Lawmakers return Tuesday with a full plate

Legislators and their families and visitors pack the Legislative House during 2019 Open Session of the General Assembly Delaware House of Representatives in Dover. (Delaware State News file photo Marc Clery)

DOVER — When the second leg of the 150th General Assembly begins Tuesday, there will be at least one key difference from Jan. 8, 2019: A quarter of the building won’t be new.

With the annual six-month break now in the rearview mirror, Delaware’s 62 lawmakers will return to Dover this week to begin the legislative process that will consume so much attention from now through the end of June.

In addition to the 15 newcomers (a product of a very unusually high number of retirements) now boasting a year in Legislative Hall under their belts, 2020 also differs from last year because it is, in effect, a continuation. Delaware legislative sessions consist of two “legs,” meaning even years like 2020 simply see things pick up where they left off when lawmakers departed the capitol in the summer.

This year is, of course, also an election year, although the impact that has on legislative proceedings can be debated. At any rate, there a number of issues legislators are expected to grapple with over the next six months, from spending to marijuana to firearms.

Here’s a rundown on some of the many subjects that look likely to dominate discussion in political spheres, although such a summary is far from exhaustive. Both because of the sheer number of legislation debated every year — leaders saw 617 bills from the November election to the beginning of July — and because of the unpredictability of the proceedings, forecasting can be dangerous, as President Pro Tempore David McBride, a Democrat from the New Castle area, put it.

“There’s always a few surprises. I mean, there will be some things that we’re not going to talk about that will happen,” he said.

Budget

As always, the state’s spending plan is in the forefront. Gov. John Carney will present his budget recommendations Jan. 30, giving legislators five months to sift through them and make changes.

This year’s budget totals $4.51 billion (counting a $62 million supplement for one-time items), an increase of 4.4 percent over the budget for the prior fiscal year, while the bond bill comes to $863 million.

Although both of those are the highest totals in state history, their combined sum should be even bigger next year.

Revenue projections for the fiscal year starting July 1 increased by $200 million from September to December, which will surely prompt calls from some Democrats for expanded programs and services. But through his first three years, Gov. Carney has shown a reluctance to spend too much, urging lawmakers to instead set aside millions for the future.

Although the budget has increased, officials say its growth is more sustainable because lawmakers have held about $125 million in reserve. That money is intended to be saved until projected expenses again surpass revenues, at which point the reserves can be tapped.

“I’ve always believed as a Democrat that lots of these social programs and education and things that cost money are really, really important, but you can only do it in a fiscally sound and sustainable way,” Gov. Carney, whose push to put the reserve account in state law was unsuccessful, said in December 2018.

This year, with a nine-figure sum already put aside and extra income looking likely, the General Assembly may expand a few programs or services, much to the delight of certain members.

Although attempts to create a new funding mechanism for clean water projects failed in prior years, House Speaker Pete Schwartzkopf, D-Rehoboth Beach, expects such an initiative to meet more success this year.

Another potential area of focus is getting mental health counselors in every school, the speaker said: “We all want to do this bill, but we have to find money for it.”

Some of the Democratic Party’s more left-leaning members have been frustrated with the administration’s reluctance to spend more money in certain areas, such as education and clean water. At the same time, though, Republicans are wary about stretching the budget too much, only to have to grapple with raising taxes or cutting services if growth surpasses expenses in the near future.

“Based on the latest data, it looks like the local economy will remain strong through the spring, but slow in the new fiscal year, before rebounding the following year,” House Minority Leader Danny Short, a Seaford Republican, wrote in a recent newsletter. “Of course, this is just all educated guesswork. This latest revenue bump was unexpected.

“How can we know what will happen in three months, six months, a year? Given this uncertainty, we should continue building our reserves. Once that is done, if the good times continue, we should consider reducing the tax burden on the families and businesses that made the surplus possible in the first place.”

Guns

Gun control, an issue that dominated much of the discussion in 2019, can’t be ignored in 2020.

To recap: Legislation to prohibit a variety of semi-automatic firearms classified as “assault weapons,” criminalize magazines capable of holding more than 15 rounds and establish a permitting process to buy a gun failed to make it out of a Senate committee despite assurances from Senate Democratic leadership the bills would at least see a floor vote, generating immense anger from advocates of greater gun restrictions.

The decision by Sen. McBride and Majority Leader Nicole Poore, a fellow New Castle Democrat, not to sign the bills out of committee revealed a division in the party as infighting spilled into public view. The measures remain stuck in committee, although backers have been attempting to sway Senate Democrats who are on the fence.

There are whispers other gun bills could be introduced, including one that would raise the age to buy a rifle from 18 to 21. A similar measure passed the House in 2018 but failed in the Senate.

Because of the controversy, passion and varying opinions on firearms, Sen. Stephanie Hansen, a Middletown Democrat, helped organize a forum on guns Thursday. The event, which featured panel discussions involving law enforcement, gun dealers, crime experts, doctors and others, was intended to help lawmakers sort out fact from fiction on gun violence, regulations, ownership and more.

Sen. Bryan Townsend, a Newark Democrat who has been one of the leaders in the legislature in pushing for gun control, said last week he remains hopeful some type of compromise designed to boost public safety can be reached.

Sen. McBride, who has maintained it was the will of the Senate Democratic caucus not to hold a floor vote on the three gun bills last year, said Friday they could see a floor debate if the support is there. Whether that happens is unclear, he noted.

Sen. Dave Lawson, a Marydel Republican and a dedicated backer of gun rights, is working on two bills intended to reduce the number of gun crimes by taking a different approach. One would expand the state’s 2018 “red flag” law, which enables authorities to seize firearms from individuals deemed to be a danger to themselves or others, while another aims to better coordinate work and data-sharing between different law enforcement and social service agencies.

Criminal justice, marijuana and the death penalty

Last year saw a host of measures aimed at reshaping the criminal justice system, including successful bills reducing punishments for some offenses, expanding expungements and giving judges more discretion.

Meanwhile, a hotly followed measure to make Delaware the 12th state with legal marijuana is still awaiting a floor vote.

Supporters are working to drum up the needed votes, and Rep. Schwartzkopf has pledged to put the proposal on the agenda if they hit the magic number.

Under the bill, individuals 21 or older would be able to buy cannabis and cannabis-infused products from special shops, although they would not be allowed to grow their own weed.

While the measure does not specify the price for marijuana, it would establish a 15 percent tax imposed at the point of sale. It would not change the existing medical marijuana program, which was created in 2011 and saw the first dispensary open in 2015.

Gov. Carney has expressed opposition to legalizing cannabis.

An attempt to reinstate the death penalty might see traction, though it’s unclear whether the votes are there. The bill was filed in May but did not begin making its way through the legislative process.

Delaware’s top court struck down the state’s capital punishment statute in August 2016, ruling it was too similar to a Florida law that had been found unconstitutional by the U.S. Supreme Court earlier in the year.

The First State’s old death penalty statute gave a jury the right to offer non-binding recommendations on sentencing death for convicted murderers, although a judge had the final discretion. Unanimity was needed to determine if there were any aggravating circumstances but not whether they outweighed mitigating factors.

The new measure would only allow executions in capital cases when a jury unanimously identifies at least one aggravating circumstance making the offense eligible for the death penalty and rules the aggravating factors outweigh any mitigating circumstances. The bill is very similar to a 2017 proposal, which passed the House but never received a committee hearing in the Senate.

Education

The current year’s budget contains $20 million for students who come from impoverished areas or don’t speak English as a native language, part of $75 million officials plan to spend over three years to help those populations and to give elementary schoolers more mental health and reading support.

Some have argued the expenditure is not just a way of helping children but also counters a lawsuit alleging the state’s system for funding education is unconstitutional.

The suit, filed two years ago by several nonprofits, could result in the courts forcing the state to reshape how it pays for education.

In a blistering November 2018 opinion, Travis Laster, a member of the Court of Chancery, rejected a request from the state to dismiss the lawsuit.

“One reasonable and common sense inference supported by the allegations of the complaint is that Disadvantaged Students need more funding and more services than their more privileged peers,” he wrote.

“In Delaware, however, the educational funding system generally provides more support for more privileged children than it provides for impoverished children. Put differently, schools with more Disadvantaged Students receive less financial support from the State than schools with fewer Disadvantaged Students. Likewise, school districts with poorer tax bases receive less funding from the State than school districts with wealthier tax bases.

“Unlike thirty-five other states, Delaware provides no additional financial support for educating low-in-come students. Unlike forty-six other states, Delaware provides virtually no additional financial support for educating students who are learning English as a second language.”

Gov. Carney has denied the added funding is an attempt to forestall a ruling.

A judicial finding could lead to property reassessment for the first time in more than 30 years.

Also likely to be discussed over the coming months is Wesley College, which has been placed on a federal watchlist for financial struggles.

The college was granted state funding in the current budget to help it meet expenses and currently has a second request pending with the state.

In Wesley’s Nov. 26 application for $3.2 million from the state’s Higher Education Economic Development Investment Fund, President Bob Clark wrote the school has “made great progress in identifying a path forward for a potential merger by signing agreements with two financially strong institutions of higher learning.”

With an outside firm working on helping the college plot a course forward, including submitting recommendations to the respective institutions’ leadership by the end of January, at least some type of announcement about Wesley’s future could come sooner rather than later.

Minimum wage

A few highly controversial minimum wage bills could see debate this year. One would raise the state’s wage floor from $9.25 to $15 an hour over four years and tie it to inflation. The odds of it passing in its current form are best described as zero.

A slimmed-down version might have a chance, but given the staunch opposition from the GOP and even a few Democrats, it would be a very painful fight.

Two bills that would raise the minimum wage for tipped workers such as servers, which is currently $2.23, seem more likely to find success.

Don’t be surprised if Democrats make an attempt this month to undo the training and youth wages, which were created in the summer of 2018 as part of a budget compromise with Republicans. Although most of the majority party figures to be squarely onboard, opposition from just a few Democrats could sink it — and there certainly are one or two Dems who are more skeptical of minimum wage hikes than their colleagues.

Voting

Several bills that would expand voting access are in various stages of the legislative process right now.

Awaiting a Senate hearing for the past 12 months is a bill that would move the state’s primary election to April to coincide with the presidential primary, even in off-year elections. The measure passed the House overwhelmingly last January.

A measure that would allow no-excuse absentee voting (currently, absentee voting is only permitted for a few specific reasons) failed in the Senate just before legislators left in the early morning of July 1 but could see a different fate soon. According to Rep. Schwartzkopf, one person has flipped on it, which would give the bill the needed 14 votes.

Also ready for votes in the House are measures that would allow voting by mail and same-day voter registration.

End-of-session operations

For years, lawmakers and others who work in Legislative Hall have griped about the General Assembly continuing its business well past midnight on July 1 (for reference, in 2018, the legislature started in the afternoon on June 30 and concluded around 8:30 a.m.). Others have complained about how many bills bypass the traditional deliberative process in the final days of session, sometimes leading to a far-reaching proposal being introduced and voted on in a matter of hours.

According to the top-ranking member of the Senate, that could be changing. Sen. McBride said Friday he and Rep. Schwartzkopf are working on amending that practice and hope to have an announcement in the coming weeks.

Sen. McBride said last January the Senate would depart at 1 a.m. July 1 if it was not finished by then, a welcome break for the many people tired of leaving when the sun is coming up.

Republicans last year introduced several bills aimed at promoting transparency by reducing the number of rule suspensions and no longer requiring legislators to stay through the night of June 30 and morning of July 1. While some lawmakers protest they cannot change the practice because the state constitution otherwise reserves the ability to call a legislative session from July to December for the governor, it’s worth remembering who exactly has the power to change the constitution.

Goodbyes

The year 2020 will be the swan song for a few lawmakers, even if some don’t know it yet. Eleven senators and all 41 representatives are up for election later this year, as are Gov. Carney and Lt. Gov. Bethany Hall-Long.

Sen. Harris McDowell, a Wilmington Democrat who has held his office since 1976, announced last year that this will be his final session. Sen. McDowell, the longest-serving lawmaker in Delaware history, could be joined in retirement by a few other legislators, in particular some of the dozen or so who are in their 70s.

This year could see some of the typical election-year lobbying, especially from legislators who have their eyes on higher office, including Congress and the governor’s post.

Stay tuned.

150th General Assembly

The second leg of the 150th General Assembly kicks off Tuesday. Here’s a quick summary of the makeup of both chambers and some key dates for lawmakers.

SENATE

Democratic caucus: 12 members, led by President Pro Tempore David McBride, Majority Leader Nicole Poore and Majority Whip Bryan Townsend

Republican caucus: Nine members, led by Minority Leader Gerald Hocker and Minority Whip Cathy Cloutier

HOUSE OF REPRESENTATIVES

Democratic caucus: 26 members, led by Speaker Pete Schwartzkopf, Majority Leader Valerie Longurst and Majority Whip Larry Mitchell

Republican caucus: 15 members, led by Minority Leader Danny Short and Minority Whip Tim Dukes

KEY DATES

• Jan. 14 to Jan. 30 — in session Tuesdays, Wednesdays and Thursdays

• Jan. 23 — Gov. John Carney gives his annual State of the State speech

• Jan. 30 — Gov. John Carney presents his budget recommendations

• Feb. 3 to March 13 — Joint Finance and Capital Improvement committees scheduled to meet for much of this period while the rest of the legislature is on break

• March 17 to April 9 — in session Tuesdays, Wednesdays and Thursdays

• April 28 to May 14 — in session Tuesdays, Wednesdays and Thursdays

• May 18 to May 31 — Joint Finance and Capital Improvement committees meet Monday through Thursday except for May 25

• June 2 to June 30 — in session Tuesdays, Wednesdays and Thursdays

• June 30 — Final regularly scheduled legislative day of 2020