Three key questions hover over the Oklahoma Capitol
May 7, 2020
The answers to three key questions about the ongoing 2020 legislative session will shape what happens over the next month at an Oklahoma State Capitol currently closed to the public because of the COVID-19 pandemic.
In less than five weeks, state lawmakers must pass a Fiscal Year 2021 state budget and adjourn sine die – a Latin term designating no established date for return. As legislative leaders plod forward with uncertain plans and unprecedented actions, the three key questions needing to be answered are:
When the Legislature returns to conclude its work, will the people's building be open to the people?
Oklahoma is facing a revenue shortfall for next fiscal year, but is the hole really $1.3 billion?
Aside from passing a budget, what policy proposals will receive consideration during what could be a hectic and unusual end to 2020's abbreviated session?
Each question has an uncertain answer, but recent statements from state leaders offer a window into serious debates raging around the rotunda.
You'll be able to go watch a movie, but will you be able to go watch your government?
When Gov. Kevin Stitt announced his May 1 implementation date for a three-phased plan to re-open Oklahoma businesses, he was asked whether the Oklahoma State Capitol should be re-opened to the public during the final weeks of the 2020 legislative session.
"When May 1 rolls around, we are going to open up obviously the restaurants in a certain manner," Stitt said. "I will get with the Legislature to find out if we think it is appropriate to open the Capitol back up. If we have social distancing and people feel more comfortable coming in, then maybe that's a possibility. At this point, it's closed down to the public. When the Legislature gets back in here, I think it's a definite possibility."
House Speaker Charles McCall (R-Atoka) and Senate President Pro Tem Greg Treat (R-OKC) are vested with control of most parts of the State Capitol, and Treat said during his weekly press availability that he would be working with his House counterpart to make a responsible decision.
"We will consult with health experts. We have an obligation to our employees and to the public to ensure that we make the best decision for public health," Treat said. "Obviously there are duly elected members - my colleagues - in the Senate. But we also have a ton of nonpartisan staff and [executive assistants], and I have a duty as their employer to make sure that their health is protected as well, and I take that seriously."
McCall concurred in a statement to NonDoc over the weekend.
"May 4 is officially the target date to return, and discussions are underway about the safeguards necessary to get the Capitol re-opened in a manner deemed safe by public health officials and both legislative chambers," McCall said.
Two lawmakers and three legislative staff members were diagnosed with COVID-19 in mid-March. Since then, media have been the only members of the public allowed into the Capitol. That restriction helped guarantee social distancing during sessions on March 17 and April 6, the only days on which the Legislature has conducted floor work since.
While prohibition of the public has limited the chance for greater Capitol outbreak, it has also limited awareness of what lawmakers are up to. Lobbyists and other concerned citizens can only use texts, emails and phone calls to communicate when the chambers are in session.
The closing has been lauded by legislators, who have attempted to lead by example in terms of social distancing. But not being hounded in the Capitol about bills or votes appears to be an added bonus. House Majority Floor Leader Jon Echols (R-OKC) even joked about the situation April 6 as he instructed House members how to exit the chamber during limited-group voting.
"There are certainly no lobbyists back there to bother you," Echols told his colleagues.
That day, legislators advanced a targeted cut to the Stitt administration's Digital Transformation Revolving Fund that almost went unnoticed in a building that typically relies on hallway and office conversations for the spread of information. Only a half-dozen Oklahoma news outlets sent a reporter to the Capitol on April 6.
The building's previous day of public-free proceedings proved equally awkward. On March 17, multiple state senators from both parties were unable to explain to NonDoc the ramifications of an Open Meetings Act adjustment they had advanced unanimously after one question and no debate.
"We knew what was going to take place," said one senator. "We just can't remember everything, of course, about every bill."
The bill was one of only two measures scheduled for the Legislature that day. Media relayed concerns to lobbyists and House members - who had their own questions - and the House stopped the Senate bill, produced its own version and forced the Senate to vote a second time on slightly different language.
During that delay, however, the Senate revealed that a member of its staff had tested positive for COVID-19, a collision of concerns about the transparency of democracy and the safety of humans who conduct it.
At Stitt's April 22 press conference announcing his data-monitored plan to end business shutdowns, State Chamber of Oklahoma President and CEO Chad Warmington said he would not be concerned if the Legislature returned in May to conclude its business without the public allowed inside the Capitol. A former House staff member, Warmington said he believes lobbyists and business leaders have adequate ability to communicate with legislators through various technological platforms.
"The ability to communicate is still there. You don't necessarily have to be in the building to communicate those ideas and principles," Warmington said. "I think Oklahomans in general will be able to communicate very easily with their legislators."
Warmington's comments were not well received by members of the Oklahoma Society of Professional Advocates, an organization launched in late 2019 to pay attention to issues affecting the lobbying industry.
"We will of course go by whatever leadership and the governor's decision is, but we feel it is very important that the general public be allowed back into the building," said Jim Dunlap, chairman of the OSPA. "That includes everybody. We don't want anything special for us. We just think that the best government is operated out in the open and in the public so that we can all have our input into petitioning our government."
May is almost always a hectic time for the Oklahoma Legislature, but Dunlap said "this is a different May than we've ever experienced."
"If they end up doing anything outside of the budget – and we all hear the rumors of 20 to 50 policy bills that are important to get passed – then the experts in those policies are sometimes lobbyists, sometimes the general public and sometimes people that need to be notified from out of state to call in," Dunlap said. "If you're not out there in person and you're not talking to everybody in the rotunda or in the hallways, there are things that will happen - just like the digital transformation money (language) was found. You just never know when you're going to find those little woolly-boogers, as we call them, or hidden gems in these pieces of legislation. And you've got to have a trained eye to find those."
Warmington said "lines of communication have been very open" so far, but he admitted the optics of active movie theaters and restaurants in May could pair poorly with a closed Capitol.
"I understand the perception, but I also think you've got to put the health and safety of Oklahomans first, and that goes for the Legislature as well," Warmington said.
Even if the Capitol is re-opened under additional safety regulations, Dunlap said some members of OSPA will decide to stay away from the building and continue monitoring from afar. When lawmakers convened April 6, temperatures were taken at the door and masks were available.
"If the governor and the Legislature say they are not going to let us in, then we will accept that and go on," Dunlap said. "But we would like to be able to petition the government. The best democracy works when everybody votes and everybody knows what they are voting on. Those two things have to happen, and when we are all involved and engaged, it will work."
Is Oklahoma really facing a $1.3 billion shortfall?
On April 20, the Oklahoma Tax Commission and the state Board of Equalization told the Legislature it should budget for FY 2021 with the expectation of $1.3 billion less in state revenue than last year.
"The Legislature writes the budget, but I just want Oklahomans to know that our budget won't recover overnight, and we will need to get creative over how we protect our core services in the long term," Stitt said.
Leaders of the Legislature, however, spent the rest of last week questioning that figure and wanting to work out the math for themselves.
"That came out of left field," Treat said of the shortfall estimate April 24. "We had not seen any of that prior to that meeting. (...) I think we are around $470 million off for next year rather than the $1.3 billion that the Board of Equalization talked about."
If the leader of the Oklahoma State Senate thinks the actual revenue shortfall is about 36 percent of what the state Board of Equalization told the Legislature to prepare for, what is the public to think?
"The uncertainty is most definitely scary for public schools and the state as a whole," said Angela Clark Little, a public school advocate who runs a prominent Facebook group for Oklahoma parents and educators. "We are going to have to see a lot of cuts for core services if the number is actually $1.3 billion. The uncertainty of all of it is the scariest part. I worry about the teacher pay raise."
Speaking of education, state schools are bracing for budget challenges both from state appropriations and from local reductions in property tax revenues.
"There is also an anticipated under-collection of what has been collected in the past at local levels," State Superintendent of Public Instruction Joy Hofmeister said April 23.
In addition to Stitt, Hofmeister is one of six other statewide officials who serve on the Board of Equalization, and she voted in favor of sending a letter to the Legislature that estimates the $1.3 billion constriction of state revenues next year. But when the letter was revealed to lawmakers and the public, only Stitt's name appeared on the brief missive.
Asked if she was given a chance to sign the Board of Equalization's letter to the Legislature, Hofmeister offered no clarity.
"I do not have any specific particulars about the way that was supposed to be drafted," Hofmeister said. "I don't think that was changed. But I will say that is the constitutional obligation of the Board of Equalization – to advise on funds."
Combined, common education and higher education constitute about $0.50 of every $1 appropriated by state lawmakers, a fact that could make it exceptionally difficult to hold education budgets "flat" for FY 2021. Legislative appropriations leaders have pointed to the challenge that poses, and Treat characterized the Board of Equalization's letter as out of touch with that reality.
"That letter to the Legislature was tantamount to calling for a 7.5 percent across-the-board cut, and simply the Senate doesn't stand for that," Treat said. "If we make cuts, they need to be targeted, they need to be methodical and [must be done] with data backing it up to make sure we don't inhibit the core function of government. Education simply cannot afford a 7.5 percent cut as was anticipated in [that part] of the Board of Equalization packet."
McCall emphasized the challenges faced in building next year's state budget.
"Accurately projecting revenue is extremely difficult in every state right now because what may be true one week changes considerably by the next week due to the tremendous volatility in the economy," McCall said.
What policy measures will move forward?
As Dunlap noted, rumors have been swirling about how many and which bills unrelated to the budget will be heard before the end of this unusual session.
On April 17, Treat told media he had directed Senate Floor Leader Kim David (R-Porter) and her assistant floor leaders to make a list of "priority bills" from other senators.
"I'm judging those bills in really two standards: What problem are we trying to solve, and why do we need to solve it before sine die of this year," Treat said. "We are still going through that process."
On April 26, Echols said he is working with David after receiving input from top House members and his assistant floor leaders.
"I have both a longer list, a pretty short list and a whole bunch of in-between lists," Echols said. "The primary focus will not shift from the budget, and we will handle the bulk of the policy after the budget."
In March as lawmakers adjourned to an indefinite return date amid COVID-19 concern, Echols identified a handful of priority bills that could be helpful during the pandemic, including:
• a sales tax exemption for OU Medicine that would expand the university's medical residency capacity;
• a cost-of-living adjustment for retired teachers, firefighters, law enforcement officers, judges and state employees;
• an agreement to expand practice opportunities for Certified Registered Nurse Anesthetists;
• an effort to address "surprise billing" issues involving health insurance networks.
Sunday, Echols said a normal session would involve each chamber sending about 150 to 200 bills to the governor, but such numbers are not reasonable in a truncated race to the finish line.
"A lot of this is a function of time and then a function of necessity. So yes, depending upon how much time we have after a budget, I've got quite a few bills [on my lists] and I know the Senate has quite a few bills. But that doesn't mean that all of those bills are going to be heard," Echols said. "In fact, I think it's unlikely that there will be very many bills heard."