Republicans ram spate of bills through COVID-19 special session

By: - October 28, 2021 9:04 pm
Republican lawmakers, led by, from left, House Speaker Cameron Sexton, Lt. Gov. Randy McNally and House Majority Leader William Lamberth, pushed massive bills through committees during Thursday's special session. (Photo: John Partipilo)

Republican lawmakers, led by, from left, House Speaker Cameron Sexton, Lt. Gov. Randy McNally and House Majority Leader William Lamberth, pictured after the legislature approved an incentive package for Ford Motor Co. (Photo: John Partipilo)

Giving only a few minutes to digest massive bills, Republicans pushed legislation through committees Thursday, thumbing their nose at the business community and, in one instance, seeking to nullify President Joe Biden’s executive order on vaccinations.

“This is a history-making resolution,” Rep. John Ragan told one committee as he introduced a nullification bill sponsored by House Speaker Cameron Sexton.

Ragan, an Oak Ridge Republican, pointed out the Legislature need only look back to 1830 when President Andrew Jackson was prepared to invade South Carolina because it declared null and void the federal tariffs of 1828 and 1832. 

Jackson, who opposed secession, did not invade, but South Carolina could not gain enough support from Southern states to follow it into leaving the Union. Ragan tried to claim that Jackson, a Democrat, backed down. But the nullification crisis turned Jackson into a hero for nationalists.

Ragan’s resolution calls on the Legislature to give the attorney general authority to take legal action against the federal government and its move to force companies with more than 100 employees to require COVID-19 vaccinations. It was just one of several pieces of legislation Republicans sent through the special session they called to object to what they call federal “overreach.”

Discussing the resolution Wednesday as the special session started, Sexton said he doesn’t believe OSHA is the right body to handle the president’s vaccine mandate. 

Many members of Congress think it is an “abuse of power,” he said, arguing that making people pay for a negative test if they don’t take the vaccine is “taxation without representation.”

The resolution “lays out what we believe is our case on why this is going to be unconstitutional and we ask the AG to defend us and Tennesseans to nullify that OSHA requirement if it comes out,” Sexton said.

Asked if he’s pushing for a lawsuit, the speaker said, “There’s lawsuits regardless of what happens.

The measure passed in Senate and House committees and will go to the floor of each chamber for consideration.

State Rep. Jason Hodges, a Clarksville Democrat serving on the committee that heard the resolution, declined to speak during the Thursday meeting. Afterward, he said the “rhetoric” Republicans were “spewing” was so “ridiculous” he didn’t want to get involved in a debate. 

Extraordinary day of events

In only the third special session ever called by the Tennessee General Assembly, Republicans sponsored some 70 bills designed to put controls on businesses as they navigate the COVID-19 pandemic and the looming order by President Biden. The National Federation of Independent Business, Tennessee Business Roundtable and Tennessee Chamber of Commerce and Industry opposed much of the business-related legislation because it puts them in the middle of a fight between the state and federal government.

In a letter to the Legislature, NFIB State Director Jim Brown wrote, “NFIB has always opposed any legislation, ordinance or policy that creates a new cause of action against private employers.” A review found seven bills would do that, including expanding the scope of the Tennessee Human Rights Act.

Brown noted that businesses don’t need increased costs, distractions or “unnecessary” legal actions.

Rep. Jason Zachary, R-Knoxville, center, facing camera. (Photo: John Partipilo)
Rep. Jason Zachary, R-Knoxville, center, facing camera. (Photo: John Partipilo)

For instance, a COVID-19 omnibus bill sponsored by Speaker Sexton and carried by Rep. Jason Zachary, R-Knoxville, would take several steps, including prohibiting employers from requiring vaccines, allowing employees who refuse vaccines to get unemployment benefits, prohibiting school district mask mandates and vaccinations for children without parental permission. It passed a newly-created House COVID-19 Committee in which Republicans outnumbered Democrats 17-2.

“I’m sponsoring it because I’m passionate about freedom and liberty and over the last 19 months that has been slowly stripped away and it stops only when we make it stop,” Zachary said.

Zachary claims he’s gotten more than a thousand emails in recent days from Tennesseans who’ve been fired or put on leave because they refused to take the vaccination, even if they claim religious exemptions. The legislation contains an exemption for federal contractors.

Provisions of COVID-19 Omnibus bill:

  • Prohibits businesses from firing workers for refusing to get COVID vaccine;
  • Allows workers who quit rather than get the vaccine to collect unemployment compensation;
  • Restaurants do not have the ability to create separate dining areas for vaccinated and unvaccinated individuals;
  • The Commission of the Tennessee Department of Health has sole authority to order quarantines;
  • School boards can only require mask mandates in individual schools and not district-wide, and even then only when the governor has declared a state of emergency and cases reach 100 per 1000 residents.

Companies such as Tyson, 3M, BlueCross BlueShield are taking steps already to require vaccinations, even before Biden’s order requiring enforcement through the Occupational Safety and Health Administration takes effect, he said.

“So we have to step in on their behalf,” Zachary said. He argued that the Legislature tells businesses what to do all the time.

Democrats found themselves largely silent during the committee but defending the rights of businesses afterward.

Rep. Dwayne Thompson, a Cordova Democrat, said legislators received a copy of the legislation only two minutes before they considered it. No experts testified on the bill.

Thompson contended the COVID-19 pandemic is waning now but could come back strong, with thousands still dying from the disease.

“We should not interfere with businesses and their efforts to protect their employees and to protect their customers and patients in the case of health care,” Thompson said.

He pointed out mask mandates are popular in Shelby County, both in the city of Memphis and in suburban areas.

Individual rights are supported by Democrats and Republicans, he added. But they are not meant to “interfere and supplant” overall public health in times of crisis, Thompson said.

Zachary predicted the legislation would be challenged in court. But Gov. Bill Lee’s executive order allowing parents to opt children out of school mask mandates has failed in federal court four times already.

Senate Majority Leader Jack Johnson, who carried the COVID-19 omnibus bill for Lt. Gov. Randy McNally acknowledged the pandemic has been a “terrible time in so many respects.”

“But it’s time … for us to move, and we need to move on in a very responsible way. COVID still exists. People are still contracting the virus, they’re still being hospitalized by the virus and some are still dying from the virus,” Johnson said.

Yet, thousands of Tennesseans don’t want to get the vaccine, whether they have natural immunity from catching the virus already, a religious objection or personal conviction or physical problem that precludes them from taking it.

Thus, the bill carves out a place in state law dealing specifically with COVID-19. It prohibits businesses from firing workers for refusing to get a COVID-19 vaccine and provides unemployment benefits for anyone released for refusing a COVID-19 vaccine.

No adverse actions could be taken against anyone for refusing to show proof of vaccine or a negative test. For instance, Lincoln Memorial University would not be able to require students to take vaccinations or prove they are negative.

Restaurants would not be able to segregate people who are unvaccinated, but music venues would be able to require vaccinations.

In addition, the Tennessee Department of Health commissioner would be the only person who could force the quarantine of a person with COVID-19. People who merely come in contact with someone with the virus could not be quarantined as long as they show a negative test result.

The Senate version of the bill does give the ability for school mask mandates but only in the case of a state of emergency and a large number of COVID-19 cases, 100 per 1,000 people.

District attorneys pro tem get go-ahead

Sen. John Stevens, a Huntingdon Republican, passed legislation through committees enabling the attorney general to request that a court replace a district attorney general who declares he will not take cases. In those situations, a district attorney pro tem would be selected.

“The district authority lacks the authority to categorically refuse to prosecute a certain class of statute,” said Stevens, who is carrying legislation sponsored by Lt. Gov. Randy McNally.

xGlenn Funk, District Attorney, Metro Nashville and Davidson County (Photo: Nashville.gov)
Glenn Funk, District Attorney, Metro Nashville and Davidson County (Photo: Nashville.gov)

The legislation is considered by opponents to be a swipe at Nashville District Attorney General Glenn Funk who has declared he would not prosecute possession of small amounts of marijuana, nor would he enforce the governor’s mask opt-out or a new law requiring businesses to post signs on bathrooms that transgender people are likely to use.

From a practical standpoint, it would be difficult to remove Funk in cases involving less than a half-ounce of marijuana because police aren’t making arrests. In some cases, they might be writing citations.

“That’s where the slippery slope, I think, comes in, because regardless of partisanship, things could change,” Stevens said. “Because if one person has that much authority, we’re no longer a constitutional republic, we’re just a tyranny.”

Nevertheless, he argued that district attorneys general should not be allowed to simply say they won’t enforce some laws because they could start saying they would prosecute people for other violations that aren’t state law. 

Asked whether his legislation disenfranchises voters who cast a ballot for the district attorney general, Stevens argued that voters expect the DA to follow the dictates of the Constitution.

Sen. Jeff Yarbro, a Nashville Democrat, said the GOP attempt to control district attorneys — Nashville DA Glenn Fuck is an apparent target — “foolishness,” pointing out DAs get prosecutorial discretion on what to prosecute and what not to.

Funk’s office has not responded to questions about the legislation.

Sen. Jeff Yarbro, a Nashville Democrat, called the legislation an attempt by the General Assembly to “control the process” that’s detailed in the Constitution.

District attorneys general are allowed “discretion” under the Constitution to protect the people from “overreach,” Yarbro said, “and any attempt to circumvent that protection is foolishness.”

Electing partisan school boards

The election of partisan school board members, which is illegal under state law, took a step forward Thursday, but Republican sponsors will have to decide whether they want to give local political parties a choice or make it a requirement.

State Rep. Scott Cepicky passed legislation in a new House Elections Committee giving county political parties the option of holding caucuses or primaries for school board races, a move that would force candidates to declare a party or to run as independents.

The companion bill didn’t make its way through a Senate committee.

But Cepicky, a Culleoka Republican, also passed legislation sponsored by Speaker Sexton that would require local school board elections to be partisan affairs, forcing candidates to run as a Democrat, Republican or independent.

Members of Moms for Liberty from Williamson County, where school board meetings have been contentious over mask mandates, clapped and cheered the outcome in the House committee, but several of them declined to comment.

The companion bill carried by Sen. Mike Bell, R-Riceville, survived a Senate committee but with an amendment making it permissive. County political parties would be able to choose whether to hold caucuses or primaries for school board races.

“I thought it was better to make this mandatory across the state, that all the citizens of the state of Tennessee know that philosophy, hopefully, in some respect the world view of people who are running. It’s not a perfect measure,” Bell said.

Nevertheless, he declined to try to kill the amendment, and the legislation passed to the Senate floor.

With major differences, though, between the House and Senate measures, they would either need to be amended on the floor or go to a conference committee.

Sen. Raumesh Akbari was the lone vote against the partisan school board election bill in the committee.

“I think school boards are designed to take care of children, keep them safe, have them be educated and to make it partisan is completely unnecessary and against all the precedent that’s been established,” said Akbari, a Memphis Democrat.

 

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Sam Stockard
Sam Stockard

Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state's best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial from the Tennessee Press Association.

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