Back to business? With eye to future, caucus leaders say no need to meet yet

Open parking spaces in front of Legislative Hall in Dover are a norm these days. Delaware State News/Marc Clery

DOVER — As Delaware goes through a truly unprecedented time of turmoil, some may be wondering where exactly the legislature is.

Despite the raging pandemic, the Delaware General Assembly has not met since January. But legislative lawmakers from both parties are confident they aren’t shirking their duties. In fact, they say they are busier than ever.

According to top lawmakers, there are several key reasons for canceling the past 12 scheduled legislative days: they are trying not to spread the disease, they want to set a good example for citizens by avoiding public gatherings and they don’t have any bills they must approve at this time.

“If anything comes up that we need to do … we will go back in session either virtually or in person, but I don’t see that yet,” House Speaker Pete Schwartzkopf, a Democrat from Rehoboth Beach, said.

Senate Minority Leader Gerald Hocker, an Ocean View Republican, had a similar sentiment: “We don’t need to put any burden more so than what it has on anybody.”

For all those proclaiming lawmakers are abandoning their duties by not approving COVID-19 relief bills, legislators say there’s been nothing so far that can’t be handled by Gov. John Carney. That’s thanks to the broad powers conferred on him by Delaware law after the governor declared a state of emergency March 12.

A state of emergency tasks the chief executive with “addressing the dangers to life, health, environment, property or public peace within the State” and empowers the Delaware Emergency Management Agency to help handle the situation. Since the first declaration, Gov. Carney has modified it 12 times, putting in place policies as varied as closing essential businesses, suspending evictions and pushing back the presidential primary from April to June.

Many of the orders were crafted on the advice of lawmakers, who have stumped for public assistance like forbidding utilities from cutting services off and expanding absentee voting (both included in the sixth modification of the state of emergency order).

“It was just easier and faster for the governor to be able to put those things in his executive order,” Rep. Schwartzkopf said, noting the lengthy process bills generally go through before they can become law.

Not every single one of the building’s 62 lawmakers feels the same way, though. Calls to reopen the capitol have been joined by Rep. Ruth Briggs King, a Georgetown Republican who last week wrote a letter to the editor calling it “imperative that our branch of government convene to discuss issues of great importance” and not let the executive branch “rule in conflict with our Constitution.”

Both House leaders expressed frustration over the letter. House Minority Leader Danny Short, a Republican from Seaford, said Rep. Briggs King shared her concerns earlier in the week and he promised to relay them to the speaker, only for her to release the statement anyway.

“She jumped the gun,” he said flatly.

Delaware’s first confirmed coronavirus case was announced March 11, six days before lawmakers were set to return after a six-week break. The news prompted lawmakers first to call off session for one week and then to extend it indefinitely.

The General Assembly typically meets about 45 days a year. So far in 2020, it’s been in session for nine days and missed 12, with 22 remaining. The nine session days for the last week in April and the first two weeks in May appear extremely likely to be canceled as well.

To meet or not to meet

Top lawmakers have their eyes on May 18, the second-to-last meeting of the Delaware Economic and Financial Advisory Council this fiscal year. DEFAC, one of the most important state entities very few people know about, is responsible for setting the official revenue projections for the state, which are used to craft the budget.

The legislature’s Joint Finance Committee convenes in mid-May to “mark up” the governor’s budget recommendations from January. In a normal year, lawmakers and budget officials have a better idea of the state’s finances by May, and they typically aim to have the operating budget mostly finished by the beginning of June.

The fiscal year ends June 30, meaning legislators must approve a budget (or, in the seemingly once-in-a-generation instance of 2017, a temporary continuation of current spending) by July.

Rep. Schwartzkopf is fond of saying the General Assembly’s only constitutionally mandated duty is to pass a budget, and at some point lawmakers will have to meet to vote on the money bills.

How they’ll do that is being worked out, but there are a few options. Both session days and JFC hearings could be held online, which would be a first for the legislature. There’s currently no mechanism for putting legislative meetings online, but state law gives that authority to the General Assembly.

Both session days and JFC hearings could be held online, which would be a first for the legislature. There’s currently no mechanism for putting legislative meetings online, but state law gives that authority to the General Assembly.

However, Rep. Schwartzkopf noted, budget hearings typically involve a lot of paper, chiefly the hundreds of pages of budget documents distributed to each of the 12 JFC members (as well as a few lucky others). To address that, Rep. Schwartzkopf floated the idea of reopening Legislative Hall but initially only to lawmakers on the budget-writing committee.

Legislators could convene in the larger House chamber, being sure to sit at least 6 feet apart, and anyone who feels uncomfortable doing so could participate virtually from his or her office. Because the capitol has been shut down for more than a month, the risk of catching the virus there should be very low or even nonexistent, Rep. Schwartzkopf said.

No members of the public would be allowed in in this scenario, but lawmakers are still considering how they could best offer regular Delawareans a chance to weigh in, according to Senate President Pro Tempore David McBride, a New Castle Democrat.

Holding meetings in one of the chambers has the benefit of allowing the audio to be broadcast online through an existing system.

While there are many bills out there dealing with important subjects — gun control, the death penalty and marijuana legalization, to name a few of the most controversial — lawmakers believe they can do more good by following the social distancing edicts.

“We decided long ago we weren’t going to have a session just to have a session,” Sen. McBride said.

Legislators and staff say they are staying busy, chiefly fielding calls from distressed constituents. After all, there’s certainly no shortage of worried Delawareans in need of assistance right now.

“I’ve never spent more time on the phone in my life,” Sen. McBride said.

Both the governor and top legislators say they communicate regularly.

The money question

Some, perhaps most, of the uncertainties will be decided by May 18, the key DEFAC date. Until then, one of the most important things decision-makers must do is get a handle on the budget situation.

When Gov. Carney presented his spending plan, the state was expected to have plenty of money — in fact, revenues were up slightly more than $200 million from September to December.

No more.

Rep. Schwartzkopf estimated the state has a shortfall of about $600 million for the current fiscal year, largely due to the income tax filing deadline being pushed back to July.

DEFAC will shine some light on that Monday with its official projections for April.

One of the big questions state officials have right now is whether they can use federal funding to plug that gap. In a letter sent to the state’s congressional delegation, all 10 legislative leaders asked to expand the terms of use around the $1.25 billion Delaware is set to receive under the federal Coronavirus Aid, Relief and Economic Security Act.

“The CARES Act provides vital funding, but it restricts the money to unbudgeted expenses related to COVID-19. It cannot be used to address states’ revenue losses,” they wrote. “This is far too restrictive for states like Delaware to effectively apply the federal funds.

“Being able to use these dollars to shore up Delaware’s operating budget is critical to maintaining services and recovering from this unprecedented crisis. “

That unknown is one of two that must be answered by the middle of May, Rep. Short said.

“What is it we’re down, and what is it we can do with federal money?” he asked. “Give us the rules and let us get to work.”

During an update on the coronavirus Friday, Gov. Carney was asked if he has considered a continuing resolution to fund the government at the same level for the duration of the crisis. He shot that idea down, noting he had his fill of that practice in Congress.

“I don’t think that’s a good way to do your fiscal management,” he said.

Reopening

At some point, Delaware will begin to return to normal — or whatever passes for the new normal. While everyone’s heart aches for small-business owners on the verge of going bankrupt, there’s disagreement among some state officials about reopening.

In interviews, Rep. Schwartzkopf, Rep. Short and Sen. Hocker each mentioned furniture stores, asking why they’re not allowed to open for appointment only, as businesses like gun shops have been able to do.

“Candidly, probably some of them are doing it and we don’t even know it,” Rep. Short said.

Asked if there was consideration being given to allowing soft openings for additional businesses, a spokesman for Gov. Carney noted there’s a petition process through the Division of Small Business.

Both Sen. Hocker and Rep. Short feel the governor is being too hesitant to reopen.

“I talk to an awful lot of people and believe me, I think tolerance is very close to running out, and I think something has to be done quickly,” Sen. Hocker said.

Tourism and agriculture are two of the state’s main industries, and both are seriously suffering from the virus and the resulting shutdown, he said. He’d like to see the governor talk to more business owners, especially in retail.

For his part, Gov. Carney said he weighs input from many sources, including the business community, but ultimately the authority rests with him. As the crisis has continued, he has emphasized public health comes first and is paramount to the state’s economy.

Still, with patience with the shutdown wearing thin in some quarters (see the Facebook group Delawareans Against Excessive Quarantine, which has about 3,300 members and posts bashing the governor, questioning whether the virus is a fraud to establish a new world order and blaming the media for an unnecessary panic), Delawareans may simply have to deal with the fact that even if there is a correct answer, there’s probably not one that’s going to satisfy everyone.

“This is going to be a rough decision, tough decision, no matter how you do it,” Rep. Schwartzkopf said. “No matter what the governor decides, it’s going to have a large amount of people that are impacted positively and negatively, and there’s going to be a lot of people that are upset.”


Helpful Coronavirus links

Delaware Division of Health Coronavirus Page
CDC: About the Coronavirus Disease 2019
CDC: What to do if You Are Sick
Johns Hopkins Coronavirus Resource Center
AP News Coronavirus Coverage
Reopening Delaware: Resources for Businesses
Delaware Phase 2 guidance

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