It takes a superhero to save Wyoming Senate from itself

I didn’t expect to see Spiderman at the Wyoming Senate, but I’m sure glad he showed up. He helped save the day.

He didn’t look the same as he does in his superhero costume. In fact, in civilian clothes, the fellow on my computer monitor looked a lot like Senate President Drew Perkins (R-Casper).

“There’s not many times that something screams at me to be careful, careful, careful on these things,” he said. “And this — my Spidey-senses are tingling dramatically on this one.”

The issue was an amendment to a bill during the May 15-16 virtual special session that spelled out how Wyoming would distribute $275 million to provide some relief to businesses in the wake of the coronavirus pandemic.

Several senators are unhappy that Gov. Mark Gordon and State Public Health Officer Alexia Harrist ordered the closure of several kinds of businesses in mid-March. Dine-in restaurants, bars, gyms, beauty salons, tattoo parlors and others were deemed too risky to public health to stay open due to the inherent closeness of workers to patrons.

Sen. Cheri Steinmetz (R-Lingle) sponsored an amendment that declared the emergency closures were “regulatory takings.” The state, she maintained, needs to make these businesses whole for their economic losses because “we have created the situation.”

The state didn’t create the pandemic; Gordon and Harrist merely reacted to it. And, judging by the relatively low number of COVID-19 cases and deaths in Wyoming compared to other states, I think they took appropriate, common-sense action.

A vocal minority in Wyoming held several rallies around the state, including two in front of the Capitol in Cheyenne, arguing the orders violated their constitutional rights. Wearing masks to protect fellow citizens from the disease, maintaining social distance from others and not being able to have their nails manicured are apparently too much to bear.

Several senators in favor of the amendment described the business closures as a prime example of government overreach. How dare the state try to protect the public from a pandemic that has killed nearly 100,000 Americans!

“Government does have to do its job,” said Sen. Cale Case (R-Lander), who opposed the takings amendment. “[We] have a mandate that we have to protect people from contagious diseases.”

Not according to Sen. Lynn Hutchings (R-Cheyenne), who fashions herself as a constitutional scholar.

“It seems as if we’re saying the state and local governments can make rules and regulations, without laws, and close businesses and take their property and their means to make a living for the health and welfare of the citizens,” Hutchings said.

Um, yes, senator, that’s what we’re saying. Because it’s true.

“Our state constitution does not mention the word ‘health,’” Hutchings continued. “It only mentions the general welfare. It’s not part of our legal process, our laws, our constitution, to provide for the health of the citizens.”

Indeed, the Wyoming Constitution does mention welfare — six times. Including in Article 10, Section 2 Control by State, which gives the state the power and obligation to regulate businesses for the public good and general welfare. “All powers and franchises of corporations are derived from the people and are granted by their agent, the government, for the public good and general welfare, and the right and duty of the state to control and regulate them for these purposes is hereby declared. The power, rights and privileges of any and all corporations may be forfeited by willful neglect or abuse thereof. The police power of the state is supreme over all corporations as well as individuals.” 

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She certainly offers a unique (if ill informed) perspective. Even her fellow senators who backed Steinmetz’s amendment looked stunned at Hutchings’ odd pronouncement.

Perkins kept his Spidey-senses in check and tried some old-fashioned logic. He noted that health officers around the state close businesses all the time.

“You have rat infestations, you get cockroaches in your whatever, you get closed down for health and safety regulations,” Perkins said, correctly if somewhat inelegantly. “We live in a cooperative society. It’s a very different thing than saying, ‘Oh, the government shut me down and therefore they took my property right.’ That is a vast and un-nuanced and very overstatement as to how the takings clause has been interpreted.”

Sen. Tara Nethercott (R-Cheyenne), an attorney, said declaring the closures regulatory takings would put the state in “a significant legal quagmire.” The Legislature has a fiduciary duty to be a good steward of public monies, she noted, and the amendment “truly puts profits over people.”

That legal analysis didn’t sit well with Sen. Bo Biteman (R-Ranchester). He said he was offended by Nethercott’s “profits over people” claim.

“This is truly trying to make people whole for the decisions made by others, not their own decisions,” Biteman said. “It was government, sometimes unelected bureaucrats, making these decisions, who are not accountable to the voters.”

Aha! That’s what this whole debate was really about. Proponents of the takings claim want the public to be outraged that state and local public health officers place citizens’ welfare above making a buck — and that they shouldn’t be allowed to do it again if another COVID-19 wave hits. 

Case said the amendment would create “a chilling effect on public health officers.” The governor and the officials are trying to protect the public, he said, “and I think we have to support them and take our lumps.”

In the end, the Senate’s extreme right-wing saw its arguments flushed down the drain. The amendment failed by a 22-7 vote.

It’s important to note that not one of the senators who voted against the amendment wants to see businesses face the devastating economic impacts of the pandemic. It’s been a terrible health and economic crisis, and the $1.25 billion Wyoming has received from the federal CARES Act will be used to help provide relief to businesses that have suffered.

But Steinmetz’s amendment would set a legal precedent the state can’t afford, according to Sen. Charles Scott (R-Casper). “The courts are likely to take it as an admission that it was a regulatory taking, and if it is, you have to pay for everything,” he said. “That [would] bust the budget.”

“There’s not enough money in the state treasury or in the CARES Act or the [rainy day fund] to make the people of this state whole,” Perkins agreed. “I think you should be very, very careful about what you wish for and ask for. There is no bankruptcy provision for states in the federal codes.”

Perkins said despite criticism of the state’s temporary business shutdowns, the orders may well be what has saved Wyoming from a health catastrophe.

“In hindsight it looks great, but this ain’t over yet. … If there is a second spike, if it does come back, then you can’t undo this [takings amendment],” the Senate president said.

The “real” Spiderman couldn’t have said it any better.