan, and the city manager–mayor plan. Class IV towns and villages incorporated after the adoption of the Home Rule Amendment of 1936 operate under the state’s general law, without individual charters. State statutes require them to use the mayor-council form of government. After the charter board has completed its draft of the charter, it is submitted to the state attorney general who verifi es whether it meets state guidelines. If approved by the attorney general, a public hearing is held where residents in the affected area are given an opportunity to comment on the charter. Following the public hearing and any revisions, a special election is held on the charter. If the charter is approved by a majority vote of the qualifi ed voters in the newly incorporated municipality, the charter takes effect on the following July 1. Subsequent revisions and amendments to the charter follow a similar procedure.

Procedures

Most municipalities in West Virginia use the mayor-council plan of government (211 out of 233). It is used by 172 of the 173 Class IV towns and villages, 36 of the 47 Class III cities, and 3 of the 12 Class II cities. It features a city council, elected at large, by wards, or both, a recorder elected at large, a mayor elected at large, and any other elected offi cials specifi ed in the charter. Under the mayor-council plan, the mayor is a member of the city council, typically does not have the authority to veto city ordinances adopted by the city council, has relatively little authority over the preparation of the city budget, cannot hire or fi re subordinates in the city’s administration, and has no real power to direct the city’s day-to-day operations. Their only organizational advantages over other council members is that they often are the only city council member elected on an at-large basis, they preside over meetings, and they represent the city at public ceremonies. Mayors in mayor-council cities and towns do, from time to time, provide policy and administrative leadership in their community. However, their ability to do so rests upon their individual political skills. The organizational powers of the mayor’s offi ce in mayor-council systems are virtually nonexistent. As a result, communities with mayor-council systems generally lack strong leadership and are most appropriate in small towns where government services are relatively few. 238 Local Government

The strong-mayor plan is used in Charleston, Huntington, Parkersburg, and South Charleston. It features a city council, elected at large, by wards, or both, and a mayor elected at large. The city council serves as the legislative body, and the mayor serves as the city’s chief administrator. The mayor is not a member of the city council, typically has the authority to veto city ordinances adopted by the city council, prepares the city budget for the city council’s consideration, can hire or fi re subordinates in the city’s administration, usually without the city council’s approval, and directs the city’s day-to-day operations. The strong-mayor plan provides the mayor with the organizational capacity to provide policy and administrative leadership in their city. It is more appropriate than the mayor-council plan for larger cities that offer a relatively broad range of government services. No municipality in West Virginia currently uses the commission form of government. Although the commission form enjoyed a brief period of popularity across the United States during the early 1900s, less than 3 percent of municipal governments in the United States now use the system.23 In West Virginia, cities have the option of selecting either a three-person or a fi ve-person commission, elected at large, to run the city. In the three-person alternative, one serves as the commissioner of fi nance, another serves as the commissioner of public works, and the third serves as the commissioner of public safety. They each enjoy full autonomy over their departments and elect a mayor from among themselves to preside over commission meetings. In the fi ve-person alternative (available as an option for only Class I and Class II cities), there is also a commissioner of streets and a commissioner of public works. Although reformers at the turn of the twentieth century hailed the commission plan as the “best and most professional” way to govern a city, it fell into disfavor primarily because no one has the authority either to direct or to coordinate the city’s day-to-day operations. In practice, political logrolling among the commissioners often led to levels of expenditures that threatened the city’s fi scal stability. As a result, most of the larger cities using the commission form of government in the United States have switched to the strong-mayor form, and most of the smaller cities have switched to the city manager form of government. Twelve of forty-seven Class III cities and seven of thirteen Class II cities (Bluefi eld, Clarksburg, Fairmont, Martinsburg, Morgantown, Weirton, and Wheeling) use the city manager plan. It features a city council of not less than fi ve nor more than eleven members elected either at large, from districts, or both, a mayor elected by the city council from among its members, and a city manager who is appointed by the city council. The mayor Local Government 239 presides over city council meetings and represents the city at public ceremonies. Like mayors in the mayor-council system, the mayor in the city manager system lacks any major organizational advantages over other city council members. The city manager administers the city’s day-to-day affairs under the supervision of the city council, prepares the city’s budget for the city council’s consideration, and provides the city council with policy recommendations. The city manager is supposed to provide the city council with nonpartisan, professional advice. However, it is often diffi cult for city managers to avoid political battles, and few of them stay in one city their entire career because the city council can fi re or dismiss the city manager at any time, for any reason, by a majority vote. Huntington used the manager- mayor plan until it switched to the strong mayor plan in 1985. Besides detailing the governmental structures available to municipalities, state statutes also regulate the length of municipal offi cials’ terms of offi ce. All municipal offi cials in Class I, II, and III cities incorporated after the adoption of the Home Rule Amendment of 1936 must have four-year terms. Class IV towns and villages have the option of providing their elected offi cials with either two-or four-year terms. However, because terms of offi ce established prior to the adoption of the Home Rule Amendment of 1936 were exempted from these requirements, term lengths vary widely, with four-year terms prevailing in larger cities and two-year terms prevailing in smaller cities. Specifi - cally, four of the state’s 173 Class IV cities have single-year terms, 121 have two-year terms, and 48 have four-year terms. Three of the state’s 47 Class III cities have single-year terms, 26 have two-year terms, and 18 have four-year terms. Four of the state’s 12 Class II cities have two-year terms and 8 have four-year terms. Both of the Class I cities have four-year terms. There are no limitations on the number of terms an elected municipal offi cer can serve. The number of city council members also varies widely, ranging from three in Keyser and Thurmond to twenty-six in Charleston. The vast majority of the city councils in Class IV municipalities have fi ve members: 1 has three members, 16 have four members, 142 have fi ve members, 8 have six members, 3 have seven members, and 3 have eight members. Most of the city councils in Class III cities have fi ve members: 1 has three members, four have four members, 24 have fi ve members, 7 have six members, 6 have seven members, 3 have eight members, and 2 have ten members. Most of the city councils in Class II cities have seven members: 2 have fi ve members, 6 have seven members, 1 has eight members, 2 have nine members, and 1 has twelve members. Huntington’s city council has eleven members, and Charleston’s city council has twenty-six members. All but 14 of the 233 municipalities have opted to elect their offi cials on a nonpartisan basis. 240 Local Government

Policymaking Capacity

Like counties, West Virginia’s 233 municipalities have been granted additional responsibilities and powers over the years by the state government. They spend approximately $800 million annually to enforce city laws and maintain domestic order, provide fi re protection, build, repair, and clean city roads, supply and purify water, offer park and recreational services, and provide a wide assortment of other services, including building inspections and libraries. Their largest expenditures are for police protection, fi re protection, streets and highways, general administration, sanitation, city hall, park and recreation services, landfi lls, and libraries. The extent of municipal services varies widely. The typical Class IV town or village spends less than $300,000 annually, with most of the money going to running city hall, maintaining the streets, and paying one or two police offi cers. The typical Class III city spends between $1 million and $3 million annually. They offered a broader range of services than the typical Class IV municipality, but still spend most of their money on basic municipal services, such as police protection, fi re protection, and street repairs. Annual expenditures among Class II cities range from $5 million to $25 million, with most of them spending between $8 million and $17 million annually. They offer a broader range of services than Class III cities. Besides providing basic municipal services, such police and fi re protection, most of them also funded housing programs, building inspectors, health programs, libraries, and a visitor center. West Virginia’s two Class I cities, Huntington and Charleston, have signifi cantly larger budgets than other cities in the state. Huntington spends over $40 million annually and Charleston spends over $65 million annually. They also offered a much broader range of services than other cities, including funding for civic centers, ambulance services, dog wardens, planning and zoning, and landfi lls. They also spent signifi cantly more than other cities on libraries.24 special districts

Special districts are independent governments that are usually established to perform a specifi c service, but they are occasionally established to perform several types of related services. They are often formed to take advantage of economies of scale, with governments banding together to provide a service to their residents that they cannot afford to provide by themselves. Nation- ally, the number of special districts has increased steadily since the 1950s. In 1957, there were 14,424 special districts. By 1972, that number had Local Government 241 increased to 15,781. Today, there are 35,356 special districts in the United States. Most of them (32,157) provide a single, specifi c service. Their most common purposes are to protect natural resources (7,026) and to provide fi re protection (5,743), water (3,423), housing (3,413), and sewer services (2,020).25 During the past four decades the number of special districts in West Vir- ginia has increased dramatically. In 1957, there were only 32 special districts in West Virginia. In 1987, there were 290. Today there are 342. Most of them (296) provide a single, specifi c service. Most of the special districts in West Virginia are public service districts created by county commissions, with the advice and consent of the state’s Public Service Commission, to provide water services (112), wastewater collection and treatment services (52), or both (43). West Virginia also has forty-eight solid waste management districts that are responsible for dis- posing of solid wastes; thirty-nine housing authorities that buy and clear slums and blighted areas and oversee the provision of low-cost housing or other community facilities on the land; fourteen soil conservation districts that institute land-use regulations and construct terraces, dams, channel improvements, ponds, and other facilities to prevent soil erosion; and twelve airport districts.26 The increased number of special districts in West Virginia is partly a result of the state’s dispersed rural population. Many of the state’s smaller municipalities individually lack the resources and revenues to provide capital-intensive public services economically to a small populace, such as the construction of water supply systems, wastewater treatment plants, and fl ood control projects. The increased number is also partly due to the state’s decision to impose relatively severe restrictions on local governments’ ability to raise revenue. Moreover, the increased number is also, at least in part, a response to the state’s decision to impose on counties a government structure that weakens their organizational capacity to respond effectively to citizen demands.

conclusion

Unlike West Virginia’s state institutions, which have benefi ted from constitutional changes and statutory reforms that have enabled them to respond more effectively to citizen demands, with few exceptions, its local governments have neither the power nor the fi scal resources to provide much more than the most basic level of services. Moreover, rising costs and unfunded federal and state policy mandates threaten their capacity to maintain basic services, such as police and fi re protection, street maintenance, and snow 242 Local Government removal. Despite these fi scal woes, state policymakers have been reluctant to provide West Virginia’s local governments with additional revenue sources and have been unable, due to their own fi scal woes, to offer them signifi cant direct fi scal relief. The new century, however, appears to have brought more interest in increasing the capacity and responsiveness of local government to community and regional needs. In 2005, through the Pilot Program Local Government Flexibility Act of 2005, the state did provide an opportunity for up to seven counties to apply for permission to increase hotel occupancy taxes and/or to impose an occupational privilege tax to generate additional revenue. In 2006, two pieces of legislation were passed into law that have the potential of enhancing the role of local governments. One new law authorizes counties to levy “commuter taxes” on those employed within their boundaries. This law extends to counties the authority that municipalities currently have to levy these fees. Another piece of legislation, which garnered signifi cant attention during the session, was the “Metro Government” bill that was signed into the law. This legislation authorizes local government consolidation among counties and municipalities. Enacting the provisions of these new laws will require special referenda at the local and county levels. This sets a high hurdle that will probably preclude widespread action on these laws. These bills suggest that, while West Virginia’s local governments remain highly dependent on state grants and excess levies to provide many local government services that are taken for granted in other states, the sen- timent for change and reform appears to be growing. chapter twelve

Policy Controversies and the Capacity of the State Government

West Virginia’s politics and government are at a critical stage. Although the management-labor confl icts that marked the state’s politics from the 1880s into the 1950s have eased, West Virginia has not completely escaped the political and economic effects of nearly a century of limited economic growth and public investment in education and the quality of life. Thus many of the diffi culties faced by West Virginians as the state enters a new century are related to their government’s capacity to address the economic diffi culties faced by its citizens. This chapter will evaluate how the state and its local governments have attended to the needs of the public.

west virginia: a unique politics?

There are numerous political similarities between West Virginia politics and politics in other states. Like most Americans, most West Virginians do not participate in politics frequently, do not have a detailed knowledge of politics, and exhibit some distrust of government. This is not a backcountry politics. Although the Democratic Party is stronger in West Virginia than in most other states, this is to be expected, given the Democratic Party’s appeal to the lower-income groups so prevalent in West Virginia’s population. Moreover, many of the intraparty divisions among liberals and conservatives that occur nationally also appear in West Virginia’s two parties, and the number of interest groups has increased. The bipolar politics of the coal industry–umwa confl ict, which once played a dominant role in the state’s politics, has decreased in signifi cance. Both in numbers and tactics, West Virginia interest group politics resembles the pluralism of group activity occurring in many other states. Finally, as in other states, funded and unfunded federal mandates have an important and growing infl uence on 244 Policy Controversies

the state’s policies. The only difference in this regard is that federal money and unfunded federal mandates affect West Virginia to a greater extent than most other states because the state lacks the ﬁ scal resources for health and welfare available in many other states.

Policymaking Capacity

The capacity of West Virginia’s political institutions is not much different from many other states. The governor has exceptional agenda-setting power, including control over the state budget and the line item and reduction vetoes. Although the plural executive can create some opposition to the governor’s policies, the independent executive ofﬁ cers have relatively limited power over policy creation and implementation. The legislators, like legislators in many smaller population states, serve on a part-time basis, remaining close to the public they represent. These part-time legislators lack access to the professional staff expertise seen in most other states and are forced to perform their legislative duties in a very limited time period. Nevertheless, the legislature’s organizational structure and legislative procedures have been modernized and are now fairly typical of the structures and procedures found elsewhere. In most respects, the judiciary’s organizational structure, processes, and policy role are also fairly typical of those found in other states.

Political Economy

However, there are some signifi cant differences between the politics of West Virginia and that in many other states. The key difference is in the condition of the state’s economy. Although it has improved in recent years, the state is still saddled with a relatively poorly educated workforce that is ill-prepared for the national movement toward technologically sophisticated white-collar jobs. Moreover, the continuing exodus of young, productive workers who generate jobs and tax revenue has left the state with one of the oldest, poorest, and most governmentally dependent populations in the nation. These legacies of the policies of the past, coupled with constitutional limitations on revenue generation, have forced state policymakers to reduce the support for some public services. However, the state faces a number of economic impediments that cannot be fully resolved by governmental action. The state’s rugged topography, lack of a major airport or seaport, low population density, and lack of a major city all contribute to the state’s diffi culty in attracting and retaining Policy Controversies 245 business investment.1 Moreover, national and international economies have undergone a fundamental restructuring toward an economy whose growth is no longer determined primarily by goods-producing industries, such as mining and manufacturing. Instead, service and government sectors have moved to the forefront of economic activity. As a result, the state’s heavy reliance on metals and chemical manufacturing and on coal mining have contributed to the state’s inability to keep pace with the economic growth experienced by other states.2 Given the state’s economic diffi culties, it has not been able to make public investments in the two basic building blocks of economic growth, infrastructure and education, at anywhere near the levels found in most other states. Consequently, most West Virginians have never enjoyed the benefi ts of the economic boom times in post–World War II America. West Virginia’s economy continues to lag far behind national averages on most economic indexes, such as per capita income and employment levels. West Virginia’s long-standing economic diffi culties probably will continue to limit its government’s capacity to respond to citizens’ demands. Although the state has recently increased its investment in transportation and environmental infrastructure, that infrastructure is in relatively poor condition. Transportation facilities (roads, bridges, and locks and dams) and environmental infrastructure (landfi lls, water treatment facilities, and sewer lines) are inadequate and in far worse condition than in surrounding states.3 Also, despite improvements in elementary and secondary education, West Virgin- ians’ education achievement levels continue to be among the lowest in the nation. And, although the situation is improving somewhat, many West Vir- ginians’ job skills are outmoded. For the most part, West Virginia has a high school–trained, blue-collar workforce in an era of college-trained, white- collar employment. In addition to all of these diffi culties, the state’s rugged topography increases the cost of development and providing services. The state’s relatively low population density and small workforce further reduce its desirability as a location for many larger companies. The state’s economic diffi culty has caused many West Virginia workers to leave the state to search for work. West Virginia was one of only two states to lose population during the 1980s, falling from 1.9 million people in 1980 to 1.7 million people in 1990. Much of the decline was associated with the out-migration of young adults between the ages of 20 and 34.4 Since then, the state’s population has increased to just 1.8 million.5 Finally, West Virginia lacks both major airports and seaports. This reduces the state’s attractiveness to businesses requiring ready access to global markets. Consequently, the state’s continuing economic problems are often beyond the control of policymakers. 246 Policy Controversies

In this situation, rapid increases in state revenue are unlikely, even when the national economy is ﬂ ourishing. As indicated in the discussion of the state’s budget process, the state government has fully employed its taxation capacity and is still forced to practice budget austerity. Austerity works against state government efforts to provide what investors demand: technically educated workers, a sound infrastructure, lucrative tax incentives, and ready access to large markets. Although the political activities of out-of-state interests, such as their efforts to ﬁ ght environmental laws considered detrimental to their businesses and to keep taxes on businesses as low as possible, have not always been in the best interests of all West Virginians, it cannot be said that they are the primary cause of West Virginia’s economic problems.

Revenue Generation

Besides the economic impediments to the growth that supports citizens’ welfare, another difference between West Virginia and other states is the capacity of the state’s political institutions to generate the revenues necessary to respond to economic and social problems. The state constitution provides an antebellum Jacksonian scheme of governance, including the direct election of a large number of public offi ces, limitations on legislative sessions, restrictions on debt and borrowing, and popular electoral control of local taxation. Thus West Virginia has an institutional legacy that retards strong central management of public policy and the revenues necessary for policy creativity. Constitutional changes in the twentieth century have reduced these restrictions, providing the governor, for example, with greater authority to coordinate state expenditures and to affect policy. However, local government authority remains tied to traditional concepts that make it a housekeeper, keeping public records, keeping the peace, keeping schools open, rather than a policy innovator with the capacity to design programs that address economic and educational problems. Additionally, all forms of local government face severe restrictions on their ability to generate revenue. Even in housekeeping tasks, like replacing decaying roads and sewers, paying teachers, and maintaining school buildings and jails, they are forced to rely heavily on state funds. This revenue generation situation has two important political effects. First, key policy choices have become centered in the hands of the gover- nor and legislature. Their decisions, some affected by the courts, provide revenue and place boundaries on what local governments do. Thus the state government makes the decisions concerning school construction, teacher salaries, jail improvements, sewage plants, and waste disposal. In contrast, Policy Controversies 247 in neighboring states like Maryland, Ohio, or Pennsylvania, these are matters for both state and local government offi cials. Second, with key policy decisionmaking located at the state level, interest groups seeking a more aggressive and activist style of policymaking, especially unions, growth- oriented businesses, and moralistic-minded reformers like those in the environmental movement, focus their efforts on the part-time legislature because they know that local governments typically lack the fi scal capacity and the legal authority to act. How have the state’s governments responded to the economic situation and political context that affect life in the Mountain State? With attention to events from 1985 to 2007—the third gubernatorial term of Arch Moore and the governorships of Gaston Caperton, Cecil Underwood, Bob Wise, and Joe Manchin III—the following section discusses how West Virginia’s state and local governments have attempted to address economic problems. Subsequent sections will discuss how the state has attempted to address its environmental and educational responsibilities.

contemporary economic development politics

As indicated in chapter 2, West Virginians consider jobs and economic development to be the state’s most pressing issue. West Virginia’s economy has lagged behind other states for more than thirty years. The state’s gross state product has grown more slowly than nearly all other states, its poverty rate has remained among the highest in the nation, its labor force participation rate has remained among the lowest in the nation, and its wealth, measured on a per capita income basis, has consistently ranked next to last in the nation for many years. Since 2000 the state’s unemployment rate has improved somewhat and ranged within a percentage point or two of the national average. However, much of that improvement has been due to the way the federal government calculates unemployment, not to an expansion of the state’s economy. Many West Virginians have given up their job search efforts or have moved elsewhere in search of better economic opportunities. Much of the improvement in the state’s unemployment rate has resulted from the federal government’s practice of only counting adults actively seeking employment as being unemployed.6 What have state and local governments done to address this issue? Given its long-term economic diffi culties, West Virginia’s policymakers have been keenly interested in economic development strategies for many years. They recognize that the weakness of the state’s economy has made it diffi cult to generate suffi cient revenue to pay for basic public goods and services 248 Policy Controversies

and to fully fund the twin building blocks of economic activity: the state’s physical infrastructure, including roads, dams, bridges, water lines, and sewers, and its human capital infrastructure, including elementary and secondary education facilities, job training programs, and quality of its higher education system. The state’s relatively narrow tax base, coupled with its relatively high level of state taxation, has left West Virginia’s policymakers with few conventional alternatives to generate revenue. Whereas other states can usually count on economic growth to generate additional revenue or have the ﬂ exibility to raise basic taxes, West Virginia has had to turn to alternative, unconventional ways to generate additional revenue. For example, in recent years the state has increasingly relied on lottery proceeds, settlement funds from a lawsuit ﬁ led against tobacco companies, legalized video lottery proceeds, and increased taxes on tobacco products to provide additional funding for the state’s human capital infrastructure needs, such as scholarships for high-achieving West Virginia high school graduates to attend its state colleges and universities. The state also has raised gasoline taxes and issued bonds to provide additional funding for its physical infrastructure needs. Yet, despite the dearth of money to invest in infrastructure, the state has tried to address three issues linked to economic development and the encouragement of private investments in plants and activities that create jobs: business tax incentives, the taxation of business, and workers’ compensation costs.

The Emphasis on Business Tax Incentives

West Virginia’s policymakers have long recognized the need to diversify the state economy and to expand the state’s tax base. A more diversifi ed economy would enable the state to avoid sudden drops in government revenue when the mining and manufacturing sectors ran into fi nancial diffi culty. A broader tax base would enable the state to bring in additional revenue without having to raise taxes. However, there has been little consensus on how to accomplish these goals. During the 1980s, under the leadership of Governor Arch Moore, the state enacted a number of business tax incentive programs to retain and attract business investment. The incentives were copied from policies developed in other states. They were designed to increase state revenue by encouraging increased business activity in the state. Initially, the tax incentives reduced state tax collections by over $120 million annually. The largest tax incentive program, the Business Investment and Jobs Ex- pansion Tax Credit, called the “super tax credit,” allowed employers that created at least fi fty new jobs to deduct half of their capital investment costs Policy Controversies 249 against their business’s state tax liability. Used primarily by coal companies, the super tax credit reduced state tax revenue by $90 million in 1993 and $60 million in 1998.7 State policymakers also established or increased the fi nancing for a number of low interest loan programs to attract new businesses to the state. Many policymakers questioned the cost-effectiveness of the state’s tax incentive programs. In 1992, each new job generated by the super tax credit program cost the state treasury approximately $106,000 in revenue. During the 1990s, as a percentage of total tax collections, tax credits cost the state more than twice as much as in any other state. Also, some companies earned their super tax credits in questionable ways. For example, a coal company received a $5 million tax credit for reopening a coal mine near Moundsville and hiring 300 nonunion coal miners. At the same time, it closed another mine nearby, laying off approximately 250 umwa coal miners. Union leaders at the closed mine argued that their members were fi red in exchange for the tax credits.8 During the late 1990s, some state legislators argued that the state’s tax incentive programs should be eliminated and the revenue used to reduce the state’s corporate income tax rates. This would enable companies that did not qualify for the tax incentives to compete on an even basis with companies that qualifi ed for the incentives.9 Another proposal was to eliminate the tax incentives, especially the super tax credit program, and spend the funds on the state’s physical infrastructure.

Moving beyond Business Tax Incentives: Taxation

Convinced that the state’s tax structure had not evolved to match the changing nature of the state’s economy, in his second term Governor Cecil Un- derwood created the Commission on Fair Taxation in 1997 to review the state’s tax structure. The Commission identiﬁ ed forty-seven tax incentives in the state tax code, all designed to attract and/or retain business investment in the state. After holding many hearings, the Commission recommended reducing the number of taxes imposed on businesses, such as eliminating the corporate proﬁ ts tax, property taxes on inventory and equipment, and the franchise tax, lowering the rates on remaining taxes, and offering fewer tax preferences. It argued that a simpler, broad-based tax system with fewer taxes and lower tax rates would provide businesses with a greater sense of stability and accountability. It also argued that the state’s tax incentive programs had failed to improve the competitive position of the state’s industries.10 250 Policy Controversies

Much of the political momentum behind the Commission on Fair Taxa- tion ended following Robert Wise’s victory over Governor Underwood in the 2000 gubernatorial election. Governor Wise abandoned the commission’s recommendation to broaden the tax base, but he shared the commission’s judgment that the state’s forty-seven business tax incentives had not improved the state’s economic competitiveness. In 2001, he ordered the West Virginia Development Offi ce to reexamine the state’s business tax incentive programs. The following year, Governor Wise requested and received legislative permission to eliminate eleven of those programs, including the super tax credit program, and replace them with four more targeted and less expensive tax credits: the economic opportunity tax credit, the electric generation tax credit, the manufacturing tax credit, and the research and development tax credit. He also supported a state constitutional amendment, ratifi ed by the voters in 2002, to allow local governments to create Tax In- crement Financing Districts. Local governments were allowed to issue revenue bonds or other obligations to fi nance economic development projects within these districts and to pay off the bonds or obligations with revenue generated by the property taxes and other fees from the new businesses created within the district. West Virginia was one of only four states at that time without some form of local government tax increment fi nancing.11 Governor Wise also asked the West Virginia Development Offi ce to undertake a systematic review of the state’s economic development spending programs. In 2001, the Development Offi ce administered about $100 million spent on various economic development programs, including ones for Business and Industrial Development (business retention visits, marketing trips to trade shows and conventions, etc.), Energy Effi ciency (technical assistance, forums for the exchange of best practices, etc.), the Governor’s Guaranteed Workforce (reimbursing companies for specifi c employee training activities, providing forums for the exchange of best practices, etc.), international trade (at that time, the state maintained foreign trade offi ces in Japan, Germany, and Taiwan to promote the exportation of West Virginia products), downtown revitalization (Main Street program), Workforce In- vestment (providing employment and training opportunities), small business development centers, business loans (through the West Virginia Economic Development Authority), and local leadership capacity (in cooperation with the U.S. Appalachian Regional Commission). The Development Offi ce began the review of the state’s economic development spending programs by commissioning Market Street Services, Inc., to assess the state’s overall economic competitiveness, solicit input from various stakeholders throughout the state, and create an economic development Policy Controversies 251 strategy and implementation plan for the state. The study, “West Virginia: A Vision Shared,” was released on December 14, 2000. It identifi ed four areas that needed to be addressed: building “Intellectual Infrastructure in the Twenty-fi rst Century,” creating a “New Economy,” implementing “Results- Based Government,” and “Building Bridges and Empowering Citizens.” The study also identifi ed twenty goals, fi ve goals for each issue area that needed to be achieved. For example, the fi ve goals for the “New Economy” were to diversify the economy, improve capital formation, increase entre- preneurship, integrate technology, and restructure incentives. The state then undertook an ambitious public outreach program, “A Vi- sion Shared,” to provide West Virginians with an opportunity to fi nd ways to achieve the twenty goals identifi ed in the study. This ongoing effort was coordinated by the West Virginia Council for Community and Economic Development, the private-public sector group that oversees the work of the West Virginia Development Offi ce. As part of this effort, the various administrators of the state’s economic development spending programs were required to retool their programs to ensure that they were focused on the achievement of the goals articulated in the study.12 As part of his effort to address the core components of the state’s economic development spending and tax incentive programs, Governor Wise also received legislative approval in 2002 to jumpstart business investment in the state by issuing $225 million in state revenue bonds, to be repaid by revenue generated from lottery proceeds and the licensing of video poker machines. Forty-eight economic development projects were selected for funding by the West Virginia Economic Development Grant Committee, including $12 million for a baseball park in Charleston, $12.5 million for a biotechnol- ogy development center in Huntington, $13.9 million for a public theater and marina in Morgantown, $12 million for a commerce center in Beckley, and $35 million for an industrial park in Ohio County. The awarding of the funds was delayed pending the outcome of lawsuits fi led by various parties, including some communities upset that their request for funding had not been approved by the Grant Committee and by opponents of legalized gambling. Opponents argued that the manner in which the Grant Commit- tee was appointed and the process they employed in making their selections violated state constitutional standards.13 In 2002, the West Virginia Supreme Court of Appeals ruled in favor of the plaintiffs, forcing the state to revise the manner in which the members of the Grant Committee were appointed and clarifying standards for the selection process. In 2003, the Supreme Court of Appeals validated the new standards, allowing the state Economic Development Authority to issue the bonds, which was done in 2004. 252 Policy Controversies

Workers’ Compensation

At the same time Governor Wise ordered the reexamination of the state’s economic development spending and tax incentive programs, he also focused attention on workers’ compensation. A program found in all states, workers’ compensation provides medical and disability benefi ts to workers injured on the job. Because of the number of West Virginians in dangerous occupations such as coal mining, timbering, and chemicals, the state has had a greater proportion of its residents qualifying for the program’s benefi ts than in most states. Although 1992 legislation changed the program by tightening eligibility standards and standardizing the method for the evaluation of injuries, many business interests viewed the premiums charged by the workers’ compensation program to be a major impediment to business expansion. In 2002, the program collected $560 million in premiums and paid out $750 million in benefi ts. It also had accumulated nearly $3 billion in unfunded liability, and it charged the state’s businesses workers’ compensation premiums that were among the highest in the nation. Moreover, its administrator had announced that further premium rate hikes were inevitable. Business organizations lobbied the governor and state legislators to reduce current premium levels and demanded relief from any further premium rate hikes. Labor organizations argued that the state should not solve the program’s fi nancial diffi culties by reducing disability benefi ts or by making it more diffi cult for injured workers to qualify for benefi ts. In 2003 legislation was adopted that created a Workers’ Compensation Commission to administer the program and a fraud and abuse unit to ensure that employers paid proper premiums and to investigate health-care provider fraud. The state also reduced benefi t rates for several categories of disability and made it more diffi cult for individuals to qualify for permanent total disability benefi ts. These changes improved the program’s cash fl ow, but left the accumulated unfunded liability problem unresolved. When Governor Joseph Manchin III entered offi ce in 2005, he called a special legislative session to address his proposal to solve the workers’ compensation problem by divesting the management of the workers’ compensation system to a private mutual company. The legislature approved the proposal, and it was signed into law on February 16, 2005.14 The state’s Insurance Commission regulates the private management fi rm, and administrative law judges and a special Board of Review consider appeals of the fi rm’s decisions. However, in 2008 the state will allow private fi rms to compete for the provision of workers’ compensation policies to employers. The continuing debate over state economic development policy llustrates Policy Controversies 253 how West Virginia’s state politics operates. Economic development has been on the state’s political agenda for a long time. However, taking action on the state’s tax system, business tax incentives, and the state’s workers’ compensation program proved to be politically diffi cult. Consensus on all three issues was lacking, with business and labor organizations often taking dia- metrically opposed views on how to proceed. As a result, the Underwood administration’s effort at fundamental tax reform never took hold, action on the state’s system of business tax incentives was delayed for years, and changes in the workers’ compensation program waited until a crisis was at hand.

the environment

For many years the destruction of the natural environment of West Virginia proceeded unabated.15 Loggers cut the virgin forest. Hunters devastated the herds of deer and fl ocks of turkeys. Towns and industries dumped sewage in streams. Mines polluted streams and groundwater with the orange stain of acid mine drainage, and they heaped piles of gob and left strip mining pits denuded of vegetation and fi lled with acidic water. But in the 1970s these practices came under political scrutiny. With the adoption of federal legislation to curtail environmental degradation, such as the National Environmental Policy Act (1969), Clean Water Act Amendments (1972, 1977), Clean Air Act Amendments (1970, 1990), and Safe Drinking Water Act (1974, 1986, 1996), the federal government mandated that the state government undertake a series of actions to protect the environment. The enforcement of federal laws by the state has had a signifi cant effect on the state’s land, waters, and air; however, the enforcement has created a series of policy controversies.16 These controversies often have pitted environmentalists against job-generating but polluting industries in a series of political contests that the state has had to try to settle. This section examines three of these confl icts—over water quality, air quality, and land uses.

Water Quality

With the passage of the Clean Water Act, the federal government mandated that West Virginia measure water quality. West Virginia waters have long suffered from damage from metals (mine acid or iron compounds), siltation, and habitat alterations primarily caused by coal mining operations and toxic discharges from chemical plants, mining, chicken processing, and steel and other metal works. Forty-ﬁ ve percent of the state’s population is not connected to a public wastewater system and relies on wells that draw on 254 Policy Controversies

groundwater. Many communities have storm water management and sewer overfl ow problems. Estimates suggest that more than $2 billion is necessary to address the wastewater problem.17 The state government lacks the revenues to address these problems—problems that also retard economic growth. For example, in Jefferson County the lack of water and sewer systems has forced the county to consider limits on residential and commercial growth and has raised housing prices so that the poor have diffi culty fi nding affordable housing. At present the funds for water and sewage projects largely depend on the ability of municipal utility boards and rural public service districts to obtain grants and borrow funds. Also, the West Virginia Water Development Authority serves as a revenue bond bank that provides fi nancing for construction of wastewater and water facilities for municipalities and public service districts. However, its initial $45 million bond issue in 2000 falls far short of the estimated $2 billion long-term needs for clean water and compliance with federal regulations on sewage treatment and storm water management.18 With federal budgetary cutbacks and limited state revenues from bonds and other water and wastewater programs, the local agencies lack the capacity to secure necessary construction funds. With- out such funds they cannot provide the water and sewage disposal facilities required by federal law. Without the capacity to solve the water quality problem, the state’s more rural areas will lack vital elements of the infrastructure, and the municipalities will lack the sewage disposal facilities necessary for large-scale commercial and industrial development.

Air Quality

Air quality in West Virginia is supposed to meet standards set by the federal Clean Air Act Amendments of 1990 and the Resource Recovery and Conservation Act and by the state’s Air Pollution Control Act. The federal government mandates that the state monitor air pollutants, including carbon monoxide, nitrogen dioxide, ground-level ozone, particulates or solid particles in smoke and soot, sulfur dioxide, and toxic air releases from assorted industries. These are monitored at sixteen locales across the state.19 Various federal laws and regulations limit the emission of these pollutants and require that states take action to reduce the pollutants from automobiles and factories. As part of the reduction effort, the state issues permits for air emissions from hazardous waste facilities and industries. It also inspects these facilities and imposes ﬁ nes on violators of emission standards.20 In 2005 eleven counties in the Northern Panhandle, Eastern Panhandle and Ka- nawha Valley failed to attain federal standards on ozone pollution, Hancock Policy Controversies 255

County was in nonattainment for sulfur dioxide, and Brooke and Hancock counties were in nonattainment for particulates. Although any emission permit can be challenged, in West Virginia a primary source of air pollution disputes focus on the large number of coal-fi red power plants. Exploiting the state’s abundant coal resources to supply electricity to the Northeast and Midwest, these plants employ state residents in well-paying utility and mining jobs. However, these plants also emit sulfur dioxide, nitrogen dioxide, and particulates. Both local and out-of-state environmental interest groups and the governments of other states have objected to these emissions. States in the Northeast have charged that coal-fi red factories in West Virginia produce acid rain that pollutes their streams and damages some structures in violation of Article IV of the federal Clean Air Act. Others criticize the factories’ effect on global climate change and public health.21 Acid rain and other forms of power plant emissions have produced a series of confl icts fought out at the local, state, and federal levels. Most of the confl icts have centered on the construction of new power plants, plants that American business deems essential to provide the power needed for economic growth and that state and local governments regard as sources of jobs and revenues from various income, business, and severance taxes. However, the time to prepare the scientifi c data for the multitude of permits needed to construct and operate these plants, the lengthy hearings required to assess permit applications, and the possibility of appeal of permit decisions have afforded environmental groups and northeastern state governments the opportunity to delay or thwart plant construction or expansion. Although recently the federal government has become less aggressive in enforcing clean air standards and energy fi rms have sought assistance from the state for the construction of “scrubbers” or devices to reduce emissions, the status of proposals to expand coal-fi red electrical generation in the state remain uncertain. Several suits against the operators of coal-fi red plants remain in litigation. Additionally, the use of wind turbines for cleaner energy generation has encountered opposition from groups alleg- ing that the windmills kill birds and create visual pollution by marring scenic vistas. Therefore, whether air pollution concerns will retard West Virginia state and local revenues, limit employment in the state, and make the state and nation dependent on foreign sources of energy or whether the pollution is a serious danger to the public remains a live political controversy.

The Degradation of Land

Many West Virginia lands suffer from environmental problems. The federal Surface Mining Control and Reclamation Act (1977) mandates that the state 256 Policy Controversies government must address the problems created by abandoned mine sites, such as mine fi res, highwalls or cliffs left by surface mines, polluted water, and subsidence (sinking) of lands into abandoned underground mines. Other federal laws require the state to evaluate contaminated sites, but the federal government has provided few funds for their remediation. Other land use problems include leaking underground storage tanks and substan- dard or illegal solid and hazardous waste disposal sites.22 The unregulated construction of housing, industry, and commercial businesses and forestry operations have resulted in a series of environmental problems: construction in fl ood plains, traffi c congestion and air pollution, the conversion of land into parking lots and roads that cause heavy rainwater runoff and fl ooding, and the elimination of forests and farmlands that retard runoff. The alleviation of these problems rests with several federal, state, and local agencies. At present, important land use policymaking authority rests in the hands of West Virginia’s county and municipal governments. The core of their jurisdiction is a 1959 state act that defi nes the planning and zoning authority of municipalities and county commissions. This act permits the adoption of planning and zoning ordinances. Such ordinances regulate how property may be used and developed and describe acceptable uses of the land (residential commercial, etc.) in specifi c areas or “zones.” Through zoning ordinances, municipal councils and county commissions can advance the public welfare through various specifi c regulations of the “built” environment. These regulations include rules on the height, bulk, and area of buildings, the features of historic structures and structures in historic districts, the open space around buildings, areas for agriculture, fl ood protection, and open space, and the location of commercial and industrial structures. Also, the ordinance can designate specifi c uses for the land in specifi c districts. A local board of zoning appeals may employ inspectors or administrators to enforce the zoning ordinance. At regular public meetings the board hears appeals of the inspector’s or administrator’s zoning enforcement orders and decisions, requests for exceptions to the terms of the zoning ordinance or “variances,” and limited special exceptions to rules about use in specifi c districts. Additionally, county or regional solid waste authorities must be established. They enforce mandatory waste collection and disposal by residents and businesses, operate landfi lls, and collect litter. Counties also can provide building standards for fl ood plains to meet the requirements of the National Flood Insurance Act. Unlike states such as Pennsylvania and New York, West Virginia has not systematically purchased land for conservation, parks, and recreation. How- ever, the state has adopted several laws to protect the land from erosion and Policy Controversies 257 its waters from siltation. These include requirements that loggers use best management practices to control siltation and that anyone erecting outdoor signs along state highways obtain a permit. Also, the federal government has mandated that state or local governments carry out some federal regulatory programs or follow federal standards that affect land use. Federal policies have caused the adoption of state statutes, standards, or programs that have resulted in a series of land and water regulations. These include state Department of Environmental Protection permit issuance and inspec- tion of industrial and other wastewater discharges into streams, certifi cation that federal construction projects satisfy state water quality standards, and enforcement of the federal Clean Water Act, Safe Drinking Water Act, and other federally mandated state regulations of (1) water quality standards for groundwater, (2) permit procedures for car washes, dam builders, coal dams, blasters, and oil and gas drillers, (3) regulations of assorted spills and discharges of water on the land, (4) regulation of underground mining, mine reclamation, surface mining, and quarrying through permit processes, (5) regulation and permits for the operation of various types of landfi lls and solid waste disposal facilities, (6) regulation of leaking underground storage tanks, and (7) regulation of hazardous waste storage and disposal sites. The state Division of Natural Resources regulates wildlife protection, fi shing, and ginseng gathering. The commissioner of agriculture manages logging regulation, forest fi re control, and nutrient management programs to prevent fertilizers and animal waste from degrading streams.23 Despite this plethora of laws and regulations, three problems restrict the capacity of governments to resolve environmental problems. First, the majority of municipal and county governments do not use their powers to regulate land use. This lack of regulation stems from local political opposition to zoning and from limited revenues that make counties and municipalities unable to employ professional land use planning experts who could devise workable regulations. Second, at the state level, limited revenues and decreases in federal funding of mandated programs have restricted enforcement of existing laws and, especially, efforts to remedy past environmental damage such as acidic drainage from abandoned mines into the state’s streams. Third, it is diffi cult to arrange a political consensus on appropriate ways to protect the environment and yet allow land uses that generate employment and income for investors. The mountaintop removal issue illustrates the political complications of land use regulation. Mountaintop removal is a process of mining coal that requires the blasting of higher ground (“over- burden”) and its removal by heavy equipment in order to reach a coal seam. 258 Policy Controversies

The earth removed in this process (“spoil”) is then used to fi ll in areas below the mine (“valley fi lls”). However, the blasting can damage nearby homes and their supplies of groundwater. It produces deforestation, dust clouds, and the impairment of scenic vistas. Also, the spoil endangers species habi- tats, and the valley fi lls can produce siltation of streams, rapid rain runoff and fl ooding, and the introduction of acidic metals into streams that kill fi sh and destroy wetlands. The size of mountaintop operations in the Southern Coalfi elds and Cen- tral West Virginia increased dramatically in the 1990s. Although federal and state studies of the practice were under way, in 1998 an environmental group, West Virginia Highlands Conservancy, and several citizens fi led a federal lawsuit against the state of West Virginia to force it to stop issuing permits for mountaintop operations. They contended that the valley fi ll operations degraded streams in violation of the federal Clean Water Act and failed to restore mined lands to “approximate original contour” as required by the Surface Mining and Reclamation Act, which the state was supposed to enforce. Eventually the parties settled the suit without a trial. In part the settlement and an associated memorandum of agreement required the federal and state governments to collaborate in developing a policy, based on an environmental impact statement, to minimize the effect of mountaintop removal operations on streams, fi sh, and wildlife. Subsequently the U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, U.S. Offi ce of Surface Mining, and West Virginia Department of Environmental Protection jointly conducted or funded more than thirty technical studies. Then they prepared a draft environmental impact statement to guide the regulation of mountaintop removal practices. After releasing the draft in 2003, the agencies received 176 oral statements at public hearings, 712 letters, and 83,095 form letters that contained comments from individuals, businesses, and local governments. The agencies then revised the statement and fi nalized it in October 2005. It contained three “action alternatives” to minimize the adverse effects of mountaintop removals and valley fi lls. As discussions about the environmental impact statement went forward, environmental groups fi led additional lawsuits that resulted in a federal Court of Appeals ruling that allowed the continued issuance of permits for valley fi lls by the Corps of Engineers. The Court of Appeals later upheld the use of general nationwide permits (“Section 402” permits) rather than individual site permits (“Section 404” permits) for valley fi lls. Favored by mining fi rms and the Bush administration because one permit could cover many rather than just one mining operation, this decision allowed mountaintop Policy Controversies 259 removal with less documentation and fewer public hearings. Additional rules adopted by the federal Offi ce of Surface Mining at the behest of the Bush administration also essentially eliminated the requirement that restricted mining within 100 feet of a stream, the “stream buffer rule.”24 Fol- lowing a 2006 U.S. Supreme Court decision that failed to offer a majority opinion on the defi nition of protected waters and the scope of Corps of En- gineers authority to protect watersheds from pollution and valley fi lls,25 the federal Environmental Protection Agency and Corps of Engineers revised the rules to accommodation with the apparent meaning of the justices’ opinions. However, after a lobbying effort by mine owners and other groups, the Bush administration had the agencies issue fi nal rules that more narrowly protected streams against valley fi lls and other environmental harms.26 Although litigation continues and a fi nal solution to the mountaintop removal confl ict has yet to be reached, this process illustrates the depth and breadth of the controversy over just one form of land use and one effort to create an environmental policy. With multiple interests and multiple governments and agencies involved, political solutions to land use disputes about zoning, resource extraction, and mountaintop removal are never easy and often are fraught with continuing controversy.

Political Capacity and the Environment

With many environmental problems stemming from abuses of the past or associated with economic change, environmental improvements affect economic growth and are affected by economic growth. The result is group conﬂ ict. However, even if some intergroup accommodations are made, because of the state’s revenue crunch and decreasing funds from the federal government, the state has a limited capacity to provide the costly cleanup of the environmental harms of the past and to construct the infrastructure to provide an environmentally secure future. Undoubtedly these conditions will affect future economic growth and public health in the state.

public education

West Virginia’s public education system is troubled but improving. Long the province of county boards of education, the improvement can be traced to the increasing efforts of the state and federal governments to establish public education policies and provide educational funding. Since the 1980s there is evidence of overall improvement in the state’s commitment to elementary and secondary education. The state has markedly 260 Policy Controversies

improved its expenditures per pupil in elementary and secondary education, moving from fortieth among the states in 1982–83 to eighteenth in 2004–5. By 2005, the expenditure per pupil was $9,005—above the national mean of $8,701.27 Additionally, in 2006–7 more than 81 percent of West Virginia schools (701 schools) met Adequate Yearly Progress (ayp) standards set by the federal government.28 West Virginia’s high school graduation rate is currently about 85 percent. In 2006 West Virginia’s college-bound seniors also tested only slightly below the national average on the American College Test (act), the most commonly used achievement test for state students considering college. However, compared with other states, West Virginia students were much less likely to take college preparatory courses in high school. This helps explain why fewer of West Virginia’s high school students enter college when compared with other states.29

State Educational Policies

In the early 1990s the Caperton administration made a series of changes in its education policy that affected the funding, facilities, and operation of the state’s schools. The impetus for these policy changes, which affected all grade levels and higher education, came from several sources outside of government. In March 1990 the West Virginia Education Association (wvea) staged an illegal six-day statewide strike over salaries.30 At that time, teachers’ salaries were ranked forty-ninth in the nation, at an average of $22,842. As the schools closed, Governor Caperton called a special legislative session. Recognizing that school districts lacked the fi scal resources necessary to pay teachers at anywhere near national averages, the state government adopted a three-year, state-funded program to increase teachers’ salaries by $5,000. As part of the “deal,” the legislation included provisions to reduce the teaching workforce as student populations declined. By 1993–94, teachers’ average salary had risen to $30,547, thirty-third in the nation. Also, the state expanded computer education in primary schools, established a computerized state library network, and, as an incentive for students to stay in school, withheld driver’s licenses from high school drop- outs under age eighteen.31 In 1989 the state also initiated a school construction program to replace dilapidated school buildings and those having no special facilities to accommodate the needs of the disabled. The management of the construction program, assigned to a school building authority, soon created political confl ict. Granted only a limited budget by the legislature, the authority undertook what it calls the “prudent and resourceful expenditure of state Policy Controversies 261 funds.” The result was that it granted construction funds only to the county school boards that provided detailed and effi cient construction plans. Mon- ey fl owed to county school construction proposals that were accompanied by professionally designed feasibility studies and that met requirements for “economies of scale.” To meet these standards, counties that made unpro- fessional proposals or that failed to consolidate schools in areas of declining enrollment, which existed in most counties, faced receiving no funds. Thus county school boards either had to maintain obsolete facilities or consolidate schools—an unpopular action because it threatened local social and athletic traditions and increased the time students spent on school buses. However, supported by court rulings in support of authority actions, consolidation became the choice in most counties.32 Problems with the funding of public education remain crucial. Efforts to improve teachers’ salaries have lagged behind national averages, and some teachers reacted with a sick-out to object to the small salary increase provided in 2007. Inadequate and sometimes dangerous school buildings continue to be used in some counties. Revenues for the purchase of new technology do not exist. Federal Intervention

Historically the federal government has not provided much funding or participated in the regulation of public education. During the latter half of the twentieth century, federal programs provided funds for specialized support for poor and disabled students, such as school breakfast and lunch programs, special grants for selected k–12 and higher education programs and research, higher education student loan programs such as Pell Grants, and vocational education grants. However, in 2003 the federal role changed. In the No Child Left Behind Act, Congress approved much greater federal oversight of state and county boards of education. The act required states to describe how they will close achievement gaps and make sure all students achieve academic profi ciency. The state and school boards must produce annual report cards that inform parents and communities about state and school progress. Schools that do not make progress must provide supplemental services, such as free tutoring or after-school assistance; take cor- rective actions; and, if still not making adequate yearly progress after fi ve years, make dramatic changes to the way the school is run. Also, the law allowed parents to choose other public schools or take advantage of free tutoring if their child attends a school that needs improvement or is unsafe. It also supports the growth of more independent charter schools and funds some services for children in private schools. Consequently, West Virginia 262 Policy Controversies schools have had to spend funds to devise testing programs and remedial actions to meet federal mandates. Nonetheless, West Virginia was one of the fi rst states in the nation to receive full approval for its plan to reach the goals set forth by the No Child Left Behind Act—a plan called West Virginia Achieves. As noted above, in the 2006–2007 school year more than 81 percent of West Virginia schools met the Adequate Yearly Progress standards—a test of student achievement—which are part of West Virginia Achieves. However, whether the state and county school boards will have the funds to meet all the goals of the federal legislation in all of the state’s elementary and secondary schools remains unanswered.33

Higher Education

The state also maintains a system of public higher education. About 93 percent of the college and university students in West Virginia (87,066 students in 2007) attend the ten state college and universities and the nine two-year branch campuses and community colleges.34 In 1967–68 the state devoted 13.9 percent of its general revenue budget to higher education, but the allocation had dropped to 11.3 percent in 1989–90, the lowest rate in the southern United States. Moreover, public higher education faculty and staff compensation was far below both national and southern averages.35 This resulted in high faculty-student ratios, insufﬁ cient libraries, computer systems, and laboratories, and the loss of faculty to other states. By the end of the third administration of Governor Moore in 1988, higher education faculty even faced layoffs in midsemester. In 1989, with the ﬁ nancial support of a civic trust, experts from the Car- negie Foundation for Higher Education conducted a study of higher education in the state.36 Governor Caperton and the legislature heartily adopted most of the experts’ recommendations, primarily because most of them did not require large sums of money.37 Legislation split higher education into two administrative units, each with a separate board of trustees, chancellor, and administrative staff in Charleston. The University System of West Virginia, designed to manage the state’s research institutions, consisted of West Virginia University (including its branch campus at Parkersburg, the Potomac State College, the West Virginia Institute of Technology) and Mar- shall University. However, the legislature granted the universities greater independence in 2005. The primarily four-year institutions came under a separate State College System. Currently a Higher Education Policy Com- mission oversees all institutions.38 Policy Controversies 263

Then, in 1992 Governor Caperton established a Higher Education Action Team (heat) to hold hearings around the state to study higher education’s problems. Most of the heat report’s recommendations were subsequently adopted in 1993. The most noticeable result was a three-year $5,000 pay raise for faculty and staff. Again, like the teachers’ raise, part of the “deal” was a requirement that state institutions of higher education have a 10 percent greater student-faculty ratio than similar schools in the South to “increase productivity,” and that the institutions be more frequently subjected to assessments.39 However, the economic recession of 2002–3 imposed fi scal limitations on state spending. Subsequently, the legislature ended efforts to continue the productivity/pay raise program, and Governor Wise and the legislature decreased funding for higher education.40 From fy2003 to fy2005 West Virginia ranked lowest of the fi fty states in change of state appropriations with a 10.6 percent decrease. This action forced state colleges and universities to curtail programs and reduce faculty, raise tuition, and limit salary increases for research faculty at a time when faculty salaries across the nation were escalating. Although the state created a promise scholarship program to assist students with a record of academic achievement, this program did not increase the operating budget to keep pace with infl ation. Faculty salaries remained 19.7 percent below the national average and the lowest among southern states.41 Also, increasing healthcare deductions from salaries eroded the effect of any salary adjustments on take-home income. An experience-based salary increase in 2006 offered very limited improvement. The fi scal incapacity of the state government thus continues to impede the growth of the college-educated workforce and university-based technological research that is essential to economic growth in postindustrial America.

Political Capacity and Public Education

The changes made at all levels of public education in the state illustrate an increase in the governor and legislature’s hand in education policy. Al- though the education agenda was set in part by the federal government, and the state’s ﬁ nancial difﬁ culties often prevent more than incremental changes in policy, the governor and the legislature have tried to respond to the public’s demand for a stronger educational system. However, the limitations on property taxation and other sources of revenue prevent greater investment in education. 264 Policy Controversies

policy change and the future of west virginia

Primarily a consequence of the state’s inability to generate the revenues necessary to implement policies that go beyond incremental, short-term, “Band-Aid” relief efforts to address the state’s chronic unemployment and underemployment problems, to protect the environment, and to improve its public education systems, West Virginia’s state and local offi cials face limitations on their capacity to devise effective policies. The state legislature and governor have considered several options for policy change, some emanating from information or demands by the federal government as with environmental and education policy, some from interest groups like the teachers’ pay raise, and some from professional advisory groups like the Carnegie Foundation. Clearly West Virginia’s state government leadership has the capacity to recognize policy problems and to adapt to new information about ongoing policies. However, in nearly every instance, fi scal limitations affected the implementation of policy change and the consideration of more comprehensive policy changes. Current taxation policy has prevented state governmental insolvency, but it has not provided the revenue necessary to address fully the state’s diffi culties in meeting the rising costs of Med- icaid and needed infrastructure development. Also, it has not provided the revenue necessary to create a state-of-the-art educational system necessary to attract business and investment in a highly competitive global economy. It also has failed to provide local governments with the revenue necessary to become a full partner in economic development efforts or to undertake, on a routine basis, innovative policy initiatives concerning land use, infrastructure development, public education, and other quality of life issues. The solution to the funding crisis for government services appears to be the core continuing issue facing state leaders today. In an era when people have a general sense of entitlement to government services without a cor- responding willingness to pay for those services, West Virginia public offi cials have little incentive to generate new revenues through taxation. Also, the traditionalist constitutional restrictions on state and local revenue creation precludes revenue enhancement at the local level. In recent decades, the federal government has provided some help. The relocation of federal agencies, such as the fbi fi ngerprint laboratory to West Virginia, a federal decision encouraged by the state’s congressional delegation, has generated some jobs and state revenue. But as Congress adopts policies that restrict increases in Medicaid, welfare, education, environmental, and economic development funding, West Virginia faces even more fi scal problems in the future. This has forced the state and local governments to continue to rely on Policy Controversies 265 and to seek more revenues from controversial sources, such as casino gaming, and state offi cials are likely to continue to engage in more cost cutting. Cost cutting, long in vogue in the state, means that the state will likely continue to maintain its employees’ salaries well below national averages and have too few staff to effectively manage many of its programs. This practice already occurs to a noticeable degree in the state police, environmental regulatory enforcement, state parks, higher education, consumer protection, and the judiciary. Consequently, the solution to the state’s policy problems is intertwined with the complexities of the politics of revenue creation. As noted in previous chapters, West Virginia has developed the appropriate political organizations to address the public’s needs, but it lacks the resources necessary to address those needs fully. Unless there is a miraculous restructuring of the state’s economy, massive new federal aid, or a willingness to increase taxes signifi cantly, it will not be possible to invest in programs that in the long term could bring a brighter future for all West Virginians.

Suggestions for Further Reading

In searching for the most useful published materials about contemporary West Vir- ginia politics and government, readers will ﬁ nd that the secondary publications on West Virginia politics are scarce, are dated, or have theoretical or data collection problems. For further information, the reader should consult the notes to this book or contact the West Virginia Institute for Public Affairs, West Virginia University, Box 6317, Morgantown wv, 26506-6317 (www.polsci.wvu.edu/ipa/) for copies of its publications. Copies of the West Virginia Public Affairs Reporter, the Technical Reports Series, and the Monograph Series referenced below and other publications are available online at the Institute’s Web site.

current events

Persons interested in current political events will ﬁ nd the most extensive information in the daily and Sunday issues of the Charleston Gazette. Also useful is the State Journal. These newspapers and others are accessible through the Web site of the West Virginia Institute for Public Affairs (www.polsci.wvu.edu/wv/wvlinks .html#Daily), but many newspapers charge a fee for access to speciﬁ c articles. A relatively small number of reporters for the Gazette and the Associated Press provide many of the stories on state politics published in other newspapers in the state, so an important alternative source of current events information is West Virginia Public Broadcasting. For a schedule of its televised programs on public affairs, such as Outlook, Inside Appalachia, and coverage of the legislature when it is in session, go to www.wvpubcast.org/tv/default.asp. For West Virginia news on radio, consult the schedule at www.wvpubcast.org/radio/default.asp.

general studies and bibliographies

The massive study by Claude J. Davis, Eugene R. Elkins, Carl M. Frasure, Mavis Mann Reeves, William R. Ross, and Albert L. Sturm, West Virginia State and Local 268 Suggestions for Further Reading

Government (Morgantown: Bureau for Government Research, West Virginia Uni- versity, 1963), was once the primary study of West Virginia government. Its descrip- tions of the administration of state programs are obsolete, and it lacks information on nongovernmental political behavior, but it has value for the historical study of state politics. A. Jay Stevens, Politics and Government in West Virginia: An Annotated and Selected Bibliography, Publication 63 (Morgantown: Bureau for Government Research, West Virginia University, 1972), although dated, is an excellent guide to the publications of state government, dissertations and theses, publications of the Bureau for Government Research, and other miscellaneous publications about West Virginia politics to 1972. For recent publications on West Virginia and Appalachia, see the Appalachian Studies Bibliography 1994–2004, and other resources accessible at www.libraries.wvu.edu/appalachian/web.htm. The best general collection of state documents is in the West Virginia Collection of West Virginia University Li- braries, sixth ﬂ oor, Downtown-Wise Library Complex, University Avenue, Morgan- town. Historical photographs and a wide variety of historical documents and data about the state are accessible at the Web site of the library (www.wvu.edu/libraries/ wvcollection). Summaries of West Virginia’s historical personalities and events and other information about life in the state is found in Ken Sullivan, ed., The West Vir- ginia Encyclopedia (Charleston: West Virginia Humanities Council, 2006).

demographic and economic information Donald R. Adams, Historical Analysis of Major West Virginia Statistics (Morgan- town: West Virginia Center for Economic Analysis and Statistics, College of Busi- ness and Economics, West Virginia University, 1986), provides a useful compilation of economic and demographic data in tabular form. Also, the West Virginia Uni- versity Bureau of Economic Research publishes economic data, special economic studies, and forecasts, accessible at www.bber.wvu.edu/. Robert Jay Dilger and Tom Stuart Witt’s West Virginia in the 1990s: Opportunities for Economic Progress (Morgantown: West Virginia University Press, 1993) is the most recent collection of scholarly studies of almost all aspects of the contemporary West Virginia economy. For data on the economy, readers should consult the West Virginia Bureau of Em- ployment Programs, West Virginia Economic Summary, a periodical issued monthly with employment and economic data. It and other data on employment and income are accessible at www.wvbep.org/bep/LMI/default.htm. Health data are compiled in West Virginia Department of Health and Human Resources, West Virginia Vital Statistics (Charleston: West Virginia Department of Health and Human Resources, yearly), also located at www.wvdhhr.org/bph/oehp/vital02/index.htm; and West Vir- ginia Research League, Statistical Handbook (Charleston: West Virginia Research League, yearly). West Virginia Population Estimates and Projections (Morgantown: Regional Research Institute, West Virginia University), located at www.rri.wvu.edu/ wvpop4.htm, has data and discusses projected demographic change in the state. Suggestions for Further Reading 269

political history and political culture

Otis K. Rice and Stephen K. Brown, West Virginia: A History (Lexington: University Press of Kentucky, 1993), is the standard state history. It is a book that is much more informative on events in the nineteenth century. It generally does not improve on the examination of nineteenth-century politics presented in Charles H. Ambler and Fes- tus P. Summers, West Virginia: The Mountain State, 2d ed. (Englewood Cliffs nj: Prentice-Hall, 1958), which is an older but still useful history of the state. No quality historical treatment exists of the labor movement, the New Deal, or late twentieth- century West Virginia politics. For additional discussion of the historical literature about the state, see Ronald L. Lewis and John C. Hennen Jr., eds., West Virginia History: Critical Essays on the Literature (Dubuque: Kendall/Hunt, 1993), and the Web site of the West Virginia Division of Culture and History at www.wvculture .org/history/publications.html. Charles H. Ambler, Sectionalism in Virginia from 1776 to 1861 (New York: Rus- sell and Russell, 1964), and Otis K. Rice, The Allegheny Frontier: West Virginia Beginnings, 1730–1830 (Lexington: University Press of Kentucky, 1970), are ﬁ ne scholarly studies of politics and life in antebellum western Virginia. Richard Orr Curry, A Study of Statehood Politics and the Copperhead Movement in West Vir- ginia (Pittsburgh: University of Pittsburgh Press, 1964) is the best study of statehood politics and should be supplemented by reading Curry’s “Reappraisal of State- hood Politics in West Virginia,” Journal of Southern History 28 (November 1962): 403–21. George E. Moore, A Banner in the Hills: West Virginia’s Statehood (New York: Appleton-Century-Crofts, 1963), covers the same topic less thoroughly. De- spite a heavy emphasis on class politics, John Alexander Williams, “The New Do- minion and the Old: Ante-Bellum and Statehood Politics as the Backyard of West Virginia’s ‘Bourbon Democracy,’” West Virginia History 33 (1971–72): 317–407, and Williams’s West Virginia and the Captains of Industry (Morgantown: West Vir- ginia University Press, 1976) describe the passage from the politics of unionists and secessionists to the politics of labor-management conﬂ ict. Ronald L. Lewis, Transforming the Appalachian Countryside: Railroads, Defor- estation, and Social Change in West Virginia, 1880–1920 (Chapel Hill: University of North Carolina Press, 1998), provides a valuable perspective on the origins of resource exploitation in the state. Ken Fones-Wolf and Ronald L. Lewis, eds., Trans- national West Virginia: Ethnic Communities and Economic Change, 1840–1940 (Morgantown: West Virginia University Press, 2002), has chapters on the experiences of immigrants to West Virginia. Phil Conley, History of West Virginia Coal Industry (Charleston: Education Foun- dation, 1960), is only an overview of a topic that deserves more comprehensive scholarly examination. David Alan Corbin, Life, Work, and Rebellion in the Coal Fields: The Southern West Virginia Miners, 1880–1922 (Urbana: University of 270 Suggestions for Further Reading

Illinois Press, 1981), is a valuable social history. Keith Dix, What’s a Coal Miner to Do? The Mechanization of Coal Mining (Pittsburgh: University of Pittsburgh Press, 1988), describes change in the coal industry prior to World War II. Richard D. Lunt, Law and Order vs. the Miners: West Virginia, 1907–1933 (Hamden ct: Archon Books, 1979), introduces the reader to the labor confl icts of the early twentieth century. Curtis Seltzer, Fire in the Hole: Miners and Managers in the American Coal Industry (Lexington: University Press of Kentucky, 1985), offers a comprehensive overview of confl ict in the coal industry to the 1980s. Joe William Trotter Jr., Coal, Class, and Color: Blacks in Southern West Virginia, 1915–32 (Urbana: University of Illinois Press, 1990), is a fi ne social history of African American life in the coal towns. Richard A. Brisbin Jr., A Strike Like No Other Strike: Law and Resistance during the Pittston Coal Strike of 1989–1990 (Baltimore: Johns Hopkins University Press, 2002), carries the story of coal mining forward to the twenty-fi rst century.

political behavior, elections, parties, and interest groups Richard A. Brisbin Jr. and Robert Jay Dilger, “Citizen Evaluations of Government in West Virginia: The 1992 West Virginia Political Survey,” West Virginia Public Affairs Reporter 10, no. 1 (Winter 1992): 13–17, and Thomas K. Bias, Richard A. Brisbin Jr., and Kevin M. Leyden, “Citizen Evaluations of West Virginia Government: Sta- bility and Change, 1992 to 2005,” West Virginia Public Affairs Reporter 23, no. 1 (2006): 1, provide the only comprehensive study of contemporary political attitudes in West Virginia. On elections, the only contemporary compilation of information is Ken Hechler, “Financing Elections: West Virginia, the States, and the Nation,” West Virginia Public Affairs Reporter 7, no. 3 (Summer 1990): 1–7. On political parties, see Lawrence J. Grossback and Allan S. Hammock, “Overcoming One-Party Domi- nance: How Contextual Politics and West Virginia Helped Put George Bush in the White House,” Politics and Policy 31 (September 2003): 420–21, and John David Rausch and Mary S. Rausch, “West Virginia: In Search of the Religious Right,” in God at the Grass Roots, 1996, ed. Mark J. Rozell and Clyde Wilcox (Lanham md: Rowman and Littleﬁ eld, 1997). For information on efforts to control political corruption, see Michael W. Carey, Larry R. Ellis, and Joseph F. Savage Jr., “Federal Prosecution of State and Local Of- ﬁ cials: The Obstacles to Punishing Breaches of the Public Trust and a Proposal for Reform, Part One,” West Virginia Law Review 94 (Winter 1991–92): 301–67; Robert T. Hall, “The West Virginia Governmental Ethics Act,” West Virginia Public Affairs Reporter 6, no. 1 (Winter 1989): 1–7, and the Web site of the West Virginia Ethics Commission (www.wvethicscommission.org).

intergovernmental relations No comprehensive contemporary treatment of this topic exists. W. W. Kaemp- fer, Federal Aid in West Virginia: Its Impact on State Government, Publication 15 Suggestions for Further Reading 271

(Morgantown: Bureau for Government Research, West Virginia University, 1956), is dated but useful for historical considerations. Information on recent federal expenditures by state are located at www.whitehouse.gov/omb/budget/fy2006/bis.html. Several able studies of the Appalachian Regional Commission exist, including Michael Bradshaw, The Appalachian Regional Commission: Twenty-ﬁ ve Years of Government Policy (Lexington: University Press of Kentucky, 1992); Steven How- ard Haeberle, “The Appalachian Regional Commission: Evaluating an Experiment in Creative Federalism,” PhD diss., Duke University, 1981; Donald N. Rothblatt, Regional Planning: The Appalachian Experience (Lexington ma: D. C. Heath, 1971); Stuart Seely Sprague, ARC: From Implementation to Payoff Decade and Be- yond (Morehead ky: Appalachian Development Center, Morehead State University, 1986). See also the Commission’s Web site, www.arc.gov/index.jsp, for general information and access to research reports, data, and Appalachia magazine.

constitutional eevelopment

The Constitution of West Virginia is accessible at www.legis.state.wv.us/WVCODE/ WV_CON.cfm. It is available with helpful annotations in The West Virginia Code, vol. 1 (Charlottesville va: Michie Co., yearly) or through legal Web sites such as Lexis/Nexis Legal Research or Westlaw. Also very useful is Robert M. Bastress, The West Virginia Constitution: A Reference Guide (Westport ct: Greenwood Press, 1995). Readers should consult the following documentary and secondary sources on its Virginia origins: Robert P. Sutton, Revolution to Secession: Constitution Mak- ing in the Old Dominion (Charlottesville: University Press of Virginia, 1989); Pro- ceedings and Debates of the Virginia State Convention of 1829–1830 (Richmond va: S. Shepherd, 1830); Dickson D. Bruce Jr., The Rhetoric of Conservatism: The Virginia Convention of 1829–30 and the Conservative Tradition in the South (San Marino ca: Huntington Library, 1982); and Journal, Acts, and Proceedings of a General Convention of the State of Virginia Assembled at Richmond on Monday, the Fourteenth Day of October, Eighteen Hundred and Fifty (Richmond va: W. Culley, 1851). On West Virginia constitutions, consult Charles H. Ambler, Frances Haney At- wood, and William B. Mathews, eds., Debates and Proceedings of the First Con- stitutional Convention of West Virginia, 3 vols. (Huntington wv: Gentry Brothers, n.d.); “Constitution of West Virginia—1861–1863” and “Constitution of West Vir- ginia—1872,” in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, ed. Francis Newton Thorpe (Washington: Govern- ment Printing Ofﬁ ce, 1909); Journal of Constitutional Convention, Assembled at Charleston, West Virginia, January 16, 1872 (Charleston: Henry S. Walker, 1872). Albert L. Sturm, The Need for Constitutional Revision in West Virginia, Publication 272 Suggestions for Further Reading

1 (Morgantown: Bureau for Government Research, West Virginia University, 1950), and Albert L. Sturm, Major Constitutional Issues in West Virginia, Publication 21 (Morgantown: Bureau for Government Research, West Virginia University, 1961), are dated critical analyses of the West Virginia Constitution.

the legislature

The legislature’s Web site, www.legis.state.wv.us/, provides basic information on the legislative process and various documents about pending legislation, legislative membership, committees, schedule, and operations and the Court of Claims. The biennial edition of the Manual of the Senate and House of Delegates, published by the House of Delegates, contains a wealth of historical information as well as much detail on the current members and structures of the legislature. Christopher Z. Mooney, “The West Virginia State Legislature,” in West Virginia’s State Govern- ment: The Legislature, Executive, and Judicial Branches, Institute for Public Affairs Monograph Series no. 5 (Morgantown: Institute for Public Affairs, West Virginia University, 1993), 1–26, is an overview of the contemporary legislature. For further information on the contemporary West Virginia state legislature, see Patricia Bradley, “Commentary: Some Thoughts on My Experiences as a Woman in the West Virginia House of Delegates,” in Government and Politics in West Virginia, ed. James R. Forrester (Needham ma: Ginn, 1989); David B. McKinley, “Problems and Prospects Facing the Republican Party in the House of Delegates,” in Government and Politics in West Virginia, ed. James R. Forrester (Needham ma: Ginn, 1989); Suzanne Tewksbury, “Frasure-Singleton Student Legislative Program Manual,” in Government and Politics in West Virginia, ed. James R. Forrester (Needham ma: Ginn, 1989). governor and administration

The executive branch Web site, www.wv.gov/sec.aspx?pgID=44, has connections to the governor, the independent executive ofﬁ cers, and the state agencies, boards, and commissions; the state agency Web site is www.wv.gov/sec.aspx?pgID=60&list. E. Robert Jay Dilger, “The Governor’s Ofﬁ ce in West Virginia,” in West Virginia’s State Government: The Legislature, Executive, and Judicial Branches, Institute for Public Affairs Monograph Series no. 5 (Morgantown: Institute for Public Affairs, West Virginia University, 1993), 27–58, is the only contemporary evaluation of the governorship. David Bingham and John E. Tyler, “West Virginia State Government Organization,” West Virginia Public Affairs Reporter 2, no. 1 (February 1977): 1–8, has been made obsolete by later organizational changes. John G. Morgan, West Vir- ginia Governors, 1863–1980, 2d ed. (Charleston: Charleston Newspapers, 1980), contains descriptive information on each governor. A more critical perspective on governors in the second half of the twentieth century is Thomas F. Stafford, Suggestions for Further Reading 273

Afﬂ icting the Comfortable: Journalism and Politics in West Virginia (Morgantown: West Virginia University Press, 2005).

budgetary and fiscal politics

Most recent budgetary information is found at the Web site of the West Virginia State Budget Ofﬁ ce, www.wvbudget.gov/. David K. Brown, “Budgetary Realities in Aging Programs: A State Perspective,” photocopy, West Virginia Commission on Aging, 1992, and Christopher Z. Mooney, “The West Virginia State Budget Pro- cess,” West Virginia Public Affairs Reporter 11, no. 1 (Winter 1994): 2–16, have supplanted earlier studies like Ivor F. Boiarsky, The Budget . . . A Management of Resources (Charleston wv: Legislative Ofﬁ ce of Public Information, 1977), and Herman Mertins Jr. and David G. Williams, West Virginia Budgeting: Problems and Possibilities (Morgantown wv: Bureau for Government Research, 1971). Patrick J. Chase and Robert Jay Dilger, “West Virginia’s State Taxes: A Comparative Analy- sis,” West Virginia Public Affairs Reporter 8, no. 4 (Fall 1991): 1–10, introduces the reader to West Virginia tax practices.

judiciary

The Web site of the Supreme Court of Appeals, www.state.wv.us/wvsca, contains basic information on all state judicial institutions, the most recent statistics on the operations of all of the state’s courts, the opinions of the Supreme Court of Ap- peals, and other information. Through this site it is possible to view live Webcasts of the oral arguments of the Supreme Court of Appeals at www.state.wv.us/wvsca/ Webcast.htm. The West Virginia State Bar Web site contains information on lawyers and lawyer discipline (www.wvbar.org). Although the data is now dated, Richard A. Brisbin Jr., “The West Virginia Judiciary,” in West Virginia’s State Government: The Legislature, Executive, and Judicial Branches, Institute for Public Affairs Mono- graph Series no. 5 (Morgantown: Institute for Public Affairs, West Virginia Univer- sity, 1993), 59–125, greatly extends the framework of analysis in this book. More recent data that supplement this study are found in Richard A. Brisbin Jr. and John C. Kilwein, “The Future of the West Virginia Judiciary: Problems and Policy Op- tions,” West Virginia Public Affairs Reporter 23, no. 3 (October 2006): 2–14. John Patrick Hagen, “Policy Activism in the West Virginia Supreme Court of Appeals, 1930–1985,” West Virginia Law Review 89 (Fall 1986): 149–65, discusses judicial policymaking from the vantage point of political science.

county and municipal government

The West Virginia Institute for Public Affairs lists some county and local Web connections at www.polsci.wvu.edu/wv/wvlinks.html#Counties. Other useful recent information on county and local government is accessible from the County 274 Suggestions for Further Reading

Commissioners’ Association of West Virginia site at www.polsci.wvu.edu/ccawv/ index.html, the West Virginia County Association site at www.wvcounties.org/, and the West Virginia Municipal League at www.wvml.org/. Mavis Andree Mann (Reeves), The Structure of City Government in West Vir- ginia, Publication 12 (Morgantown wv: Bureau for Government Research, 1953), and Harold J. Shamburger, County Government and Administration in West Virgin- ia, Publication 6 (Morgantown: Bureau for Government Research, 1952), are dated but still have valuable historical information. Dale Colyer, Anthony Ferrise, David White, and Hettiarachchige Banduratne, Property Taxes in West Virginia, Institute for Public Affairs Monograph Series no. 4 (Morgantown: Institute for Public Af- fairs, West Virginia University, 1991), and David White, “The Property Tax in West Virginia: A Review and Evaluation,” West Virginia Public Affairs Reporter 8, no. 3 (Summer 1991): 1–12, discuss local governmental ﬁ nance in West Virginia.

policy issues

For details on program administration by speciﬁ c departments, contact the state agency for its annual reports and other publications. A list of executive agencies and their addresses is available in the West Virginia Bluebook, published semiannu- ally or at www.wv.gov/sec.aspx?pgID=44. Dilger and Witt, eds., West Virginia in the 1990s, cited above, and Institute for Public Affairs publications discuss public policies in the state (all are accessible at www.polsci.wvu.edu/IPA/reporter.html). On economic policy, see Anthony J. DeFrank and Robert D. Duval, “West Virginia in a Global Economy: The Impact of Foreign Trade and Investment,” West Virginia Public Affairs Reporter 6, no. 2 (Spring 1989): 1–9. On health policy, see Anthony J. DeFrank and Allan S. Hammock, “The Health Care Crisis and Medical Liability in West Virginia,” West Virginia Public Affairs Reporter 7, no. 1 (Winter 1990): 1–10. On environmental issues, see Carla Dickstein and Greg Sayre, The Socioeconomic Impacts of Landﬁ lls, Technical Report no. 6 (Morgantown: Institute for Public Af- fairs, West Virginia University, 1989); Susan Hunter, The Acid Rain Controversy: Policy Strategies for West Virginia and the Nation, Institute for Public Affairs Mono- graph Series no. 2 (Morgantown: Institute for Public Affairs, West Virginia Uni- versity, 1990); Richard A. Brisbin Jr. and Susan Hunter, Planning for the Future: An Introduction to Land Use Policy Options for West Virginia, Institute for Public Affairs Monograph Series no. 7 (Morgantown: Institute for Public Affairs, West Vir- ginia University, 2004).

appalachian politics and society

Readers will gain some insight into West Virginia politics by a careful but skeptical reading of the Appalachian studies literature. Criticisms of these works appear in the introduction to this book. Important works include Appalachian Land Ownership Suggestions for Further Reading 275

Task Force, Who Owns Appalachia? Landownership and Its Impact (Lexington: University Press of Kentucky, 1983); Richard A. Ball, “A Poverty Case: The Anal- gesic Subculture of the Southern Appalachians,” American Sociological Review 33 (December 1968): 885–95; Allen W. Batteau, ed., Appalachia and America: Autono- my and Regional Dependence (Lexington: University Press of Kentucky, 1983); Al- len W. Batteau, The Invention of Appalachia (Tucson: University of Arizona Press, 1990); Bruce Ergood and Bruce E. Kuhre, eds., Appalachia: Social Context Past and Present (Dubuque: Kendall/Hunt, 1976); John Gaventa, Power and Powerlessness: Quiescence and Rebellion in an Appalachian Valley (Urbana: University of Illinois Press, 1980); Karl B. Raitz and Richard Ulack with Thomas R. Leinbach, Appala- chia, a Regional Geography: Land, People, and Development (Boulder: Westview Press, 1984); Henry Shapiro, Appalachia on Our Mind: The Southern Mountains and Mountaineers in the American Consciousness, 1870–1920 (Chapel Hill: University of North Carolina Press, 1978); Richard A. Straw and H. Tyler Blethen, eds., High Mountains Rising: Appalachia in Time and Space (Urbana: University of Illinois Press, 2004); and Jack E. Weller, Yesterday’s People: Life in Contemporary Appa- lachia (Lexington: University Press of Kentucky, 1965). Publications of the Appa- lachian Studies Association and other scholarship about Appalachia and West Vir- ginia are accessible through Appalachian Studies: Web Resources at www.libraries .wvu.edu/appalachian/web.htm.

Notes

introduction

1 . On the destruction of forests, see Ronald L. Lewis, Transforming the Ap- palachian Countryside: Railroads, Deforestation, and Social Change in West Virginia, 1880–1920 (Chapel Hill: University of North Carolina Press, 1998), 263–92. On forests today, see U.S. Department of Agriculture, Northeastern Forest Inventory and Analysis, www.fs.fed.us/ne/ﬁ a/states/. 2 . The ramp is a relative of the leek that grows in the West Virginia mountains. See Roy B. Clarkson, Homer Duppstad, and Roland L. Guthrie, Forest Wild- life Plants of the Monongahela National Forest (Paciﬁ c Grove ca: Boxwood, 1980), 73; Barbara Beury McCallum, “Ramps,” in The West Virginia Encyclo- pedia, ed. Ken Sullivan (Charleston: West Virginia Humanities Council, 2006), 600. 3 . For historical data on employment and income comparing West Virginia with other states, see Donald R. Adams Jr., Historical Analysis of Major West Vir- ginia Statistics (Morgantown: Center for Economic Analysis and Statistics, West Virginia University, 1986), tables 3.4–4.3, and the more recent data at West Virginia Bureau of Employment Programs, Employment Statistics, www. wvbep.org/bep/LMI/default.htm. See also Brian J. Cushing, “West Virginia’s Economy, 1939–2000,” and Clifford B. Hawley, “Demographic Change and Economic Opportunity,” both in West Virginia in the 1990s: Opportunities for Economic Progress, ed. Robert Jay Dilger and Tom Stuart Witt (Morgantown: West Virginia University Press, 1993), 41 and 47–72, respectively. 4 . See West Virginia Department of Health and Human Resources, West Virginia Vital Statistics 2002, www.wvdhhr.org/bph/oehp/vital02/. 5 . See U.S. Bureau of the Census, “State Rankings,” Statistical Abstract of the United States: 2004–2005, www.census.gov/statab/www/ranks. 278 Notes to pages 3–5

6 . For data on population, see U.S. Bureau of the Census, Statistical Abstract of the United States: 2004–2005; U.S. Bureau of the Census, West Virginia, http://factfi nder.census.gov/servlet/SAFFFacts?_event=Search&geo_id=& _geoContext=&_street=&_county=&_cityTown=&_state=04000US54& _zip=&_lang=en&_sse=on; Regional Research Institute, West Virginia Uni- versity, West Virginia Population Estimates and Projections, www.rri.wvu.edu/ wvpop4.htm. On ethnic groups, see Otis K. Rice, The Allegheny Frontier: West Virginia Beginnings, 1730–1830 (Lexington: University Press of Kentucky, 1970), 21–29, 267–70; Ken Fones-Wolf and Ronald L. Lewis, eds., Transna- tional West Virginia: Ethnic Communities and Economic Change, 1840–1940 (Morgantown: West Virginia University Press, 2002); Ronald R. Lewis, “From Peasant to Proletariat: The Migration of Southern Blacks to the Central Appa- lachian Coalfi elds,” Journal of Southern History 55 (February 1989): 77–102; Joe William Trotter Jr., Coal, Class, and Color: Blacks in Southern West Vir- ginia, 1915–32 (Urbana: University of Illinois Press, 1990), 63–101. 7 . Richard Ellsworth Fast and Hu Maxwell, The History and Government of West Virginia (Morgantown: Acme, 1906); Oscar D. Lambert, West Virginia and Its Government (Boston: D. C. Heath, 1951); Claude J. Davis, Eugene R. Elkins, Carl M. Frasure, Mavis Mann Reeves, William R. Ross, and Albert L. Sturm, West Virginia State and Local Government (Morgantown: Bureau for Govern- ment Research, West Virginia University, 1963). 8 . Henry Shapiro, Appalachia on Our Mind: The Southern Mountains and Moun- taineers in the American Consciousness, 1870–1920 (Chapel Hill: University of North Carolina Press, 1978); Allen W. Batteau, The Invention of Appalachia (Tucson: University of Arizona Press, 1990). 9 . Bruce Ergood, “Toward a Defi nition of Appalachia,” in Appalachia: Social Context, Past and Present, ed. Bruce Ergood and Bruce E. Kuhre (Dubuque ia: Kendall/Hunt, 1976), 31–41; Karl B. Raitz and Richard Ulack with Thom- as R. Leinbach, Appalachia, a Regional Geography: Land, People, and Devel- opment (Boulder: Westview Press, 1984), 9–35. 10. See David C. Hsiung, “Stereotypes,” in High Mountains Rising: Appalachia in Time and Space, ed. Richard A. Straw and H. Tyler Blethen (Urbana: Univer- sity of Illinois Press, 2004), 101–13. 11. Ryan-McGinn-Samples Research, “The West Virginia Poll,” March 13–15, 1989, 8. The other responses were mid-Atlantic region (16 percent), the South (15 percent), and don’t know or no response (14 percent). 12. Helen Lewis and Edward E. Knipe, “The Colonialism Model: The Appala- chian Case,” in Colonialism in Modern America, ed. Helen Matthews Lewis, Linda Johnson, and Donald Askins (Boone nc: Appalachian Consortium, 1978), 9–31; Emil Malizia, “Economic Imperialism: An Interpretation of Ap- palachian Underdevelopment,” Appalachian Journal 1 (1970): 130–37. Notes to pages 6–7 279

13. David S. Walls, “Central Appalachia: A Peripheral Region within an Advanced Capitalist Society,” Journal of Sociology and Social Welfare 4 (1976): 238–43. 14. Tom D. Miller, Who Owns West Virginia? (Huntington: Herald-Advertiser and Herald-Dispatch, 1974); Appalachian Land Ownership Task Force, Addendum to Land Ownership Patterns and Their Impacts on Appalachian Communities: West Virginia, vol. 7 (Washington dc: Appalachian Regional Commission, 1981); Appalachian Land Ownership Task Force, Who Owns Appalachia? Landownership and Its Impact (Lexington: University Press of Kentucky, 1983). 15. Patricia D. Beaver, “Participatory Research on Land Ownership in Rural Appa- lachia,” in Appalachia and America, ed. Allen Batteau (Lexington: University Press of Kentucky, 1983), 252–66. 16. David Alan Corbin, Life, Work, and Rebellion in the Coal Fields: The South- ern West Virginia Miners, 1880–1922 (Urbana: University of Illinois Press, 1981), 110–16; Richard D. Lunt, Law and Order vs. the Miners: West Virginia, 1907–1933 (Hamden ct: Archon, 1979); Neal R. Peirce, The Border South States: People, Politics, and Power in the Five Border South States (New York: W. W. Norton, 1975), 150–207; John H. Fenton, Politics in the Border States (New Orleans: Hauser, 1957), 82–125; Gerald W. Johnson, “West Virginia Politics: A Socio-Cultural Analysis of Political Participants,” PhD diss., Uni- versity of Tennessee, 1970, 63–64; Curtis Seltzer, Fire in the Hole: Miners and Managers in the American Coal Industry (Lexington: University Press of Ken- tucky, 1985), 62–65. 17. See Richard A. Brisbin Jr., A Strike Like No Other Strike: Law and Resistance during the Pittston Coal Strike of 1989–1990 (Baltimore: Johns Hopkins University Press, 2002), 20–49, 76–117, 260–84; Seltzer, Fire in the Hole, 84–209. 18. It also has been called the “subculture of poverty model,” in David S. Walls and Dwight B. Billings, “The Sociology of Southern Appalachia,” Appala- chian Journal 5 (1977): 132, or an “analgesic subculture,” in Richard A. Ball, “A Poverty Case: The Analgesic Subculture of the Southern Appalachians,” American Sociological Review 33 (1968): 885–95. 19. Jack E. Weller, Yesterday’s People: Life in Contemporary Appalachia (Lex- ington: University Press of Kentucky, 1965), 113–16; Jack E. Weller, “Ap- palachia: America’s Mineral Colony,” in Colonialism in Modern America, ed. Helen Matthews Lewis, Linda Johnson, and Donald Askins (Boone nc: Appa- lachian Consortium, 1978), 47–55. 20. Richard A. Ball, “New Premises for Planning in Appalachia,” Journal of Soci- ology and Social Welfare 2 (1974): 92–101. 21. Stephen L. Fisher, “Victim-Blaming in Appalachia: Cultural Theories and the 280 Notes to pages 7–13

Southern Mountaineer,” in Appalachia, ed. Bruce Ergood and Bruce E. Kuhre (Dubuque ia: Kendall/Hunt, 1976), 139–48; Lewis and Knipe, “Colonialism Model”; Allen Batteau, “Appalachia and the Concept of Culture: A Theory of Shared Misunderstandings,” Appalachian Journal 7 (1979–80): 22–24; Bat- teau, Invention of Appalachia, 168–203. 22. Dwight B. Billings, “Culture and Poverty in Appalachia: A Theoretical Discus- sion and Empirical Analysis,” Social Forces 53 (1974): 315–23. 23. Herbert Hirsch, Poverty and Participation: Political Socialization in an Ameri- can Sub-Culture (New York: Free Press, 1971); Dean Jaros, Herbert Hirsch, and Fredric Fleron Jr., “The Malevolent Leader: Political Socialization in an American Sub-Culture,” American Political Science Review 62 (1968): 564–75; Thomas R. Ford, “The Passing of Provincialism,” in The Southern Appalachian Region: A Survey, ed. Thomas R. Ford (Lexington: University of Kentucky Press, 1962), 9–34; Janet Boggess Welch, “A Study of Appalachian Cultural Values as Evidenced in the Political and Social Attitudes of Rural West Virginians,” PhD diss., University of Maryland, 1984; John D. Photiadis, Community and Change in Rural Appalachia (Morgantown: West Virginia University Center for Extension and Continuing Education, 1985), 85–118. 24. John Paul Ryan, Cultural Diversity and the American Experience: Political Participation among Blacks, Appalachians, and Indians (Beverly Hills: Sage, 1975); Gerald J. Johnson, “Research Note on the Political Correlates of Voter Participation: A Deviant Case Analysis,” American Political Science Review 65 (1971): 768–76. 25. Theda Skocpol and Kenneth Finegold, “State Capacity and Economic In- tervention in the Early New Deal,” Political Science Quarterly 97 (1982): 260–61; Kenneth Finegold and Theda Skocpol, “State, Party, and Industry: From Business Recovery to the Wagner Act in America’s New Deal,” in State- making and Social Movements: Essays in Theory and Society, ed. Charles Bright and Susan Harding (Ann Arbor: University of Michigan Press, 1984), 167–69; Ann O’M. Bowman and Richard C. Kearney, “Dimensions of State Government Capacity,” Western Political Quarterly 41 (1988): 341–62; Beth Walter Hondale, “A Capacity-Building Framework: A Search for Concept and Purpose,” Public Administration Review 41 (1981): 575–89. 26. Hannah Fenichel Pitkin, The Concept of Representation (Berkeley: University of California Press, 1967), esp. 209.

chapter one

1 . John W. Kingdon, Agendas, Alternatives, and Public Policy (Boston: Little, Brown, 1984), 3–4, 122–23. 2 . Richard Orr Curry, A House Divided: A Study of Statehood Politics and the Notes to pages 15–19 281

Copperhead Movement in West Virginia (Pittsburgh: University of Pittsburgh Press, 1964), 79–90, 100–119; John Alexander Williams, West Virginia: A His- tory (New York: W. W. Norton, 1976), 75–86. 3 . Karl B. Raitz and Richard Ulack with Thomas R. Leinbach, Appalachia: A Re- gional Geography (Boulder: Westview Press, 1984), 43–51. 4 . Charles H. Ambler, A History of Transportation in the Ohio Valley (Glendale ca: Arthur H. Clark, 1932), 185–209, 211–38, 265–318; Charles H. Ambler and Festus P. Summers, West Virginia: The Mountain State, 2nd ed. (Engle- wood Cliffs nj: Prentice-Hall, 1958), 330–42; Ronald L. Lewis, Transforming the Appalachian Countryside: Railroads, Deforestation, and Social Change in West Virginia, 1880–1920 (Chapel Hill: University of North Carolina Press, 1998), 45–80; Otis K. Rice and Stephen K. Brown, West Virginia: A History, 2nd ed. (Lexington: University Press of Kentucky, 1993), 86–89, 183–86. 5 . Rand-McNally Commercial Atlas and Marketing Guide 2004, 135th ed. (Chi- cago: Rand-McNally, 2004), 1:23. 6 . On dialects, see Michael Montgomery, “English Language,” in High Moun- tains Rising: Appalachia in Time and Space, ed. Richard A. Straw and H. Tyler Blethen (Urbana: University of Illinois Press, 2004), 147–64. 7 . Otis K. Rice, The Allegheny Frontier: West Virginia Beginnings, 1730–1830 (Lexington: University Press of Kentucky, 1970); Kenneth Keller, “What Is Distinctive about the Scotch-Irish?” in Appalachian Frontiers: Settlement, So- ciety, and Development in the Preindustrial Era, ed. Robert D. Mitchell (Lex- ington: University Press of Kentucky, 1991), 68–86. 8 . See Kenneth R. Bailey, “Strange Tongues: West Virginia and Immigrant Labor to 1920,” in Transnational West Virginia: Ethnic Communities and Economic Change, 1840–1940, ed. Ken Fones-Wolf and Ronald L. Lewis (Morgantown: West Virginia University Press, 2002), 243–58; Frederick A. Barkey, “Immi- gration and Ethnicity in West Virginia,” in West Virginia History: Critical Es- says on the Literature, ed. Ronald L. Lewis and John C. Hennen Jr. (Dubuque ia: Kendall/Hunt, 1993), 129–46; Frederick A. Barkey, “‘Here Come the Boomer ’Talys’: Italian Immigrants and Industrial Confl ict in the Upper Ka- nawha Valley,” in Transnational West Virginia, 161–89; Phil Conley, History of the West Virginia Coal Industry (Charleston wv: Educational Foundation, 1960), 88–90; William B. Klaus, “Uneven Americanization: Italian Immigra- tion to Marion County, 1900–1925,” in Transnational West Virginia, 191–214; Ronald R. Lewis, “From Peasant to Proletariat: The Migration of Southern Blacks to the Central Appalachian Coalfi elds,” Journal of Southern History 55 (February 1989): 77–102; Ronald R. Lewis, “Americanizing Immigrant Coal Miners in Northern West Virginia: Monongalia County between the Wars,” in Transnational West Virginia, 261–96; Crandall A. Shiffl ett, Coal Towns: Life, 282 Notes to pages 20–24

Work, and Culture in the Company Towns of Southern Appalachia (Knoxville: University of Tennessee Press, 1991), 67–80; Joe William Trotter Jr., Coal, Class, and Color: Blacks in Southern West Virginia, 1915–32 (Urbana: Univer- sity of Illinois Press, 1990), 63–101; Joe William Trotter Jr., “Black Migration to Southern West Virginia,” in Transnational West Virginia, 137–53. 9 . Rice and Brown, West Virginia, 62–67. 10. Dale E. Jones et al., Religious Congregations and Membership in the United States (Nashville: Glenmary Research Center, 2002), xv, 1, 494–502. 11. Richard A. Brisbin Jr. and Robert Jay Dilger, “Citizen Evaluations of Govern- ment in West Virginia: The 1992 West Virginia Political Survey,” West Vir- ginia Public Affairs Reporter 10, no. 1 (1992): 13–17; Richard A. Brisbin Jr., Thomas K. Bias, and Kevin M. Leyden, “Citizen Evaluations of West Virginia Government: Stability and Change, 1992 to 2005,” West Virginia Public Affairs Reporter 23, no. 1 (2006). 12. Charles H. Ambler, A History of Education in West Virginia from Early Co- lonial Times to 1949 (Huntington wv: Standard Printing and Publishing, 1951), 1–65; Charles H. Ambler, Sectionalism in Virginia from 1776 to 1861 (Chicago: University of Chicago Press, 1910); Ambler and Summers, West Vir- ginia, 150–55, 164–65; Van Beck Hall, “The Politics of Appalachian Virginia, 1790–1830,” in Appalachian Frontiers, 166–86; Rice, Allegheny Frontier, 210–34, 309–41; Rice and Brown, West Virginia, 68–71. 13. Curry, House Divided, 28–68, 120–30, 141–50; Williams, West Virginia, 75–86. 14. Richard O. Curry, “Crisis Politics in West Virginia,” in Radicalism, Racism, and Party Realignment: The Border States during Reconstruction, ed. Richard O. Curry (Baltimore: Johns Hopkins University Press, 1969), 80–104; Ambler and Summers, West Virginia, 264–77; Henry T. Gerofsky, “Reconstruction in West Virginia,” West Virginia History 6 (1945): 295–360 and 7 (1945): 5–39. 15. Ambler and Summers, West Virginia, 281–97, 376–93. 16. John Alexander Williams, West Virginia and the Captains of Industry (Morgan- town: West Virginia University Library, 1976), 1–109, 148–87. 17. Paul Salstrom, “The Agricultural Origins of Economic Dependency, 1840–1880,” in Appalachian Frontiers, 261–83. 18. Kenneth R. Bailey, “The Judicious Mixture: Negroes and Immigrants in the West Virginia Coal Mines, 1880–1917,” West Virginia History 34 (1973): 141–61; David Alan Corbin, Life, Work, and Rebellion in the Coal Fields: The Southern West Virginia Miners, 1880–1922 (Urbana: University of Illinois Press, 1981): 1–60; Williams, Captains of Industry, 110–47, 196–232. 19. West Virginia, Senate and House of Delegates, Testimony and Report of the Legislative Bribery Committee Raised under Joint Resolution No. 22 (1913). 20. John Alexander Williams, “Davis and Elkins of West Virginia: Businessmen Notes to pages 24–26 283

in Politics,” PhD diss., Yale University, 1967, 41–61; Williams, Captains of Industry, 125–47; Williams, West Virginia, 115–29. 21. Corbin, Life, Work, and Rebellion, 87–252; Daniel P. Jordan, “The Mingo War: Labor Violence in the Southern West Virginia Coal Fields, 1919–1922,” in Essays in Southern Labor History: Selected Papers, Southern Labor His- tory Conference, 1976, ed. Gary M. Fink and Merl E. Reed (Westport ct: Greenwood Press, 1977), 102–43; Winthrop D. Lane, Civil War in West Vir- ginia (New York: B. W. Huebsch, 1921); Howard Lee, Bloodletting in Appala- chia (Parsons wv: McClain Printing, 1969); U.S. Congress, Senate, Commit- tee on Education and Labor, West Virginia Coal Fields: Hearings before the Committee on Education and Labor . . . , Pursuant to S. Res. 80, 3 vols., 67th Cong., 1st sess., 1921–22. 22. Ambler and Summers, West Virginia, 460–65; Shifﬂ ett, Coal Towns, 112–43. 23. Ambler and Summers, West Virginia, 538–59; Williams, West Virginia, 171–80. 24. Keith Dix, What’s a Coal Miner to Do? The Mechanization of Coal Mining (Pittsburgh: University of Pittsburgh Press, 1988). 25. Richard A. Brisbin Jr., A Strike Like No Other Strike: Law and Resistance during the Pittston Coal Strike of 1989–1990 (Baltimore: Johns Hopkins Univer- sity Press, 2002), 34–49. 26. Donald R. Adams, Historical Analysis of Major West Virginia Statistics (Mor- gantown: Center for Economic Analysis and Statistics, West Virginia Univer- sity, 1986), tables 2.8 and 3.2; West Virginia Bureau of Employment Programs, West Virginia Economic Summary, January 2008, 5, www.wvbep.org/bep/lmi. 27. See James S. Brown and George A. Hillery, “The Great Migration, 1940–1960,” in The Southern Appalachian Region: A Survey (Lexington: University Press of Kentucky, 1962), 54–78; Philip J. Obermiller, Thomas E. Wagner, and Bruce Tucker, eds., Appalachian Odyssey: Perspectives on the Great Migration (Westport ct: Praeger, 2000); Philip J. Obermiller and Steven R. Howe, “New Paths of Appalachian Migration, 1975–1990,” in Appalachia: Social Context and Present, 4th ed., ed. Philip J. Obermiller and Michael E. Maloney (Dubuque ia: Kendall/Hunt, 2002), 89–97. 28. West Virginia Bureau of Employment Programs, West Virginia Economic Sum- mary, January 2008, 7. 29. West Virginia Bureau of Employment Programs, West Virginia Economic Sum- mary, January 2008, 5. 30. Clifford B. Hawley, “Demographic Change and Economic Opportunity,” in West Virginia in the 1990s: Opportunities for Economic Progress, ed. Robert Jay Dilger and Tom Stuart Witt (Morgantown: West Virginia University Press, 1993), 47–72; Brian J. Cushing, “West Virginia’s Economy, 1939–2000,” in West Virginia in the 1990s, 17–41. 284 Notes to pages 26–30

31. Robert Jay Dilger and Tom Stuart Witt, “West Virginia’s Economic Future,” in West Virginia in the 1990s, 3–15. 32. Cushing, “West Virginia’s Economy,” 33. 33. Williams, West Virginia, 174–86. 34. Stanley J. Kloc, “Small Business in West Virginia: Trends and Strategies,” in West Virginia in the 1990s, 97–119; William S. Reece, “Local Government Finance and Its Implications for West Virginia’s Economic Development,” in West Virginia in the 1990s, 285–317. 35. Lucian W. Pye, “Political Culture,” International Encyclopedia of the Social Sciences (New York: Crowell, Collier and Macmillan, 1968), 12:218. 36. Kingdon, Agendas, 122–30. 37. Daniel J. Elazar, American Federalism: A View from the States, 3rd ed. (New York: Harper and Row, 1984), 114–22; Daniel J. Elazar, Cities of the Prairie: The Metropolitan Frontier and American Politics (New York: Basic Books, 1970), 256–80. 38. Peter F. Nardulli, “Political Subcultures in the American States: An Empirical Examination of Elazar’s Formulation,” American Politics Quarterly 18 (1990): 287–315. We thank Professor Nardulli for providing us with a questionnaire on political culture developed by the University of Illinois Institute of Gov- ernment and Public Affairs. Responses from the West Virginia sample of 517 persons were 17.9 percent individualistic, 47.6 percent moralistic, and 21.6 percent traditionalistic. 39. Elazar, American Federalism, 131. 40. Elazar, Cities of the Prairie, 262–63. 41. On the different modes of political corruption, see the typology developed in Lawrence W. Sherman in his introduction to Police Corruption: A Sociological Perspective (Garden City ny: Anchor Books, 1974), 1–39. For a recounting of political corruption in West Virginia, see Allen H. Loughry II, Don’t Buy An- other Vote, I Won’t Pay for a Landslide: The Sordid and Continuing History of Political Corruption in West Virginia (Parsons wv: McClain Printing, 2006). 42. On corruption during the Barron, Smith, and Moore administrations, the actions of A. James Manchin, and other misdeeds of 1960–90, see Thomas F. Stafford, Afﬂ icting the Comfortable: Journalism and Politics in West Virginia (Morgantown: West Virginia University Press, 2005), 102–36, 152–255, 274–319. On Moore and legislative corruption, see also Ron Hutchison, “Moore Not End of Trail for Feds,” Charleston Daily Mail, April 19, 1990, 1a; Jack McCarthy, “Moore Sentenced to Prison, Fined,” Charleston Gazette, July 11, 1990, 1a; Paul Nyden, “Moore Tax Ofﬁ cial Pleads Guilty to Felony,” Charleston Gazette, July 3, 1990, 1a; “Lobbyist Pleads Guilty to Tax Evasion Charges,” Charleston Gazette, January 6, 1989, 3c; Ron Hutchison, “Former Notes to pages 31–37 285

Lobbyist Sentenced,” Charleston Daily Mail, March 23, 1989, 10b; Jack Mc- Carthy, “Lobbyist Pleads Guilty as Probe into Tonkovich’s Dealings Grows,” Charleston Gazette, September 1, 1989, 1a, 6a; Ron Hutchison, “Ex-Aide Says He Was Scared,” Charleston Daily Mail, September 12, 1989, 1a, 11a; Barry Bernak, “A Crooked Tradition,” Morgantown Dominion-Post, July 11, 1990, 1d. On A. James Manchin, see “Manchin Testimony Showed Knowl- edge of Losses,” Charleston Gazette, July 19, 1989, 6a; “Investment Fund Found Used for Self-Promotion,” Charleston Gazette, July 21, 1989, 6a. On local corruption, see Jack McCarthy, “Corruption Cloud Hangs over Mingo,” Charleston Gazette, November 8, 1987, 1a, 4a; “Ongoing Mingo Probe Ex- amines Political Money,” Morgantown Dominion Post, February 15, 1988, 3a; “Logan Sheriff Pleads Guilty, Mendez Resigns, Will Cooperate in Vote-Buying Investigation,” Charleston Gazette, July 20, 2004; Toby Coleman, “Ex-Logan Mayor Charged in Link to Wells’ Extortion,” Charleston Gazette, January 11, 2005; generally see Michael W. Carey, Larry R. Ellis, and Joseph F. Savage Jr., “Federal Prosecution of State and Local Ofﬁ cials: The Obstacles to Punishing Breaches of the Public Trust and a Proposal for Reform, Part One,” West Vir- ginia Law Review 94 (Winter 1991–92): 301–67; Huey Perry, They’ll Cut Off Your Project: A Mingo County Chronicle (New York: Praeger, 1972); Lester “Bus” Perry, Forty Years of Mountain Politics, 1930–1970 (Parsons wv: Mc- Clain Printing, 1971), 81–95, 105; Bill Peterson, Coaltown Revisited: An Ap- palachian Notebook (Chicago: Henry Regnery, 1972), 204–22. 43. Carey, Ellis, and Savage, “Federal Prosecution of State and Local Ofﬁ cials.” 44. Robert T. Hall, “The West Virginia Governmental Ethics Act,” West Virginia Public Affairs Reporter 6, no. 1 (Winter 1989): 1–7. 45. W.Va. Code §§6b-1–3 ff (2005). See also West Virginia Ethics Commission, “Overview of Ethics Act,” www.wvethicscommission.org/overview.htm.

chapter two

1 . Richard A. Brisbin Jr. and Robert Jay Dilger, “Citizen Evaluations of Govern- ment in West Virginia: The 1992 West Virginia Political Survey,” West Virginia Public Affairs Reporter 10 (1992): 13–17; Thomas K. Bias, Richard A. Brisbin Jr., and Kevin M. Leyden, “Citizen Evaluations of West Virginia Government: Stability and Change, 1992 to 2005,” West Virginia Public Affairs Reporter 23, no. 1 (2006): 1. 2 . John F. Bibby and Thomas M. Holbrook, “Parties and Elections,” in Politics in the American States, 8th ed., ed. Virginia Gray and Russell L. Hanson (Wash- ington dc: CQ Press, 2004), 94–95. 3 . Lester W. Milbrath, Political Participation: How and Why Do People Get In- volved in Politics? (Chicago: Rand-McNally, 1965), 19; M. Margaret Conway, 286 Notes to pages 38–48

Political Participation in the United States, 3rd ed. (Washington dc: CQ Press, 2000). 4 . Jeffrey A. Karp and David Brockington, “Social Desirability and Response Va- lidity: A Comparative Analysis of Overreporting Voter Turnout in Five Coun- tries,” Journal of Politics 67 (2005): 825–40. 5 . Richard A. Brisbin Jr. and Susan Hunter, “Civic Engagement in West Virginia: What Community Leaders Think,” West Virginia Public Affairs Reporter 18, no. 4 (2001): 2–8. 6 . Martin P. Wattenberg, “Elections: Turnout in the 2004 Presidential Elections,” Presidential Studies Quarterly 35 (March 2005). 7 . Steven J. Rosenstone and John Mark Hansen, Mobilization, Participation, and Democracy in America (New York: Macmillan, 1993). 8 . Michael Barone, The Almanac of American Politics 2006 (Washington dc: Na- tional Journal), 1781. 9 . Lawrence J. Grossback and Allan S. Hammock, “Overcoming One-Party Dominance: How Contextual Politics and West Virginia Helped Put George Bush in the White House,” Politics and Policy 31 (September 2003): 420–21. 10. Grossback and Hammock, “Overcoming.” 11. Larry M. Bartels, “Partisanship and Voting Behavior, 1952–1996,” American Journal of Political Science 44 (2000): 35. 12. W.Va. Code §3-1-9. 13. See John H. Aldrich, “Southern Parties in State and Nation,” Journal of Poli- tics 62 (August 2000): 643–70. 14. Malcolm E. Jewell and Sarah M. Morehouse, Political Parties and Elections in American States, 4th ed. (Washington dc: CQ Press, 2001), 49–61. 15. Gerald W. Johnson, Politics, Party Competition, and the County Chairman in West Virginia (Knoxville: Bureau of Public Administration, University of Ten- nessee, 1970), 21. 16. Thomas H. Roback, Recruitment and Incentive Patterns among Grassroots Re- publican Ofﬁ cials: Continuity and Change in Two States (Beverly Hills: Sage, 1974), 27. 17. The Party Leaders Survey was conducted in the fall of 2005. It consisted of a twenty-one-item mail questionnaire in which members of the Democratic and Republican county and state committees were asked to indicate the amount of time spent on party and campaign activities. The survey was sent to 274 leaders, of which 132 responded, a response rate of 48 percent. Respondents were divided almost equally between Democrats (65) and Republicans (67). 18. West Virginia Secretary of State, Campaign Finance Reports Online, www .wvsos.com/elections/cfreports/. 19. Bibby and Holbrook, “Parties and Elections,” 88. Notes to pages 49–56 287

20. John H. Fenton, Politics in the Border States (New Orleans: Hauser Press, 1957). 21. John David Rausch and Mary S. Rausch, “West Virginia: In Search of the Re- ligious Right,” in God at the Grass Roots, 1996, ed. Mark J. Rozell and Clyde Wilcox (Lanham md: Rowman & Littleﬁ eld, 1997). 22. Gary Abernathy, Elephant Wars (New York: iUniverse, 2005). 23. Thomas R. Dye, Understanding Public Policy, 10th ed. (Upper Saddle River nj: Prentice-Hall, 2002), 281–82.

chapter three

1 . See Jeffrey M. Berry and Clyde M. Wilcox, The Interest Group Society, 5th ed. (New York: Pearson Longman, 2008); John W. Kingdon, Agendas, Alterna- tives, and Public Policies, 2nd ed. (New York: Longman, 1995). 2 . Sarah McCally Morehouse and Malcolm E. Jewell, State Politics, Parties, and Policy, 2nd ed. (Lanham md: Rowman and Littleﬁ eld, 2003), 99–102. 3 . Sarah McCally Morehouse, State Politics, Parties, and Policy (New York: Holt, Rinehart and Winston, 1981), 113. 4 . Clive S. Thomas and Ronald J. Hrebenar, “Interest Groups in the States,” in Politics in the American States, 8th ed., ed. Virginia Gray and Russell L. Han- son (Washington dc: CQ Press, 2004), 101–22. 5 . See Neil R. Peirce, The Border South States (New York: W. W. Norton, 1975), 151; Michael Barone and Richard E. Cohen, The Almanac of American Politics 2006 (Washington dc: National Journal, 2005), 1781. 6 . Information in this and subsequent sections of this chapter extends and recasts the argument in James R. Oxendale and Allan S. Hammock, “West Virginia: Coal and the New West Virginia Politics,” in Interest Group Politics in the Northeastern States, ed. Ronald J. Hrebenar and Clive S. Thomas (University Park: Pennsylvania State University Press, 1993), 348–66. 7 . John A. Williams, West Virginia: A Bicentennial History (New York: W. W. Norton, 1976), 105–9. 8 . Evelyn L. Harris and Frank J. Krebs, From Humble Beginnings (Charleston: West Virginia Labor History Publishing Fund Committee, 1960), 19–20. 9 . Homer L. Morris, The Plight of the Bituminous Coal Miner (Philadelphia: Uni- versity of Pennsylvania Press, 1934), 86. 10. Neil R. Peirce, The Border South States, 182; Gerald M. Stern, The Buffalo Creek Disaster (New York: Random House, 1976), ix. 11. See Ken Ward Jr., “Public Radio’s Dam Story Was a ‘Scare Tactic,’ Massey Says,” Charleston Gazette, August 20, 2005, 2a. 12. William Graebner, Coal Mine Safety in the Progressive Period (Lexington: University of Kentucky Press, 1976), 43–47. 288 Notes to pages 56–63

13. Howard B. Lee, My Appalachia (Parsons wv: McClean, 1971), 103. 14. Paul F. Lutz, “Governor Marland’s Political Suicide: The Severance Tax,” West Virginia History 19 (October 1957): 16. 15. See U.S. Steel Mining Co. v. Helton, 126 S. Ct. 2355 (cert. Denied 2006) in which the U.S. Supreme Court refused to take up on appeal the decision of the West Virginia Supreme Court of Appeals to upholding West Virginia’s severance tax, U.S. Steel Mining Co. v. Helton, 631 S.E.2d 559 (2005). 16. Tom Searls and Phil Kabler, “Worker Comp Deal Gained,” Charleston Ga- zette, January 29, 2005, 1a. 17. Williams, West Virginia, 105–9. 18. Allan S. Hammock and Lawrence J. Grossback, “On Guns, Coal, and Electoral College Victory Margins: West Virginia in the 2000 Presidential Campaign,” in Government and Politics in West Virginia, 5th ed., ed. James R. Forrester (Bos- ton: Pearson, 2002), 87–88. 19. Lawrence Messina, “State Bar to Review Judicial Elections,” Charleston Ga- zette, November 5, 2004, 1a, 13a. 20. Neil R. Peirce, The Border South States, 169. 21. See Richard A. Brisbin Jr., A Strike Like No Other Strike: Law and Resistance during the Pittston Coal Strike of 1989–90 (Baltimore: Johns Hopkins Univer- sity Press, 2002), 21–49. 22. Ken Ward Jr., “State Following Manchin,” Charleston Gazette, January 28, 2006, 1a. 23. “Bush Signs Mine Safety Law,” Pittsburgh Post-Gazette, June 6, 2006. 24. Alan Rosenthal, The Third House: Lobbyists and Lobbying in the States, 2nd ed. (Washington dc: CQ Press, 2001), 60–61. 25. Interview with John Hurd, president of the West Virginia Chamber of Com- merce, December 7, 1987. 26. West Virginia Ethics Commission, 2005 Lobbyist Registration, July 6, 2005. 27. Clive S. Thomas and Ronald J. Hrebenar, “Interest Groups in the State,” in Politics in the American States, ed. Virginia Gray, Herbert Jacob, and Robert B. Albritton (Glenview il: Scott, Foresman, 1990), 150–51. 28. West Virginia Ethics Commission, 2005 Lobbyists Registration, July 6, 2005. 29. Joseph A. Schlesinger, “Lawyers and American Politics: A Clariﬁ ed View,” Midwest Journal of Political Science 1 (1957): 326–39; David Derge, “The Lawyer as Decision Maker in the American State Legislature,” Journal of Poli- tics 21 (1959): 408–23. 30. Lawrence Messina, “Special Session Showcases Manchin’s Hands-on Style,” Charleston Gazette, January 31, 2005, 1a, 7a. 31. Jack McCarthy, “Tonkovich Gets Five Years for Extortion,” Charleston Ga- zette, December 15, 1986, 1a, 4a; Sue Morgan, “Senate President Resigns,” Charleston Gazette, September 8, 1989, 1a. Notes to pages 63–72 289

32. “A Corrupt Life,” editorial, Charleston Gazette, July 11, 1990, a4. 33. Eric Eyre and Scott Fin, “Businessman Pleads Guilty to Kickbacks for Con- tracts,” Charleston Gazette, March 1, 2005, 1a. 34. James Haught, “West Virginia Is Cleaner Nowadays,” Charleston Gazette, June 20, 2002, a4. 35. Rosenthal, Third House, 108–9. 36. Phil Kabler, “Records Tally Up Lobbyists’ Dinners,” Charleston Gazette, May 15, 2006, 1c. 37. Phil Kabler, “Lobbyists’ Spending Reports Come In,” Charleston Gazette, May 8, 2006, 1c. 38. Quoted in editorial, “Ethics: Swarming Lobbyists,” Charleston Gazette, Janu- ary 26, 2006, a4. 39. Scott Finn, “Abortion Foes Rally at Capitol,” Charleston Gazette, March 8, 2006, 1c. 40. Oxendale and Hammock, “West Virginia,” 362–63. 41. Lawrence Messina, “After 100 Days Manchin Conﬁ dent of Success,” Charles- ton Gazette, April 26, 2005, a3. 42. Phil Kabler and Tom Searls, “Manchin Works on Insurance Plan,” Charleston Gazette, February 23, 2005, c-1. 43. Lawrence Messina, “Lobbyists to Help Create Campaign Finance Rules,” Charleston Gazette, October 20, 2005, 12a. 44. Interview, John Hurd, December 7, 1987. 45. Scott Finn, “State Group Seeking More Tort Reform,” Charleston Gazette, December 1, 2005, 2c. See also Juliet A. Terry, “BIC Agenda Includes Taxes, Health Care, Tort Reform,” State Journal, December 16, 2005, 12. 46. Charleston Gazette, April 5, 2005, 9a. 47. Oxendale and Hammock, “West Virginia,” 355–56. 48. Phil Kabler, “State Wimps Out to Industry,” Sunday Gazette-Mail, May 28, 2006, 1e. 49. See Robert T. Hall, “The West Virginia Governmental Ethics Act,” West Vir- ginia Public Affairs Reporter 6 (Winter 1989): 6–7. 50. W.Va. Code, §§6B-1-1 et seq. 51. Phil Kabler, “House, Senate Approve Tougher Ethics Bill,” Charleston Ga- zette, January 30, 2005, 11a. 52. Daniel Bice and Jack Deutsch, “Ethics Bill’s Impact Felt at Capitol,” Charles- ton Daily Mail, March 1, 1989, 1a, 7a; A. V. Gallagher, “Ethics Law Has Curbed Unrestrained Lobbying,” Charleston Daily Mail, June 25, 1990, 1a. 53. A. V. Gallagher, “Coal Lobbyists Called Progressive,” Charleston Gazette- Mail, March 8, 1992, 8a. 54. Phil Kabler, “Ethics Penalties against Turnpike Ofﬁ cial Upheld,” Charleston Gazette, March 11, 1994, d1. 290 Notes to pages 72–76

55. Anna L. Mallory, “Mezzatesta Must Pay Fine, Judge Rules,” Charleston Ga- zette, June 7, 2006, 1a. 56. Jonathan Cottin and Charles Culhane, “Committee on Political Education,” in Political Brokers: People, Organizations, Money, and Power, ed. Judith G. Smith (New York: Liverlight/National Journal Book, 1972), chap. 4. 57. Lawrence Messina, “Endorsement Ruckus Spotlights Political Role of State’s Teachers,” Charleston Gazette, November 17, 2003, 6a. 58. W.Va. Code §3-8-8. 59. Paul J. Nyden, “Legislative Candidates Given $6 Million, Research Shows,” Sunday Gazette-Mail, October 5, 2003, 3b. 60. Tara Tuckwiller, “’Right Wing Set the Tone,’” Charleston Gazette, November 7, 2002, c-1. 61. Nyden, “Legislative Candidates Given $6 Million,” 3b. 62. Andrew Clevenger, “Malpractice Reforms Set High Lawsuit Bar,” Charleston Gazette, April 3, 2006, 1a. 63. Nyden, “Legislative Candidates Given $6 Million,” 3b. 64. See Richard A. Brisbin Jr. and Patrick A. Pierce, “Casting the Dice: The Devel- opment of Legalized Gambling Policy in West Virginia,” West Virginia Public Affairs Reporter 25, no. 1 (2008): 2–18. 65. Lawrence Grossback and Allan Hammock, “Overcoming One-Party Domi- nance: How Contextual Politics and West Virginia Helped Put George Bush in the White House,” Politics and Policy 31 (September 2003): 406–31. 66. Associated Press, “GOP Mail to W.Va. Warns of Bible Ban If Liberals Elect- ed,” Charleston Gazette, September 19, 2004, 3a. 67. Toby Coleman, “Coal Companies Provides Big Campaign Bucks,” Charleston Gazette, October 15, 2004, 1a; Paul Nyden, “Court Race Nation’s Most Nega- tive,” Charleston Gazette, June 28, 2005, c-1. 68. Paul Nyden, “Coal Doctors’ Groups Donated to Anti-McGraw Effort,” Charleston Gazette, January 7, 2005, 5a. 69. Lawrence Messina, “Blankenship Targets State House Races,” Charleston Ga- zette, July 18, 2006, 5a; “Blankenship Effort for GOP Largely Fails,” Charles- ton Gazette, November 8, 2006, 1a. 70. Scott Finn, “Manchin Blames Scare Tactics for Bond Vote Failure,” Charleston Gazette, June 28, 2005, 1a. 71. The 1987 survey was developed in cooperation with a panel of members of the West Virginia House of Delegates and Senate. Each panel member was asked to review a complete list of registered lobbyists and to indicate which names on the list ought to be included on a short list of “important” or inﬂ uential lobbyists in West Virginia. The procedure enabled us to pare the original list from 190 to 45. The list of 45 was then sent to every member of the legislature Notes to pages 82–85 291

(n=134). Sixty legislators, or 44.7 percent, responded. In the 2005 survey, legislators were sent a list of 74 lobbying groups. Fifty-seven legislators responded to the 2005 survey, a return rate of 42.5 percent.

chapter four 1 . U.S. Department of Commerce, U.S. Census Bureau, Statistical Abstract of the United States: 2003 (Washington dc: Government Printing Offi ce, 2003), 277. 2 . Darrell E. Holmes, ed., West Virginia Blue Book, 2002 (Charleston wv: Chap- man Printing, 2002), 4–24, 317, 325, 348, 355, 360, 362, 618–96, 734–815. 3 . Otis K. Rice, West Virginia: A History (Lexington: University Press of Ken- tucky, 1985), 183, 184; Charles Henry Ambler, A History of Transportation in the Ohio Valley (Glendale ca: Arthur H. Clark, 1932), 134–38, 244, 400–422. 4 . Daniel J. Elazar, “Federal-State Collaboration in the Nineteenth-Century Unit- ed States,” in American Federalism in Perspective, ed. Aaron Wildavsky (Bos- ton: Little, Brown, 1967), 191–92; Harry N. Scheiber, “Federalism and Legal Process: Historical and Contemporary Analysis of the American System,” Law and Society Review 14 (1980): 669–83. 5 . Kaempfer, Federal Aid in West Virginia, 7–12; Rice, West Virginia, 179, 268. 6 . Robert Jay Dilger, “The Expansion and Centralization of American Govern- mental Functions,” in American Intergovernmental Relations Today: Perspec- tives and Controversies, ed. Robert Jay Dilger (Englewood Cliffs nj: Prentice- Hall, 1986), 15–19. 7 . U.S. Congress, Senate, Committee on Environment and Public Works, Ex- tension of the Appalachian Regional Commission and the Title V Regional Commissions, 96th Cong., 1st sess., February 21, 1979, 1–5, 34–82; Michael Bradshaw, The Appalachian Regional Commission: Twenty-fi ve Years of Gov- ernment Policy (Lexington: University Press of Kentucky, 1992). 8 . U.S. Advisory Commission on Intergovernmental Relations, Regulatory Fed- eralism: Policy, Process, Impact, and Reform (Washington dc: ACIR, 1984); Joseph Zimmerman, Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991); George Miller, “Unfunded Mandates: Laws That Bind Us Together,” Points of View, 8th ed., ed. Robert E. DiClerico and Allan S. Hammock (Boston: McGraw-Hill, 2000); Paul L. Posner, “Unfunded Mandates Reform Act: 1996 and Beyond,” Publius: The Journal of Federal- ism 27, no. 2 (1997): 53–71; U.S. Advisory Commission on Intergovernmental Relations, “The Role of Federal Mandates in Intergovernmental Relations: Draft Report,” in American Intergovernmental Relations, 3rd ed., ed. Laurence J. O’Toole Jr. (Washington dc: Congressional Quarterly Press, 2000), 285–95; U.S. Offi ce of Management and Budget, Analytical Perspectives: Budget of the United States Government, Fiscal Year 2008 (Washington dc: Government Printing Offi ce, 2007), 101. 292 Notes to pages 85–90

9 . National Association of State Budget Offi cers, Fiscal Year 2006 State Expendi- ture Report (Washington dc: nasbo, 2007), 2, 49; West Virginia State Budget Offi ce, Governor’s FY2009 Executive Budget (Charleston: West Virginia State Budget Offi ce, 2008), www.wvbudget.gov. 10. Michael Barone and Grant Ujifusa, The Almanac of American Politics, 1994 (Washington dc: National Journal, 1994), 1363. 11. Keon S. Chi, ed., The Book of the States, 2007 (Lexington ky: Council of State Governments, 2007), 39; U.S. Census Bureau, Consolidated Federal Funds Report: Fiscal Year 2005, www.census.gov. 12. West Virginia State Budget Offi ce, “Governor’s GY 2009 Executive Budget.” 13. West Virginia Department of Health and Human Resources, West Virginia Health Status Atlas, 2008, www.wvdhhr.org/bph/oehp/atlas/; West Virginia Department of Health and Human Resources, West Virginia Health Status At- las, 2004, www.wvdhhr.org/bph/oehp/hsc/tobkill/prevel.htm. 14. Robert Jay Dilger, National Intergovernmental Programs (Englewood Cliffs nj: Prentice Hall, 1989), 19–46. 15. “Health Funds for Neediest Face Big Cuts,” Charleston Daily Mail, Novem- ber 25, 1992, 1a, 13a; T. J. Simoneaux, “Medicaid Compromise Reached,” Charleston Gazette, May 21, 1990, 1a; A. V. Gallagher, “House OKs Medic- aid Bill,” Charleston Sunday Gazette Mail, May 23, 1993, 1a. 16. “Wise Bashes Handling of Children’s Insurance Program,” Charleston Ga- zette, August 29, 2000; “Underwood Contradicts Himself on chip’s Funding: Now Admits wv Lost $11 Million for Uninsured Kids,” Lincoln Journal, Oc- tober 2, 2000; “Attacks Start Early in Gubernatorial Debate Campaign 2000,” Charleston Gazette, October 19, 2000. 17. Robert Wise, State of the State Address, January 8, 2003. 18. U.S. Department of Health and Human Services, Medicaid Managed Care Penetration Rates as of December 31, 2006 (Washington dc: Department of Health and Human Services, 2007). 19. West Virginia Department of Health and Human Resources, West Virginia Children’s Health Insurance Program, Current Enrollment Information (Charleston: West Virginia Department of Health and Human Resources, De- cember 2006), 3. 20. Phil Kaber, “State Appears Winner of Major Health Grant,” Charleston Ga- zette, June 20, 1991, 1a; Fanny Seiler, “Lawmakers Demand Details of Rural Health Program,” Charleston Gazette, October 2, 1991, 1a, 8a; W.Va. Higher Education Report Card, 251–74. 21. Center for Rural Health Development, Inc., Rural Health Access Program, www.wvruralhealth.org/rhap/index.cfm; Southern Rural Access Program, West Virginia, www.srap.org/grantees/WV/. Notes to pages 91–96 293

22. Melissa Latimer, “Setting the Socioeconomic Context for Welfare Reform in Appalachia,” in Welfare Reform in West Virginia, ed. Robert Jay Dilger et al. (Morgantown: West Virginia University Press, 2004), 23–54; Appalachian Re- gional Commission, Economic Overview, www.arc.gov/index.do?nodeId=26; U.S. Census Bureau, Statistical Abstract of the United States: 2003, 388, 446–48, 464; U.S. Census Bureau, Current Population Survey, pov46, Poverty Status by State (Washington dc: Government Printing Offi ce, 2007). 23. Robert Jay Dilger, “Cash Assistance and Social Welfare Policy in the United States: The Political and Institutional Context,” in Welfare Reform in West Vir- ginia, 55–106. 24. Dilger, “Cash Assistance.” 25. Joseph Ball with Gayle Hamilton, Gregory Hoerz, Barbara Goldman, and Judith Gueron, Interim Findings on the West Virginia Community Work Ex- perience Demonstrations (New York: Manpower Demonstration Research Corporation, 1984); L. Christopher Plein, Welfare Reform in a Hard Place: The West Virginia Experience, Rockefeller Report no. 13 (Albany ny: Nelson Rockefeller Institute of Government, 2001). 26. Dilger, “Cash Assistance,” 78–85, 88–90; Plein, Welfare Reform in a Hard Place, 12–14. 27. L. Christopher Plein, “Implementing Reform in West Virginia: The Evolution of Field Level Administration,” in Welfare Reform in West Virginia, 147–50. 28. U.S. Department of Health and Human Services, Temporary Assistance for Needy Families (TANF), Fifth Annual Report to Congress (Washington dc: Government Printing Offi ce, February 2003), 98–103; U.S. Department of Health and Human Services, Temporary Assistance for Needy Families (TANF), Third Annual Report to Congress (Washington dc: Government Print- ing Offi ce, August 2000), 45. 29. Ann O’M. Bowman, “Trends and Issues in Interstate Cooperation,” in Book of the States, 2004, ed. Keon S. Chi (Lexington ky: Council of State Govern- ments), 34–36. 30. John G. Morgan, West Virginia Governors, 2nd ed. (Charleston wv: Charles- ton Newspapers, 1980), 396; College Board, Caperton Biography, www.college board.com/about/association/presidentbio.html. 31. Campaign for Tobacco Free Kids, “State Tobacco Settlement.,” http://tobacco freekids.org/reports/settlements/. 32. Robert Wise, State of the State Address, 2004. 33. Joseph A. Clayton, Robert Jay Dilger, and Greg Sayre, “Landfi lls and West Virginia’s Economic Development,” in West Virginia in the 1990s: Opportuni- ties for Economic Progress, ed. Robert Jay Dilger and Tom Stuart Witt (Mor- gantown: West Virginia University Press, 1994), 171–94; Valero Terrestrial 294 Notes to pages 97–105

Corp. v. Caffrey, 205 F.3d 130 (4th Cir. W.Va. 2000); Valero Terrestrial Corp. v. Paige, 211 F.3d 112 (4th Cir. W.Va. 2000). 34. David C. Nice, “The Intergovernmental Setting of State-Local Relations,” in Governing Partners: State-Local Relations in the United States, ed. Russell Hanson (Boulder: Westview Press, 1998), 31. 35. Janet L. Metzner, “Cities Reject Sales Tax Hike, Fairmont Proposes 5-Year Levy: Morgantown Sticking to B&O Revenue,” Dominion Post, August 22, 2004. 36. Scott Wartman, “Area Cities Weighing Pros, Cons of New Tax Options,” Her- ald-Dispatch, March 21, 2004. 37. Mehmet Tosun, Municipal Finance in West Virginia: Forging a Course for Fis- cal Stability (Morgantown: West Virginia University Bureau of Business and Economic Research, August 2003); Michael John Dougherty and L. Christo- pher Plein, “Challenges and Opportunities for West Virginia’s Local Govern- ments,” West Virginia Public Affairs Reporter 14, no. 4 (Fall 1997): 10; L. Christopher Plein and David G. Williams, “Local Government Finance in West Virginia,” West Virginia Public Affairs Reporter 13, no. 3 (Summer 1996): 2–10; West Virginia Legislative Reference and Information Center, “Final Wrap-Up,” West Virginia Legislature, 76th legis., 2nd sess., May 2004, 10. 38. Chris Miller, “State Takes Control of Logan School System,” Charleston Ga- zette, August 6, 1992, 1a, 9a; Steven J. Keith, “Logan Seizure Last Resort, Ofﬁ cials Say,” Charleston Daily Mail, August 6, 1992, 1a, 9a; Mona Ridder, “West Virginia Takes Over Hampshire Schools,” Cumberland Times-News, January 12, 2006. 39. Joseph A. Clayton, Robert Jay Dilger, and Greg Sayre, “Landﬁ lls and West Virginia’s Economic Development,” in West Virginia in the 1990s: Opportuni- ties for Economic Progress, ed. Robert Jay Dilger and Tom Stuart Witt (Mor- gantown: West Virginia University Press, 1993), 171–94. 40. U.S. Bureau of the Census, State and Local Government Finances by Level of Government and State: 2004–2005 (Washington dc: Bureau of the Census, 2008). 41. David White, “The Property Tax in West Virginia: A Review and Evaluation,” West Virginia Public Affairs Reporter 8, no. 3 (Summer 1991): 1–12; William S. Reece, “Local Government Finance and Its Implications for West Virginia’s Economic Development,” in West Virginia in the 1990s, 285–317. 42. West Virginia Economic Development Council, Bylaws (Charleston: West Vir- ginia Economic Development Council, 2004).

chapter five

1 . For further details on these constitutions, see Charles H. Ambler, Sectionalism in Virginia from 1776 to 1861 (Chicago: University of Chicago Press, 1910); Notes to pages 107–110 295

Robert M. Bastress, The West Virginia Constitution: A Reference Guide (West- port ct: Greenwood Press, 1995), 1–9; A. E. Dick Howard, Commentaries on the Constitutions of Virginia, 2 vols. (Charlottesville: University of Virginia Press, 1974); John Alexander Williams, “The New Dominion and the Old: An- te-Bellum and Statehood Politics as the Backyard of West Virginia’s ‘Bourbon Democracy,’” West Virginia History 33 (1971–72): 349–57. 2 . Richard Orr Curry, A House Divided: A Study of Statehood Politics and the Copperhead Movement in West Virginia (Pittsburgh: University of Pittsburgh Press, 1964), 28–85. For a summary of the creation of the state, see also Otis K. Rice and Stephen K. Brown, West Virginia: A History (Lexington: Univer- sity Press of Kentucky, 1993), 140–53. 3 . Curry, A House Divided, 86–99. 4 . “Constitution of West Virginia—1861–1863,” Art. II § 9, in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, ed. Francis Newton Thorpe (Washington dc: Government Printing Ofﬁ ce, 1909), 4014–16 [hereafter cited as Constitutions]; Charles H. Ambler, Frances Haney Atwood, and William B. Mathews, eds., Debates and Proceed- ings of the First Constitutional Convention of West Virginia, 3 vols. (Hunting- ton wv: Gentry Brothers, n.d.); “Constitution of Ohio—1851” (Art. V §§ 1–2), in Constitutions, 2924. 5 . “Constitution of West Virginia—1861–1862” (Art. V), in Constitutions, 4022–23. Cf. “Constitution of Virginia—1850” (Arts. V), in Constitutions, 3843–45. 6 . “Constitution of West Virginia—1861–1862” (Art. VI), in Constitutions, 4023–25. Cf. “Constitution of Virginia—1850” (Arts. VI), in Constitutions, 3845–49. 7 . “Constitution of Ohio—1851” (Art. X), in Constitutions, 2927–28, 4158, and “Constitution of West Virginia—1861–1863” (Art. VII §§ 1–3), in Constitu- tions, 4025–26. 8 . Curry, House Divided, 100–135. 9 . Virginia v. West Virginia, 78 U.S. 39 (1871). 10. Curry, House Divided, 74–78, 141–52. 11. Richard O. Curry, “Crisis Politics in West Virginia,” in Radicalism, Racism, and Party Realignment: The Border States during Reconstruction, ed. Richard O. Curry (Baltimore: Johns Hopkins University Press, 1969), 80–104; Henry T. Gerofsky, “Reconstruction in West Virginia (I),” West Virginia History 6 (July 1945): 295–360; Williams, “New Dominion and the Old,” 349–57. 12. Journal of Constitutional Convention, Assembled at Charleston, West Vir- ginia, January 16, 1872 (Charleston wv: Henry S. Walker, 1872); Henry T. 296 Notes to pages 110–124

Gerofsky, “Reconstruction in West Virginia (II),” West Virginia History 7 (Oc- tober 1945): 5–39; Williams, “New Dominion and the Old,” 365–73. 13. For more detailed analysis of the Constitution, see Bastress, West Virginia State Constitution. 14. Walter v. West Virginia Board of Education, 610 F. Supp. 1169 (S.D.W.Va. 1985), following Wallace v. Jaffree, 472 U.S. 38 (1985). 15. W. W. Kaempfer, The Board of Public Works: West Virginia’s Plural Executive (Morgantown: Bureau for Government Research, West Virginia University, 1957), 7–19. 16. United States v. Darby Lumber Co., 312 U.S. 100 (1941); Garcia v. San Anto- nio Metropolitan Transit Authority, 469 U.S. 528 (1985). 17. Brown v. Board of Education, 347 U.S. 483 (1954) and Brown v. Board of Edu- cation, 349 U.S. 294 (1955). 18. On residency requirements see Dunn v. Blumstein, 405 U.S. 330 (1972); on military voting see Carrington v. Rash, 380 U.S. 89 (1965). 19. Reynolds v. Sims, 377 U.S. 533 (1964).

chapter six

1 . Alan Rosenthal, “The Legislative Institution—Transformed and at Risk,” in The State of the States, 2nd ed., ed. Carl Van Horn (Washington dc: CQ Press, 1993). 2 . The legislature convenes on the second Wednesday in February in years following a gubernatorial election. 3 . Darrell E. Holmes, ed., West Virginia Blue Book 2002 (Charleston wv: Chap- man Printing, 2003), 344. 4 . National Conference of State Legislatures, 50 State Staff Count (Denver: Na- tional Conference of State Legislatures, 2005). 5 . Holmes, West Virginia Blue Book 2002, 331–38. 6 . National Conference of State Legislatures, Size of State Legislative Staff: 1979, 1988, 1996, and 2003, www.ncsl.org/programs/legman/about/staffcount2003 .htm. 7 . Susan J. Carroll, “Women in State Government: Historical Overview and Current Trends,” in The Book of the States (Lexington ky: Council of State Governments, 2004), 36:339; “State Results,” Herald-Dispatch, November 3, 2004, 1a. 8 . Women’s Legislative Network of ncsl (Denver: National Conference of State Legislatures, January 1, 2005). 9 . Women’s Legislative Network of NCSL; Beth Bazar, State Legislator’s Occu- pations: A Decade of Change (Denver: National Conference of State Legisla- tures, 1987). Notes to pages 124–133 297

10. James David Barber, The Lawmakers: Recruitment and Adaptation to Legisla- tive Life (New Haven: Yale University Press, 1965). 11. Lilliard E. Richardson Jr. and Christopher A. Cooper, “The Consequences of Multiple-Member Districts in the State Legislature,” paper presented at the Third Annual Conference on State Politics and Policy, Tucson, March 2003. 12. Katrina L. Schochet and David M. Hedge, “Redistricting in West Virginia,” manuscript (Morgantown: West Virginia University, n.d.). 13. Alan Rosenthal, “A Vanishing Breed,” State Legislatures, November–Decem- ber 1989, 30–34. 14. Burdett Loomis, “Trends, Cycles, and Endgames: Legislative Implications of Political Time,” paper presented at the Midwest Political Science Association meeting, Chicago, 1991, 9–10. 15. “Kiss Downplays Carpet Calling,” MetroNews Talkline, March 3, 2004; Tom Searls, “House Chairmen Offer to Quit,” Charleston Gazette, March 5, 2004, 3a. 16. Alan Rosenthal and Rich Jones, “Trends in State Legislatures,” in The Book of the States (Lexington ky: Council of State Governments, 2004), 36:120. 17. Christopher Z. Mooney, “Measuring U.S. State Legislative Professional- ism: An Evaluation of Five Indices,” State and Local Government Review 26 (1994): 70–78. 18. Rosenthal and Jones, “Trends in State Legislatures,” 128; John Burns, The Sometimes Governments (New York: Bantam Books, 1971), 107; Mavis Mann Reeves, The Question of State Government Capacity (Washington dc: Advi- sory Commission on Intergovernmental Relations, 1985), 81. 19. American Society of Legislative Clerks and Secretaries, Inside the Legislative Process (Denver: National Conference of State Legislatures, 1992), 62–64; American Society of Legislative Clerks and Secretaries, Inside the Legislative Process (Denver: National Conference of State Legislatures, 1998), 4-36 and 4-37. 20. James R. Oxendale Jr., “Membership Stability on Standing Committees in Legislative Lower Chambers,” State Government 54 (1981): 126; Donald L. Kopp, ed., Manual of the Senate and House of Delegates (Charleston: West Virginia State Legislature, 1992), 283–85, 368–70. 21. Rosenthal and Jones, “Trends in State Legislatures,” 109, 112; Burns, The Sometimes Governments, 161–67; Reeves, The Question of State Government Capacity, 90–92. 22. American Society of Legislative Clerks and Secretaries, Inside the Legislative Process, 1998, 3–8, 3–11. 23. Rosenthal and Jones, “Trends in State Legislatures,” 120; “Session: Good, Bad, and So-So,” Charleston Gazette, April 12, 2005. 24. Rosenthal and Jones, “Trends in State Legislatures,” 132, 138. 298 Notes to pages 133–142

25. Alan Rosenthal, Legislative Life (New York: Harper and Row, 1981), 314. 26. Rosenthal and Jones, “Trends in State Legislatures,” 139–41. 27. Associated Press, “Lawmakers Approve Budget Digest,” Intelligencer/Wheel- ing News-Register, June 29, 2004. 28. Common Cause v. Tomblin, 413 S.E. 2nd 358 (W.Va. 1991); Phil Kabler, “Budget Digest Ruling Organizes Process,” Charleston Gazette, April 27, 2001; Associated Press, “Lawmakers Ladle Out Budget Digest Bacon,” Intel- ligencer/Wheeling News-Register, July 27, 2004.

chapter seven 1 . U.S. Census Bureau, Statistical Abstract of the United States: 2003 (Washing- ton dc: Government Printing Offi ce, 2003), 329, 441. 2 . Larry Sabato, Goodbye to Good-time Charlie: The American Governorship Transformed, 2nd ed. (Washington dc: Congressional Quarterly, 1983), 1–5. 3 . George Weeks, “A Statehouse Hall of Fame,” State Government 55, no. 2 (Spring 1982): 67–69, 71–73. 4 . Ann O’M. Bowman and Richard Kearney, The Resurgence of the States (Englewood Cliffs nj: Prentice-Hall, 1986); Thad L. Beyle, “Governors,” in Politics in the American States, 5th ed., ed. Virginia Gray, Herbert Jacob, and Robert Albritton (Glenview il: Scott, Foresman, 1990), 201–51. 5 . Beyle, “Governors”; Mavis Mann Reeves, “The States as Polities: Reformed, Reinvigorated, Resourceful,” Annals 509 (May 1990): 83–93. 6 . Bowman and Kearney, The Resurgence of the States, 47–75. 7 . John G. Morgan, West Virginia Governors, 2nd ed. (Charleston wv: Charles- ton Newspapers, 1980), 366–67. 8 . Thad Beyle, “Governors: Elections, Campaign Costs, Profi les, Forced Exits and Powers,” in The Book of the States, 2004 (Lexington ky: Council of State Governments, 2004), 148–53. 9 . Beyle, “Governors”; Beyle, “Governors: Elections, Campaign Costs, Forced Exits and Powers,” 150; Associated Press, “Some Defeated Candidates End Pri- mary Race in the Red,” Intelligencer/Wheeling News-Register, June 16, 2004. 10 . Tom Searls, “Ireland Beats Hechler,” Charleston Gazette, November 3, 2004, 3. 11. Campaign for Tobacco Free Kids, “State Tobacco Settlement,” http://tobacco freekids.org/reports/settlements/. 12. John D. Perdue Biography, www.wvsto.gov/. 13. “State Offi cials Ask Legal Immunity for 1987 Investment Fund Loss,” Charleston Gazette, September 23, 1992, 3a; Jack Deutsch, “Brotherton Sets Impeachment Trial Guidelines,” Charleston Daily-Mail, May 23, 1989, 1a; A. V. Gallagher, “Manchin Closes Out Long Career,” Charleston Daily-Mail, July 8, 1989, 2a; Associated Press, “Legendary W.Va. Politician, Del. A. James Manchin, Dies,” Times Leader, November 3, 2003. Notes to pages 142–148 299

14. Jeffrey Bair, “Amendments Face Battle,” Charleston Daily Mail, August 28, 1989, 5a; Mark W. Kelley, “Amendment Offers Citizens Path to Better Gov- ernment,” Charleston Gazette, August 30, 1989, 1a. 15. Morgan, West Virginia Governors, 365–450. 16. James K. Conant, “Executive Branch Reorganization in the States, 1965–1991,” in Book of the States, 1992–1993 (Lexington ky: Council of State Governments, 1992), 64–73. 17. Brent Cunningham, “Are the Secretaries Really Super?” Charleston Daily Mail, November 29, 1991, 1a, 9a. 18. Associated Press, “Underwood Kicks Off Summit for Future,” Charleston Ga- zette, October 6, 1997; Associated Press, “Underwood Names Highway Task Force,” Charleston Gazette, October 7, 1997; Associated Press, “Underwood Seeks ‘New Model of Government,’” Charleston Gazette, February 13, 1997; Fanny Seiler, “Panel to Examine State’s Entire Tax Structure,” Charleston Ga- zette, June 4, 1997. 19. Governor Robert Wise, State of the State Address, January 8, 2003; Associated Press, “State Should Not Be Immune to Downsizing,” Herald-Dispatch, March 3, 2003. 20. Tom Searls, “Comp Bill Still Taking Shape,” Charleston Gazette, January 28, 2005; Jim Wallace, “Manchin Role as ‘CEO’ Gets Closer Look,” Charleston Daily Mail, January 28, 2005; Lawrence Messina, “Special Session Starts for Legislature,” Herald-Dispatch, January 25, 2005. 21. Beyle, “Governors: Elections, Campaign Costs, Forced Exits and Powers,” 160. 22. Martha W. Weinberg, Managing the State (Cambridge: MIT Press, 1977), 58; West Virginia State Budget Ofﬁ ce, Governor’s FY2009 Executive Budget, vol. 2, Operating Detail (Charleston: West Virginia State Budget Ofﬁ ce, 2008), 121. 23. Joseph A. Schlesinger, “The Politics of the Executive,” in Politics in the Ameri- can States, ed. Herbert Jacob and Kenneth N. Vines (Boston: Little, Brown, 1965); National Governors’ Association, “The Institutionalized Powers of the Governorship,” States Services Management Notes, June 1987, 14–17; Thad Beyle, “The Governors,” Politics in the American States, 8th ed., ed. Virginia Gray and Russell L. Hanson (Washington dc: Congressional Quarterly Press, 2004); Beyle, “Governors: Elections, Campaign Costs, Forced Exits and Pow- ers,” 154–55. 24. Beyle, “The Institutional Powers,” 23–29. 25. Beyle, “The Governors,” 212–13. 26. Sabato, Goodbye to Good-time Charlie, 198–201; Bowman and Kearney, Re- surgence of the States, 65–68. 27. Phil Kabler, “Statehouse Beat: 2005 Legislature Had Its Share of Winners and Losers,” Charleston Gazette, April 11, 2005. 300 Notes to pages 149–155

28. Morgan, West Virginia Governors, 188–550; Bruce A. Ragsdale and Kathryn Allamong Jacob, “Robert Ellsworth Wise,” in Biographical Directory of the United States Congress (Washington dc: Government Printing Offi ce, 1989). In West Virginia, the constitutional qualifi cations for offi ce are the governor must be at least thirty years old, a state citizen for at least fi ve years, a legal resident of West Virginia, a United States citizen, and a qualifi ed voter. 29. Morgan, West Virginia Governors, 277–333; Thomas F. Stafford, Affl icting the Comfortable: Journalism and Politics in West Virginia (Morgantown: West Vir- ginia University Press, 2005), 89–136, 152–81, 206–33. 30. Ron Hutchinson, “Moore Pleads Guilty; Prison Term Possible,” Charleston Daily Mail, May 8, 1990, 1a, 9a; Bill Poovey, “Moore Turns Himself In, Awaits Job Assignment,” Charleston Daily Mail, August 8, 1990, 1a, 9a; Stafford, Affl icting the Comfortable, 245–55, 274–86, 311–17. 31. Morgan, West Virginia Governors, 208–75, 334–550; Phil Kabler, “Governor Admits to Affair; He ‘Absolutely’ Won’t Resign, Aide Says; Alleged Accuser Denies Naming Wise,” Charleston Gazette, May 13, 2003, 1a.

chapter eight

1 . John A. Rohr, To Run a Constitution: The Legitimacy of the Administrative State (Lawrence: University Press of Kansas, 1986), 152. 2 . Albert L. Sturm, State Administrative Organization in West Virginia (Morgan- town: Bureau for Government Research, West Virginia University, 1952), xxi. 3 . “Bureaucracy: Endless Problem,” Charleston Gazette, August 4, 2005, 4a. 4 . See John Kincaid, “The Devolution Tortoise and the Centralization Hare,” New England Economic Review, May-June 1998, 13–52; David Walker, The Rebirth of Federalism: Slouching toward Washington, 2nd ed. (Chappaqua ny: Chatham House, 2000). 5 . See Rohr, To Run a Constitution; David Rosenbloom and Rosemary O’Leary, Public Administration and the Law (New York: Dekker, 1997). 6 . See Sturm, State Administrative Organization, 4; Claude J. Davis, Eugene R. Elkins, Carl M. Frasure, Mavis Mann Reeves, William R. Ross, and Albert L. Sturm, West Virginia State and Local Government (Morgantown: Bureau for Government Research, West Virginia University, 1963), 152–53; Public Administration Service, Administrative Organization of the Executive Branch, State of West Virginia: A Survey Report (Chicago: Public Administration Ser- vice, 1964), 1. 7 . Sturm, State Administrative Organization, 8–11. 8 . Davis et al., West Virginia State and Local Government, 27. 9 . Mary K. Foy, History of Employment Security in West Virginia, 1933–1974 (Charleston: West Virginia Department of Employment Security, 1975), 6–7. Notes to pages 155–162 301

10. Jerry Bruce Thomas, An Appalachian New Deal: West Virginia in the Great Depression (Lexington: University Press of Kentucky, 1998), 153. 11. Alfred S. Neely IV, Administrative Law in West Virginia (Charlottesville va: Mitchie, 1982), 6. 12. Davis et al., West Virginia State and Local Government, 151. 13. See Jane Perry Clark, The Rise of New Federalism: Federal State Cooperation in the United States (Morningside Heights ny: Columbia University Press, 1938). 14. Richard Hofstadter, The American Political Tradition (New York: Vintage, 1948), 332. 15. Sturm, State Administrative Organization, 11. 16. See Sturm, State Administrative Organization, xx–xxi; Davis et al., West Vir- ginia State and Local Government, 150–51; Governor’s Management Task Force, Final Survey Report and Recommendations (Charleston: Governor’s Management Task Force, 1969), 1. 17. West Virginia State Budget Offi ce, Department of Revenue, State Organiza- tional Chart (Charleston: West Virginia State Budget Offi ce, 2006), www .wvbudget.gov/charts/orgchart.pdf. 18. West Virginia State Budget Offi ce, Department of Revenue, General Revenue Fund Appropriations, Fiscal Year 2005 (Charleston: West Virginia Budget Of- fi ce, 2004), www.wvbudget.gov/recommend.htm. 19. See Sturm, State Administrative Organization, appendix; Davis et al., West Vir- ginia State and Local Government, endpapers. 20. See Governor’s Management Task Force, Final Survey Report. 21. Darrell Holmes, ed., West Virginia Blue Book (Charleston: State of West Vir- ginia, 2004), 31. 22. Holmes, Blue Book, 165. 23. Holmes, Blue Book, 56. 24. Holmes, Blue Book, 185. 25. West Virginia State Budget Offi ce, Department of Revenue, Appropriations (Charleston: State Budget Offi ce, 2005), www.wvbudget.gov/recommend.htm. 26. State of West Virginia, Governor’s 2006 Executive Budget (Charleston: State of West Virginia, 2005), 74. 27. L. Christopher Plein and David G. Williams, “West Virginia’s Welfare Reform Experience: First Report,” in State Capacity Study (Albany: Rockefeller Insti- tute of Government, State University of New York, 1997), 17; L. Christopher Plein, “Implementing Reform in West Virginia: The Evolution of Field Level Administration,” in Welfare Reform in West Virginia, ed. Robert Dilger et al. (Morgantown: West Virginia University Press, 2004), 139–41. 28. L. Christopher Plein, “Welfare Reform in a Hard Place: The West Virginia Ex- perience,” Rockefeller Report 13 (2001): 14–15. 302 Notes to pages 162–166

29. See Cornelius Kerwin, Rulemaking: How Government Agencies Write Law and Make Policy, 3rd ed. (Washington dc: Congressional Quarterly Press, 2003). 30. Brian J. Gerber, Cherie Maestas, and Nelson C. Dometrius, “Legislative Infl u- ence over Agency Rulemaking: The Utility of Ex Ante Review,” State Politics and Policy Quarterly 5 (2005): 24–64. 31. Neely, Administrative Law, 7–8. 32. Exempted classes of rules are limited primarily to those dealing with probation and parole, public service commission rulings and orders, primary and secondary education, public assistance, game and fi sh regulations, military affairs, and workers’ compensation. See West Virginia Secretary of State, Administra- tive Law: Exemptions to Rule-Making Requirements, www.wvsos.com/adlaw/ rulemaking/exceptions.htm. 33. Neely, Administrative Law, 11. 34. Nancy Rhyme, Legislative Review of Administrative Rules and Regulations (Denver: National Conference of State Legislatures, 1990), 1. 35. West Virginia ex rel. Meadows v. Hechler, 185 W.Va. 11 (1995). 36. West Virginia Secretary of State, About Rule Making, www.wvsos.com. 37. West Virginia Secretary of State, About Rule Making. 38. See Brian Bowling, “Control of Water Standards Up for Debate,” Charleston Daily Mail, March 5, 2004, 14a; Ken Ward Jr., “dep Still Has No Plan for Water Rulemaking,” Charleston Gazette, June 27, 2005, 1c, 4c. 39. See Gerber et al., “Legislative Infl uence.” 40. Plein, “Welfare Reform in a Hard Place,” 15–16. 41. See L. Christopher Plein, “Welfare Reform’s Consequences for West Virginia’s Safety Net System,” in Welfare Reform in West Virginia, ed. Robert Dilger et al. (Morgantown: West Virginia University Press, 2004), 163–208; L. Chris- topher Plein and David G. Williams, “Managing Welfare Reform in West Vir- ginia: Lessons Learned,” in Welfare Reform in West Virginia, ed. Robert Dilger et al. (Morgantown: West Virginia University Press, 2004), 107–36; Evelyn Nieves, “Job Market in W.Va. Defi es Effort Reform Welfare,” Washington Post, July 24, 2005, a3, a18. 42. See Walker, Rebirth. 43. See Public Administration Service, Administrative Organization of the Executive Branch, State of West Virginia; Governor’s Management Task Force, Final Sur- vey Report, 44; U.S. Census Bureau, Compendium of Public Employment: 2002 Census of Governments, vol. 3, Public Employment (Washington dc: Depart- ment of Commerce, U.S. Census Bureau, Economics and Statistics Administra- tion, September 2004), table 15, www.census.gov/prod/2004pubs/gc023x2.pdf. 44. U.S. Census Bureau, Compendium, table 15. 45. U.S. Census Bureau, Compendium, table 12. Notes to pages 166–170 303

46. Mohamad Alkadry, Kimberly Nolf, and Erin Condo, “Pay Equity in West Virginia State Government,” West Virginia Public Affairs Reporter 19, no. 2 (2002): 2–6. 47. Government Performance Project, “Summary” and “People,” Governing Mag- azine (February 2005), www.governing.com/gpp/2005/wv.htm. 48. See L. Christopher Plein, “Uncertain Prospects: West Virginia and Medicaid Reform,” in Medicaid Reform and the American States, ed. Mark R. Daniels (Westport ct: Auburn House, 1998), 275–91; Plein and Williams, “”Managing Welfare Reform in West Virginia.” 49. Philip Cooper, Governing by Contract: Challenges and Opportunities for Pub- lic Managers (Washington dc: Congressional Quarterly Press, 2003), 59. 50. Scott Finn and Eric Eyre, “DHHR Chief Backs Investigations into Welfare Car Program,” Sunday Gazette Mail, December 28, 2003, 1a, 6a. 51. Scott Finn, “Few Following State Audit Law,” Charleston Gazette, November 19, 2004, 1c, 4c. 52. See Cooper, Governing by Contract, xiii–xiv. 53. U.S. General Accounting Ofﬁ ce, Social Service Privatization: Ethics and Ac- countability Challenges in State Contracting, GAO/HEHS-99-41. 54. James Fossett, Malcolm Goggin, John S. Hall, Jocelyn Johnston, L. Christo- pher Plein, Richard Roper, and Carol Weissert, “Managing Medicaid Managed Care: Are States Becoming Prudent Purchasers?” Health Affairs 19, no. 2 (2000): 36–49. 55. See L. Christopher Plein, Getting More than What’s Bargained For: The Hid- den Administrative Costs of West Virginia’s Mountain Health Trust Program, Case Studies in Medicaid Managed Care (Albany: Rockefeller Institute of Government, 2000); L. Christopher Plein, West Virginia: Medicaid Sustain- ability: Budgetary and Administrative Actions in 2003 for FY2004 (Albany: Rockefeller Institute of Government, 2003). 56. “Privatization Fact Sheet,” BrickStreet Mutual Insurance Company, 2006, and “BrickStreet: A New Era,” presentation by Andy Wessels, director of corporate affairs for BrickStreet, West Virginia Human Resources and Payroll Confer- ence, April 3, 2006. 57. Lawrence Messina, “Big-League Consultants Hired by Manchin,” Charleston Gazette, September 26, 2005, 1a, 9a; Scott Finn, “Consultants to Cut Work- ers’ Comp Rolls,” Charleston Gazette, June 29, 2005, 1a, 13a. 58. Phil Kabler, “peia Subsidy May Hit Credit,” Charleston Gazette, November 18, 2005, 1a. 59. Paul Nyden, “Comp Widow Issue Going to Supreme Court,” Charleston Ga- zette, April 2, 2006, 1b, 6b; Paul Nyden, “State Restores Beneﬁ ts,” Charleston Gazette, April 14, 2006, 1a, 13a. 304 Notes to pages 170–175

60. “BrickStreet Appoints Defense Team to Defend Claims Decisions for Employ- ers,” Inside Brick Street (company newsletter), Spring 2006, 8. 61. Gary Gray, “Workers’ Comp Scrapped,” Dominion Post, October 1, 2005, 1a, 5a. 62. Lawrence Messina, “Interim Panel Debates Oversight for Workers’ Comp,” Charleston Gazette, October 8, 2007, 2a; Lawrence Messina, “Lawmakers, Manchin Clash over Struggle to Privatize Workers’ Comp,” Charleston Ga- zette, December 3, 2007, 1a, 7a. 63. Governor Manchin quoted in “Governor: State Will Realize Savings of $318 Million,” Offi ce of the Governor, press release, June 22,2006; see also “Gov- ernor Reports Decrease in Size of Government,” Offi ce of the Governor, press release, August 30, 2006; “Public Workers’ ‘Common Sense’ Recommenda- tions Already Saving Millions More than Planned,” Offi ce of the Governor, press release, August 17, 2007. Press release archives accessed through www. state.wv.us/governor. 64. For discussions, see John D. Donahue, The Devolution Revolution: Hazardous Crosscurrents (New York: Century Foundation Press, 1999); Richard P. Nathan, “There Will Always Be a New Federalism,” paper for a Federalism Workshop, American Enterprise Institute, Washington dc, December 14, 2005; Paul E. Peterson, “Devolution’s Price,” Yale Law and Policy Review, Yale Journal of Regulation, Symposium Issue. Constructing a New Federalism, Jurisdictional Competence and Competition 3, nos. 1–2 (1996): 111–21; Walker, Rebirth.

chapter nine

1 . Table games include poker, roulette, blackjack, craps, and baccarat similar to those found in Las Vegas. 2 . West Virginia, Governor’s 2006 Executive Budget (Charleston: State of West Virginia, 2005), 41. 3 . Mehmet Tosun, “A Comparative Assessment of West Virginia’s State Tax Sys- tem,” West Virginia Public Affairs Reporter 19, no. 3 (2002): 6. 4 . Erik Schelzig, “Coal Severance Tax Faces Challenge,” Charleston Gazette, September 20, 2005, 3a. 5 . Claude J. Davis, Eugene R. Elkins, Carl M. Frasure, Mavis Mann Reeves, Wil- liam R. Ross, and Albert L. Sturm, West Virginia State and Local Government (Morgantown: Bureau for Government Research, West Virginia University, 1963); Patrick J. Chase and Robert J. Dilger, “West Virginia’s State Taxes: A Comparative Analysis,” West Virginia Public Affairs Reporter 8, no. 4 (1991): 1–10; L. Christopher Plein and David G. Williams, “Local Government Finance in West Virginia,” West Virginia Public Affairs Reporter 13, no. 3 (1996): 2–8. 6 . Chase and Dilger, “West Virginia’s State Taxes,” 2–4. In 2007 the legislature repealed the business franchise tax. Notes to pages 175–180 305

7 . West Virginia Tax Study Commission, A Tax Study for West Virginia in the 1980s: Executive Summary of the Final Report to the West Virginia Legislature (Charleston and Morgantown: West Virginia Tax Study Commission, 1984), 7–8. 8 . West Virginia State Budget Offi ce, Appropriations (Charleston: West Virginia State Budget Offi ce, 2005), www.wvbudget.gov/recommnd.htm. 9 . West Virginia, Governor’s 2006 Executive Budget, 56–57. 10. West Virginia, Governor’s 2006 Executive Budget, 59; West Virginia, Gover- nor’s 2005 Executive Budget (Charleston: State of West Virginia, 2004); Phil Kabler, “Tax Holiday Still Manchin Goal,” Charleston Gazette, July 14, 2005, 1a, 13a; Chase and Dilger, “West Virginia’s State Taxes,” 7. 11. John Williams, West Virginia and the Captains of Industry (Morgantown: West Virginia University Press, 1976), chaps. 6, 7. 12. John Williams, West Virginia: A Bicentennial History (New York: W. W. Nor- ton, 1976), 182. 13. See, for example, William C. Blizzard, “West Virginia Wonderland,” in Appa- lachia’s People, Problems, Alternatives: An Introductory Social Science Read- er (Morgantown: People’s Appalachian Research Collective, 1971), 1:351–52; David E. Whisnant, Modernizing the Mountaineer: People, Power, and Plan- ning in Appalachia, rev. ed. (Knoxville: University of Tennessee Press, 1994). 14. Williams, West Virginia: A Bicentennial History, 195. 15. See Schelzig, “Coal Severance Tax Faces Challenge”; Paul J. Nyden, “State Wins Coal Suit,” Charleston Gazette, December 3, 2005, 1a, 9a. 16. U.S. Steel Mining Co. LLC v. Helton, 2005 W.Va. lexis 176 (2005). 17. Lawrence Messina, “Severance Tax Upheld: U.S. Supreme Court Lets W.Va. Tax Ruling Stand,” Charleston Gazette, June 6, 2006, 1a. 18. West Virginia Department of Revenue, The 2006 Report of the West Virginia Tax Modernization Project (Charleston: West Virginia Department of Revenue, October 2006), www.wvtax.gov/tmp/2006.report.pdf. 19. See Irene S. Rubin, The Politics of Public Budgeting, 3rd ed. (Chatham nj: Chatham House, 1997). 20. West Virginia State Budget Offi ce, Appropriations. 21. West Virginia, Governor’s 2006 Executive Budget, 73. 22. West Virginia, Governor’s 2006 Executive Budget, 73. 23. Beth Gorczyca, “State Uses Lottery Revenues for Pension Debt,” State Jour- nal, March 21, 2003, 5. 24. Phil Kabler, “Federal, Lottery Funds Fill Out State Budget,” Charleston Ga- zette, March 24, 2003, 5d. 25. West Virginia, Governor’s 2008 Executive Budget (Charleston: State of West Virginia, 2007), 82. 306 Notes to pages 180–185

26. West Virginia, Governor’s 2008 Executive Budget, 85. 27. Davis et al., West Virginia State and Local Government, 175, 178. 28. West Virginia, Governor’s 2009 Executive Budget (Charleston: State of West Virginia, 2008), 109. 29. See David R. Robertson and Dennis R. Judd, The Development of American Public Policy: The Structure of Policy Restraint (Glenview il: Scott, Fores- man, 1989); David B. Walker, The Rebirth of Federalism: Slouching toward Washington, 2nd ed. (Chappaqua ny: Chatham House, 2000). 30. West Virginia, Governor’s 2009 Executive Budget, 109. 31. West Virginia, Governor’s 2009 Executive Budget, 111. 32. L. Christopher Plein, “Medicaid Sustainability: Budgetary and Administrative Actions in 2003 for FY2004: The Case of West Virginia,” report for the Nelson A. Rockefeller Institute of Government, 2003. 33. Lawrence D. Brown and Michael S. Sparer, “Poor Program’s Progress: The Unanticipated Politics of Medicaid Policy,” Health Affairs 22, no. 1 (2003): 32–44; Alan Weil, “There’s Something about Medicaid,” Health Affairs 22, no. 1 (2003): 13–20. 34. Nancy Atkins, “West Virginia Medicaid,” presentation to the Summer Institute on Aging, West Virginia University Division of Social Work, Morgantown, 2003. 35. John Kincaid, “The Devolution Tortoise and the Centralization Hare,” New England Economic Review, June 1998, 13–87. 36. Walker, Rebirth, 322–23. 37. Christopher Mooney, “The West Virginia State Budget Process,” West Virginia Public Affairs Reporter 11, no. 1 (1994): 5. 38. Governor’s Press Ofﬁ ce, “Wise Directs Reorganization Plans,” press release, April 29, 2003, www.state.wv.us/governor. 39. Mooney, “The West Virginia State Budget Process,” 4. 40. “Cuts,” Beckley Register Herald, September 5, 2002. 41. West Virginia, Governor’s 2006 Executive Budget, 44–45; “The West Virginia State Budget Process,” 5. 42. Personal communication to L. Christopher Plein, December 2005. 43. West Virginia, Governor’s 2006 Executive Budget, 44. 44. Mooney, “The West Virginia State Budget Process,” 9. 45. Mooney, “The West Virginia State Budget Process,” 11. 46. Personal communication to Plein, December 2005. 47. West Virginia, Governor’s 2006 Executive Budget, 45–46. 48. See Center on Budget and Policy Priorities, “Did States Spend Their Way into the Current Fiscal Crisis?” Report (Washington dc, 2003); National Associa- tion of State Budget Ofﬁ cers, National Governors Association, The Fiscal Sur- vey of States (2003), www.nasbo.org; Walker, Rebirth. Notes to pages 186–191 307

49. Plein, “Medicaid Sustainability.” 50. See Mannix Porterfi eld, “Kiss Says Budget Woes Not Bad as ‘89,” Beckley Register Herald, November 28, 2002; Mannix Porterfi eld, “Kiss Sees Budget as Chief Issue This Year,” Beckley Register Herald, January 3, 2003; “Budget,” Beckley Register-Herald, January 5, 2003. 51. Plein, “Medicaid Sustainability.” 52. See Donley T. Studlar, “The Tobacco War in West Virginia.” West Virginia Public Affairs Reporter 15, no. 1 (1998): 2–10. 53. West Virginia Department of Health and Human Resources, “Cigarette Tax Passage Will Prevent Deep Medicaid Cuts, Jobs Loss,” press release, January 2003, www.wvdhhr.org/communications/news_releases/cigtax.htm. 54. Robert A. Kiss, “West Virginia Will Face Challenges in Developing 2004–05 Budget,” Beckley Register-Herald, August 17, 2003. 55. Gorczyca, “State Uses Lottery Revenues for Pension Debt.” 56. Kiss, “West Virginia Will Face Challenges in Developing 2004–05 Budget.” 57. “Education,” Beckley Register Herald, March 21, 2003. 58. Kabler, “Tax Holiday Still Manchin Goal”; Porterfi eld, “Kiss Says Budget Woes Not Bad as ’89.” 59. Lawrence Messina, “Pension Funding Turns to Budget,” Charleston Gazette, June 27, 2005, 1a. 60. Robert D. Lee Jr. and Ronald W. Johnson, Public Budgeting Systems, 6th ed. (Gaithersburg md: Aspen, 1998), 381–83. 61. West Virginia, Governor’s 2006 Executive Budget, 88. 62. West Virginia, Governor’s 2006 Executive Budget, 83. 63. Robert Kiss, “The Session’s Over; Now, Time to Pay Up,” Beckley Register- Herald, March 9, 2003. 64. West Virginia, Governor’s 2006 Executive Budget, 83. 65. West Virginia, Governor’s 2006 Executive Budget, 83. 66. Andrew Ackerman, “Surpluses Chip Away at Mountain of Liabilities,” Bond Trader, March 30, 2006, 69; “Well Done,” editorial, Charleston Gazette, March 29, 2006, 4a. 67. Jim Davenport, “States Expect Tobacco Payment Battle,” Charleston Gazette, March 22, 2006, 2c. 68. Shelley Sigo, “W.Va. Governor: Tobacco Deal Will Cut Teacher Pension Gap,” Bond Buyer, June 27, 2007, 3; “State of West Virginia Nets More than $800 Million from Tobacco Securization Completed Today,” Offi ce of the Governor, press release, June 14, 2007. 69. Lawrence Messina, “State Praised for Fiscal Moves,” Charleston Gazette, De- cember 31, 2007, 1c, 6c. 308 Notes to pages 193–195

chapter ten

1 . W.Va. Constitution, Art. VIII, § 3 (replaced Art. VIII, § 3, 1880); W.Va. Su- preme Court of Appeals, The Supreme Court of Appeals, www.state.wv.us/ wvsca/supreme.htm. On discretionary jurisdiction, see National Center for State Courts, Examining the Work of State Courts, 2003, www.ncsconline .org/D_Research/csp/2003_Files/2003_Main_Page.html, 72–73. 2 . W.Va. Constitution, Art. VIII, § 6 (replaced Art. VIII, § 12, 1880); Art. VIII, §§ 1, 11 (replaced Art. VIII, §§ 1, 19, 1880); West Virginia Supreme Court of Appeals, Circuit Courts—Trial Courts of General Jurisdiction, www.state. wv.us/wvsca/circuits.htm. 3 . W.Va. Code § 27-5-1 (2007); W.Va. Supreme Court of Appeals, Mental Hy- giene System, www.state.wv.us/wvsca/mental.htm. 4 . W.Va. Constitution, Art. VIII, § 10 (replaced Art. VIII, §§ 21–22, 1880); W.Va. Code, § 50-1-4 (2007); W.Va. Supreme Court of Appeals, Magistrates Courts—Trial Courts of Limited Jurisdiction, www.state.wv.us/wvsca/magistrate.htm. 5 . W.Va. Constitution, Art. VIII, §11 (replaced Art. VIII, § 19). 6 . W.Va. Constitution, Art. VIII, §16; W.Va. Supreme Court of Appeals, Family Court, www.state.wv.us/wvsca/familyct.htm. 7 . W.Va. Constitution, Art. VIII, §§ 3, 5. W.Va. Code, § 51-9-10 (2007). 8 . W.Va. Code § 51-1-15 (2007). 9 . W.Va. Constitution, Art. VIII § 9. 10. W.Va. Code, § 51-5-1 (2007), § 51-6-1 (2007), § 51-7-1 (1994). The two appointed jury commissioners together with the clerk of court form the jury commission for each county, § 52-1-4 (2007). 11. Mayer v. Ferguson, 327 S.E. 2d 409, 412 (W.Va. 1985). 12. W.Va. Supreme Court of Appeals, Workers’ Compensation Mediation Pro- gram, www.state.wv.us/wvsca/WCC/workers.htm; W.Va. Supreme Court of Appeals, Specialty Court Programs, www.state.wv.us/wvsca/SpecialtyCts.htm. 13. W.Va. Constitution, Art. VIII §7. 14. The survey data used in this and other sections was collected by Richard A. Brisbin Jr. and John C. Kilwein for the West Virginia Institute for Public Af- fairs. Circuit and magistrate court data is from 1991 and 2005, and family court data is from 2005. Complete ﬁ ndings for 1991 are found in Richard A. Brisbin Jr., “The West Virginia Judiciary,” in West Virginia’s State Govern- ment: The Legislature, Executive, and Judicial Branches, Institute for Public Affairs Monograph Series no. 5 (Morgantown: Institute for Public Affairs, West Virginia University, 1993, 59–125. Those for 2005 are found in Richard A. Brisbin Jr. and John C. Kilwein, “The Future of the West Virginia Judiciary: Notes to pages 197–205 309

Problems and Policy Options,” West Virginia Public Affairs Reporter 24, no. 3 (October 2007): 2–14. 15. State Bar of West Virginia, 2004 wv State Bar Membership Survey Results, www.vbar.org/barinfo/04msurveyresults.html. 16. John Paul Ryan, Alan Ashman, Bruce Sales, and Sandra Shane-DuBow, Amer- ican Trial Judges (New York: Free Press, 1980), 90–97. 17. W.Va. Constitution, Art. IX, § 1. 18. West Virginia Public Defender Services, www.wvpds.org/; John C. Kilwein, “Indigent Access to Justice in West Virginia,” West Virginia Public Affairs Re- porter 20, no. 1 (Winter/Spring 2003): 2–9. 19. Kilwein, “Indigent Access to Justice,” 2–9. 20. Ryan et al., American Trial Judges, 17–43. 21. W.Va. Supreme Court of Appeals, Circuit Courts, www.state.wv.us/ wvsca/2005Circuits.pdf. 22. W.Va. Supreme Court of Appeals, Magistrate Courts, www.state.wv.us/ wvsca/2005Magistrates.pdf. 23. W.Va. Supreme Court of Appeals, “State Caseload Report 2004,” March 11, 2005. 24. W.Va. Code, W.Va. Rules of Criminal Procedure, Rule 11 (2007). 25. This data supports other assessments of the work of courts, see William Hal- tom and Michael McCann, Distorting the Law: Politics, Media, and the Litiga- tion Crisis (Chicago: University of Chicago Press, 2004). 26. W.Va. Supreme Court of Appeals, Family Courts, www.state.wv.us/ wvsca/2005Family.pdf. 27. W.Va. Supreme Court of Appeals, Family Court- ordered Mediation in West Virginia, www.state.wv.us/wvsca/familyct/cover.htm. 28. W.Va. Supreme Court of Appeals, Going to Family Court in West Virginia, www.state.wv.us/wvsca/familyct/GoingtoFC.pdf. 29. W.Va. Supreme Court of Appeals, Family Court Rules, www.state.wv.us/ wvsca/Rules/fmlyct.htm. 30. W.Va. Department of Health and Human Resources, Child Protective Services Policy, www.wvdhhr.org/. 31. “CASA Program,” West Virginia Lawyer 7, no. 6 (1994): 12. 32. W.Va. Constitution, Art. VIII § 8; State ex rel. Walker v. Giardina, 294 S.E. 2d 900 (W.Va. 1982). 33. W.Va. Constitution, Art IV, § 8; W.Va. Supreme Court of Appeals, Judicial In- vestigation Commission of West Virginia, www.state.wv.us/wvsca/JIC/cover .htm. 34. Norman Oder, “Behind the Rhetoric: Philosophies Clash in Supreme Court Race,” Charleston Gazette-Mail, April 17, 1988, c-1; Norman Oder, 310 Notes to pages 206–213

“Spending Gaps Narrowed between High Court Candidates,” Charleston Gazette, May 5, 1988, 6d; “Primary Race Contributions Listed,” Charleston Daily Mail, June 10, 1988, 8a. 35. See Wayne Ewing, producer, The Last Campaign (Carbondale co: Wayne Ew- ing Films, 2005) (motion picture). 36. These statements are from interviews with Justice William T. Brotherton Jr., Charleston, February 11, 1992; Chief Justice Thomas E. McHugh, Charleston, January 7, 1992; Justice Richard Neely, Charleston, December 16, 1991; Jus- tice Thomas Miller, Charleston, March 16, 1992; Justice Margaret Workman, Charleston, February 11, 1992; Justice Larry Starcher, Charleston, March 17, 2005. 37. State Bar of West Virginia, 2004 wv State Bar Membership Survey Results. 38. W.Va. Constitution, Art. VIII, § 3 (replaced Art. VIII, § 3, 1880); W.Va. Code, W.Va. Rules of Appellate Procedure, Rules 1–8 (2007). 39. W.Va. Supreme Court of Appeals, 2005 Statistical Report, www.state.wv.us/ wvsca/clerk/statistics/2005StatRept.pdf. 40. National Center for State Courts, State Court Caseload Statistics, 2003, www .ncsconline.org/D_Research/csp/2003_Files/2003_SCCS.html. 41. W.Va. Code, W.Va. Rules of Appellate Procedure, Rules 1–17 (2007). 42. W.Va. Code, W.Va. Rules of Appellate Procedure, Rules 15–29 (2007). 43. See W.Va. Supreme Court of Appeals, Supreme Court of Appeals, www.state .wv.us/wvsca/Supreme. 44. Melinda Gann Hall, “Opinion Assignment Procedures and Conference Prac- tices in State Supreme Courts,” Judicature 73 (1990): 209–14. 45. Supervisory control does not extend to the Ofﬁ ce of the Attorney General or to county prosecuting attorneys. However, these ofﬁ cers are controlled by the Su- preme Court of Appeals indirectly through the Court’s control over the ethics of the bar and its review of the legality of their activity in cases under appellate review. 46. W.Va. Code, § 51-1-4 (2007). 47. W.Va. Constitution, Art. VIII § 3. 48. W.Va. Code § 51-1-4a (2007). 49. W.Va. State Bar, The wv State Bar Facts, www.wvbar.org/barinfo/ facts&questions.htm. 50. W.Va. State Bar, Rules of Professional Conduct, www.wvbar.org/barinfo/ rulesprofconduct/index.htm. 51. W.Va. Code, Lawyer Disciplinary Procedure, Rules (2007). 52. John Patrick Hagan, “Policy Activism in the West Virginia Supreme Court of Appeals, 1930–1985,” West Virginia Law Review 89 (1986): 152. 53. This is the Uniform Commercial Code, Article 2. See Vincent P. Cardi, “The Notes to pages 214–216 311

Experience of Article 2 of the Uniform Commercial Code in West Virginia,” West Virginia Law Review 93 (Summer 1991): 735–858. 54. For examples, see conformity with the federal Fourteenth Amendment privileges and immunities clause in Johnson v. Tsapis, 413 S.E. 699 (W.Va. 1991). 55. Thomas v. La Rosa, 400 S.E. 2d 809 (W.Va. 1990). 56. Common Cause of W.Va. v. Tomblin, 413 S.E. 2d 358 (W.Va. 1991). 57. Murredu v. Murredu, 160 W.Va. 610 (1977). 58. Garska v. McCoy, 167 W.Va. 59 (1981). 59. Hendershot v. Handlan, 162 W.Va. 175 (1978). 60. McGuire v. Farley, 370 S.E. 2d 136 (W.Va. 1988). 61. LaRue v. LaRue, 304 S.E. 2d 312 (W.Va. 1982). See also Whiting v. Whiting, 396 S.E. 2d 413 (W.Va. 1990); Roig v. Roig, 364 S.E. 2d 794 (W.Va. 1987), reversing Hamstead v. Hamstead, 357 S.E. 2d 216 (W.Va. 1987); Cross v. Cross, 363 S.E. 2d 449 (W.Va. 1987). See also Roig v. Roig, 364 S.E. 2d 794 (W.Va. 1987); Fischer v. Fischer, 338 S.E. 2d 233 (W.Va. 1985); Harris v. Crowder, 322 S.E. 2d 854 (W.Va. 1984); Davis v. K.B.& T. Co., 309 S.E. 2d 45 (W.Va. 1983). 62. The tests are the “purposive-revenue-generating-activity test” of Western Maryland Rwy. v. Goodwin, 167 W.Va. 804 (1981), and the “unitary business nexus test” of Armco, Inc. v. Hardesty, 303 S.E.2d 206 (W.Va. 1983), rev’d on other grounds 467 U.S. 638 (1984). 63. Webb v. Fury, 167 W.Va. 434 (1981). 64. See Thomas B. Miller, “The New Federalism in West Virginia,” West Virginia Law Review 90 (1987): 51–65. 65. On schools, see Pauley v. Kelly, 162 W.Va. 672 (1979) and compare San Anto- nio Ind. School Dist. v. Rodriguez, 411 U.S. 1 (1973). On sentences, see State v. Buck, 314 S.E. 2d 406 (W.Va. 1984); Wanstreet v. Bordenkircher, 166 W.Va. 523 (1981); and compare Rummel v. Estelle, 445 U.S. 263 (1980) and State v. Beck, 286 S.E. 2d 234 (W.Va. 1981). On access to hearings, see State ex rel. The Herald-Mail Co. v. Hamilton, 165 W.Va. 103 (1980), and compare Gan- nett Co. v. DePasquale, 443 U.S. 368 (1979). On alcohol, see State v. Zegeer, 296 S.E. 2d 873 (W.Va. 1982) and compare Powell v. Texas, 392 U.S. 514 (1968). On electronic surveillance, see State v. Mullens, 2007 W.Va. LEXIS 10, and compare U.S. v. White, 401 U.S. 745 (1971). 66. Bradley v. Appalachian Power Co., 163 W.Va. 322 (1979). See “Symposium on Bradley v. Appalachian Power Co.—West Virginia Adopts Comparative Negligence,” West Virginia Law Review 82 (1980): 473–550. 67. Morningstar v. Black and Decker Mfg. Co., 162 W.Va. 857, 875–892 (1979). 68. Blankenship v. General Motors Corp., 406 S.E. 2d 781 (W.Va. 1991). 69. Mandolidis v. Elkins Industries, 161 W.Va. 695 (1978); Rohrbaugh v. Wal- 312 Notes to pages 216–227

Mart Stores, 212 W.Va. 358 (2002); Willis v. Wal-Mart Stores, 202 W.Va. 413 (1998). 70. Meadows v. Wal-Mart Stores, 207 W.Va. 203 (1999). 71. Pauley v. Kelly, 162 W.Va. 672 (1979). 72. State ex rel. Board of Education v. Rockefeller, 167 W.Va. 72 (1981). 73. Randolph County Board of Education v. Adams, 196 W.Va. 9 (1995). 74. On prisons, see Crain v. Bordenkircher, 342 S.E. 2d 422 (W.Va. 1986); 376 S.E. 2d 140 (W.Va. 1988); 382 S.E. 2d 68 (W.Va. 1989); 392 S.E. 2d 227 (W.Va. 1990). On treatment programs, see McGraw v. Hansberger, 301 S.E. 2d 848 (W.Va. 1983). On the homeless, see Hodge v. Ginsburg, 303 S.E. 2d 245 (W.Va. 1983). 75. West Virginia ex rel. Cities of Charleston and Huntington etc. v. West Virginia Economic Development Grant Commission, 214 W.Va. 277 (2003). 76. In re 1975 Tax Assessments v. Oneida Coal Co., 360 S.E. 2d 560, 565 (W.Va. 1987). 77. Allegheny Pittsburgh Coal Co. v. County Commission of Webster County, W.Va., 109 S. Ct. 633 (1989). 78. W.Va. Code, §§ 14-2-4 ff (2007). 79. W.Va. Legislature, Welcome to the West Virginia Legislature’s Crime Victims Compensation Fund, www.legis.state.wv.us/Joint/victims/main.cfm.

chapter eleven

1 . U.S. Department of Commerce, U.S. Census Bureau, Statistical Abstract of the United States: 2003 (Washington dc: Government Printing Offi ce, 2003), 277. 2 . U.S. Department of Commerce, U.S. Census Bureau, State and Local Govern- ment Finances by Level of Government and by State: 2004–2005 (Washington dc: Government Printing Offi ce, 2007). Figures are extrapolations to 2008 based on recent historical trends. 3 . U.S. Department of Commerce, U.S. Census Bureau, 2006 Public Employment Data, Local Governments, West Virginia (Washington dc: Government Print- ing Offi ce, 2007). 4 . W.Va. Code, §§ 7-1–7-20. 5 . State ex. rel. Summerfi eld v. Maxwell, 148 W.Va. 535 (1964). 6 . West Virginia Prosecuting Attorneys Institute, www.wvpai.org/operations.htm. 7 . West Virginia Tax Department, Coal Severance Tax: Consolidated Budget Re- port, Fiscal Year Ending June 30, 1995 (Charleston: West Virginia Tax Depart- ment, 1993); U.S. Department of Commerce, U.S. Census Bureau, State and Local Government Finances, 2002 Census of Governments. 8 . U.S. Department of Commerce, U.S. Bureau of the Census, Employment of Major Local Governments 3, no. 1 (May 2004): 80; West Virginia State Notes to pages 227–241 313

Auditor’s Offi ce, Consolidated Budget Report 2003–2004 Fiscal Year (Charleston: West Virginia State Auditor’s Offi ce, 2005). 9 . Claude J. Davis et al., West Virginia State and Local Government (Morgantown wv: Bureau for Government Research, 1963), 445. 10. U.S. Department of Commerce, U.S. Census Bureau, State and Local Govern- ment Finances, 2002 Census of Governments. 11. “Carry over Carey,” Dominion Post, January 14, 1993, 4a. 12. Elrod v. Burns, 427 U.S. 347 (1976). 13. “Political Spoils,” Charleston Gazette, February 25, 1993, 4a. 14. Martha Bryson Hodel, “Structure of Government under Review,” Herald- Dispatch, February 22, 2004; Janet L. Metzner, “Local Government May See Big Changes: Consolidation of Cities, Counties Debated at Conference,” Dominion-Post, August 15, 2004. 15. See Robert M. Bastress Jr., “Localism and the West Virginia Constitution,” West Virginia Law Review 109 (2007): 683–723. 16 . U.S. Department of Commerce, U.S. Bureau of the Census, Public Education Finances: 2005 (Washington dc: Government Printing Offi ce, 2007), 8, 11, 12. 17. Robert Jay Dilger, “Public School Finances in West Virginia,” West Virginia Public Affairs Reporter 16, no. 3 (Summer 1999): 2–8. 18. U.S. Department of Commerce, U.S. Bureau of the Census, Population Esti- mates: Places in West Virginia Listed Alphabetically, April 1, 2000, to July 1, 2005 (Washington dc: Government Printing Offi ce, 2007), www.census.gov/ popest/cities/SUB-EST2005-04-54.xls. 19. Jim Wallace, “First Town to Seek Sales Tax Hits Snag,” Charleston Daily- Mail, March 7, 2005. 20. Mehmet Tosun, Municipal Finance in West Virginia: Forging a Course for Fis- cal Stability (Morgantown: West Virginia University Bureau of Business and Economic Research, August 2003). 21. Mavis Andree Mann (Reeves), The Structure of City Government in West Virginia (Morgantown: West Virginia University Bureau of Government Re- search, 1953), 2. 22. U.S. Department of Commerce, U.S. Bureau of the Census, Population Esti- mates: Places in West Virginia Listed Alphabetically, April 1, 2000, to July 1, 2005. 23. Richard H. Leach and Timothy G. O’Rourke, State and Local Government: The Third Century of Federalism (Englewood nj: Prentice-Hall, 1988), 188. 24. West Virginia State Auditor’s Offi ce, Consolidated Budget Report 2004–2005 Fiscal Year. 25. U.S. Department of Commerce, U.S. Bureau of the Census, 2002 Census of Governments: Government Units in 2002 (Washington dc: Government Print- ing Offi ce, July 2002). 314 Notes to pages 241–252

26. Government Organization 1, no. 1 (December 2002): 6, 13–14, www.census. gov/prod/2003pubs/gc021x1.pdf. For discussion of these bills, see West Vir- ginia Municipal League, Municipal Bills Passed, www.wvml.org/ BILLS PASSED2006.pdf. chapter twelve

1 . Robert Jay Dilger and Tom Stuart Witt, “West Virginia’s Economic Future,” in West Virginia in the 1990s: Opportunities for Economic Progress, ed. Dilger and Witt (Morgantown: West Virginia University Press, 1993), 3–6. 2 . Scott Shalaway, “Nature: Mining Companies Do State’s Dirty Work,” Pitts- burgh Post-Gazette, June 23, 2002; George Hohmann, “Higher Coal Output Hailed as Crucial to State Finances,” Charleston Daily Mail, March 9, 2005. 3 . David R. Martinelli and Ronald W. Eck, “West Virginia’s Transportation Infra- structure: Conditions, Trends, and Implications for Economic Growth,” in West Virginia in the 1990s, 195–201. 4 . Clifford B. Hawley, “Demographic Change and Economic Opportunity,” in West Virginia in the 1990s, 48–53, 63–65. 5 . U.S. Department of Commerce, Statistical Abstract of the United States: 2004–2005, 20, 21, www.census.gov/statab/www/ranks. 6 . U.S. Department of Commerce, Statistical Abstract, 374, 428, 433, 454. 7 . Fanny Seiler, “Tax Credits Drain $110 Million from State,” Charleston Ga- zette, February 12, 1993, 1a; Paul Nyden, “Super Tax Credits Cost State Mil- lions but Few Jobs Created,” Sunday Gazette-Mail, March 7, 1993, 3b; Robin C. Capehart and Dale W. Steager, “Tax Incentives and the Governor’s Com- mission on Fair Taxation,” West Virginia Public Affairs Reporter 16, no. 4 (Fall 1999): 11. 8 . “Giveaway Mess,” Charleston Gazette, March 10, 1993, 4a. 9 . Seiler, “Tax Credits Drain $110 Million from State.” 10. Capehart and Steager, “Tax Incentives and the Governor’s Commission on Fair Taxation”; Ken Blum, Evaluation of the Governor’s Commission on Fair Taxa- tion’s “West Virginia’s Agenda for Fair Taxation,” February 1999, www.actwv .org/library/law/tax.doc. 11. Michael John Dougherty, “Amendment 1: County and Municipal Option Eco- nomic Development Amendment,” West Virginia Public Affairs Reporter 19, no. 4 (Fall 2002): 2. 12. West Virginia Council for Community and Economic Development, West Vir- ginia: A Vision Shared! www.wvdo.org/vision.html. 13. State ex rel. City of Charleston v. W.Va. Economic Development Authority, 214 W.Va. 277; 588 S.E.2d 655 2003. 14. Lara Ramsburg, “Governor Signs Workers’ Compensation Bill into Law, Sig- naling ‘A New Day’ in West Virginia,” West Virginia Ofﬁ ce of the Governor, Notes to pages 253–260 315

February 16, 2005; West Virginia Workers’ Compensation Commission, “New Era for West Virginia,” February 1, 2005. 15. See Ronald L. Lewis, Transforming the Appalachian Countryside: Railroads, Deforestation, and Social Change in West Virginia, 1880–1920 (Chapel Hill: University of North Carolina Press, 1998). 16. See Robert Jay Dilger, “Clean Water and Its Implications for Economic Devel- opment in West Virginia,” in West Virginia in the 1990s; Susan Hunter, “The 1990 Clean Air Act: Immediate and Long-Term Impacts on West Virginia,” in West Virginia in the 1990s, 123–47; Susan Hunter, The Acid Rain Controversy: Policy Strategies for West Virginia and the Nation (Morgantown: Institute for Public Affairs, West Virginia University, 1990). 17. West Virginia Department of Environmental Protection, State of the Environ- ment, www.wvdep.org/. 18. West Virginia Water Development Authority, www.boc.state.wv.us/. 19. West Virginia Department of Environmental Protection, State of the Environ- ment, 5–9. 20. West Virginia Department of Environmental Protection, Annual Report Fiscal Year 2002–2003, www.dep.state.wv.us/Docs/4973_Annual%20Report%2003.pdf. 21. For divergence views, see Appalachian Center for Economy and the Environ- ment, Air, www.appalachian-center.org/issues/air/index.html; J. Laurence Kulp, “Acid Rain: Causes, Effects, and Control,” Cato Review of Business and Government, www.cato.org/pubs/regulation/reg13n1-kulp.html. 22. West Virginia Department of Environmental Protection, State of the Environ- ment, 17–21. 23. West Virginia Department of Environmental Protection, Annual Report Fiscal Year 2002–2003; Richard A. Brisbin Jr. and Susan Hunter, Planning for the Future: An Introduction to Land Use Policy Options for West Virginia (Mor- gantown: West Virginia Institute for Public Affairs, 2004). 24. U.S. Environmental Protection Agency, Mountaintop Removal/Valley Fills in Appalachia: Final Programmatic Environmental Impact Statement (Philadel- phia: epa Region 3, 2005); Charles Davis and Robert J. Duffy, “Federal Regu- lation of Mountaintop Removal in Appalachia,” paper presented at the Western Political Science Association annual meeting, March 2005. 25. Rapanos v. U.S., 547 U.S. 716 (2006). 26. John M. Broder, “epa Scaled Back Rules on Wetlands,” New York Times, July 5, 2007. 27. U.S. Census Bureau, National per Student Public School Spending Nears $9,000, ﬁ gure 8, http://ftp2.census.gov/govs/school/elsec05_sttables.xls#’8’!a1. 28. West Virginia Department of Education, NCLB Data for 2006–2007, http:// wveis.k12.wv.us/nclb/public07/repstatc.cfm. 29. West Virginia Higher Education Policy Commission, West Virginia College 316 Notes to pages 260–263

Going Rates by County and High School 2006, 2, www.wvhepcdoc.wvnet.edu/ resources/CGR-2006.pdf. 30. Trina Kleist, “19 Counties to Walk Out,” Charleston Gazette, February 14, 1990, 1a; “Marockie Cancels School,” Charleston Gazette, March 15, 1990, 1a; Mark J. Coyle, “’Frustrated’ Teachers Wait to See Results,” Charleston Gazette, August 3, 1990, 1c. 31. Meg Thomas, “Student Services Ofﬁ ce: License Program Works,” Morgan- town Dominion Post, March 30, 1989, 6a; Jennifer Bundy, “Court Upholds Dropout License Law,” Charleston Daily Mail, November 30, 1990, 1a. 32. School Building Authority, 2007 SBA Handbook, www.wv.state.wv.us/wvsba; Pendleton Citizens for Community Schools v. Marockie, 203 W.Va. 310 (1998). 33. West Virginia, Dept. of Education, Message from West Virginia State Schools Superintendent, wvde.state.wv.us/wvachieves/; West Virginia Department of Education, NCLB Data for 2006–2007.” 34; Southern Regional Education Board, Fact Book on Higher Education, 2007, 57,www.sreb.org/main/EdData/ FactBook/FB2007/05-Enrollment07.pdf. 35. Mary Wade Burnside, “State’s Spending Less on Higher Education,” Charles- ton Gazette, December 5, 1989, 5a; Ken Ward Jr., “College Faculty Still Lose Ground,” Charleston Gazette, July 30, 1991, 1c; “State Higher-Education Spending Totals $39.3 Billion This Year,” Chronicle of Higher Education, October 25, 1989, A 21; “State Professors Earn Less than National Average,” Charleston Daily Mail, April 21, 1992. 36. Therese Cox, “College System Needs Overhaul,” Charleston Daily Mail, Feb- ruary 6, 1989, 1a, 11a. 37. Patty Vandergrift, “Senate OKs Reorganization of Higher Education,” Charles- ton Gazette, March 31, 1989, 1a. 38. Sue Morgan, “Education Savings Proof of No Bureaucracy, Governor Says,” Charleston Gazette, November 4, 1989, 12a; State College and University System of West Virginia, Higher Education Report Card 1992 (Charleston: Department of Education, 1992). 39. A. V. Gallagher, “New Law Ensures Higher-Ed Pay Raises,” Charleston Ga- zette, May 13, 1993, 1a. 40. West Virginia Higher Education Policy Commission, “Resource Materials: History of Appropriations” (photocopy on ﬁ le with authors). 41. Southern Regional Education Board, Fact Book on Higher Education, 2007, 172, www.sreb.org/main/EdData/FactBook/FB2007/08-Faculty07.pdf. Index

acid rain, 255 American Baptists, 20 Adequate Yearly Progress (ayp) stan- American College Test (act), 260 dards, 260, 262 American Electric Power Corp., 62 administrative politics, 151–72 American Family Life Insurance Administrative Procedure Act, 162–63 (aflac), 61 Afﬁ liated Construction Trades, 62 American Federation of Labor-Con- African Americans, 3, 19, 23 gress of Industrial Organizations agenda, policy and political, 8–9, (afl-cio), 56, 59, 62, 68, 80 13, 25–28, 30, 32–33, 53–54, 58, American Federation of State, County, 80–82, 86, 89–90, 96, 101, 105, 123, and Municipal Employees 147–48, 161–62, 166, 184, 186, 188, (afscme), 62, 81. See also West 216–17, 232, 244, 253, 263 Virginia Public Employees Union Aid to Families with Dependent Chil- (afscme) dren (afdc), 84, 93, 160–61 American Federation of Teachers Air Pollution Act, 254 (aft), 62, 80 Air Pollution and Control Commission, American Insurance Association, 77 70 American Petroleum Institute, 62 air quality, 254–55 AmeriGas Propane, 64 Alaska, 20 And For the Sake of the Kids, 47, Allegheny Energy Corp. 62, 80 74–75, 206 Allstate Insurance Co., 62 Appalachia, affect on political behav- amendments, constitutional. See West ior, 3–4 Virginia Constitution of 1872 Appalachian Development Highway American Academy of Family Physi- System, 84 cians, 62 Appalachian Land Ownership Study, 6 American Academy of Judicial Educa- Appalachian Regional Commission tion, 196 (arc), 4, 27, 84, 250 318 Index

Appalachian Regional Development Big Sandy River, 83 Act of 1965, 4 Bill of Rights, West Virginia, 108, Appalachian States Low-Level Radio- 110–11, 114 active Waste Compact, 95 Black Lung Association, 57–58 apportionment, 119–21, 125 blacks. See African Americans appropriations, 141, 146, 160, 174–75, Blankenship, Don, 47, 51, 57, 75, 206 179, 183–85, 189 Blue Cross/Blue Shield, 77 Archer, Julie, 68 Bluefi eld, 238 Arch Mineral Corp. (Coal), 67, 77 Board of Banking and Financial Institu- Arkansas, 26, 129, 132 tions, 70 Arneault, Ted, 66, 73 Board of Education, county, 232–33, Arnold, Linda, 62 261–62 Ashland Oil, 67 Board of Education, state, 98–99, Asian population, 3 232–34, 262 assessor, county, 97, 112, 224–25 Board of Law Examiners, 212 attorney general, state, 70, 112, 141, Board of Public Works, 107, 139, 153, 153, 237 183, 186 auditor, state, 112, 142, 153 Board of Risk and Insurance Manage- Auto and Truck Dealers Association, 62 ment, 229–30 Boggs, Tom, 64 backcountry culture, 7–8 bonds, state issuance of, 27, 188–89, Baltimore and Ohio Railroad (b&o), 17 248 Baltimore md, 17, 29 Boone County, 17, 227 banks, 119 Booth, Phillip “Pork Chop,” 63 Barbour County, 22, 96 Bourbons, 50 Barron, William Wallace, 30, 148–49 Bowles, Rice, McDavid, Graff, and Basile, Mike, 61, 64 Love, law fi rm, 61, 64, 67 Battle of Blair Mountain, 24 Boyle, Tony, 25, 58 Beckley, 17, 20 Bransfi eld, Michael, 66 Behavioral Health Association, 61 BrickStreet Mutual Insurance Co., 169 Benedict, Cleve, 137 Bridgeport, 98 Benjamin, Brent, 205 Bright Enterprises, Inc. (of America), Berkeley County, 15, 107, 148, 227 67, 80 Bethany, 20 Bristol Myers Squibb, 61 Bethany College, 144 Brown, John, 15 Beth Energy Corporation, 67 Bryant, Perry, 68 Beyle, Thad, 145–46 Budget and Accounting Act, 183 B. F. Goodrich Co., 67 Budget Digest. See Digest of the En- bic. See West Virginia Business and rolled Budget Bill Industry Council (bic) Budget Modernization Act, 153 Index 319

Budget Ofﬁ ce, state, 183 Carpatho-Rusyns, 2 budget process, 133–34, 173–91. See Cary, Bray, 66 also Digest of the Enrolled Budget Catholics, Roman, 20, 45 Bill; Modern Budget Amendment Cecil Walker Machinery Corp., 67 Buffalo Creek Disaster, 55–56 Central West Virginia region, 16–19, Burdette, Keith, 61 21, 258 Bureau of Commerce, 144 Chambers, Robert “Chuck,” 34 Bureau of Mines, 70 Charles Ryan Associates, 62 Bureau of Prisons, 4 Charleston, 16, 20, 62, 73, 98, 107, Bureau of Public Debt, 86 112, 127, 145, 194, 197, 231, 234, Bureau of Senior Citizen Services, 144, 238–40, 251, 262 156, 167 Charleston Daily Mail, 66 Bush, George W., 49, 57, 74, 181, Charleston Gazette, 56, 66, 69 258–59 Charleston-Huntington Metropolitan Business Investment and Jobs Expan- Statistical Areas, 16–18, 20, 22 sion Tax Credit, 248–49 Chesapeake and Ohio Railway (c&o), Byrd, Robert C., 4, 35, 86 18 child custody law, 116, 214 Cabell County, 16, 42, 124, 195, 227 Children’s Health Insurance Program Cabot Corporation, 67 (chip), 87–90 Calhoun County, 22, 226 Cincinnati oh, 15, 17–18 California, 129, 140, 206 circuit courts, 112, 115, 192–204, Camden, Johnson N., 22 206–7 Camden-Clarke Hospital, 61 Citizens for Clean Elections, 63 Cann, Carmine, 65 city managers, 238–39 Cannelton Industries, 67 civil servants, 165–66 capacity, of government, 8–9, 82, Civil War, 13, 22–23, 29, 110 89, 105, 114, 116, 120, 129–33, Clarksburg, 15, 20, 86, 238; rally in 136, 151–53, 155, 162, 164, 167, 1861, 107 172–75, 181, 182, 192, 219–20, Claude Worthington Benedum Founda- 229–31, 240–47, 263–65 tion, 90 Caperton, Gaston: 30, 34, 61, 88, Clay County, 230 141–43, 149, 158–60, 247, 260, Clean Air Act and Amendments, 40, 262–63; campaign and elections of, 253–55 51, 137, 140; as chair of Democratic Clean Water Act and Amendments, Governors’ Association, 95 253, 257 Capito, Shelley Moore, 49 Cleckley, Franklin, 196 Carbon Industries, 67 clerk, county, 97, 223 Carnegie Foundation for Higher Educa- Clinton, Bill, 42, 92 tion, 262, 264 Coal Mine Health and Safety Board, 70 320 Index coal mining, politics of, 6–7, 23, 25–26, county government, 112, 220–31; du- 54–58, 69, 80–81, 243; technology ties and policies of, 221, 226–29, and methods, 25, 257–58. See also 256–57; ofﬁ ces, 221–26 United Mine Workers of America Court Appointed Special Advocates (umwa); West Virginia Coal As- (casa), 203 sociation Court of Claims, 123, 218–19 “Coal Suite,” 65, 70 Courts. See circuit courts; county Coast Guard, National Computer Op- courts; family court; family law erations Center, 4 masters; judiciary; magistrate Columbus oh, 18 courts; Supreme Court of Appeals; Commissioner of Agriculture, 142, 153 U.S. Supreme Court Commission form of government, 238 Craig, Kevin, 64 Commission on Fair Taxation, 249 Craigo, Oshel, 73 committees, state legislature. See legis- criminal victim compensation program, lature (House of Delegates, Senate) 219–19 Community and Technical College Cross Lanes, 73 System, 234 csx Corp., 62 Community Work Experience Program Cumberland md, 83 (cwep), 92–93 Cumberland Road, 83. See also Na- Confederate army, 22 tional Road Congress of Industrial Organizations (cio), 56 Davis, Henry Gassaway, 22 Consolidated Investment Fund, 142 debt, state, 187–91 Consolidation Coal Co., 65, 67, 80 Declaration of Rights, Virginia, 106, Contractors Association of West Vir- 108, 110 ginia, 62 Delaware, 95 Copper, Philip, 167 Delaware North Cos., 73 Copperheads, 13, 22, 109–10 Democratic Party, 22, 43–52, 57, Corrections Corp. of America, 61 74–75, 110, 121, 137, 205 corruption, 30–31, 36, 63, 149, 229–30 Department of Administration, 143–44, Council for Community and Technical 156, 159, 182; Division of Person- College Education, 158 nel, 165 Council of State Governments, 95, 131, Department of Agriculture, 225 133 Department of Commerce, 143–44, county administrator or coordinator, 223 156, 158 County Commissioners Association of Department of Education and the Arts, West Virginia, 65, 100, 222, 230 143, 156, 158–59 county commissions, 221–26, 241 Department of Energy, 67 county “courthouse gang,” 230 Department of Environmental Protec- county courts, 112 tion, 144, 156, 164, 257–58 Index 321

Department of Health and Human Education, state; Carnegie Founda- Resources (dhhr), 93, 143, 156, tion for Higher Education; Commu- 159–62, 164, 167, 203; Division of nity and Technical College System; Rural Health, 90 Department of Education and the Department of Military Affairs and Arts; Higher Education Action Team Public Safety, 156, 159 (heat); Higher Education Policy Department of Mines, 67 Commission; Marshall University; Department of Natural Resources, 67, School Building Authority; school 69, 180, 257 districts; Board of Education, state; Department of Public Safety, 143 State College System; superinten- Department of Revenue, 156, 159, dent of schools, county; superinten- 182–83, 235 dent of schools, state; University of Department of Tax and Revenue, West Virginia System; West Virginia 143–44 Education Association (wvea); Department of Transportation, 143, West Virginia University 156, 159 Eisenhower, Dwight D., 49, 74 Development Ofﬁ ce, 150, 250–51 Elazar, Daniel J., 28–29 Digest of the Enrolled Budget Bill, 134 elections: of governor, 49–51, 137, Disciples of Christ, 20 139–40; interest groups and, 72–75; District of Columbia, 41, 95 judiciary, 49, 74–75, 204–6; mu- Division of Motor Vehicles, 180 nicipal, 234; political parties and, Doddridge County, 41, 49, 226 42–51; state legislature, 49, 72–75, Dominion-Post, 67 124–25 duPont, E. I. de Neumours & Co. 62, Elkins, Stephen B., 22, 24 64 employment, 25–26, 235, 247 environmental policy, 253–59 Eastern Panhandle region, 15, 17–21, Ernst & Whitney, 67 28–30, 70, 72, 107, 254 Ethics Commission, 71–72 economic dependency, 5–6 ethnic groups, 2–3, 19, 23 Economic Development Authority, 144, Evangelical United Brethren Church, 20 250–51 Economic Development Grant Com- Faircloth, Larry, 61 mittee, 251 Fairmont, 15, 238 economic development policy, 26–27, family court, 115, 193–204 244–53. See also employment family law masters, 194 economic issues and policies, 25–28, Farmington mine disaster, 57–58 39–40 Fayette County, 17 education, 2, 39–40, 112, 118, 148, fbi Center, 4, 16, 86, 264 216–17, 259–64. See also Board Federal Election Campaign Reform of Education, county; Board of Act, 72 322 Index

Federal Emergency Relief Administra- Jr.; Patteson, Okey; Rockefeller, tion, 83 John “Jay,” IV; Underwood, Cecil; federalism, and West Virginia 82–97 Wise, Robert “Bob” Federalist party, 48 Governor’s Succession Amendment, Fenton, John, 49 139, 146 Fleming, A. Brooks, 22 Grant County, 49 Flick Amendment, 110 grant-in-aid programs, 83–86, 136, Florida, 95 180–82, 235 Follansbee, 16 Great Depression, 83, 154, 174, 185 Food Stamp Program, 85, 91–92 Great Society, 27, 85 Ford Motor Company, 67 Greenbrier Hotel, 17, 62 Fox, Fred, 205 gte Corp., 67 Foy, Mary K., 155 Frederick County va, 107 Haid, Stephen, 61–62, 64 Hamilton, Chris, 68 Gainer, Glen B., III, 142 Hampshire County, schools, 99, 234 gambling, legalized, 73–74, 178–80. Hancock County, 20, 255 See also Arneault, Ted; lottery; Hapney, Ted, 68 Mountaineer Racetrack and Gaming Harless, James “Buck,” 57, 74 Resort Harman, Marc, 61, 64 Garrison, Michael, 61, 64 Harper, Brenda Nichols, 68 General Motors Corporation, 67 Harpers Ferry, 15, 86 George, Edward, 61 Harrison, Jack, 61 Georgia Pacifi c Corp., 62 Harrison County, 16, 195, 227 Germans, 2, 19 health, of population, 2, 86–90 Germany, 250 health care policy, 39–40, 87–90 Gilmer County, 18, 22, 226 health management organizations Goodwin and Goodwin, law fi rm, 61 (hmos), 70, 168 Gore, Al, 74 Hechler, Ken, 50, 141 Governing, 166 Helmick, Walt, 64, 66 Governmental Ethics Act, 31, 71 Hey, John, 205 governor, 35, 37, 112, 115, 136–50; Heywood, Tom, 61, 64 budget, 153–54; elections of, Higher Education Action Team 139–40; legislative control of, (heat), 262 146–47; management resources Higher Education Policy Commission, of, 143–45; policymaking 147–49; 158, 234, 262 powers, 145–47; staff, 145. See also highways, 27, 148; highway bonds, 119 Barron, William Wallace; Caperton, home rule, 97, 236–37 Gaston; Manchin, Joseph “Joe,” III; Home Rule Amendment of 1936, Marland, William; Moore, Arch A., 115–16, 236–37, 239 Index 323 homestead exemption. See Property Tax Jackson County, 18 and Homestead Exemption Amend- Jacksonian political ideology, 106, ment 110–11, 113–14, 121, 221, 246 Honeywell Corp., 64 Jacobs, Jeremy, 73 House of Delegates. See legislature Japan, 250 (House of Delegates, Senate) Jefferson County, 15, 222, 254 housing authorities, 241 Jenkins, Evan, 64 Hrebenar, Ronald, 60 Johns-Manville, 67 Humphrey, Hubert H., 91 Johnson, Gerald, 46 Hungarians, 2, 19 Johnson, Lyndon Baines, 85 Huntington, 16, 20, 98, 238–40, 251 Johnson and Johnson Corp., 62 Hurd, John, 59 Jones, Danny, 98, 231 Judicial Commission on Assistance and Illinois, 95, 146 Intervention, 204 independent voters, 43 Judicial Hearing Board, 204, 208 Indiana, 95 Judicial Investigation Commission, infrastructure, 58, 245, 248 204, 208 Insurance Commission, 169 Judicial Reorganization Amendment, interest groups, 37; political tactics of, 115–16, 192–95, 211 58–81. See also lobbyists; political judiciary, 112, 115–16, 192–219. See action committees (pacs) also circuit courts; family court; interest on lawyers’ trust accounts family law masters; justices of the (iolta), 198 peace; magistrate courts; Supreme intergovernmental grant-in-aid, 99–100 Court of Appeals intergovernmental relations, 82–101 justices of the peace, 112, 114 internal colonization theory, 5–6 Internal Revenue Service, 4 Kanawha County, 16, 24, 124, 193–95, Interstate Commission on the Potomac 197, 226–27 River Basin, 95 Kanawha River and Valley, 16, 83, 254 Interstate Compact on Adult Offender Kastick, Brian, 64 Supervision, 95 Kennedy, John F., 14, 91 interstate relations, 94–100 Kentucky, 95 Iowa, 83 Kercheval, Hoppy, 66 Ireland, Betty, 68, 141 Keyser, 239 Irish, 19 Kiss, Robert “Bob,” 34, 50, 124–25 Island Creek Coal Co., 67 Italians, 2, 19 landfi lls, 96, 99, 148, 221 Latino population, 3 Jackson, Lloyd, 140 Legal Aid of West Virginia (lawv), Jackson and Kelly, law fi rm, 61, 64, 67 198–99 324 Index

Legislative Auditor’s Offi ce, 121 Lewis, John L., 25 Legislative Automated System Divi- Lewis County, 16 sion, 122 lieutenant governor, 140 legislative calendar, 121–22 Lincoln, Abraham, 22, 107, 109–10 Legislative Improvement Amendment, Lincoln County: schools, 99, 216, 234; 115 sheriff, 230 Legislative Reference and Information Little Kanawha River, 83 Center, 123 lobbyists, 31, 37, 60–72, 76, 78–79 Legislative Research and Performance local government, 220–42 Evaluation Division, 122 Logan County, 30; schools, 98–99, 234 Legislative Rulemaking Review Com- lottery, 115, 178–80, 190, 248, 251 mittee, 122, 162–63 Louisiana, 207 Legislative Services Offi ce, 122 Love, Shirley, 65 legislature (House of Delegates, Sen- Lowland Scots, 2 ate), 35, 51, 111–12, 114–15, 121–35, 147, 217; budget review magistrate courts, 115, 193–203 by, 133–34, 182, 184–85; capacity Maine, 130 as compared to other states, 125, Manchin, A. James, 30, 101, 142 129–30; committees of, 67, 128–31; Manchin, Joseph “Joe,” III, 19, 30, 34, constituencies, 124–25, 132; elec- 47, 50–51, 56, 63, 65, 75, 80, 98, tions, 72–73, 123; interest group 140–42, 148–49, 161, 169–70, 178, infl uence on, 76–80; Joint Legisla- 188, 190, 247, 252 tive Rulemaking Review Commit- mandates, federal, 85, 95, 136, 243, tee, 133; oversight of executive, 254–55, 262 133–34; party caucus, 126; party Market Street Services, 250 leadership in, 125–27; President Marion County, 195, 227 of the Senate, 125–27, 140; proce- Marland, William, 56, 148–49 dures, 131–33; Rules Committee, Marshall County, 16 126, 128; rules of the Senate, 71; Marshall University, 89, 262 salaries of, 122; sessions, 122, 132; Martinsburg, 238 Speaker of the House, 34, 125–27, Maryland, 17, 19, 95, 247 188, 190; staff, 67, 122–23. See also Mason County, 16 Court of Claims; Legislative Auto- Massachusetts, 129 mated Systems Division; Legislative Massey Energy Corp., 47, 57, 80, 206 Reference and Information Center; Master Tobacco Settlement, 191 Legislative Rulemaking Review Matewan, 24 Committee; Legislative Services mayor-council plan of government, 237 Offi ces; Offi ce of the Legislative McCabe, Brooks, 64, 231 Manager; Performance Evaluation McDowell County, 96, 226; schools, and Research Division 99, 234 Index 325

McGraw, Darrell, 50, 141, 205 Morgantown, 15, 20, 98, 238, 251 McGraw, Warren, 47–48, 50, 57, Mountaineer Racetrack and Gaming 74–75, 206 Resort 62, 65, 73 Medicaid, 84–85, 87–89, 91–2, 94, 96, Mountain party, 43 181, 185–87, 264 mountaintop removal mining, 257–58 medical malpractice, 73 municipalities, 234–40, 256–57 medical schools, 89–90 Muslims, 20 Medical Trust Fund, 96 Mylan Pharmaceutical Corp., 70, 77, 80 Medicare, 86 Mental Health Court Diversion pro- National Association of Counties, 95 gram, 195 National Center for State Courts, 207 Mercer County, 227 National Conference of State Legisla- Methodist Episcopal Church, 20 tures, 95 Methodist Protestant Church, 20 National Elections Survey, 35 Midwest Corp., 67 National Environmental Policy Act, 253 Miller, Arnold, 58 National Flood Insurance Act, 256 Miller, Thomas, 205 National Governors’ Association, 95, 105 Mine Board of Appeals, 70 National Guard, 145 Mineral County, 49 National Industrial Recovery Act Miners for Democracy, 57 (1933), 5, 24 Mingo County, 24, 30, 230; schools, National Judicial College, 196 99, 234 National Labor Relations Act of 1935, Minnesota, 42, 83, 95 5, 24 Mississippi, 95 National League of Cities, 95 Modern Budget Act, 183 National Riﬂ e Association (nra), 62, Modern Budget Amendment, 117, 139 74 Monroe County, 227 National Road, 19. See also Cumber- Monongahela Basin region, 15–20 land Road Monongahela National Forest, 17 National Voter Registration Act (1993), Monongahela River, 15, 83 41 Monongalia County, 124, 195, 227 natural gas and oil industry, 16, 25 Moore, Arch A., Jr., 61, 143, 148–49, Nebraska, 121 159, 205, 248, 262; campaigns and Nevada, 20 elections of, 42, 47, 49–51, 140; New Deal, 22, 155, 172, 175 chair of the National Governors’ New Jersey, 96 Association, 95; corruption of, 30, New York, 21, 95, 129–30, 140, 146, 36, 149 256 Moore, Cliff, 64 Nixon, Richard, 49, 74 Morehouse, Sally McCally, 54 No Child Left Behind Act, 40, 85, 127, Morgan County, 49, 107 261–62 326 Index

Norfolk and Western Railway, 18 Personal Responsibility and Work Op- Norfolk Southern Corp., 62 portunity Act, 92, 161 North Britons, 2, 19 Pharmaceutical Cost Management North Dakota, 129 Council, 70 Northern Panhandle region, 16–21, Pharmaceutical Manufacturers Associa- 195, 254 tion of America (pharma), 61 nrm Petroleum, 67 Phillips, Deborah, 61, 64 Physicians Mutual Insurance Co., 61 Offi ce of the Legislative Manager, 123 Pilot Program Local Government Flex- Ohio, 17, 21, 29, 95, 107, 206, 247 ibility Act, 98, 231, 242 Ohio Constitution of 1851, 108–9, 111 Pittsburgh pa, 15–18 Ohio County, 20 Pittston Coal Company, 55 Ohio River, 15, 83 Pleasants County, 226 Ohio River Valley Water Sanitation Pocahontas County, 226 Commission, 95 Polish, 2, 19 Old Northwest, 22 political action committees (pacs), Oregon, 20 47, 72 Orthodox, religion, 20 political agenda. See agenda, policy and political Paint Creek strike, 24 political capacity. See capacity, of gov- Palumbo, Mario, 137 ernment Parkersburg, 16–17, 157, 238 political culture, 28–30 parties, political. See Democratic Party; political knowledge, 33–34 political parties; Republican Party political participation, 37–39 Patteson, Okey, 149 political parties, 42–52; competition Pauley v. Bailey, 137, 232 among, 48–51; factionalism in, Pauley v. Kelly, 216, 232 49–51; identifi cation and registra- Peabody Energy Co. (Coal), 62, 67 tion, 43–45; leadership of, 45–48; Peace Democrats, 22 legislature and, 121, 126; organiza- Pell Grants, 261 tion of, 45–48; policy role, 51–52; Pendleton County, 226 Supreme Court and 196. See also Pennsylvania, 17, 19, 21, 29, 95, 129, Democratic Party; elections; Repub- 247, 256 lican Party Pennsylvania Constitution of 1838, population, 2, 235 108, 111 Potomac River, 95 pensions and retirements programs, poverty, 1 state, 188–91 Powell, Joe, 50 Perdue, John D., 141 power plants, coal-fi red, 255 Performance Evaluation and Research Prepaid Tuition Trust Fund, 141–42 Division, 122 Presbyterians, 19 Index 327

President of the Senate. See legislature Reynolds v. Sims, 120 (House of Delegates, Senate) rights. See Bill of Rights, West Vir- Preston County, 226 ginia; West Virginia Constitution of Price, Karen, 64 1872 Pritt, Charlotte, 51 Ritchie County, 49 privatization, 166–71 Roane County, 18, 22 promise scholarship, 148, 263 Robach, Thomas, 46 Property Tax and Homestead Exemp- Roberts, Cecil, 50 tion Amendment, 118, 229, 235 Roberts, Steve, prosecuting attorneys, county, 97, 112, Robert Wood Johnson Foundation, 90 198, 201, 225–26 Robinson and McElwee, law fi rm, 61 Protestants, 20–21, 45 Rockefeller, John “Jay,” IV, 42, 47, 62, Public Defender Services, 198 140, 148–49 Public Service Commission, 155 Rosenthal, Alan, 58 public service districts, 241 Rowe, James, 205 64 Puccio, Larry, rulemaking, 162–64 Putnam County, 16, 73, 227 Rural Health Access Program, 90 rural health care, 89–90 Racketeer Infl uenced Criminal Organi- zations Act (rico), 30–31 Safe Drinking Water Act, 253, 257 Raese, John, 51, 67 Sago mine disaster, 55, 58 Raleigh County, 17, 227 Salem College, 144 Rand McNally Company, 18 Schlesinger, Joseph, 145 Randolph, Jennings, 84 School Building Authority, 144, 261 Randolph County, 22 school districts, 231–34. See also edu- Ranney Index of Party Systems, 48 cation Reagan, Ronald, 49, 74 Scotch-Irish, 2, 29 Recht, Arthur, 137 secessionists, 21–22, 107, 110 Reclamation Board of Review, 70 Regional Jail and Prison Act, 99 secretary of state, 112, 140–42, 153 Regional Jail and Prison Authority, See, Clyde, 140 99–100 Senate. See legislature (House of Del- religion, 19–21 egates, Senate) Republican Party, 22, 43–52, 56–57, Shenandoah Valley, 19, 107 66, 74–75, 110, 121, 205 sheriffs, 97, 112, 115, 223–24 Resource Recovery and Conservation slavery, 19, 21, 107 Act, 254 Smith, Hulett, 149 retirement programs, state, 148 Smith, Lisa, 73 revenues, 174–80, 246–47; from fed- Social Security, 86, 155 eral transfers, 180–82; of special Society of Certifi ed Accountants, 65 accounts, 180 soil conservation districts, 241 328 Index solid waste management districts, 241 surveyor, county, 97, 112, 226 Sonate Exploration Co., 67 Susman, Tom, 61–62 South Charleston, 238 Swann, Larry, 61–62, 64 Southeastern Gas Co., 68 Southeastern region, 17–21 Taiwan, 250 Southern Baptists, 20 Tax Department, 225 Southern Coal Field region, 17–23, 30, taxes, 21, 39, 52, 56, 68, 105, 109, 258 112, 148, 159, 173–81, 191, 215, Southern States Energy Compact, 95 232, 244, 246, 248–50, 253, 255, Southworth, Louis, 61, 64 264–65; on alcohol, 174–75; busi- Spanish, 19 ness and occupation (b&o), 98, Speaker of the House. See legislature 174–75, 177, 235; capitation, 114; (House of Delegates, Senate) cigarette and tobacco, 148, 174, special districts, 240–41 186–87, 248; on dogs, 224; on es- Specialty Vehicle Association, 62 tate transfers, 174; federal , 83, 149; Spilman, Thomas, and Battle, law fi rm, excise, 179–89; gasoline and motor 61, 64 fuel, 27, 180, 187, 248; franchise, Sprouse, Vic, 64 112, 174; on hotel occupancy, 231, Starcher, Cody, 61 236, 242; insurance, 174, 190; on State College System, 262 911 emergency number, 150; oc- Staton, Rick, 64 cupation, 231, 242; privilege, 112; strong mayor plan of government, 238 property, 112, 116–18; 137, 141, Sturm, Albert, 152 175, 190, 216–17, 228–29, 232, suffrage, 106, 108, 111, 119 235, 263; public utility, 142; sales, sunset laws, 133, 27, 98, 148, 173, 175–76, 179, superintendent of schools, county, 233 187–88, 228, 235; severance, 27, superintendent of schools, state, 56–58, 118, 174–77, 236, 255; soft 112–13, 115, 153 drink, 186; state and local income, super-secretaries, 143–44, 158–59 “super tax credit,” 248–49 27, 112, 117, 148, 174–76, 179, Supplemental Security Income (ssi), 228, 235; and credit and incentive 164–65 programs, 27, 248–51, 253. See Supreme Court of Appeals, 19, 57, also Property Tax and Homestead 72, 112, 115, 127, 143, 163, 170, Exemption Amendment; Tax Incre- 178, 192–99, 204–18, 251; Admin- ment Financing Districts; Tax Limi- istrative Offi ce, 194; clerks, 194, tation Amendment; Tax Moderniza- 208–10; elections and appoint- tion Project ments, 74–75, 204–6; policymaking, Tax Increment Financing Districts, 250 213–18; procedures, 206–11 Tax Limitation Amendment, 100, Surface Mining Control and Reclama- 116–17, 228–29, 235 tion Act, 255–56 Tax Modernization Project, 178 Index 329

Taywood Mining, 67–68 United Mine Workers of America Temporary Assistance for Needy Fami- (umwa), 5–7, 24–25, 29, 50, lies (tanf), 84, 93, 160–61 56–58, 68, 243, 249 Terry Eagle Mining, 68 University of West Virginia System, Texas, 95, 140 262 Thomas, Clive, 60 Upshur County, 16, 49 Thomas, Jerry Bruce, 155 U.S. Army Corps of Engineers, 83, Thurmond, 239 258–59 tiaa-cref Insurance, 61 U.S. Attorney, 70, 229 Tobacco Settlement Fund, 96 U.S. Constitution, 56, 94, 96, 113, 119, Tomblin, Earl Ray, 126 178, 214–15; 10th Amendment, Tonkovich, Dan, 63 110; 14th Amendment, 110; 16th topography, 15–17 Amendment, 83; 17th Amendment, tourism, 26 24; 19th Amendment, 119; 26th townships, 107 Amendment, 119 Toyota Motor Co., 16 U.S. Court of Appeals, 258 treasurer, state, 112, 141–42, 153 U.S. Department of Defense, 86 Tri-State Race Track and Gambling U.S. Department of Health and Human Center, 73 Services, 180 Trump, Charles, 64 U.S. Department of Transportation, 181 trust in government, 35–36 U.S. Environmental Protection Agency, Tucker, Larry, 63 258–59 Tucker County, 20–22, 226 U.S. Fish and Wildlife Service, 258 Twentieth Century Statehouse Hall of U.S. Ofﬁ ce of Surface Mining, 258–59 Fame, 138 U.S. Postal Service, 83 Tyler County, 18, 49, 226 U.S. Senate, 109 Tyner, Herbert, 73 U.S. Steel Corp. (usx), 62 U.S. Supreme Court, 56, 95, 109, 211, Ukrainians, 19 214–15, 217, 259 Ulster Scots, 2, 19 Utah, 146 Underwood, Cecil, 30, 47, 50–51, 88, 93, 137, 140, 143–44, 148–49, 205, veterans’ bonuses, 119 247, 249–50, 253 veto powers, 112, 117, 137–38, 143, Unemployed Parent Program (afdc- 146–47, 163, 194, 237–38, 244 up), 91–92 Virginia, 19, 21–22, 29, 95, 105–108, Uniform Interstate Compact on Juve- 113, 132; 168; Re-organized gov- niles, 95 ernment of, 107, 109; Statute for Union Carbide, 67 Religious Freedom, 108; Tidewater Unionists, 21–22, 72 and politics, 106 United Methodist Church, 20 Virginia Constitution, 105; of 1776, 330 Index

Virginia Constitution (cont.) West Virginia Builders Supply Associa- 106; of 1830, 106; of 1851, 106, tion, 68 113 West Virginia Business and Industry voting, 41–42; voter registration, 43, Council (bic), 65, 68–69 111, 114; voting rights, 111, 119 West Virginia Chamber of Commerce, 48, 56, 59, 64, 66, 68, 74, 80, 205 wajr, 66–67 West Virginia Citizens Action Group, 63 Water Development Authority, 254 West Virginia Coal Association, 54, 59, water quality, 241, 253–54 62, 64–65, 67–68 Warner, Kris, 50 West Virginia Coalition Against Do- Warner, Monty, 50 mestic Violence, 63 War on Poverty, 91 West Virginia Commission of Govern- Washington (state), 20 ing in the Twenty-ﬁ rst Century, 231 Washington dc, 15, 127 West Virginia Constitution of 1863, 62, wastewater-treatment facilities, 59, 221, 71–74, 106, 108–9, 111, 113 241, 253–54 West Virginia Constitution of 1872, Water Development Authority, 144 22, 97, 109–20, 110, 144, 175, 206, Watson, James O., 22 220, 228; amendments of, 113–19, Watson, Ned “Big Daddy,” 65 139, 146, 192, 228 Wayne County, 16, 195 West Virginia Contractors Association, Webster County, 217, 226 68 Weirton, 16, 238 West Virginia Council for Community welfare policy, 90–94 and Economic Development, 251 Welsh, 3 West Virginia Education Association West Central region, 16–20 (wvea), 56, 59–60, 62, 68, 80–81, Westmoreland Coal Co., 67 260 West Virginia Achieves, 262 West Virginia Health Association, 65 West Virginia-American Water Com- West Virginia Highlands Conservancy, pany, 67 258 West Virginia Assessors Association, West Virginia Hospital Association, 61, 100 73, 80 West Virginia Association of Counties, West Virginia Independent Oil and Gas 63, 100–101, 230 Association, 68 West Virginia Association of County West Virginia Institute for Public Af- and Circuit Clerks, 100 fairs (wvipa), 33, 37, 39–41, West Virginia: A Vision Shared, 251 43–44, 202, 230 West Virginia Bankers Association, West Virginia Kids Count, 63, 80 62, 64 West Virginia Library Association, 65 West Virginia Beverage Association, West Virginia Manufacturers Associa- 61, 77 tion, 59, 62, 64, 68 Index 331

West Virginia Mining and Reclamation Wheeling, 16–17, 20, 238, Association, 68, 80 Wheeling Conventions, 107–8 West Virginia Motor Truck Associa- Wheeling Creek Watershed Protection tion, 77 and Flood Prevention District Com- West Virginia Municipal League, 63, pact, 95 98, 100–101, 230–31 Wheeling Downs Racetrack, 73 West Virginians for Life, 68, 74, 80–81 Wheeling Hospital, 61 West Virginia Oil and Gas Association, Willey Amendment, 109 59, 80 Williamstown, 235 West Virginia Prosecuting Attorneys Winchester va, 107 Association, 226 Wise, Robert “Bob,” 30, 61, 88, 96, West Virginia Public Broadcasting 140, 144, 148–50, 168, 182–84, Foundation, 65 186–87, 231, 247, 250–52 West Virginia Public Employees Union Wirt County, 226 (afscme), 59 W. K. Kellogg Foundation, 89 West Virginia Railroad Association, 59 Wood County, 16, 124, 195, 227 West Virginia Retailers Association, workers’ compensation, 148, 155, 62, 68 168–70, 188–90 West Virginia Round Table, 62 Workers’ Compensation Board of Man- West Virginia School Service Personnel agers, 189 Association, 80 Workers’ Compensation Board of Re- West Virginia Sheriffs Association, 100, view, 193, 208, 252 224 Workers’ Compensation Commission, West Virginia State Bar, 197–98; 206, 252 212–13; Board of Law Examiners, Workers’ Compensation Mediation Pro- 212; Ofﬁ ce of Disciplinary Counsel, gram, 195 213 Workman, Margaret, 205 West Virginia State Medical Associa- Works Progress Administration, 83 tion, 80 wv works, 93–94, 160, 162, 164 West Virginia Trial Lawyers Associa- Wyoming, 129 tion, 68, 80 West Virginia University, 16, 83, Yablonski, Jock, 58 89–90, 262; College of Law, yellow dog contracts, 24 196–97; Institute of Technology, 262; Local Government Leader- zoning, 256 ship Academy, 101, 230; campus at Parkersburg, 262; and Potomac State College, 262 In the Politics and Governments of the American States series

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Hawai’i Politics and Government: An American State in a Paciﬁ c World By Richard C. Pratt with Zachary Smith

Illinois Politics and Government: The Expanding Metropolitan Frontier By Samuel K. Gove and James D. Nowlan

Kentucky Politics and Government: Do We Stand United? By Penny M. Miller

Maine Politics and Government By Kenneth T. Palmer, G. Thomas Taylor, and Marcus A. LiBrizzi

Michigan Politics and Government: Facing Change in a Complex State By William P. Browne and Kenneth VerBurg

Minnesota Politics and Government By Daniel J. Elazar, Virginia Gray, and Wyman Spano

Mississippi Government and Politics: Modernizers versus Traditionalists By Dale Krane and Stephen D. Shaffer

Nebraska Government and Politics Edited by Robert D. Miewald

Nevada Politics and Government: Conservatism in an Open Society By Don W. Driggs and Leonard E. Goodall New Jersey Politics and Government: Suburban Politics Comes of Age, second edition By Barbara G. Salmore and Stephen A. Salmore

New York Politics and Government: Competition and Compassion By Sarah F. Liebschutz, with Robert W. Bailey, Jeffrey M. Stonecash, Jane Shapiro Zacek, and Joseph F. Zimmerman

North Carolina Government and Politics By Jack D. Fleer

Oklahoma Politics and Policies: Governing the Sooner State By David R. Morgan, Robert E. England, and George G. Humphreys

Oregon Politics and Government: Progressives versus Conservative Populists By Richard A. Clucas, Mark Henkels, and Brent S. Steel

Rhode Island Politics and Government By Maureen Moakley and Elmer Cornwel

South Carolina Politics and Government By Cole Blease Graham Jr. and William V. Moore

West Virginia Politics and Government By Richard A. Brisbin Jr., Robert Jay Dilger, Allan S. Hammock, and Christopher Z. Mooney

West Virginia Politics and Government, second edition By Richard A. Brisbin Jr., Robert Jay Dilger, Allan S. Hammock, and L. Christopher Plein

Wisconsin Politics and Government: America’s Laboratory of Democracy By James K. Conant