Dec. 9, 2022 | This Week in Government: 2022 Lame Duck Session Second Least Active Ever

Just 55 bills won legislative approval and will be sent to Gov. Gretchen Whitmer‘s desk during the post-election lame duck session, assuring the second-fewest number of public acts generated during the weeks following the election since Michigan moved to a full-time Legislature in the 1969-70 term.

In the 1969-70 term, just 33 bills passed by the Legislature following the November 1970 election were signed into law by then-Gov. William Milliken.

What Whitmer will do with the 55 bills eventually sent (10 are now on her desk with another 45 on the way following the final voting session concluding late last night) to her is not clear, but should she veto a large number of them, 2022 could wind up as the year with the fewest public acts generated during the lame duck period.

From the moment Whitmer and the Democrats swept the November elections and control of state government in the 2023-24 term, it became clear this year’s lame duck session was likely to be quiet. There was little incentive for Whitmer to negotiate with the outgoing Republican majority given the new dynamic in 2023, and Republicans lacked much leverage considering their soon-to-be minority party status.

Usually, there are three weeks of session after Thanksgiving with nine voting session days. This year, each chamber held just two voting session days after Thanksgiving. There appeared to be little appetite to grind out session days. Although some groups pushed for the Legislature and Whitmer to expand the Earned Income Tax Credit and address a forthcoming big increase in the tipped minimum wage, neither side showed any interest in moving.

The only other issue with a time component – moving up the date of Michigan’s 2024 presidential primary – can wait until 2023. However, Whitmer and the new Democratic majority cannot trample Republicans on it because it will require immediate effect to be in play in time for the desired late February date. That means Democrats will need Republican votes in the Senate unless they want to end the session year in November, something that seems unlikely considering they have the first unified Democratic government in 40 years set to take office.

Further, the outgoing Republican legislative leaders – Senate Majority Leader Mike Shirkey (R-Clarklake) and especially House Speaker Jason Wentworth (R-Farwell) – have long expressed disdain for the idea of using the post-election session to generate large numbers of new laws.

The House adopted a resolution this year, HJR A, to place before voters a constitutional amendment requiring a two-thirds majority for any bill passed after the November election in an even-numbered year and before the end of the year. It did not see any action in the Senate, but Wentworth said it would “eliminate the last-minute, late-night partisan deal-making that creates distrust with the constituents we serve” in support of the measure at the beginning of this term.

Although the final number of public acts for the year and the term won’t be known for a few weeks, pending Whitmer’s signing decisions, the 2021-22 term looks poised to have the fewest acts in decades.

The 101st Legislature came to an unceremonious end on Wednesday after a potential deal between Republican leaders in the Legislature, and Democratic Gov. Gretchen Whitmer on a spending plan and tax cut went up in smoke.

Despite a marathon session day lasting more than 12 hours, Minority Leader-elect Matt Hall (R-Comstock) said they couldn’t come to an agreement with the governor.

“We had an agreement,” he said. “And then about an hour later, the governor reneged and backed out on the deal, and so we’re not going to have a supplemental.”

Republican Senate Appropriations Chair Sen. Jim Stamas of Midland declined to blame either side and said simply a deal could not be struck.

The Governor’s office refuted claims made by Hall and other Legislative leaders.

“Gov. Whitmer is always ready to work with anyone who’s serious about solving problems and getting things done that will make working families’ lives better right now,” Whitmer spokesperson Bobby Leddy said in a statement. “Over the last four years she successfully brought together Republicans and Democrats to pass numerous historic pieces of legislation that cut taxes, put money back into people’s pockets, and made our state a competitive place to do business again, while landing more than 10,000 new jobs in the process. In less than a month, an entirely new Legislature will be seated after Michiganders voted to change leadership, and we look to tackle this and more with new lawmakers in the new year.”

Republicans said the deal would have included a $200 million economic development project, a $180 million tax cut, and additional funds for year-end book closing for a total just shy of $500 million.

The economic development project was related to the timber industry in the Upper Peninsula’s Delta County, Rep. Beau LaFave (R-Iron Mountain) said.

“All of the sudden, there’s some other reason she can’t do what she agreed to in the first place, playing ‘Lucy’ with the football,” he said.

Republicans said their proposal also would have included a tax cut $180 million tax cut with the passage of HB 5080, which would exclude delivery and installation charges from sales tax (See Gongwer Report June 23, 2021).

“We’ve been working on it for about a year,” said Rep. Pat Outman (R-Six Lakes). “I thought we were really close to crossing the finish line, but unfortunately, it just didn’t happen.”

The bill previously met resistance from the Department of Treasury because of the fiscal impact it would incur, but the supplemental would have provided money from the General Fund to backfill the loss of the tax, Republicans said.

“We have made it clear that Michigan is going to be a major player for large-scale opportunities that will bring jobs to our state instead of watching them go to other states,” Hall said. “This would have been an investment in our workforce and a down payment on our state’s potential, but the governor has chosen to not follow through on her original commitment.”

Senate Appropriations Committee Chair Jim Stamas (R-Midland) said that the Legislature couldn’t come to an agreement with the governor on what would be in the supplemental.

“It went back and forth on multiple different items and just didn’t work out,” he said.

Stamas declined to lay blame on any one party, as did Sen. Curtis Hertel Jr. (D-East Lansing).

“Deals take all three people to be reasonable,” Hertel said. “There was at no point anything that was presented to my caucus in a way that was acceptable either. … It’s a little unfair to say that they proposed something that was rejected and that was a deal that fell through. We certainly made proposals back, they didn’t accept those either.”

Sen. Aric Nesbitt (R-Lawton) disagreed, saying Whitmer balked at the plan.

“This was a very disappointing turn from the governor that eliminated a change to get this done,” he said in a statement. “There was bipartisan support behind this. It would have helped workers and families across Michigan as our state looks to compete. It leaves one to wonder how much is going to get done to bring jobs to our state going forward when Gov. Whitmer changes her mind at the eleventh hour.”

Hall similarly casted doubt on what this could mean for the new legislative term.

“It creates questions about how we’re going to build that trust and work together over the next two years in a tight legislature with tight majorities,” he said.

Hertel said he thought that a better deal could be reached by the governor and Democrats within a matter of weeks when the new Legislature convenes.

Republican leaders never got a full explanation of what the governor didn’t like about the supplemental, said Gideon D’Assandro, spokesperson for Speaker Jason Wentworth.

“The governor had a problem with the tax policy,” he said. “We didn’t get an explanation of what changed.”

The House Appropriations Committee did approve a legislative transfer request to provide a $60 million performance-based grant through the Strategic Outreach and Attraction Reserve Fund for a wastewater transport and disposal service plant in Muskegon County.

The committee approved the transfer in a vote of 23-3.

“What the project will ultimately benefit is the opportunity for multiple companies to continue to invest and grow in this already growing agricultural industry on the west side of the state,” said Josh Hundt of the Michigan Economic Development Corporation during the committee meeting Wednesday evening.

The Senate Appropriations Committee approved the transfer last week (See Gongwer Report Nov. 29, 2022). The project is expected to create about 145 jobs and $187 million in investment from five different companies.

“It is something that is going to benefit each and every resident in Muskegon County,” Rep. Terry Sabo (D-Muskegon) said. “This is really a win, win, win in so many different areas. From economic development, from rent stabilization for users of the system, as well as from an environmental standpoint.”

The Senate voted Wednesday to send amended legislation to the governor that would update the state’s solid waste laws despite concerns from some Democrats that changes related to chemical recycling would cause adverse environmental impacts to nearby residents.

An eight-bill package passed with bipartisan support Wednesday following the adoption of multiple floor substitutes with the key changes allowing for and defining chemical recycling.

Two bills that drew the most concern from Democrats were HB 4454 and HB 4455, which passed 22-10. Changes adopted in the S-3 floor substitute for HB 4454 added definitions for chemical recycling, chemical recycling facility, and depolymerization to the bill, while provisions added to HB 4455 the definitions of post-use polymer and solvolysis.

Senate Republican staff said the definition changes in the S-2 floor substitute for HB 4455 would aid in the use of advanced and chemical recycling of plastics and other polymers.

“Today’s substitutions … takes us away from our mission to serve the communities and the people of Michigan,” Sen. Rosemary Bayer (D-Keego Harbor) said prior to her vote in opposition to HB 4454 as substituted.

Bayer offered a floor substitute of her own for HB 4454 prior to the final passage that she said would return the bill to its form as passed by the House. She said it would eliminate the chemical recycling provisions adopted on the floor. Her floor substitute failed by a 14-18 vote. A proposed floor substitute to undo the changes to HB 4455 also failed 14-18.

Sen. Jeff Irwin (D-Ann Arbor), prior to the passage of the bills, said what was originally a strong package would be changed for the worse by allowing the burning of the materials he described as “burning hot garbage.” He said he had concerns about the impacts on air quality on residents living near facilities where such waste is being burnt.

Sen. Aric Nesbitt (R-Porter Township), who introduced the substitutes that were adopted, called the package a reasonable bipartisan compromise.

“They provided a better way of having long-term surety in doing waste disposal,” Nesbitt said, adding it would provide new opportunities for addressing the disposal of items such as plastics and preventing them from finding their way into landfills.

Nesbitt said he was disappointed in the opposition from some of the Democrats but said his hope is that the governor would find it to be a reasonable compromise to ultimately sign.

As introduced, the package included a proposed increase in the recycling rate and the fees required for landfill construction and operation.

Passing Wednesday, despite the objections from some Democrats, were HB 4454, HB 4455, HB 4456, HB 4457, HB 4458, HB 4459, HB 4460 

and HB 4461. The package passed the House in April 2021. Votes on the rest of the package were less divided than the first two bills. Senators voted 28-4 on HB 4457 and 27-5 on HB 4456, HB 4458, and HB 4459. They voted 26-6 on HB 4460 and HB 4461.

As passed, the bills would also include promoting recycling and reusing materials and set benchmarks for statewide efforts.

Those benchmarks include a 30% municipal solid waste recycling goal by 2029 and a final goal of 45 %.

The establishment of curbside recycling in communities of more than 5,000 people by 2028 would also be a goal, with drop-off points to provide convenience to people in rural and urban counties by 2032.

Regulations governing compostable materials, material management plans, and the implementation of various grant programs would also be covered under the package.

RESTRICTIVE COVENANTS: Current and future property owners would be able to discharge prohibited restricted covenants from property deeds under a bill the Senate voted in support of Wednesday. The changes, supporters of the proposal have said, would allow for the elimination of racial and gender-discriminatory language that can prevent sales.

Passing by a 31-0 vote was HB 4416, which was reported by committee last month. Courts would also be prohibited from enforcing prohibited restricted covenants.

ORGAN TRANSPLANTS: Passing by a 28-1 vote was HB 4762, which would ban discrimination against organ transplant recipients based on their physical or mental ability.

RECONNECT PROGRAM: Bills that would expand and make additional changes to the Michigan Reconnect Program are headed to the governor’s desk after the Senate voted in favor of the proposal Wednesday.

HB 6130 passed 24-7. The other bill, HB 6129, passed 22-8 and would make several changes to the program, including requiring institutions to show they are following best practices for supporting adult learners.

CRITICAL INCIDENT MAPPING: Legislation passed the Senate 31-0 that would allow local school boards to provide critical incident mapping data for a school district for a school building it operates instead of blueprints.

The proposed changes in HB 6042 would allow for this when school boards are submitting detailed and accurate building and site plans to the appropriate local law enforcement agency along with its school safety procedures.

ANNUITIES: Senators passed two bills by votes of 23-8 that would provide state employees and educators with annuity options within state retirement systems. 

Under HB 4733, the State Employees Retirement System would be required to provide annuity options while also allowing employees the option to purchase a variable annuity with an available guaranteed lifetime income option.

For HB 4188, the bill would provide annuity options for employees and retirees in the defined benefit retirement plans provided through the Michigan Public School Employees Retirement System.

The number of students that were retained in the third grade during the 2021-22 school year under the state’s third grade reading law more than doubled that of the previous year, a report released Tuesday revealed.

Data in the report released Tuesday by Michigan State University’s Education Policy Innovation Collaborative follows up on a September report outlining those eligible for retention under the state’s third grade reading law.

Data in the report released Tuesday by Michigan State University’s Education Policy Innovation Collaborative follows up on a September report outlining those eligible for retention under the state’s third grade reading law.

For the 2021-22 school year, a total of 5,680 third grade students were eligible for being held back based on their scores from the English Language Arts portion of the Michigan Student Test for Education Progress. A total of 545 tested students were to be held back.

“While this is a small proportion, it represents more than twice as many students as were retained the year prior when districted identified 228 students for retention,” the report said.

Students who score under 1252 on the English portion of the M-STEP can be held back in the third grade or promoted to the fourth grade under various exemptions allowed under statute. Those who score between 1253 and 1271 move on to the fourth grade but are recommended to receive additional support. Those at 1272 or above are promoted to the fourth grade.

Overall, 5.8% of students who took the M-STEP in 2021-22 were eligible to be kept back in the third grade, up from 4.8% during the 2020-21 school year.

As in previous years, most students eligible to be held back in the third grade were moved on to the fourth grade.

It was pointed out that one factor for the increase was the rise in participation in the M-STEP in 2021-22 over the 2020-21 school year. Test participation during the 2021-22 school year was 96%, up from 71% the previous school year.

“Moreover, since many of the districts with lower participation rates in 2020-21 were remote for much of the 2020-21 school year due to the outsized impacts of the pandemic on urban districts with higher proportions of low-income and lower-performing students and students of color, it is likely that any changes in the proportion of retention-eligible students will be in part attributable to differences in the tested population of students,” the report stated.

The data also points to student achievement being negatively affected during the coronavirus pandemic as a factor.

“While we do not know why districts chose to retain more eligible students in 2021-22 than the year prior, it may be that administrators, educators, and parents or guardians were hesitant to retain students in 2020-21 as a result of their performance during the COVID-19 pandemic,” the report said. “It may be that the relatively higher rates of retention in that year are due to the return towards ‘normalcy’ in the 2021-22 school year.”

During the 2021-22 school year, out of those eligible to be held back in the third grade, 13.6% of Black students were held back compared to 5.7% of white students. There were 6.9% of Latino students held back.

Students who fall under the category of being economically disadvantaged or with a disability were also held back at higher rates.

About 10.5% of those classified as economically disadvantaged who were eligible to be held back in the third grade were held back in 2021-22. This was compared to 4.3% who were not economically disadvantaged.

For charter schools, 21.5% of students eligible to be held back were, while the figure for traditional public schools was 6.6%.

Those eligible in urban school districts to be held back were done so at a rate of 12.4% compared to 7.4% of those eligible in districts in suburban areas or towns. For rural district students, a total of 7.2% among those eligible were held back.

Among students during the 2021-22 school year who advanced to the fourth grade under a good cause exemption, 52.4% were done so at a parent’s request. Those advanced due to the Individualized Education Program of Section 504 Plans totaled 23.2%. The remaining categories were under the exemptions categorized as being previously retained (8.2%), student portfolio (7.3%), enrolled less than two years (5.6%) and English learners (3.3%).

EPIC Director Katherine Strunk, in a statement, said while not a large percentage of eligible students were held back, the retention provisions under the third grade reading law affect students of color and low-income students more along with those in lower-performing or urban districts.

“As state lawmakers debate whether to rescind or how to amend the Read by Grade Three law, it will be important that they understand the potential for inequitable implementation of the law,” Strunk said. “Ideally, lawmakers will consider how to maintain and improve the law so that it furthers all students’ opportunities to learn.”

Superintendent of Public Instruction Michael Rice, in a statement, said the research shows parents and educators are hesitant about the possible benefits of holding students back in the third grade.

“Regular tutoring by trained tutors, individualized reading improvement plans, reading coach intervention, diverse classroom libraries to encourage students to read more and better, and parent, family and community literacy efforts are all ways to improve literacy achievement without retention,” Rice said.

While several have pinpointed Proposal 3 as a major motiving factor for voter turnout during the November gubernatorial and midterm election, new data from a pro-democracy group shows that exposure to the January 6 Committee was also a factor for some voters.

The data presented in a webinar on Tuesday by Protect Democracy from a study that included 500 polls of randomly sampled general election voters in several midterm battleground states, like Michigan, shows that 60.9% of voters said protecting democracy was “very important” in their voting decisions on November 8.

While Michigan voters said inflation (55%) and the abortion issue (54%) were among their top issues, another 33% said that protecting elections from partisan attempts to overturn the results also ranked as a top issue and a motivator to hit the polls. Another 18% of sampled voters said that the events on Jan. 6, 2021, and the activities of the U.S. House committee probing the matter factored into their voting habits.

The data also showed that 56.8% of all respondents across the entire sample had at least some exposure to the House’s Select Committee to Investigate the January 6th Attack on the United States Capitol hearings – with 35.3% saying they engaged with the hearings once a week or more.

That led to a 27.7% correlation between increased concern about the state of American democracy and increased exposure to the select committee hearings. However, Mindy Finn, founder & CEO of Citizen Data, which assisted with the study, noted that the correlation is likely driven by how much voters care about the issue in the first place rather than a direct cause-and-effect relationship.

Notwithstanding, those concerns appeared to translate into specific voting habits in 2022, as 45.5% of those who had heard of the committee hearings said it impacted midterm decisions.

At least 91% of respondents said the hearings were somewhat or very important to their midterm vote. Broken down further, the data shows that 63% said that the hearings were “very important” when considering candidates and that only 7% said it was not important or a major factor in their decision to cast a ballot in a certain way.

As for cross-party votes, 5.4% of those who tend to only vote Democrat said they voted for at least one Republican in 2022, and 0.9% said they voted for an independent candidate. That said, another 5.4% of those who tend to only vote for Republicans said they split their ticket in 2022. The conclusion in the data there, Finn said, was that GOP ticket splitters were 5.4% more likely to cite Jan. 6, 2022, as a top issue that led them to cross party lines.

Among Republicans and independent ticket splitters who said they voted for at least one Democrat in 2022, 33.9% said they believed that one or more of the GOP candidates in the election held views or promoted policies that they deemed dangerous toward democracy.