Recently there have been a number of reports and editorials that demonstrate an inaccurate understanding of Virginia’s legislative process.
As a member of the General Assembly from 2002-2010 who served on five committees, seven subcommittees, and wrote several dozen pieces of legislation that were signed into law by an executive not of my political party, I offer the following reflections.
Legislation is drafted, almost always, by staff at the Division of Legislative Services at the request of a legislator. From there the bill is reviewed (but not always) by the sponsor of the original request and then submitted to his or her respective chamber for processing through the General Assembly.
The procedures of this process are spelled out under the
rules of each chamber – the Rules of the Senate are HERE and the Rules of the House of Delegates are HERE.
It would be cruel and unusual punishment to make you read either in its entirety, so in order to save you time – go to Rule 20(a) and (k) in the Senate and 18(a) in the House of Delegates.
Another resource of the parliamentary guidelines of the General Assembly are found in Thomas Jefferson’s A Manual of Parliamentary Practice which you can read HERE. Please scroll to Section XXVI Bills, Commitment and you will find the following passage:
“Those who take exception to some particulars in the bill are to be of the committee, but none who speak directly against the body of the bill; for
he that would totally destroy will not amend it….as is said, the child is not to be put to a nurse that cares not for it. It is therefore a constant rule – that no man is to be employed in any manner who has declared himself against it.”
This means, essentially, that if a legislator offers an amendment and that amendment is accepted, that legislator is duty bound to support the legislation. That goes for amendments offered in public or in private. Duty bound. If the legislator is in opposition to the purpose of the legislation, they vote accordingly but should not offer amendments.
A legislator’s bill is his or her own responsibility. Knowing the rules, customs, and courtesies of each chamber is a confounding task even for those with experience in both.
The Senate rules state a subcommittee “shall not take final votes and shall only make recommendations to the committee” whereas, the House can take final action on a bill for that year’s session in subcommittee.
Many times in the House there is not a recorded vote in subcommittee and that can be confusing to those who are not familiar with serving on those subcommittees.
As a chairman of several subcommittees, I had to bait members with my wife’s chocolate chip cookies to get them to attend a meeting. I would put some in the middle of the conference table within reach of each member – on purpose.
Why did I employ this tactic? Because the subcommittee members were exceptionally busy working on other committees or on their legislation. The cookies were also a reminder that the meeting was taking place and they were, and are, fantastic. Legislators presenting their bills were also offered said cookies. Some got more than one if their bill did not move forward. No small consolation.
When House subcommittees meet, there is usually a long line of interested parties concerned with various bills that will be heard in that subcommittee. Sometimes the bills are taken up in order of which legislators showed up earlier than others. Sometimes they are not. Regardless, the bills are there because the chair of the full committee sends them there to be heard, which they are.
They either need to be improved to help pass them, considered over a longer period of time, or simply need to be stopped for that year. In any case, legislation very rarely is killed forever. It’s like kudzu – it just comes back year after year. Regardless of the eventual outcome, it is the responsibility of the patron to work the subcommittee, committee, and the floor to produce the desired outcome.
If a patron would like a recorded vote, he or she can ask for one through a committee member who calls for Ayes and Nays. If twenty percent of a subcommittee, committee, or the floor requests a recorded vote, one is granted. That means if a subcommittee of four has just one member of the minority caucus actually present (thus the cookies), a recorded vote can be taken.
Many bills that do not advance have votes that are not recorded because the legislation itself is not quite ready for one. What happens in that situation is that the bill is explained to the subcommittee, then the chair asks those in the room to speak either for or against the bill – quickly – and then the patron is given a chance to respond. All the while amendments can be offered to improve the bill and its chances of passing. (See Jefferson’s Manual above) Can you imagine a system in which every amendment has a recorded vote and corresponding procedures? Not much would get done. (See the U.S. Congress)
The chair then tells the subcommittee “okay, ladies and gentlemen, the bill is before you.” If no amendments had been offered, the chances are that no motion will be heard. The chair then says, “Hearing no motions…the bill does not report” which effectively, but not actually, kills the bill. Other motions can be heard and voted on and, as stated above, any of them can be recorded.
The process, however, moves so very fast that the patron knows that the chance of the bill being signed into law is simply not worth the time and work so he or she will ask for and/or be granted by the chair a more palatable motion to “lay the bill on the table.” This is a courtesy to the patron. Sometimes a member can be extra nice to the patron and say the bill be “gently” laid on the table; however, there is no actual motion called gently laying on the table. It’s a professional courtesy.
This does not mean that the bill is dead. It means the bill is held by the committee. Anyone on that committee can later make a motion to take the bill off the table through a motion of reconsideration. It goes like this, “having voted on the prevailing side by which we laid on the table House/Senate bill 123, I move we reconsider that vote.” That motion needs a second and a vote is taken. If that motion passes the HB/SB123 is now in a condition to be legally considered. BUT the motion can only be made by a member who voted to lay the bill on the table. In a voice vote, that usually means everyone.
So it can actually be in the best interest of a patron and the legislation to NOT have a negative vote cast because the bill is still very much alive, it just requires more work to move it to the next stop in the process.
This year, there was a controversial bill HB385 that failed to pass House General Laws – you can clearly see that a recorded vote was taken in subcommittee and later in the full committee. See the legislation and its votes considered HERE.
There are plenty of improvements that can be made in the governance of the Commonwealth and perhaps more recorded votes in subcommittee can be among them.
Virginia has been blessed to have a legislature that has met continuously since 1619. Central to the effective governance of Virginia are the rules that govern the legislature. They have been amended over time creating greater transparency and public involvement.
The process was designed to go slowly not for the benefit of the government but for the benefit of the governed. If the governed want to have recorded votes at every level of the process, they certainly can redress that grievance with their legislators who then can offer to amend the rules.
The General Assembly has 60 and 45 day sessions which move very quickly with a process designed to go slowly. Each session will yield about 2,000 votes per legislator.
Like the fans of the Brooklyn Dodgers were used to saying “Wait ’til next year” – so, too, will most legislation that fails to advance. That’s one of the reasons there are so many bills year to year. They keep coming back.
What is fairly certain is that next year the General Assembly will be criticized, once again, for putting in too many bills, passing too many bills, and then killing too many bills.
A former cabinet member back in the 2000s remarked about the bills that finally made it though the legislative process to executive branch for review and consideration is that the bills “lack an affirmative harm” – meaning that most bills that do pass, don’t too much.
Which is not necessarily a bad thing. At all.
There is enough to examine on the legislation that does matter; however, we as a Commonwealth should make sure that the rules that govern our elected officials are in the best interest of the governed.
Rules matter, but as Governor Gerald Baliles, good man that he is, put to the inaugural meeting of our Virginia Way – Forward series at the Miller Center late in 2014, “remember the context.”
House of Delegates 2002-2010