By Kerry Drake 

Let's put the special session out of Wyo's misery


November 4, 2021

What does it say about a special legislative session when the most memorable moment of the first week was a former House speaker dropping a couple F-bombs to disparage another lawmaker?

Perhaps it’s a sign that everyone involved in this lame effort to show the federal government it can’t push Wyoming around should just go home before the state wastes any more money.

This special session to fight a federal COVID-19 “vaccine mandate” has already cost taxpayers at least $100,000. Lawmakers who demanded a public forum in which to grandstand their frustrations are doubling down, and will spend at least as much this week.

What do they have to show for it so far? A pair of flawed COVID-related bills approved by the House, and an unrelated Senate measure that fixes an error in a gambling commission law that passed earlier this year.

Houe Bill 1001-COVID-19 vaccine employer mandates passed 38-20, but the measure is so weak that even some of its supporters had to hold their noses and vote for it.

“I think everybody, without a doubt, knows this bill isn’t a perfect bill. It isn’t really even a good bill,” said Rep. Bill Fortner (R-Gillette). “But it’s like building a house. You’ve got to have the foundation before you build the house.”

House Bill 1001, though, is a house of cards. It’s built on the premise that states can supersede federal laws, when in fact the U.S. Constitution’s Supremacy Clause says just the opposite. That’s a civics 101 lesson that the Wyoming Legislature appears impervious to learning, despite numerous painfully expensive teachablemoments.

OSHA hasn’t written the rules yet for President Joe Biden’s so-called “mandate.” We know, however, that the forthcoming regulations will include a provision enabling anyone who doesn’t want to take the vaccine to instead remain employed with weekly testing. Hysterical extreme-right-wing reactions aside, that simply doesn’t qualify as a mandate. And even if it did, the regulations are yet to be released or enacted. The state can’t block something that doesn’t even exist.

That hasn’t stopped the Legislature from trying. HB 1001 would prohibit certain businesses — those with 100 or more employees, health facilities that receive Medicare or Medicaid funds, and companies with federal contracts — from requiring workers to be vaccinated.

But the state law would be in effect only until corresponding federal regulations are approved.

Then the federal law would apply, unless a court issues a stay when the state appeals it. Wyoming businesses would have to follow the state law until the issue is fully adjudicated.

I don’t think the U.S. Department of Justice and federal courts are going to see it that way. Does it seem reasonable that Wyoming or any state can tell a private company that it can’t protect its workers from exposure to unvaccinated employees who pose the highest risk of spreading a disease that has claimed more than 700,000 American lives?

House Bill 1002-Federal COVID vaccine mandates-prohibition and remedies-2would give the governor $250,000 to file lawsuits against the feds, which Gov. Mark Gordon already plans to do at his earliest opportunity. So, why the rush to pass a law that could easily have been considered at February’s budget session?

I was amazed that several lawmakers compared their fight against vaccine mandates to the civil rights struggles against racial injustice.

“What are we having right now with COVID? Second-class citizens,” said Sen. Bo Biteman (R-Ranchester). “I’m hearing members who are perfectly OK with that, [they] think it’s funny to have a vaxxed bar versus an unvaxxed bar. It’s not funny to have a Black-only bar versus a white-only bar. We’re beyond that in this country, thank God.”

Rep. Chip Neiman (R-Hulett) compared those who stand up to the feds over vaccine requirements to Rosa Parks challenging segregation by refusing to leave the white section of a bus. Does he actually fail to grasp that people don’t choose their race, but they can choose whether to get vaccinated? Or that the color of one’s skin poses no danger to those around you?

Perhaps Neiman is envisioning the day when a future Wyoming Legislature erects statues of the brave culture warriors who made it illegal for companies to protect their workers during the worst health crisis in American history.

Several legislators tried to be a voice of reason, and no one did it better than Rep. Bob Nicholas (R-Cheyenne), who eloquently addressed what’s at stake for Wyoming residents.

“No doubt we are in a pandemic of the unvaccinated,” Nicholas said. “If everyone was vaccinated, this pandemic would be gone.”

The attorney pointed out that 1,150 people have died in Wyoming due to COVID-19, including his father.

“This is not an unconstitutional mandate,” Nicholas said. He added that the Wyoming Medical Center in Casper — which has seen its staff overwhelmed caring for mostly unvaccinated COVID-19 patients — would have lost more workers had it not imposed a vaccine mandate that went into effect Nov. 1.

“There’s a lot of staff saying, ‘Look, if my co-worker is not vaccinated, then I’m not coming back to work. It’s a dangerous work environment,’” Nicholas said.

His valuable, fact-based speech deserves to be remembered. Unfortunately, what grabbed more headlines was an embarrassing incident last Thursday involving former House Speaker Rep. Steve Harshman (R-Casper).

Harshman, who participated from home via Zoom, was irked by an amendment to HB 1001 sponsored by Rep. Chuck Gray, another Oil City Republican. Gray was one of the most strident voices demanding the special session. He wanted political theater, but got a little more drama than he expected when his colleague accidentally shared with the world his less-than-flattering opinion of Gray.

Harshman loudly voted against the amendment, which failed, and his image disappeared from the screen. But he accidentally left his mic on, and while the House moved on to other business, Harshman could be heard cursing about Gray

It was a stunning moment and inexcusable behavior, especially from a legislative leader. Harshman drove to Cheyenne the next day to address Gray and the entire chamber in person.

“I apologize for that distraction because we have real work to do for our people. … It wasn’t right and it won’t happen again,” he said.

House Speaker Eric Barlow (R-Gillette) took away Harshman’s privilege to work remotely during the session. But Harshman left the Capitol after a few votes and made a beeline for home, putting that “real work” for his constituents on hold because he had a more pressing matter.

As the football coach of Natrona County High School, Harshman needed to get his squad ready for that night’s playoff game.

His Mustangs won, so if the session extends until Friday, Coach Harshman will presumably be on a bus to the next contest in Sheridan and a no-show at the Capitol.

Rep. John Bear (R-Gillette) says he will offer a motion to censure Harshman when the House reconvenes Wednesday. It promises to be a dramatic moment that potentially upstages whatever the Senate does with the two lackluster bills the House sent it.

In my dream scenario, the Senate — which jettisoned all five of the COVID bills it considered — does the same thing to the House bills ASAP. It would then send the House a message to not bother coming back Wednesday because everything is stone-cold dead.

Even the legislators who foisted this worthless session upon the state don’t appear happy with the results, because all of the penalties have been removed.

Instead of carving up the feds into little pieces, what remains in both bills is a grudging acceptance that the only real option the state has is to sue — and almost certainly lose in court.

I’m not trying to spare Harshman any punishment for his outburst; I’d kind of like to see how the whole censure thing plays out. But I have to admit, he had the right idea leaving Cheyenne.

And if he gets to go home before this wretched mess ends, why should the rest of us have to stick around?

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.


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