HOUSE CONCURRENT RESOLUTION 74

(By Delegate Howell)

[Originating in the Committee on Economic Development and Tourism; Reported on March 7, 2023]

Requesting That the Joint Committee on Government and Finance commission a study by designated representatives of the West Virginia Legislature and the Department of Economic Development to assess whether the Code of West Virginia,1931, as amended, contains outdated, excessive, superfluous, dysfunctional or unnecessary provisions which stifle innovation, impede market entry by private entrepreneurs, disincentivize investment and preclude the maximization of the productive potential of free enterprise and, if so, to identify such provisions for recommended repeal by the West Virginia Legislature.

Whereas, When Code of West Virginia,1931, was codified its total page length, including the index, was a mere 1,889 pages; and

Whereas, Today, in just over ninety years, Volume 1 and 1A of the Code of West Virginia,1931, as amended, not including pocket part supplements, is 2,067 pages in length, and the entire Code is now approximately fourteen times the length it was in 1931; and

Whereas, For the vast majority of the last 90 years, the West Virginia Legislature was dominated by majority party platforms that were deeply skeptical of free market principles and deeply credulous of government regulation, intervention, control, and progressive tax policies; and

Whereas, In the words of Richard Pipes in Property and Freedom who noted that “[L]egislation passed under the New Deal … [i]nspired by a profound skepticism about the future of capitalism… encouraged a fundamental and long-lasting change in attitude toward private property; laws conceived and presented as emergency measures were subtly transformed into innovative principles which fundamentally altered first governmental and then judicial attitudes toward ownership.”; and

Whereas, Alexis de Tocqueville in his treatise Democracy in America noted that “The democratic tendency... leads men unceasingly to multiply the privileges of the state and to circumscribe the rights of private persons... often sacrificed without regret and almost always violated without remorse... men become less and less attached to private rights just when it is most necessary to retain and defend what little remains of them.”; and

Whereas, Alexis de Tocqueville in his treatise Democracy in America further noted that, “the oppression threatening democracies will not be like anything there has been in the world before…. [Government] an immense and protective power which alone is responsible for looking after their enjoyments and watching over their destiny… seek[ing] only to keep them in perpetual childhood… directs their principal concerns, manages their industry, regulates their estates, divides their inheritances…. Thus, it reduces daily the value and frequency of the exercise of free choice; it restricts the activity of free will within a narrower range and gradually removes autonomy itself from each citizen…. [Government] having taken each citizen one by one into its powerful grasp and having molded him to its own liking, spreads its arms over the whole of society, covering the surface of social life with a network of petty, complicated, detailed, and uniform rules through which even the most original minds and the most energetic of spirits cannot reach the light in order to rise above the crowd. It does not break men’s wills but it does soften, bend, and control them; rarely does it force men to act but it constantly opposes what actions they perform; it does not destroy the start of anything but it stands in its way; it does not tyrannize but it inhibits, represses, drains, snuffs out, dulls so much effort that finally it reduces each nation to nothing more than a flock of timid and hardworking animals with the government as shepherd…. [A] type of organized, gentle, and peaceful enslavement….”; and

Whereas,  Frederic Bastiat in his work The Law observed that “When a portion of wealth passes out of the hands of him who has acquired it, without his consent, and without compensation, to him who has not created it, whether by force or by artifice, … that property is violated, [and] plunder is perpetuated…. [T]his is exactly what the law ought to repress always and everywhere.”; and

Whereas, Frederic Bastiat in his work The Law further observed “Which are the happiest, the most moral, and the most peaceable nations? Those where the law interferes the least with private activity; where the Government is least felt; where individuality has the most scope, and public opinion the most influence; where the machinery of administration is the least important and least complicated; [and] where taxation is lightest and least unequal[.]”; and

Whereas, Professor Russell S. Sobel in his 2007 treatise Unleashing Capitalism: Why Prosperity Stops at the West Virginia Border and How to Fix It observed that “ An economy is a process by which economic inputs and resources, such as skilled labor, capital, and funding for new businesses, are converted into economic outcomes (e.g., wage growth, job creation, or new businesses)…. [T]he economic outcomes generated from any specific set of economic inputs depend on the ‘institutions’—the political and economic ‘rules of the game’—under which an economy operates…. [Examples of the] Rules of the Game (Govt. Policy) [include] Tax System Structure, Business Regulations, Legal/Judicial System, [and] Private Property Right Security[.]”; and

Whereas, Professor Russell S. Sobel in his 2007 treatise Unleashing Capitalism: Why Prosperity Stops at the West Virginia Border and How to Fix It  further observed that “ Capitalism is not a political position or platform, it is an economic system—a set of institutions or rules that define the ‘economic game.’ Capitalism’s institutions produce prosperity better than the alternative of government control, not only in terms of financial wealth, but in terms of other measures of quality of life. Adopting institutions (‘rules of the game’) consistent with the economic system of capitalism has the potential to generate outcomes that better accomplish the common goals of all political parties: prosperity, wealth, health, family, security, etc.”; and

Whereas, Professor Russell S. Sobel in his 2007 treatise Unleashing Capitalism: Why Prosperity Stops at the West Virginia Border and How to Fix It further observed that; “Unfortunately, West Virginia ha[d] [historically in 2007] failed to embrace these ideas despite the overwhelming evidence of their effectiveness…. [and] that if avoiding capitalism was better than embracing it, [West Virginia] should be the richest state in the nation instead of one of the poorest.”; and

Whereas, Despite progress in economic policy reform in West Virginia since 2014, no comprehensive review of the “Rules of the Game (Govt. Policy)” contained within the West Virginia Code to include the entire tax system structure, business regulations as a whole, the legal/judicial system in its in entirety, or private property right security generally under law has been made to assess the potential for systemic reform in order to enhance private economic development large and small; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance commission a study by designated representatives of the West Virginia Legislature and Department of Economic Development to assess whether the Code of West Virginia,1931, as amended, contains outdated, excessive, superfluous, dysfunctional or unnecessary provisions which stifle innovation, impede market entry by private entrepreneurs, disincentivize investment and preclude the maximization of the productive potential of free enterprise and, if so, to identify such provisions for recommended repeal by the West Virginia Legislature.

Further Resolved, That the designated representatives of the West Virginia Legislature staff and Department of Economic Development shall report its findings in writing to the Joint Committee on Government and Finance not later than the interim session of December 2023, for the purposes of preparing legislation for the 2024 Regular Session; and be it

Further Resolved, That the expenses necessary to conduct this study, prepare a report, and draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.