For nearly two weeks now, Democratic and Republican lawmakers and officials in West Virginia have gone back and forth on whether to pause the state’s 35.7-cent gas tax for 30 days.
Democratic members of the Senate and House of Delegates first proposed the gas tax freeze March 17 — five days after the end of the 2022 legislative session. The gas tax revenue goes directly into the State Road Fund for highway maintenance and our road bonds.
They were quickly attacked that same day in a statement from Gov. Jim Justice, who called the whole thing a publicity stunt. He said it was out of his hands — only the Legislature could freeze the gas tax through legislation. Justice wondered out loud why they didn’t try to pass a freeze before the end of the session.
That was followed up by a joint statement from Senate President Craig Blair, R-Berkeley, and House Speaker Roger Hanshaw, R-Clay, who raised concerns about how the bond markets would respond if the state froze the tax and whether it would run afoul of the U.S. Treasury Department and the provisions in the American Rescue Plan Act that prohibit states that receive ARPA money from using those funds to backfill tax cuts.
I’m going to try to break down some of these issues. Just for a disclaimer, I take no position on whether the state should do a gas tax freeze for 30 days. But as a driver of a gas-guzzling 2007 Mercury Mariner, I certainly feel the pain at the pump like everyone else.
First, was this all a “publicity stunt” by Democratic lawmakers? I’d say it is about half-and-half. Of course, they are serious, and I do believe they are expressing the concerns of constituents. Still, this probably could have been handled with private requests to Justice and Republican officials behind-the-scenes and when they didn’t get a response or the response they wanted, then taken to the soapbox.
However, is freezing the gas tax solely in the hands of the Legislature? It’s been pointed out that the deadlines for introducing bills in both the House and Senate had passed by mid-February (except for originating bills by committees). Other deadlines made introducing a new bill by the end of the session on March 12 problematic. Of course, these deadlines are set in the rules of the House and Senate and their joint rules. If the will exists, they can override these rules.
Then again, while gas prices were high in February, they went higher after the Russian invasion of Ukraine at the end of February, and no one knew what effect there would be by cutting off the Russian oil the U.S. receives. Thankfully prices are slowly coming back down, due in part because we really don’t get that much Russian oil in the scheme of things. But I can see why things would be more urgent coming out of the session than before.
So, is Justice truly powerless to freeze the gas tax? I would say no based on some of the actions he has taken in the months after issuing a state of emergency as the COVID-19 virus took hold in the state two years ago. Specifically, in 2020 Justice moved the April 15 deadline for filing personal income taxes to July. If he can do that, I’m unsure why he can’t sign an order freezing the gas tax. With COVID-19 cases at all-time pandemic lows, West Virginia still remains in a state of emergency with no end in sight.
Would freezing the gas tax hurt the state’s ability to pay on bonds? I don’t see how if the Democratic caucus idea of replacing the lost revenue with available surplus tax revenue is used. That could be done through legislative appropriation or through the governor’s civil contingency fund and reimbursed with surplus dollars.
What about the U.S. Treasury rules and the ARPA anti-tax cut provision? Three federal courts have stayed enforcement of that provision by the Treasury Department, including a case brought by West Virginia Attorney General Patrick Morrisey. Most legal experts think the U.S. Supreme Court would probably rule the provision unconstitutional.
With those issues addressed, I believe either the governor or the Legislature via a special session could freeze the gas tax for 30 days and backfill with surplus dollars with no real impact. But would it really help in the long run?
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The most recent polling in the new 2nd Congressional District Republican primary between Reps. David McKinley and Alex Mooney shows a race that will be close and that many West Virginians are yet to be engaged with it.
The McKinley campaign should probably list the West Virginia Chamber of Commerce-commissioned poll as an in-kind contribution considering how glowing the memo from North Star Opinion Research was. But it was a live telephone poll conducted between March 13-15 with 400 likely Republican and unaffiliated voters, so it’s a pretty good snapshot.
To quickly summarize, in a race that takes into account the three other Republican candidates, McKinley beats Mooney 38 percent to 33 percent. In a head-to-head competition, McKinley beats Mooney 46 percent to 39 percent. And when pollsters told respondents about McKinley’s accomplishments, he beat Mooney 61 percent to 26 percent.
There are still a good many undecided voters out there. Even with the onslaught of TV ads, most probably won’t start paying attention to the race until mid-April. Those voters will be crucial for whoever wins the district.
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During last week’s annual Construction and Design Exposition, McKinley told attendees during his keynote speech that if he wins re-election in May and Republicans retake the House in November, he will likely become chairman of either the energy or environmental subcommittees of the House Energy and Commerce Committee.
McKinley is already the ranking Republican member of the environment subcommittee. If that happens and Republicans also take the U.S. Senate, that could mean U.S. Sen. Shelley Moore Capito would become chairwoman of the Senate Environment and Public Works Committee. The flip side is if the Senate goes GOP, Manchin drops as chairman of the Senate Energy and Natural Resources Committee.
Steven Allen Adams can be reached at sadams@newsandsentinel.com.
