For more than three decades, Virginia’s legislature wisely (policy-wise and politics-wise) wrote itself into its Freedom of Information Act

Always there were some exceptions applicable only to the General Assembly. In the beginning, even committee meetings were kept secret.

Local government, state boards and sunshine advocates occasionally grumbled about “double standards” – but, if only because of the fast pace of a part-time legislature, most conceded the need for at least some Assembly-only exemptions, such as no minutes in committee and no prior notice for “informal meetings.”

Not, however, since 1968, when the act first went on the books, had a legislator dared to suggest the Assembly’s total removal from the open-government law . . .

Not, that is, until the 2004 session.

Not until introduction of House Bill 1357.

Not until House Majority Leader Morgan Griffith, R-Salem, its chief patron, inexplicably invoked separation of powers arguments (“theoretical prissiness,” said a Virginian-Pilot editorial) to try to justify removal of the Assembly from FOIA ’s open-meeting rules.

To Griffith’s credit, he insisted he wanted more openness, especially for meetings of conference committees, and only the narrowest of exceptions, explicitly spelled out to allow General Assembly secrecy for party caucuses, social encounters and informal huddles. But he wanted to do it all within the Rules of the House and Senate, crafted every two years by a handful of senior legislators (including Griffith).

A firestorm followed, with Griffith hammered in more than 20 newspaper editorials and op-eds, in committee and on the House floor, where 13 Republicans and all but one Democrat tried to kill the bill (losing 52-48).

Self-serving and contemptible, said the (Newport News) Daily Press.

“Insidious, treacherous, deceitful, sly, crafty,” wrote ex-Del. Barnie Day, D-Patrick County.

The Virginian-Pilot called it an affront to the people of Virginia, “who deserve to know what their government is doing. ”

The Staunton News-Leader said, “This law takes all the progress that has been made toward open government in Virginia and throws it in the garbage. ”

And those were some of the milder reactions.

Admittedly, each legislative body has a constitution-protected power to write its own rules. But members historically have decided which “rules” are to be written into statutory law, which are much tougher to amend, and which fall into operational Rules of the House or Rules of the Senate.

Griffith tried to argue that previous legislatures had “inadvertently” placed themselves in FOIA, thus wrongly allowing governors armed with their veto powers to have their say over a legislative matter. In subcommittee, committee and before the full House, Griffith refused to budge – pressuring Republicans to back him up, rebuffing compromise language offered by Del. Chris Jones’, R-Suffolk, even wresting the bill away from the usual FOIA committees and into the leadership-dominated House Rules Committee.

Griffith “is writing a blank check to the Rules Committee,” said former Del. Chip Woodrum, D-Roanoke. “Under that, they can clearly close all budget deliberations from the get-go. It’s an approach by blunderbuss and bluster. ”

Lt. Gov. Tim Kaine agreed: “It would be like removing state police patrols of our highways and simply relying on motorists to write themselves a ticket when they exceed the speed limit. That is not a level of accountability. ”

Senators agreed.

Ignoring misplaced concerns about keeping the Assembly a co-equal branch of government, Sen. Edd Houck, D-Spotsylvania, offered a sweeping compromise that again made it clear the legislature should stay under the state’s Freedom of Information Act.

Under the Houck plan, all formal legislative meetings, including those of conferees, had to remain open. A new FOIA exemption was written to allow closed-door party caucuses. Only the “Rules” for social encounters and private meetings in offices were kicked over to the Joint Rules Committee – along with a directive to permit public hearings and full legislative review.

Houck, who chairs the Senate’s key FOIA subcommittee, made sure he had Griffith’s word that once the compromise was written, he’d accept it without change. As amended, the bill passed the Senate, 26-14; in the House, the vote was 63-35.

Nobody was entirely happy with the compromise. Griffith said he got most of what he was after in his “misunderstood little bill.” Foes, including this writer, said he got only what he’d always have gotten with traditional FOIA amendments.

Gov. Warner called it a reasonable compromise and “largely a legislative prerogative.” Houck said he was satisfied “the public’s right to know has been protected.” The Richmond Times-Dispatch called it ‘a reasonable effort to show that the Freedom of Information statutes still matter. ”

Almost lost in the debate was an important right-to-know issue that had triggered it.

Just days before the legislative session began, Attorney General Jerry Kilgore ruled that party caucuses could be closed if party matters were on the agenda but had to be open when discussing public business.

Republicans did not like the Kilgore opinion; most especially, they did not like it that Woodrum had forced Kilgore to issue the opinion.

Del. Preston Bryant, R-Lynchburg, argued, “It’s in the best interest of the Commonwealth that legislators be allowed to meet in private to discuss both political and policy matters. Doing so will keep the political operations efficient and produce better public policy for all. ”

(Sen. William Wampler, R-Bristol, asked rhetorically if the Redskins could ever beat the Cowboys if secret huddles weren’t allowed. The question had little or nothing to do with the need for transparent government, but everything to do with GOP vote counts and floor victories.)

The Manassas Journal warned that legislators were legalizing “something that is currently a blatant violation of Virginia’s open meeting laws. Requiring party caucus meetings to be conducted in public view is not too much to ask. It’s certainly not a petty complaint. Lawmakers are paid by the taxpayers. They’re meeting in the people’s Capitol, a facility that’s sustained (at a hefty price) by the taxpayers of Virginia. Some of the items discussed in these meetings may not be interesting to the public, but that’s for the people to decide, not lawmakers. If county or town officials plotted and discussed votes behind closed doors, state lawmakers would be up in arms, publicly decrying the practice. ”

A handful of legislators agreed.

“We don’t let boards of supervisors and school boards do these sorts of things,” said Sen. Creigh Deeds, D-Bath County. “I think it ’s bad policy.”

House Democrats opened their caucuses in 2003, and Senate Democrats did the same in the ’04 session. (They had not seen the benefits of open caucuses in past years, when they were the majority party.)

But when the ’04 session got stalemated over taxes and budgets, open-government commitments quickly faded. Though Senate and House budget conferees initially met publicly, a first for the Assembly, the doors were closed as the impasse set in.

Senate Democrats even tried to go into a “joint caucus” with Senate Republicans to talk about special-session pay. They relented when reporters demanded access, then refused compensation during an open meeting. (Reporters also successfully challenged a closed meeting planned between the governor and Democratic senators.)

HB1357 legislative history, including floor votes, can be found at
http://leg1.state.va.us/cgi-bin/legp504.exe?ses=041&typ=bil&val=hb1357

– Frosty Landon