Editorial: For state lawmakers, a question of how to proceed

The Virginian-Pilot & Daily Press Editorial Board, The Virginian-Pilot

It matters greatly how we make laws in Virginia.

Unfortunately, we face a health challenge — the COVID-19 pandemic — that makes it extremely difficult for the normal practice of lawmaking to proceed.

If you have ever visited Richmond during a session of the General Assembly, you immediately know why. It’s about people constantly interacting in close proximity to each other.

They literally breath each other’s air — sometimes loudly.

A prudent thing to be doing with a highly infectious virus about? Obviously, not.

But that fact does not alter, not a whit, the nature and demands of what constitutes a legislative process. It is an intensely human business and the moment it stops being intensely human — which includes people in a contained space, arguing — it stops being at all.

Understandably, there have been attempts to “make do.” Over the past year, that has entailed an unusual degree of personal separation and an unprecedented degree of technological intervention.

There are limits to how much of this can occur, however, and still be true to the human aspect of lawmaking. Too much of it is superficial, contrived and inauthentic — and often undertaken at a severe cost to public participation.

How do have a democratic legislative process without access to the process?

Answer: You don’t. At some point, the validity of the process collapses in a heap and you are simply no longer being true to democratic values.

We’re bumping up against that reality right now in Virginia and too often pretending that it does not matter.

A recent legislative dust-up both underscores and extends the dilemma.

Earlier this week, it was announced that, come January, the Virginia House of Delegates will “virtually” convene for 45 days.

“My focus is keeping everybody safe while providing us the opportunity to conduct our business effectively, keeping in mind that this is a global pandemic,” Speaker Eileen Filler-Corn, a Democrat, said.

Insofar as the virus threat goes, that is a fair and responsible statement.

Insofar as the legislative “business” goes — meaning, how lawmaking gets done — it pushes democratic legitimacy toward a breaking point. “Virtual” is not good enough.

For its part, the GOP says it will not support a lengthening of the session beyond the prescribed 30 days. It takes a two-third’s vote to extend the session and the Democrats lack the numbers to get it done without help from the governor.

“The Constitution limits the duration of General Assembly sessions to ensure we have a citizen legislature, not one populated by full-time politicians,” said Minority Leader Todd Gilbert, R-Shenandoah.

OK, but Gilbert rests his position on half-century old thinking on legislative structure and the nature of the service involved. The current and decidedly restricted legislative calendar got hatched in 1970 when Virginia was home to 4 million fewer people.

That was regarded as a progressive move, as strong sentiment once existed in Virginia to not have the legislature meet annually, but bi-annually.

As for the prevailing “citizen/legislator” concept, it may live more in theory than practice. The demands on state legislators have grown enormously in recent decades and it’s fair to ask whether a 30-day session makes a lick of sense for a state this size dealing with matters this complex.

Still, these are important questions that go to the heart of representative democracy and given COVID-19 realities, it may be judicious to do less lawmaking right now and examine more closely how we’re doing it.

After a two-month, just-concluded special legislative session, is there a compelling need to jump right back into lawmaking in January?

Or would it be better to be more legislatively restrained in the early months of 2021, even deferring lawmaking to a point when pandemic dangers have declined?

In this vital democratic arena, form matters. Presently, Democrats would legislatively do the undoable. The Republicans would legislatively do the unreasonable.

If there was ever a time for lawmakers to come together to find a reasoned, measured and safe way through this, it is now.

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