TRANSPARENCY VIRGINIA The Virginia General Assembly: transparency over time Prepared by: Transparency Virginia April 20, 2016
Executive Summary 3 Transparency Virginia s 2015 Repor t 4 Workplan for 2016 5 A Procedural Review 5 The (Un/Intended) Effect 6 It Was Not Always Thus 7 Further Complicating the Picture 9 Conclusions 11 Appendix A: Senate charts 12 Appendix B: House charts 13 Page!2
EXECUTIVE SUMMARY In the 2016 General Assembly session, 95% of the bills defeated in the House of Delegates were done so on an unrecorded vote or no vote at all. By contrast, nearly every bill that passed through the House in 2005 received a recorded vote. House subcommittees were responsible for the final vote on 72% of the bills that were defeated in that chamber. Six House committees and their subcommittees had only three recorded votes on defeated bills among them. Though Senate committees recorded nearly all their votes on defeated bills, the Senate Rules committee defeated 55% of its bills without a recorded vote. 1 The Legislative Information System (LIS) did not reflect directives from committee and subcommittee chairs to send legislation to various studies and entities for further examination. In 2005, only 3% of votes to defeat bills in the House went unrecorded, while 50% of Senate bills died without a recorded vote. 2016 Senate House Recorded votes on defeated bills Unrecorded votes or no vote at all on defeated bills 1 http://lis.virginia.gov Page!3
These are among the many observations made by Transparency Virginia (TVa) members through analysis of data on LIS and their own personal observations in this second annual report on transparency at the General Assembly. TRANSPARENCY VIRGINIA S 2015 REPORT In 2015, a group of advocates and lobbyists for various causes and nonprofit organizations joined together to sift through publicly available data found on the LIS website to determine to what extent it backed up their observations about the legislative process at the Virginia General Assembly. From the decades of collective experience lobbying bills at the General Assembly, the members of TVa had long noticed certain practices and procedures that made it difficult to follow any given bill s quick-paced movement through the halls of Mr. Jefferson s Capitol. The group focused on the areas representing three basic principles of an open and transparent government: notice of meetings, consideration of bills and recorded votes. The notice of meetings component was often difficult to quantify because of the ephemeral nature of the LIS meetings schedule and the way announcements for the scheduling or cancellation of meetings are made during floor sessions when one s attention may have been momentarily drawn away. Anecdotal evidence, however, suggested that agendas routinely changed without notice, and many meetings were scheduled or canceled with too little notice for the public to respond. Some were called to convene at the immediate conclusion of the floor session at the desk of one of the members. Few members of the public would be able to even observe these meetings. Most startling were the data on the consideration of and votes on bills. In the House, it was found that 76% of bills defeated in the standing committees and their subcommittees were disposed of without a recorded vote of any kind, while 7% of Senate bills died that way. Many bills died without receiving a hearing, even more died on unrecorded voice votes (that is, members voice their ayes 2 or nays, but individual legislators votes are not recorded). 2 https://transparencyvirginia.wordpress.com/2015/04/14/transparency-virginia-legislative-report-2015/ Page!4
As 2016 approached, several of the group s members decided that to provide any kind of comparison from one session to another, it was important to follow the same three areas to determine how things had changed (or not). WORKPLAN FOR 2016 Before the session began, TVa and all the citizens of the Commonwealth received some good news from Speaker of the House William Howell. The speaker announced three new initiatives that would improve the public s ability to participate in and observe the process of making laws: (1) the launch of a notification system for committee and subcommittee meetings and dockets that included Twitter handles for most entities; (2) the prohibition against members holding meetings at their desks on the House floor; and (3) the implementation of a 48-hour waiting period before voting on the budget. Instances related to inadequate meeting notices appeared to be down considerably, owing in large part to the new House notification system. The focus for 2016 turned much more heavily towards observing the way in which bills are processed through the committees and subcommittees of the House and Senate. A PROCEDURAL REVIEW As detailed in the first report, proposed legislation is given a number and is assigned to a committee by the Speaker of the House and the Clerk of the Senate. The chairs of the 25 standing committees in the House and Senate then decide whether a bill should be further assigned to a subcommittee for consideration. In the House, the subcommittees are where the real work gets done. Bills heard in subcommittee either get forwarded on to the full committee (reported) or they are killed. It is highly unusual for bills defeated in subcommittee to be placed on the docket for the full committee. In the Senate, there are far fewer subcommittees and they cannot take final action on a bill. They take testimony like their House counterparts, but they may only recommend passing the bill or defeating it. The full committee makes the final decision on all bills. Page!5
3 According to House Rule 18(a), a committee or subcommittee chair may call for a recorded vote, but is not required to call for one. One-fifth of a committee or subcommittee s members also may call for a vote. All committees and subcommittees have Republican and Democratic members so, for example, in a subcommittee of seven, just two people have to ask that there be a recorded vote. 4 In the Senate, Rule 20(d) states that all votes on bills shall be recorded. A bill that makes it through a subcommittee in either chamber is recommended for reporting. The full committee can then defeat the bill or can report it to the House or Senate floor. When a bill reports from a committee, it must have a recorded vote. All bills heard on the floor of either chamber must receive a recorded vote, including those that are defeated. In committee (or House subcommittee), a bill may be defeated in one of several ways. Typical motions include: Motion to pass by indefinitely (or just pass by), also known as PBI Motion to table (lay on the table, lay gently on the table) Motion to report (but fails) Left (the bill isn t considered or no action is taken) THE (UN/INTENDED) EFFECT Some have argued that motions to table are made to essentially set aside a bill until the bill s sponsor asks to have it reconsidered (within the necessary timeframe). That s supposedly to give the patron time to work out some issues the bill may have, or for the patron to read the writing on the proverbial wall that the measure does not have support. When a motion is made to table a bill, all debate is stopped and a vote must be taken at that time. 3 http://hodcap.state.va.us/publications/20162017houserules.pdf 4 http://apps.senate.virginia.gov/portal/resources/senaterules.pdf Page!6
5 The glossary of General Assembly terms prepared as a teaching device for schools does not include a definition for a motion to table. On the other hand, the motion to PBI is explained like this: This action allows the committee to reconsider legislation at a later meeting. If the committee takes no further action, the bill is dead. Therefore, neither motion is considered final until the deadline for completion of the committee s or subcommittee's work has expired. In practical terms, however, whether a bill is tabled, passed by or fails to report is effectively dead. Debating the interpretation of motions is not wholly academic. There is some anecdotal evidence that they are viewed differently by members. A current delegate, elected in 2012, told the author that the House was so much nicer than the Senate because the House usually tabled bills instead of passing them by. He viewed tabling as a gentler way to reject a colleague s proposal. Likewise, a delegate who served through most of the first decade of the 2000s maintained that a motion to table was a tactful way to let a bill s sponsor know that the bill needed more work if it hoped to progress. Both comments reflect a focus on the effect of the motion, rather than on whether the vote on the motion was recorded or not. That is, some may disagree about which motion is the more congenial way to defeat a bill, but neither motion requires an unrecorded vote. IT WAS NOT ALWAYS THUS In 2006, the House subcommittee system was significantly expanded. Subcommittees grew in number and in power. A robust subcommittee system can more efficiently and thoroughly filter the bills before they reach the full committee. Thus, full committees are usually presented with bills that have already received a full airing in subcommittee. The full committee usually gives great weight to subcommittee recommendations and so may not give a full hearing to a bill already heard in subcommittee, though as noted earlier, a bill that may have been defeated in subcommittee can be brought back up by the full committee. By giving the subcommittees more authority to dispose of bills, the full committees, which 5 Capital Classroom glossary, http://capclass.virginiageneralassembly.gov/high/glossary/glossary.html Page!7
typically have 22 members 6, are not weighed down with bills that the subcommittee has already weeded out for them. On the other hand, they also often lack a full appraisal of the arguments for and against a bill that took place at the lower level. The 2006 subcommittee change was made in response to a multitude of methods for handling the vast number of bills and resolutions, including waiting until the wee hours of the morning before 7 crossover to kill scores of bills. Worse, many bills were never heard at all. Senate 2005 House In the year before the rule change, 50% of the bills killed in the Senate were killed on a voice vote. Usually, when there was no vote, it also meant that the bill had not been heard either. The bill s history would indicate that it was left in committee, no motion made, no action taken and no vote recorded. Recorded votes on defeated bills Unrecorded votes or no vote at all on defeated bills 6 An exception is the House Appropriations Committee, which traditionally has 15 members. 7 Crossover refers to the point in the annual session when all work on bills originating in a chamber is completed, i.e., the House has acted on all House bills, the Senate has completed work on all Senate bills, and all the bills cross over to the other chamber. Page!8
By contrast in the House, though subcommittees were not yet taking final action, a mere 3% of bills were defeated without a recorded vote. In fact, if not for the House Appropriations Committee that year, less than 1% of bills would have been disposed of this way. It didn t matter whether the motion was to PBI, to table or to report: nearly every single bill that passed through the House in 2005 received a recorded vote. When the subcommittee system was changed in 2006, it included a new twist. When defeating bills, recorded votes were no longer required. The result: the frequency with which bills are disposed of in both the committees and subcommittees has increased dramatically in the House and simultaneously dropped in the Senate. For 2016, nearly 95% of the bills killed in the House have no recorded vote. In the Senate, that number is 10%. Those numbers are up from 76% and 7%, respectively, in 2015. House of Delegates: 2016 Final action on bills taken in subcommittee (72%) vs. full committee (28%) FURTHER COMPLICATING THE PICTURE As noted, 11 years ago, half of the bills killed in the Senate were done so without the bill having been considered or receiving a recorded vote, while the House number was minuscule. The tables may have turned since then, but there are other Senate practices that make the process especially difficult to follow the process, even in person. Because committees may overlap in their membership and meeting times, the Senate uses proxies, which allow members to vote for legislation on behalf of other members who are no longer present at the meeting. To illustrate, say Senator A is a member of two committees that are meeting simultaneously. After establishing his presence at one committee, he can then leave that committee meeting to attend the other. As he/she exits, Senator A leaves a slip of paper (the proxy) with Senator B indicating how Senator A would vote on bills pending in that committee. Senator B can now vote yes or no on Senator A s behalf unless and until Senator A returns to that committee meeting. Page!9
Things get murky when Senator B holds proxies for more than one senator at the same time, or when there s a motion to amend a bill in a certain way and Senator B is uncertain how Senator A would have wanted to vote on the amended bill. Sometimes bills are added to the docket after Senator A s departure. There is often some back and forth between the members and the committee clerks as they try to sort out exactly who has voted for what. Further complicating this situation is when members ask to change their votes after the vote seems to be closed. This may happen, for example, when the member votes for a bill to be reported, but after it is reported, changes his or her vote to one against the bill, as long as the final vote count does not change the original outcome. Members who arrive for a meeting late can also cast their votes later so long as their vote doesn t change the outcome. The audience and sometimes the members themselves often do not know the final vote count until they check on the LIS hours later. LIS is an invaluable resource for those trying to keep track from afar. But it doesn t always tell the whole story. For instance, one way bills are disposed of is for them to be sent somewhere with or without a letter from the committee chair for further examination, perhaps to be brought back in a year or two with all the kinks worked out. Examples of recipients of such bills during the 2016 session were: the Virginia Code Commission the Freedom of Information Advisory Council the Joint Legislative Audit and Review Commission an ongoing study on alcoholic beverage control laws the Bureau of Insurance Unfortunately, LIS does not often include this additional information. The system may reflect that the measure was tabled or passed by but it may not reflect that the measure will be studied further. Virginia is also among those states that do not routinely record, much less archive, audio or video recordings of committee or subcommittee meetings. The impact of unrecorded votes on the public Page!10
could be mitigated by a reliable source of the actual event whereby citizens could view for themselves what took place. CONCLUSIONS Transparency in government is a multi-faceted process that involves, at a minimum, accountability, data and accessibility. Several steps were taken in the House this year to improve transparency. The meeting notification system was roundly praised by users who got up-to-the-minute notice of meetings and changes to the corresponding docket. In the House, observers no longer had to scramble in an attempt to access the House floor for a meeting at a member s desk. We applaud these measures and encourage the Senate to adopt similar practices. We are hopeful the initiatives are the first steps of more to come. Transparency Virginia would like to offer a few suggestions for easy changes that would improve legislative accountability. All votes must be recorded, no matter the motion made. All bills referred to a committee or subcommittee must be taken up for consideration. Motion terminology should be agreed upon and defined for the public. Bill histories on LIS should reflect anticipated actions by other entities. Lawmakers may also wish to consider whether systemic changes including recording and archiving of meetings, holding longer sessions, limiting the number of bills members can introduce or other measures to streamline the process making it more efficient and increasing the public s access at the same time making it more effective. We again urge all 140 members of the General Assembly to continue their commitment to Virginians by opening the legislative process more and more to them. Page!11
APPENDIX A: SENATE CHARTS Senate of Virginia: 2016 Committee Bills referred to committee Bills that did not report Bills stricken Bills Bills Bills left in by patron or continued tabled/pbi/ committee rolled into to next failed to without other bills year report action Recorded votes on defeated bills Unrecorded Percentage of votes or no vote unrecorded votes at all on on those bills that defeated bills were defeated Agriculture, Conservation & Natural Resources 86 22 7 4 10 1 21 1 4.5% Commerce & Labor 107 47 10 11 26 0 37 0 0.0% Courts of Justice 353 101 25 15 58 3 98 3 3.0% Education & Health 226 49 16 17 16 0 49 0 0.0% Finance 264 99 10 42 31 16 82 17 17.2% General Laws & Technology 135 23 5 6 12 0 23 0 0.0% Local Government 69 17 7 2 6 2 15 2 11.8% Privileges & Elections 90 35 7 18 10 0 35 0 0.0% Rehabilitation & Social Services 77 13 6 5 2 0 13 0 0.0% Rules 136 49 21 6 7 15 22 27 55.1% Transportation 125 37 18 5 14 0 37 0 0.0% TOTAL 1668 492 132 131 192 37 432 50 10.2% Senate of Virginia: 2005 Committee Bills referred to committee Bills that did not report Bills continued Bills stricken Bills Bills left in from previous by patron or tabled/pbi/ committee year & not incorporated failed to without acted on into other bills report action Recorded votes on defeated bills Unrecorded votes or no vote at all on defeated bills Final action taken in subcommittee Percentage of unrecorded votes on those bills that were defeated Agriculture, Conservation & Natural Resources 94 21 8 0 3 10 9 12 0 57.1% Commerce & Labor 121 44 17 11 6 10 28 16 0 36.4% Courts of Justice 309 91 31 9 24 27 59 32 1 35.2% Education & Health 191 45 9 14 13 9 25 20 0 44.4% Finance 287 153 34 9 17 93 45 108 0 70.6% General Laws & Technology 126 16 6 6 2 2 12 4 0 25.0% Local Government 111 12 3 3 4 2 9 3 1 25.0% Privileges & Elections 94 29 5 7 11 6 21 8 2 27.6% Rehabilitation & Social Services 50 20 6 11 0 3 15 5 0 25.0% Rules 133 40 7 5 1 27 2 38 0 95.0% Transportation 188 68 8 33 9 18 42 26 0 38.2% TOTAL 1704 539 134 108 90 207 267 272 4 50.5% Source: Legislative Information Services http://lis.virginia.gov Page!12
APPENDIX B: HOUSE CHARTS House of Delegates: 2016 Committee Number of Number of Bills stricken Bills Bills Bills left in Recorded Unrecorded bills bills that by patron or continued tabled/pbi/ committee Votes on votes or no referred to did not rolled into to next failed to without defeated vote at all on committee report other bills year report action bills defeated bills Percentage of unrecorded votes on those bills that were defeated Final action taken in subcommittee Percentage of bills that died in subcommittee Agriculture, Chesapeake & Natural Resources 101 35 10 4 17 4 0 35 100.0% 24 68.6% Appropriations 159 90 2 13 55 20 0 90 100.0% 67 74.4% Counties, Cities & Towns 76 28 0 5 22 1 1 27 96.4% 23 82.1% Courts of Justice 383 190 17 11 129 33 4 186 97.9% 157 82.6% Commerce & Labor 139 82 9 24 40 9 15 67 81.7% 62 75.6% Education 158 65 5 0 54 6 4 61 93.8% 46 70.8% Finance 131 68 8 18 33 9 3 65 95.6% 36 52.9% General Laws 203 76 12 12 43 9 7 69 90.8% 45 59.2% Health, Welfare & Institutions 175 58 11 11 33 3 1 57 98.3% 38 65.5% Militia, Police & Public Safety 94 45 13 2 26 4 1 44 97.8% 32 71.1% Privileges & Elections 120 76 9 5 47 15 4 72 94.7% 54 71.1% Rules 109 56 3 2 17 34 4 52 92.9% 39 69.6% Science & Technology 7 2 1 1 0 0 0 2 100.0% 0 0.0% Transportation 162 81 12 3 60 6 7 74 91.4% 62 76.5% TOTAL 2017 952 112 111 576 153 51 901 94.6% 685 72.0% House of Delegates: 2005 Committee Bills referred to committee Bills that did not report Bills continued Bills stricken by Bills Bills left in Recorded from previous patron or tabled/pbi/ committee votes on year & not incorporated failed to without defeated bills acted on into other bills report action Unrecorded votes or no vote at all on defeated bills Final action taken in subcommittee Percentage of unrecorded votes on those bills that were defeated Agriculture, Chesapeake & Natural Resources 108 41 12 10 19 0 41 0 0 0.0% 1 Appropriations 200 120 14 12 67 27 90 30 0 25.0% Counties, Cities & Towns 136 62 26 16 19 1 60 2 0 3.2% Courts of Justice 130 48 16 15 17 0 48 0 0 0.0% Commerce & Labor 385 187 35 67 85 0 187 0 0 0.0% Education 100 45 1 17 26 1 44 1 0 2.2% Finance 180 132 43 39 49 1 131 1 0 0.8% General Laws 198 83 24 25 34 0 83 0 0 0.0% Health, Welfare & Institutions 163 53 10 23 19 1 52 1 0 1.9% Militia, Police & Public Safety 91 73 37 19 16 1 72 1 0 1.4% Privileges & Elections 137 112 38 25 49 0 112 0 0 0.0% Rules 169 95 13 16 65 1 94 1 0 1.1% Science & Technology 21 13 7 2 4 0 0 0 0 0.0% Transportation 229 102 19 24 56 3 101 1 0 1.0% TOTAL 2247 1166 295 310 525 36 1115 38 0 3.3% Source: Legislative Information Services http://lis.virginia.gov Page!13
TRANSPARENCY VIRGINIA IS AARP of Virginia AAUW of Virginia B2L Consulting Ben Greenberg League of Women Voters of Virginia National Active and Retired Federal Employees Association - Virginia Federation of Chapters New Virginia Majority OneVirginia2021 Virginia Coalition for Open Government Virginia NOW Virginia Poverty Law Center