I once got a call from a journalist frustrated by a state law that allowed the government to withhold important information.
He wasn’t just frustrated with the law, he was frustrated with me because — admittedly — I didn’t catch the bill that led to the law when it made its way through the General Assembly.
The Virginia Coalition for Open Government was created in 1996 in large measure to be a voice for the public’s right to know in the General Assembly. The organization’s founders wanted to combat the impression of some legislators at the time that the Freedom of Information Act was just a “media law,” used only by reporters to trap unwary public officials in the act of doing something they oughtn’t.
So part of my regular duties as VCOG’s executive director is to lobby for and against bills affecting public access each legislative session. I register as a lobbyist, and I spend many days every January and February tracking legislation through the session.
In odd-numbered years, the General Assembly meets for 45 days, including weekends, so really, basically 33 or 34 days. There are 60 days the other years.
In times gone by, the “short session” was supposed to be for bills adjusting the budget adopted the year before. But for as long as I’ve been watching (15 years: a drop in the bucket of the body’s 400-year history, but enough to see many subtle and not-so-subtle changes) there is little difference from year to year in the number of legislative proposals offered up.
This year, according to statistics kept by the Legislative Information System, 3,022 bills and resolutions were introduced. Delegates introduced 1,936 proposals. That’s an average of 19.3 measures per delegate. The Senate has introduced 1,086, which averages 27.2 per senator.
Daunting as it is to consider 3,022 pieces of legislation in six weeks, even subtracting out commending and memorial resolutions that are rarely discussed, it is actually much worse. With the exception of the budget bill, work on bills originating in one chamber must be completed by “Crossover Day,” which is typically the fourth Tuesday after the session’s start.
This year Crossover fell on Feb. 5, meaning there were only 20 working days between the session’s start and Crossover. Twenty days for committees and subcommittees — each vying for literal space and time, each with overlapping members, each having to work around the daily floor session of each body — to put these proposals through their legislative paces.
That leaves 13 working days to consider whatever bills are left after Crossover, and that time has to include the conference committees formed on some of the bills that get amended by the other chamber.
You’ve heard the phrase trying to drink from a fire hose? That’s what following bills is like.
And identifying the bills to follow is not much easier.
Virginia makes this easier than many other states in part because of the legislature’s own rules. Virginia has what’s called a single-subject rule that limits a piece of legislation to a single issue.
That means a bill about road construction will not also include a substantive provision about the parole board (perhaps there is a scenario where those two areas of law would overlap, but it would not be likely). Each bill has a title line, which tries to give a short description of what the bill is about. And, each bill is given a summary of what the bill aims to do.
LIS has a strong search function allowing users to search all bills for keywords, subject matter, statutory citation, and the like, either in the full text of the bill or in its title or summary.
Despite the strength of the search function there are nonetheless some obstacles. One obstacle is the length of the bill, which depends on whether the proposal seeks to create a brand new statutory section or whether it sees to amend an existing section of the Virginia Code.
A bill that creates a new section will be only as long as the proposed new language, which could range from from one sentence to multiple paragraphs. On the other hand, a bill that amends an existing section must be presented within the context of that section. And if it amends multiple existing sections (those about the same subject matter, that is), all of those sections have to be presented, too.
So, a bill that would amend a meetings exemption in FOIA, for instance, would present the proposed amendment within the context of the entire section 2.2-3711, where all meeting exemptions are. Even with small type on single-spaced lines, § 2.2-3711 can run eight or more pages.
The LIS has a “hilite” function that shows new language highlighted in yellow and stricken language with a red line through it, so even within a lengthy bill it’s fairly easy to zero in on the new proposal.
But even that has its problems.
Say I’m searching for bills that mention “Freedom of Information.” I would type in my search on LIS and get 181 references in 107 bills. I just add those 107 bills to my watch list and continue on, right? Not quite. Because the bills reprint entire code sections, as noted above, there might be bills in my group of results that mention “Freedom of Information” but do not alter the Freedom of Information Act.
That is, “Freedom of Information” is not highlighted in yellow or stricken in red, but it still shows up in the search.
So there is quite a bit of weeding out of bills that do amend FOIA from those that don’t. And that’s just for that one phrase. There are multiple keywords and multiple sections to search for, all yielding bills that will need to be watched, and those that won’t.
Finally, there is the problem of the sausage-making process of legislation itself. A bill that appears at first blush to be OK can get amended during the process in a way to present a real headache. But because it was OK at first means it won’t be easy to make its way into my consciousness.
Here’s an example where I was got caught flat-footed in that way. Several years ago, after the law was changed to shut down public access to the Virginia State Police database of concealed handgun permits, VCOG was among others who beat back multiple attempts to also shut down access to the individual permits at the courthouse.
Then, one year, a bill was introduced to say that permits (and their applications) issued to victims of domestic violence did not have to be disclosed at the courthouse. It was on my radar but I did not oppose this bill because of the very strong public safety and privacy concerns.
The bill passed the Senate unremarkably. However, when it got into the House, a subcommittee (meeting late on a Thursday afternoon) accepted a substitute version of the bill that said no permits — not just those of domestic violence victims — could be accessed at the courthouse. I wasn’t at that meeting (because, again, it didn’t pose a problem), and the substitute version was not posted to the LIS until some time after I went to bed.
I woke up Friday, when the full committee was already meeting, to realize what had happened. I scrambled as best as I could, but failed to get the bill defeated on the House and Senate floor.
Much has been written about the bill enacted in 2017 that prohibits the release the name of a juvenile who has died. That bill likewise started out innocuously and so was not on our radar, but it got amended along the way, resulting in a major shift in policy for how the police inform the public (and the news media in particular) about crime and accident victims.
I messed up in both cases and the citizens of the commonwealth are the worse off for it, in my opinion and the opinion of others, like the journalist who was frustrated with me. The above may sound like an excuse, and I suppose it is, but I guarantee it has happened to just about every lobbyist and advocate at one time or another.
There are some ways the legislators could address the the breakneck speed of the session, which is as tough on them as anyone, by considering changes to rules, from placing an earlier deadline within which to submit legislative proposals or placing stricter limits on the number of bills a legislator can introduce, to lengthening the legislative session or meeting on weekends.
There might be other/better ways or a combination of possibilities.
Certainly the broadcast of committee meetings has helped, but, as suggested by a letter circulated by Sen. Amanda Chase, R-Chesterfield, and Del. Mark Levine, D-Alexandria, subcommittees need to be broadcast, too, to provide the public with a “direct and unedited view into how the bills they care about are debated, amended, voted on, and ultimately determined throughout the legislature’s entire official deliberative process.”
Advocates and lobbyists have constituents and part of their (my) job is to engage with those constituents and the public about bills. The press follows along, too, and generates context and insight into some of the behind-the-scenes moves.
But ultimately, the ones who hold the keys to the entire process are the legislators themselves. It is up to all of us — lobbyists, press and citizens — to stay engaged with them and to hold them accountable for their actions each winter in Richmond.