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Should Ky.’s Record-High COVID-19 Cases Bring Restrictions? It’s Complicated

Stephanie Wolf

On March 16, Governor Andy Beshear announced the new coronavirus had contributed to the death of a man in Bourbon County. He was the first person in Kentucky to die from the virus.

There were 21 total cases of the coronavirus in Kentucky that day, and the governor announced steps he knew were drastic.

“What we are doing and the significant steps we are taking — the major disruptions that we are going to cause to our lives and the economy — are to protect the most vulnerable among us and we all have to do that,” Beshear said.

A lot has changed since then. Kentucky saw more than 9,300 new infections in the week before Monday, October 26, when Beshear gave new recommendations he hoped would stem the virus.

But he stopped short of imposing new closures or hard-and-fast mandates.

Kentucky is one of 29 states considered “reopened,” according to the New York Times

Illinois, Idaho and five other states are reversing course on reopening with new restrictions on bars and restaurants. But Beshear is clear that more aggressive mandates or closures aren’t imminent here.

“If you move one lever too much, you see it inversely impact the other. In other words, if you push too hard on the rules and restrictions, you get less effectiveness and people are unwilling to follow them,” Beshear said on Monday while announcing new, unenforceable recommendations.

Many Kentuckians are anxiously waiting as case numbers rise and wondering why the governor isn’t taking more aggressive steps to contain the virus when the situation looks exponentially worse than it was in the spring. But the shrinking economic safety net and federal aid, along with the politics of the moment, complicate the otherwise straightforward public health decision to implement new restrictions many observers see as inevitable and necessary.

The current seven-day average of new positive cases is 72 times higher than the case count was in March. Beshear has announced many more deaths since then. As of Thursday, the virus has contributed to the death of 1,461 Kentuckians, and hospitalizations continue to rise. 

During his Thursday briefing, Beshear pointed to mandates already in place —  the statewide mask mandate, restricting restaurants to 50% capacity and limiting gatherings to 10 people or fewer — in saying some restrictions never went away. The problem, Beshear said, is that people aren’t complying with those existing orders.

Beshear said all the mandates and recommendations he’s put in place are based on guidance from public health experts. “I have promised to be following that advice from the beginning,” Beshear said. “And I have not had either from the federal government’s health experts or from the state’s, any recommendation to add a new mandate.”

Economic Concerns

The shock of the immediate, drastic measures taken to flatten the curve back in March was partially absorbed by a patchwork of federal aid and safety net programs that kept some of the worst suffering at bay.

As the pandemic drags on into winter, that patchwork is wearing thin.

The most robust aid came in the form of unemployment insurance. But Kentucky still has over 70,000 unresolved unemployment claims — and the state is attempting to claw back unemployment benefits paid to people who were approved in the early rush to implement new programs, but later deemed retroactively ineligible.

Even when things go smoothly, many people areclose to or have already exhausted their unemployment insurance. Kentuckians are eligible for up to 39 weeks, depending on available federal aid. The expanded benefits created by the CARES Act put $600 a week into the pockets of the unemployed, but that program has expired and the $400 FEMA-funded payments that came next only cover six weeks in August and September.

The CARES Act, signed in late March, also provided a one-time $1,200 stimulus check directly to individuals and provided $1.6 billion in aid for the state to distribute. As of September 2, the state had spent just over half of that money. The governor has used it to buy personal protective equipment for health care workers and to establish an eviction relief fund.

On Thursday, the governor said the state plans to spend more on additional testing and personal protective equipment, and what’s left will go toward repaying the federal loan Kentucky took on to keep the unemployment insurance trust fund solvent.

“We believe there’s going to be at least a couple hundred million dollars going towards that loan,” Beshear said.

Jason Bailey, the executive director at the Kentucky Center for Economic Policy, thinks that money would be better spent directly helping struggling Kentuckians. Evictions are now allowed in some circumstances after being banned outright for months, and utility companies can start shutting off water and electricity next week.

“We need to be helping people who don’t have enough to eat and are going to lose their home or have their water shut off,” Bailey said. “And also we need to fund the front line protection of people from the spread of the disease.”

Many in the business community are concerned that businesses will pay higher taxes next year to pay off the federal unemployment loan. Bailey said that potential tax increase is not an immediate crisis.

This time, there is no federal aid legislation moving through Congress to fall back on. To Bailey, the situation looks dire.

“People are going to run out of unemployment benefits, people are going to have their unemployment benefits decline dramatically, state and local governments are going to be cutting back a lot more than they have and that means more people laid off. That means the economy gets dragged down weaker,” Bailey said.

The promise of financial assistance allows people to make safer decisions, Bailey said. Expanded sick leave, for example, will expire on December 31 when the Families First Coronavirus Response Act expires. About 40% of Kentuckians wouldn’t have sick leave without it.

Ultimately only Congress can allocate the kind of funds needed to stave off addressing the magnitude of the economic problem, even without further restrictions. The absence of new funding falls at the feet of one man: Kentucky’s Mitch McConnell, who as Senate Majority Leader controls what comes up for a vote on the Senate floor and who adjourned the Senate until November 9 without reaching a deal.

On Thursday, Beshear said if Congress doesn’t extend the CARES Act or pass a new stimulus package, “we fall off a cliff.” He told Congress to “do (its) job. Certainly do it during the pandemic. Don’t leave all of us high and dry.”

Beshear’s office didn’t respond to an emailed question Thursday after the briefing about whether the lack of federal safety nets is affecting his decision on restrictions.

Political Pressure

The political picture has also changed tremendously for Beshear since March, when he was a brand-new governor enjoying widespread support as he dealt with Kentucky’s portion of a global pandemic.

Beshear regularly said he was “done with politics” when it came to dealing with the coronavirus, and Kentucky was praised at the time for Beshear’s quick action to flatten the curve. But politics kicked in soon after he enacted “healthy at home” restrictions through executive orders, and Republicans throughout the state claimed Beshear had gone too far.

Al Cross, a veteran political journalist and commentator who is now the director of the University of Kentucky’s Institute for Rural Journalism and Community Issues, speculates that Beshear is likely preparing to take more hands-on measures after the election.

“He’s only got so much political capital he can spend and he’s already spent a lot of it on the mask mandate,” Cross said.

Going any further would likely give Republicans ammunition that could damage Democrats in tough races across the state. That’s true, Cross says, even though Ipsos polling suggests that a majority of Kentuckians support Beshear and the mask mandate. 

Despite that public support, people in positions of power have challenged Beshear’s more forceful actions to slow the virus’ spread.

Legal Challenges

The Kentucky Supreme Court is considering a challenge to Beshear’s executive orders filed by Attorney General Daniel Cameron and several Northern Kentucky businesses. The challenge claims Beshear overstepped his power as governor by requiring people to wear masks in public and placing limits on businesses and public gatherings.

A spokesperson for the Attorney General’s office said only that the Kentucky Supreme Court is considering the issue in response to a request for comment.

Republicans in the General Assembly are discussing legislation that would limit the governor’s ability to use emergency powers. State Treasurer Allison Ball has published findings from an investigation questioning the constitutionality of some of the governor’s orders.

Ball said through a spokesperson that a recommendation from Beshear isn’t likely to be unconstitutional the same way an executive order would.

“One of the purposes of my report to the Interim Joint Committee on Judiciary was to prevent any future unconstitutional executive orders or activities,” Ball said.

Beshear has said challenges like these have not factored into his decision whether or not to implement new mandates. Likewise, Cross says the Attorney General’s lawsuit and the Treasurer’s investigation are unlikely to change the minds of many voters.

“I think that Beshear probably figures that Kentuckians figure that politicians are going to be politicians,” Cross said.

Still, a vocal minority shows up at protests and makes other dramatic expressions of their displeasure with the governor. Members of the Three Percenters hung the governor in effigy in May during a rally opposing the restrictions.

Beshear did acknowledge the balancing act of issuing new orders that will protect as many people as possible without alienating those who are already resistant to the measures.

“The way the equation works is: the best rules, recommendations, restrictions, whatever we want to call them, the best steps in place, times the number of people that are willing to follow them, equals our best result,” Beshear said. “If we end up losing whole communities based on the next steps that we take, I believe our situation could get even worse.” 

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