A Decade in the Wlderness-Senate Redistricting Outcomes

Incumbent-centered, partisan redistricting has all but guaranteed that Virginia progressives will be lost in the legislative wilderness for the next decade or more even as the majority of the Virginia voting public becomes more centrist, or even left of center.

The reality is that, as the Virginia Senate moved to a fragile Democratic majority, progressives actually lost ground on progressive issues, in part because the partisan ground gained by Democrats was at the expense of moderate Republicans. The erosion of moderation on one side of the aisle and the fragility of the majority on the other deprived progressives of the ability to build a bi-partisan issue majority in the Senate on which to move an issue into the much more conservative and more partisan House. Positive legislation progressives were able to get through the Senate on party-line votes was dead on arrival in the House.

With the Democratic majority, progressives were able to hold the line on some issues (notably immigration) by wielding the partisan power of the majority in committee. At the same time, however, the line broke on others because a partisan majority isn’t necessarily an issue majority (e.g., on choice issues) or because fears about the loss of the majority or desires to gain the majority allowed fractional interests to control. Thus, progressives entered redistricting with the best hope for the future being a plan that allowed more contested elections to take place, i.e., a plan that devalued incumbency and set aside party for purpose. That hope was not to be realized.

Now, the outlook for a continued Democratic majority in the Virginia Senate is increasingly bleak, and that outcome, even if it could be achieved, will come at the expense of the further erosion of the possibility of gaining an issue majority on progressive issues. Republican centrists are increasingly rare, having previously been ousted in primaries (like Senator Marty Williams), redistricted out of their seats (like Senator Fred Quayle) or scared “right” by threatened nomination challenges. In the future, so-called “safe,” partisan-drawn districts will elect candidates at the extremes of both parties, and the few swing districts likely will elect candidates focused first on preserving their ability to get re-elected. This is a prescription for a fractious and fragile majority whichever party achieves it.

Looking at the Virginia Senate races, the Republican path to a more conservative majority in the Senate than previously held sway is relatively clear. The path to a continued Democratic majority of any description less so. So far the contested elections in the Senate are all in districts currently held by Democratic Senators except one.

As of now, thirteen (13) Republican incumbents are running without opposition or with only primary opposition within the party: Blevins, Hanger, Martin, McDougle, McWaters, Newman, Norment, Obenshain, Ruff, Stosch, Stuart, Vogel, and Wagner.

Republicans also currently are running without announced opposition in two redrawn open Senate seats (the 13th and the 19th) that lean Republican. Dick Black, John Stirrup and Bob Fitzsimmons are contesting for the nomination to run in the 13th. Incumbent Senator Ralph Smith is moving from the 22nd district to the 19th, where he is currently the only announced candidate. And, to date, Delegate Charles Carrico is the only announced candidate in the Republican leaning 40th Senate District to replace retiring Senator William Wampler.

The number of incumbent Democratic Senators currently running without Republican opposition is eight (8) : Colgan, Deeds, Locke, Lucas, Marsh, McEachin, Miller, Y.B., and Saslaw.

Incumbent Democratic Senators facing announced Republican challengers number twelve (12): Barker, Edwards, Herring, Houck, Howell, Marsden, Miller, J, Northam, Peterson, Puckett, Puller, and Reynolds. Of these twelve, nine (9) (Marsden, Miller, J, Northam, Houck, Reynolds, Herring, Peterson, Puckett, and Barker) are running in districts where more than 50% of the voters supported Governor McDonnell in 2009.

Democrats running in hotly contested primaries to replace Senator Patsy Ticer in the 30th and Senator Mary Margaret Whipple in the 31st will also face announced Republican opposition in the general election. The competition in the 31st will be driven by a self-funding candidate, increasing the expense of defending what should be a relatively safe Democratic seat.

There will be a contested election in the new Republican leaning 22nd Senate District, where Bert Dodson (D Lynchburg) has announced he will run against the winner of what is now a five way Republican primary.

Putting the map together, then, Republicans are currently on their way to electing 16 Senators without opposition compared to 8 Democratic Senators. In addition, the Republican candidate also must be considered the favorite in the new 22nd Senate District which voted almost 64% for Governor McDonnell. That means Republicans need to pick up just four seats in contested elections to take the majority from the Democrats. Of the nine Democratic incumbents running in districts that voted for Governor McDonnell, the most vulnerable incumbent Senators appear to be Senators Reynolds (who will be facing incumbent Senator Stanley), Puckett, John Miller, Houck and Herring.

Added to the dismal district demographics and current political trends is the money advantage Republicans already have, which will only be magnified by their ability to redirect funds from uncontested contests to the contested races.

The sum then is a scenario in which, without more announced competitive candidates (either Democrats or independents) surfacing before August 23rd to challenge incumbent Republican Senators and vie for the currently uncontested open seats, the possibility for a return to a Republican majority in the Senate becomes increasingly likely as we move from summer into fall.

The really sad news for progressives is that any new Republican majority will be decidely more conservative than the previous Republican majority, and a Democratic majority is likely to be preserved, if at all, by a continued shift to the right by threatened downstate and outer ring suburb Senators. Either way, the composition of the Senate in the 2012 General Assembly Session (and for the next decade because of way districts were drawn) will make the possibility of cobbling together a bi-partisan issue majority for any positive forward movement on issues like health care, immigration, civil rights, and eliminating poverty remote. The shift to the right will also challenge efforts to hold back hallmark legislation on the agendas of the Virginia Tea Party and the Family Foundation.

UPDATE: June 20, 2011
Good news: It appears that there will be a Democratic candidate in the 13th Senate District, Shawn Mitchell. It remains to be seen how competitive he will be or how progressive.

Bad news: The number of incumbent Senate Democrats running without opposition drops to seven. Robert Sarvis is challenging Majority Leader Dick Saslaw. It remains to be seen how competitive he will be, but just his presence in the race will keep some of the $$ Saslaw can raise from aiding others with contested races.

George Allen and Women .... Flashback to 1995 and 2000

2011 Update:
So, the issue of Allen and women continues to be a viable concern. Webb's own record (i.e., "Women Can't Fight") kept him from making this as much of an issue in 2006 as it could have been.
It's not like he's changed any since I first wrote about Allen and women in 1995. In 2004, he added votes against extending Family Medical Leave to victims of domestic violence, and against legislation to allow victims of sexual violence in the workplace to sue rather than be limited to recovery under worker's comp.
I suppose that there's some sort of "rewrite history" tour he can do with women like he's doing with folks in the Jewish community, but my guess is he's kinda proud of his record here.
Question is ... will his opponents, and women voters, give him a free ride on his hostility to women again in 2012.

2006 Update:
I've posted up below a commentary on George Allen that I wrote in 1995 and updated in 2000. There might be more to say now... but my complete absorption in the multi-partisan campaign against the Marshall/Newman amendment means that I'll be leaving that to others.
Suffice it to say that when one starts looking for the woman-friendly candidate in the Virginia Senate race, Norm's wife may have a lot of company.

George Allen's Message to Virginia Women
copyright 1995 and 2000
by Claire Guthrie Gastañaga

George Allen's record, as a candidate and as an elected official, demonstrates a lack of understanding of or commitment to many issues that matter to women in Virginia: family leave, protection for work-related injuries, nondiscrimination and equitable treatment, prevention of unnecessary injuries and deaths from guns and other dangerous activities, consumer protection and reproductive choice. In each case, Allen’s record clearly demonstrates that his views are outside the mainstream and contrary to those of most Virginia women.
George Allen has failed to support working women and their families. As a member of Congress, George Allen voted against the Family and Medical Leave Act. Family and medical leave, alternative work schedules, and employer provided day care improve productivity, reduce turnover and absenteeism, and enhance morale -- all factors that can produce reduced costs and enhanced profits for business. As a member of the Virginia House of Delegates, George Allen voted against legislation allowing a woman, who was sexually assaulted in the workplace and could identify the attacker, to sue the attacker for damages instead of being limited to benefits under workers' compensation laws (1988).
As Governor, George Allen vetoed a bill that would have defined carpal tunnel syndrome as a disease for purposes of eligibility for workers' compensation benefits. Carpal tunnel syndrome is caused by repetitive motion and affects workers in meat and poultry processing, the textile industry, retail check out positions and certain clerical positions. Most of the affected workers are women in part because women are more susceptible to this work-related condition than men and in part because more women work in the affected jobs.
In his veto message, Allen rationalized his action by stating erroneously that "this legislation would substantially increase the costs of workers' compensation coverage to the businessmen and businesswomen of Virginia.” What Allen’s argument concealed, however, was that Virginia has consistently ranked nearly last of all fifty states in the cost of workers' compensation premiums. After Allen left office, the legislature passed a bill covering carpal tunnel syndrome and the workers’ compensation premiums went down the year the legislation passed.
George Allen has consistently opposed legislation designed to prevent discrimination and assure equitable treatment for all Virginians. As a Virginia Delegate, George Allen voted against a Martin Luther King holiday; against the Human Rights Study Commission and the Human Rights Act; against amendments to the Fair Housing Law to prohibit discrimination based on elderliness, parenthood, or disability and against removing restrictive covenants that discriminate against disabled citizens. He even voted against changing the name of Virginia's workers' compensation law from "workmen's compensation" to "workers' compensation." While running for Congress, George Allen said he was inclined to vote against the Republican 1991 Civil Rights Act (which President George Bush supported and signed into law) because he considered it a racial quota bill.
While Governor, George Allen rewrote compromise civil rights legislation authorizing the courts to award up to 12 months salary as back pay and limited attorneys fees to an individual discharged because of race, color, religion, national origin or sex or age (if the employee is 40 years or older). As rewritten by Allen, the bill would have left all employees working in businesses with fewer than 15 employees without any protection from discriminatory discharge. The House of Delegates refused to accept Allen’s amendments and sent it back to him without his changes.
George Allen also rewrote legislation proposed to establish the Virginia Plan for Equal Opportunity in Higher Education Commission. Allen’s amendments would have added strictly limited any consideration of race or ethnicity in decisions relating to admissions, faculty appointments or employment at Virginia colleges and universities and asserted strong gubernatorial authority over the work of the Commission and over the state's universities. No affirmative action programs could be implemented, even for explicit remedial purposes, by colleges and universities under Allen’s language without the Governor’s authority and the Attorney General's approval. The bill with Allen’s proposed amendments was sent back to committee where it died.
George Allen routinely voted against safety and injury prevention measures as a Virginia Delegate. Delegate Allen voted against raising the drinking age to 21 because he said it would hurt the profits of bar owners in Charlottesville (1983, 1984). He voted against requiring hunters to wear blaze orange in 1987 and against requiring passengers in cars to wear seat belts in 1985, 1986 and 1987. He opposed the Motorcycle Rider Safety Act (1984) and a bill to educate servers of alcohol in bars and restaurants on how to recognize and cut off drinkers who have had enough to drink (1989). As Governor, George Allen twice vetoed legislation prohibiting the transportation of children under 16 in the back of pickup trucks. Each of the measures Allen opposed is now the law in Virginia.
George Allen has consistently opposed even the most limited and reasonable gun safety measures. As Governor, he tried unsuccessfully to amend Virginia’s concealed weapons law to take out a provision that prohibits a person carrying a concealed weapon from entering events and establishments where alcohol is being served, and to change the law to require two (instead of one) convictions for drunk driving before a person could be deemed ineligible for a concealed weapon permit. As a Delegate, Allen also tried to amend a bill to make it a crime to leave a loaded gun around children so that no one could be prosecuted unless someone was injured (1991).
George Allen is no friend of the Virginia consumer. As a Virginia Delegate, Allen voted against the Health Spa Act that gave consumers (mostly women) the right to cancel their contracts and provided remedies for fraud (1984). As a member of Congress, he voted against the conference report to cap basic cable rates and improve competition.
As Governor, George Allen amended and vetoed legislation that would have strengthened Virginia consumer laws. Allen recommended amendments to weaken proposed penalties for willful violations of the Commonwealth's consumer protection laws. When the legislature rejected his amendments he vetoed the legislation.
In his veto explanation, Allen said that the new tougher penalty could be misused by individuals who do not speak English to hurt "mom and pop" retailers. Allen's stated concern had no basis in law or fact. Allen's veto has only served to disadvantage untold numbers of consumers who are the intentional victims of financially rewarding, deceptive practices by truly "fly by night" businesses. Among other things his action provides a safe haven for those who intentionally prey on elderly consumers. Moreover, his veto took away a powerful deterrent to shady business practices that damage other legitimate businesses who take seriously their responsibility to comply with the law.

As a candidate and as Governor, Allen has said consistently that he wants to burden women's choices regarding reproductive health. He has consistently supported waiting periods for adult women seeking abortions and intrusive, government-dictated informed consent requirements applicable only to women patients seeking abortions. He also vetoed legislation that would have imposed more stringent penalties on persons who harass and obstruct patients seeking health care. Allen's veto message equated access to health care with access to a grocery store.

It is important for all Virginia women and their families to ask questions of both candidates that relate to current history and not past history ... has George Allen earned our votes with a solid record of accomplishment as a Senator on issues that matter? Is Jim Webb committed to action that will move us forward on education, health care, equal pay? Is either candidate's claimed progression from prior juvenile (and sexist? racist?) acts/commentary credible?
Clearly, there is much at stake in this Senate race, and women should make sure they register and vote on November 7th. We need to make our voices heard by both candidates. We need to get them both talking about current issues that matter to us and our families.

Adoption Discrimination--Roanoke Times Raises Important Questions about Broader Implications of Recent State Action

Interesting that none of the stories about the State Board of Social Services' action on the adoption rules focused on the larger questions raised by the decision to strip out of the nondiscrimination rules, not only protections against discrimination based on sexual orientation but also stripped protections against discrimination based on gender, religion, disability, age, family status and political beliefs.

Shouldn't all of us be talking about the implications of policies of some faith based adoption agencies who said during the public comment period on the rules and in written comments filed with the agency that they refuse (or want to be able to refuse) to place children with families of other faiths?

Is it an act of charity or an act of institutional self-preservation or proselytization for a faith-based adoption agency to require a pledge of faith to use their adoption services?

Is this an act in the best interests of the child they are placing or of the placing agency?

And, since the courts must approve every adoption, isn’t their discriminatory policy actually being effected by the state, rather than by a private party?

The Roanoke Times has begun the debate.

I hope it continues.

ADOPTION DISCRIMINATION
Gays were the focus of debate, but proposed adoption regulations went much further.

Roanoke Times Editorial, April 23, 2011

On Wednesday, the Virginia Board of Social Services, at the urging of Gov. Bob McDonnell, chose not to grant equality to unmarried couples and gay Virginians in the adoption process. Private adoption agencies may continue to discriminate against them. Loving homes will remain largely unavailable for kids in search of a family.

The debate leading up to the decision framed things primarily as a gay rights issue, but there was much more to it. The proposed regulations also would have made gender, age, religion, political beliefs, disability and family status non-issues in adoption.

The opposition primarily came from religious-based adoption agencies whose faith tells them gays are unfit parents.

Current regulations say only race, color or national origin may not be considered by agencies, no matter their religious teachings. Those rules exist for the simple reason that race should have nothing to do with adoption, even if in some twisted way one claims that religion demands it. A black parent should be able to adopt a white child from any agency; a white parent, an Asian child; and so on.

An adoption agency's faith tradition might also dictate that people of another religion are unfit parents. Maybe Democrats, too, or Republicans. People who vote for pro-choice candidates. People in wheelchairs. All remain viable, albeit distasteful, reasons an adoption agency might cite to reject parents. Yet because those groups' interests were caught up in a broader gay-rights fight, they too will continue to be potential objects of discrimination.

When it comes to finding good families for children, sexual orientation, faith, politics and all the rest have no place in the discussion. The surprising thing was not that the governor chose not to extend equal rights to gay people, but that he did not get behind the rest of the changes.

"Making Sense of Immigration" .. Homework for the 2011 General Assembly Session

The fall 2010 issue of Virginia Issues and Answers: A Public Policy Forum published by Virginia Tech is now on the “newsstands” and online. In the issue are two perspectives on state policy issues related to immigration written by me and Jack Martin, the director of special projects at the Federation for American Immigration Reform (FAIR). Neither Mr. Martin nor I had the opportunity to see each other’s submission before publication, and, now, having read his submission, several points are worth making.

Virginia already has more than 40 laws on the books dealing with immigration related issues, and has led the nation in addressing the issue of unauthorized immigration at the state and local level.

Accordingly, I conclude my article, titled “Making Sense of Immigration: Keeping State and Federal Roles in Balance,” with the following:

Most of the 40 laws now on the books were said to be needed to keep Virginians safe, reduce costs or improve the ability and authority of law enforcement to combat gang activity, drug trafficking, and terrorism. None of these programs has yet been proven to be effective. Some have, however, been shown to affect adversely working people and their families who have committed no crimes. No further legislative action should be taken unless and until the laws now in place have been shown to be inadequate to address any discernable adverse impacts of unauthorized immigration on Virginians. To do otherwise is simply to continue making political points at the expense of human rights and dignity.

After seven years of going over and over the same ground, including election year 2007 in which over 130 pieces of immigrant-related legislation were introduced, I believe those who will ask the 2011 Virginia General Assembly to enact additional laws (and take valuable legislative time to replay failed arguments from the past) have a high standard of proof to meet when it comes to showing why more legislation is needed or will be effective and why its benefits outweigh its costs (both financial and social). Mr. Martin’s piece, entitled “Why Immigration is an Issue for Virginia Lawmakers” doesn’t do that.

Let’s start with the fact that Mr. Martin repeats FAIR’s oft-cited shibboleth about the 9/11 terrorists that seeks to inflame deep-seated fears by conflating terrorism and immigration and tying 9/11 to the “illegal immigration” debate. It is true that seven of the 9/11 terrorists had Virginia driver’s licenses and may have used them as identification to board airplanes. It is also true that, after 9/11, Virginia led the nation by enacting a legal presence requirement in 2003 to bar anyone in the country without authority from getting a Virginia driver’s license or ID. What Mr. Martin doesn’t point out, however, is that every one of the terrorists had entered the country legally and almost all (except possibly three) were still in the country legally. The immigration status of these evil men had nothing to do with their evil purpose nor their access to licenses. They did commit fraud to obtain the licenses; they were in the country legally but not residing in Virginia, as required. However, since Virginia law continues to allow anyone who can show that he or she is in the country legally to get a Virginia driver’s license for the duration of their authorized stay, the reality is that similarly-situated evil-doers would still be able to get Virginia licenses and ID’s today if they were able to establish (truthfully or fraudulently) that they were living in Virginia.

Mr. Martin then goes on to recount FAIR’s disputed “facts” about the “impact of illegal immigration” to bolster his otherwise unsupported argument that “combating illegal immigration is an important and legitimate interest for states.” The impacts of immigration (legal and illegal) are much debated, as testimony before the House of Representatives by Mayor Bloomberg and others shows. For Virginia-specific data, read the report of The Commonwealth Institute on Tax Contributions of Undocumented Immigrants.

Relying on FAIR’s time-worn rhetorical flourishes, Mr. Martin makes no specific recommendations for additional changes he thinks are needed in Virginia law (beyond the 40 laws already on the books), but simply exhorts lawmakers to “do more” to “exercise their authority to discourage illegal immigration.”

Mr. Martin does not say how current Virginia law is inadequate to meet his stated objective of getting “illegal immigrants” to leave Virginia. Data released recently by the Pew Hispanic Center show that the number of unauthorized immigrants in Virginia fell 65% between 2008 and 2009, one of the highest percentage declines in the country during the same period. If Mr. Martin’s real objective is to encourage a reduction of unauthorized migration to Virginia, this data would appear to show that Virginia’s efforts to date are working.

Before we add to the growing fear and distrust among immigrant community members and growing hostility toward new Virginians among our residents, by replaying old “us” vs. “them” arguments, I hope the members of the General Assembly will take a deep breath and ask Mr. Martin and his allies: “what exactly is it that you want us to do, what will it cost for us to do it, and why should we invest our scarce resources doing it at a time when we are seeking to balance our budget and cut taxes?”

Note: Want to know more? A good resource is "Giving Facts a Fighting Chance: Answers to the Toughest Immigration Questions" by the Immigration Policy Center.

Current Virginia Laws Applicable to Aliens

Virginia State Laws Applicable to Aliens and Immigrants

Updated: includes laws in effect on July 1, 2011

Drivers’ Licenses

2003 – Mandates proof of legal presence to obtain a Virginia drivers’ license or a state id card, § 46.2-328.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+46.2-328.1 [This law was updated in 2009 to more fully comply with the federal REAL ID law, see SB 1046, http://leg1.state.va.us/cgi-bin/legp504.exe?091+sum+SB1046]

2010 (HB 513) – Permits police to choose whether to charge a person previously convicted of driving without a license either under a local ordinance or a state statute. If the officer charges under the state statute, he must impound the car of the person cited for second offense driving without a license. Under the local ordinance no impoundment is authorized. The impoundment is for 3 days or until the person can obtain a valid license. Teens and persons whose licenses have been expired for a year or less are exempt from impoundment. http://leg1.state.va.us/cgi-bin/legp504.exe?101+ful+HB513ER2

Employment and Business

1977 -- Crime for employers to knowingly hire illegal aliens (although there is some question now if it is constitutional because of a federal law passed in 1986) §40.1-111 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+40.1-11.1

1977 – Proof of legal presence required for unemployment compensation benefits, § 60.2-617 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+60.2-617

Pre-1980 – Agricultural employment of workers present on agricultural visas excluded from definition of employment for purposes of unemployment compensation but employers required to count these employees in determining whether the employer is responsible for unemployment taxes for his other farm workers. §60.2-241 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+60.2-214

2000 – Workers’ compensation law amended to treat unlawfully employed alien workers the same as unlawfully employed minors except no payments for partial incapacity or vocational rehabilitation authorized. Law overturned Virginia Supreme Court decision holding that unlawfully employed aliens were not “employees” under the workers’ compensation law and were, therefore, free to sue in tort for injuries incurred on the job. §§65.2-101, 65.2-502, 65.2-603. http://leg1.state.va.us/cgi-bin/legp504.exe?001+ful+CHAP1018

1950 (as amended in 2006 and 2007) -- Crime to extort money from aliens by withholding immigration documents or threatening to report them to ICE, §18.2-59 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-59;

2006 – Person who threatens to report someone as unlawfully present in order to extort money or pecuniary benefit is guilty of a class 5 felony, §18.2-59iii of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-59

2007 – Person who destroys another’s passport or other immigration document in order to extort money or pecuniary benefit is guilty of a class 5 felony, §18.2-59iv of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-59

2008 – Allows the State Corporation Commission to terminate the corporate existence of a business upon conviction of the corporation of a pattern and practice violation of federal immigration laws. §13.1-753iv of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0588

2008 – Requires all public bodies in Virginia (state and local) to include in written contracts for goods and services a requirement that the contractor agree that it does not and will not during the contract term knowingly employ an “unauthorized alien,” §2.2-4311.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0702

2009 (HB 2016) – Defines abduction to include circumstances in which someone is intimidated into forced labor or services by having his or her immigration documents withheld or by threats to report their immigration status; authorizes prosecution of two or more such acts as racketeering. http://leg1.state.va.us/cgi-bin/legp504.exe?091+ful+CHAP0662

2010 (HB 737) – Requires state agencies to begin using E-Verify program for new employees effective December 1, 2012.  http://leg1.state.va.us/cgi-bin/legp504.exe?101+ful+CHAP0633 Governor issued an executive order requiring all state agencies to begin using E-Verify effective July 1, 2011.

2011 (HB 1859, SB 1049) Provides that any employer with more than an average of 50 employees for the previous 12 months entering into a contract in excess of $50,000 with any agency of the Commonwealth to perform work or provide services pursuant to such contract shall register and participate in the federal E-Verify program to verify information and work authorization of its newly hired employees performing work pursuant to such public contract. Any such employer who fails to comply shall be debarred from contracting with any agency of the Commonwealth for a period up to one year. Such debarment shall cease upon the employer's registration and participation in the E-Verify program.  Effective on December 1, 2013.  http://leg1.state.va.us/cgi-bin/legp504.exe?111+ful+CHAP0573

Education

1975 – Consistent with the Family Educational Rights and Privacy Act of 1974, Virginia law amended to permit disclosure of school records of alien students to federal officers and employees seeking this information in the course of their government duties. §22.1-187 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+22.1-287

Pre-1994 -- Strict domicile requirements for in-state tuition prohibit illegal aliens from qualifying for in-state tuition at our colleges and universities, §23-7.4 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+23-7.4

2002 – All Virginia colleges required to “inform the Attorney General of the Commonwealth whenever a student who has been accepted for admission to such an educational institution pursuant to a student visa fails to enroll or who has been attending such an educational institution pursuant to a student visa and withdraws at such institution or violates the terms of his visa.” Attorney General required to report names to ICE. §23.2-2 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+23-2.2

Health and Social Services

1950 -- Mental health department required to determine the nationality of any person admitted to a state facility and to report to immigration anyone determined to be an alien, §37.2-827 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+37.2-827

2005 -- Proof of legal presence required to obtain state benefits including welfare and Medicaid, §63.2-503.1 and §32.1-325.03 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-503.1 and http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+32.1-325.03

2011--Department of Social Services required to develop a plan to address delivery of services to victims of human trafficking.  No due date specified. http://leg1.state.va.us/cgi-bin/legp504.exe?111+ful+CHAP0258

Housing

2007 -- Penalties for residential overcrowding violations increased, §15.2-2286 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-2286

2007 – Local zoning administrators in NOVA given unprecedented authority to subpoena birth certificates and other personal documents in order to enforce local housing ordinances, §15.2-2286 4 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+15.2-2286

2008 – Expands the power to subpoena documents to all zoning administrators statewide, 15.2-2286 4 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0581

2008 – Gives zoning administrators the power to seek an inspection warrant allowing them to search private dwellings for zoning violations, §15.2-2286 15 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0777

Law Enforcement and Corrections

1950 (last amended in 1994) -- Sheriffs and the department of corrections required to identify criminal aliens in Virginia jails and prisons and report them to the Central Criminal Records Exchange, §53.1-218 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+53.1-218

1950 (last amended 1982) Clerks of court required to furnish court records to ICE regarding any alien committed to a correctional facility after conviction, 53.1-219 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+53.1-219

1985 – Provides for transfer of criminal aliens to federal custody or to be held pending deportation, §53.1-220.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+53.1-220.1

1985 (last amended in 1994) – Probation and parole officers required to ask about citizenship status and report to the State Police anyone who fails to produce evidence of citizenship; State Police required to review arrest reports from law enforcement and reports from probation and parole and report to ICE the identity of all convicted offenders suspected of being illegal aliens, § 19.2-294.2 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-294.2

1993 – Aliens (except lawful permanent residents) prohibited from owning, possessing or transporting assault firearms, §18.2-308.2:1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.2C01 and dealers prohibited from selling assault firearms to aliens (except lawful permanent residents), §18.2-308.2:2, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.2C2

1995- Aliens (except those lawfully admitted to permanent residency) prohibited from obtaining concealed weapons permits, §18.2-308 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308

2000 – Gun dealers prohibited from hiring illegal aliens to sell firearms, §18.2-308.2:3 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308

2004 – Persons not lawfully present in the United States prohibited from owning, possessing or transporting any firearm, §18.2-308.2:1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.2C01

2004 - Police officers given authority to arrest without a warrant anyone committing a crime who is an illegal alien previously deported after a felony conviction. § 19.2-81.6 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-81.6

2004 – Compensation Board required to maintain records re: citizenship of inmates and to encourage local jails to participate in the USDOJ State Criminal Alien Assistance Program, Appropriations Act of 2004.

2006 – Juvenile justice intake officers required to report to ICE any juvenile charged with a violent juvenile felony being detained in a secure facility who the intake officer has probable cause to believe is not lawfully present, §16.1-309.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+16.1-309.1

2006 -- Director of the Department of Juvenile Justice required to coordinate with the Dept of Corrections requests for compensation from the State Criminal Alien Assistance Program for the costs of incarcerating undocumented aliens, § 66.3.2 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+53.1-219

2006 – Person who falsely identifies himself to a law enforcement officer guilty of a class 1 misdemeanor, §19.2-82.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-82.1

2007 – Allows the courts to assess as part of the costs taxed to the defendant the costs of any interpreter appointed for the defendant when the defendant fails to appear for trial and is convicted of a failure to appear and the interpreter appears in the case and no other case on the date the defendant is convicted, §19.2-164 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-164

2008 – Judicial officer may presume, subject to rebuttal, that a person charged with certain criminal offenses should not be entitled to bail if the person is found to be in the United States without authority, §19.2-120.1 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0469

2008 – Requires the sheriff or other officer in charge of a jail to inquire into the citizenship and immigration status of every person taken into custody at a jail, §19.2-83.2 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0180


2011-- Requires the Department of Criminal Justice Services, in conjunction with the Office of the Attorney General, to advise law-enforcement agencies and attorneys for the Commonwealth regarding the identification, investigation, and prosecution of human trafficking offenses using the common law and existing criminal statutes in the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+9.1-102

Voting Rights

2006 – DMV required to send info it gets on noncitizens to State Board of Elections and State Board directed to remove names from election roles, §24.2-404 and §24.2-410.1 of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-404 and http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-410.1

2008 – Requires general registrar of a county, city or town to cancel the voter registrations of any person who does not respond within 14 days to a notice from the registrar that they have been reported by the DMV not to be United States citizens, §24.2-427 B.1 of the Code of Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0382

Miscellaneous

1996 - English is the official language of the Commonwealth, § 1-511 of the Code of Virginia http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+1-511

2007 – Established the Commission on the Prevention of Human Trafficking, §30-287 et seq of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+30-287

2007 Established the Virginia Commission on Immigration, §2.2-2530 et seq of the Code of Virginia, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+2.2-2530 (Commission sunsetted in 2009).

2011--Establishes January 11 as Global Human Trafficking Awareness Day in Virginia. http://leg1.state.va.us/cgi-bin/legp504.exe?111+ful+HJ561ER

McDonnell and Cuccinelli at Odds Over 14th Amendment Protection for GLBT People?

When Governor McDonnell issued his executive directive prohibiting discrimination based on sexual orientation, he said that GLBT people are protected by the 14th amendment to the United States Constitution:

The Equal Protection Clause of the United States Constitution
prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution.

Today, Ray Reed reported in the The Lynchburg News and Advance this exchange between a student attending Boys State and Attorney General Cuccinelli that strongly suggests that the AG and the Governor do not agree on this fundamental legal principle:

"I'm sure you are aware of a letter that was sent to state universities regarding discrimination policies based on sexual orientation," a student said to Cuccinelli. "How is that not a violation of the equal protection clause of the 14th Amendment?" the student asked.

"I know about it," Cuccinelli replied. "I signed the letter. It was legal advice we gave to universities that was consistent with what five attorneys general before me had given. [This is a matter of debate as former Governor and Attorney General Gerald Baliles has pointed out. Prior AG's were focusing on local governments, not universities, in their opinions.]

"State universities are not free to create any specially protected classes other than those dictated by the General Assembly," Cuccinelli said.

"Your question is, why is that not a violation of the 14th Amendment's equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment," he said.

"There are judges who think these things 'evolve,' is the word they like to use," Cuccinelli said, but the correct approach to making such a change would be a constitutional amendment, he said.

The Attorney General's answer to the student prompts two follow up questions: "Would the AG or his office would defend the Governor if someone the Governor disciplines under the Executive Directive were to sue him?" "Would the AG defend a university nondiscrimination policy that includes sexual orientation?"

The AG has said in an unpublished statement given to a Washington Post reporter in response to attacks on his office's defense of George Mason's on campus gun prohibition that it's his job to defend state law and state officers and agencies unless their acts are unconstitutional.

How would he apply this standard if asked to defend either university nondiscrimination policies or the Governor's executive directive that protect GLBT Virginians from discrimination?

Bob Marshall -- More Labeling and Stereotypes

When it comes to a willingness to label and stereotype to serve his cause, Bob Marshall appears to have no limits.

Casting aside his penchant for papering over his personal agenda with cites to peer reviewed studies and research, Marshall shot from the lip again yesterday in an AP story by Bob Lewis about Equality Virginia's legislation to protect state workers from discrimination.

This time his target was gay, lesbian, bi-sexual and transgender Virginians.

Lewis' story says opponents of SB 66, which would prohibit discrimination in state employment, believe it is unnecessary and, then, quotes Delegate Marshall:

"I think there first should be some finding that homosexuals, as a class, are being discriminated against," said Del. Robert G. Marshall, R-Prince William, an ardent social conservative. "In all of my experience and reading, gay individuals seem to have more income, to attend more cultural events, to take more vacations than the rest of us. Show me where this discrimination is going on."

So, Bob, what do the studies show?

Took me less than two minutes to find these facts this morning:

Workplace protection is linked to higher earnings for gay men. Median earnings for gay men are $3,000 below the income of men with female partners, though the gap shrinks in states with workplace-protection laws and increases where none exist. Among less-educated men in the 11 states that protect workers from discrimination based on sexual orientation, earnings of partnered gay men come closer to earnings of men with female partners.
For more information:
Gates, Gary. 2003. "Income of Gay Men Lags Behind that of Men Partnered with Women." Washington, DC: The Urban Institute.
Gates, Gary. 2003. "Workplace Protection Linked to Higher Earnings for Less-Educated Gay Men." Washington, DC: The Urban Institute.
Gates, Gary. 2001. "Domestic Partner Benefits Won't Break the Bank." Commentary in Population Today. April 1.

I know there's more "evidence" out there, and, Bob, if you'd talk to the GLBT people who live in your district, I'm sure they'd provide many personal stories of discrimination, and confront your offensive stereotype of them as the ballet going, beach partying, comfortably rich.

Bob, here's my question for you ... what would you say if I had been quoted as saying, "in all my reading and experience, social conservatives are all poorly educated, hard drinking people whose idea of entertainment is to stay home and make babies?" You'd be righteously outraged, wouldn't you?

So, why shouldn't your ignorant use of gross stereotypes to defend your indefensible objection to granting all Virginians the basic human right of a workplace free from discrimination provoke the same outrage among fair minded people?

The answer is, it should, and it does.

Video Coverage of Equality Virginia's Press Conference on SB 66, March 1, 2010

Thanks to Rick Sincere of the Republican Liberty Caucus you can watch video of Equality Virginia's press conference today focused on the need to pass SB 66, the bill that would codify protections against discrimination for all Virginia state employees.

Watch Viola Baskerville, former Secretary of Administration in the Kaine Administration; Equality Virginia CEO, Jon Blair; Glen Pond on behalf of the Virginia Governmental Employees Association, and Dr. Patricia Cummins on behalf of the AAUP here.

Watch Rick Sincere on behalf of the Republican Liberty Caucus;Andres Tobar on behalf of the Virginia Coalition of Latino Organizations; Irving Taylor on behalf of the AARP; Ben Greenberg of the Virginia Organizing Project; Lawrence Webb, member of the Falls Church City Council and first out gay African American elected official in Virginia; and Delegate Adam Ebbin, the first out gay member of the Virginia House of Delegates, here.

Watch Senator Donald McEachin and questions and answer session, here.

The "Natural Consequences" of Hate

Christina got this exactly right. Once you let "hate" define your views (even if it is just to "hate the sin"), you can't control how it eats away at your soul and undermines your humanity. (See, Keeping it Civil re: hate as the language of politics).

Bob is a friend whose inability to accept responsibility for the natural consequences of his own actions and choices erodes his credibility as a messenger to others on the consequences of theirs.


EMBATTLED DELEGATE FACES CONSEQUENCES OF RANT ON ABORTION

By Christina Nuckols

The Virginian-Pilot Column

DEL. BOB Marshall looked haggard and bewildered as he searched his cluttered desk Wednesday for a way to explain and soften the hurtful words he had spoken a few days earlier.

“The Bible regards barrenness as a curse, not children,” he muttered as he leafed through the Encyclopedia of Judaism, then reached for a medical journal. “I should have used the term 'physical complications.’ ”

The Prince William County Republican insists his comments at a Feb. 18 press conference were taken out of context, but that rant against Planned Parenthood isn’t easily explained away.

“The number of children who are born subsequent to a first abortion who have handicaps has increased dramatically. Why? Because when you abort the first-born of any, nature takes its vengeance on the subsequent children,” he said in a videotaped speech. “In the Old Testament, the first-born of every being, animal and man, was dedicated to the Lord. There’s a special punishment, Christians would suggest, and with (sic) the knowledge that they have from faith has been verified by a study from the Virginia Commonwealth University. First abortions of the first pregnancy are much more damaging to a woman than latter abortions.”

Advocates for the disabled were enraged when they learned of the remarks, but there was a delayed reaction. Early media reports didn’t include the quote, in part because Marshall was sandwiched between other speakers accusing Planned Parenthood of racial genocide. But the slow response may also stem from Marshall’s split personality. Journalists and fellow legislators struggle to reconcile the rumpled, self-deprecating fellow most genuinely like with the steely crusader who too often wages misplaced attacks on the innocent.

When I first met Marshall in 1998, he handed me a computer disc filled with pornography. It was a startling introduction, but 12 years later he can walk up to me and start discussing the evils of bestiality without inspiring a blush, much less a call to 911. I’ve grown accustomed to his campaigns against abortion and gay rights, but also his work for autistic children. I know all of his tales about tormenting nuns at Catholic school, taking judo lessons from a bodyguard of Chiang Kai-shek and meeting Harry Truman.

His kids have grown from teenagers to adults. Except Chris, who died at age 19 when the pickup truck he was a passenger in struck a tractor-trailer one night in 2001. Since then, I’ve rarely seen Marshall without a camera around his neck.

“I just wanted people to have memories,” Marshall said. “I cried for nine months after his death. A friend of mine who’s a photographer said I needed therapy.”

If I sometimes feel a little protective toward him, I’m also troubled by that other, darker side of Marshall, the one he presents to the rest of the world. My own religious beliefs make it easy to understand his opposition to abortion, but I cannot condone his harshness toward the women who have made that difficult choice.

“I feel sorry for these women,” he said. “I’m the occasion of an unresolved conflict for some women who’ve had an abortion. It’s still bothering them.”

His words are far from convincing, and it’s even harder to explain his attitudes toward gay people. Some of the unborn whose lives he says he is fighting to save would certainly grow up to be gay and therefore second-class Virginians under the laws he has written.

Marshall is consumed by a moral code that blinds him to the consequences of his own actions and words. “Hate the sin, love the sinner” is a nice-sounding mantra that is rarely achieved. Hate isn’t something so easily contained and channeled. It’s a corrosive force that eats away at both the guilty and the innocent, even disabled children and their parents.

I still believe there’s a part of Marshall who understands that and would do anything to retract his malevolent words. But he won’t find it flipping through his theology and medical books.

House of Delegates Refuses to Protect State Workers From Being Fired Because They Are Gay

Today, the Virginia House of Delegates refused even to vote on a proposal to protect state workers from being fired for being gay, or black, or Latino, or disabled, or a veteran, or a person with genetic markers for breast cancer, or old ... .

Delegate Adam Ebbin proposed an amendment to the budget (which will require lay offs and job cuts across the state workforce) that said:

No employee of the Commonwealth, including employees of public institutions of higher education, shall be discharged or laid off from employment based on his race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, genetic information, marital status, disability, sexual orientation or gender identity, or status as a veteran. Any employee discharged or laid off in violation of this subsection may bring an action pursuant to §2.2-2639c. of the Code of Virginia and recover back pay and attorneys fees as provided therein.

Delegate Ebbin made the following points in support of his amendment:

In this budget we are forced to adopt reductions in funding that could lead to the lay off or discharge of hundreds of employees across state government and in our colleges and universities.

These employees have no meaningful protection from lay off or discharge based on factors other than merit such as race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, genetic information, marital status, disability, sexual orientation or gender identity, or status as a veteran.

Although state employees should have some protection from discrimination under the Governor’s executive order, the new Governor has removed protections previously provided for the state’s gay, lesbian, bisexual or transgender employees, saying that it is up to the legislature to set the state’s policy in this regard.

And, even if applicable, the executive order offers little in the way of remedies for an employee who loses his or her job through the discriminatory action of a single supervisor.

Finally, state employees have little protection from discrimination under federal civil rights laws because of a series of Supreme Court decisions that have interpreted the 11th Amendment to the US Constitution as providing state immunity from suit in federal or state court for violations of the federal Civil Rights Act, the Age Discrimination Act, the Americans with Disabilities Act and the Equal Pay Act. It has been the policy and practice of the Office of the Attorney General for at least the last decade to aggressively assert this immunity defense in all discrimination cases brought pursuant to federal law by state employees.

This budget amendment does no more than extend to state employees the same limited right to recover back pay for discriminatory discharge that the state has extended to private employees in businesses with 5 to 15 employees (who also lack federal civil rights act protection). The only difference is that this amendment also protects state employees from discriminatory discharge based on sexual orientation and gender identity and adds protection from discrimination based on “genetic information” a new protection added by the federal Genetic Information Nondiscrimination Act of 2008, that protects employees from discrimination based on the results of genetic testing like testing that reveals a predisposition to breast cancer.

We’ve heard a lot about what’s good for the goose should be good for the gander in the context of debates about extending mandated benefits to both state and private employees alike. It’s time to assure our state employees, that as they face the uncertainty of the current economic and budget crisis, that we believe that they should be protected from discriminatory discharge just like their peers in the private sector.

It’s the right thing to do. And, it’s an action supported by almost 90% of Virginians who agree that even gay, lesbian and transgender people deserve protection from workplace discrimination and the right to work for the government.

I urge you to adopt this amendment.

So, what did the House do with this eminently reasonable proposal?

It ducked taking a stand on what the Governor has said is its job ... setting the personnel policy of the Commonwealth.

Delegate Bob Marshall (again!) moved to "pass the amendment by," a procedural move to kill it.

The House voted in favor of his motion 61-38 after a question from Delegate David Englin made clear that a vote in favor of the motion was a vote to kill the amendment.

You can watch the debate on the amendment:

Time to Do the Right Thing

Today, Equality Virginia, the AARP, the AAUP, the Virginia Education Association, the Virginia Governmental Employees Association, the Virginia AFL-CIO, and the Virginia Coalition of Latino Organizations stood together in support of SB 66, a bill that would, for the first time, codify protections against discrimination for Virginia's hard-working and underpaid state employees.

In 1970, Governor Linwood Holton established a tradition that Virginia chief executives followed until this year; his first official act as Governor was the issuance of an executive order promising state employees equal opportunity and protection from discrimination in the workplace.

35 years later, Governor Warner concluded his term by signing an executive order extending this protection to discrimination based on sexual orientation -- a promise of opportunity continued in Governor Kaine’s first executive order on Equal Opportunity issued the day he was sworn in as Virginia’s 70th Governor – a promise also extended by Governor Kaine’s order to Virginia’s veterans.

Despite this long history of executive action, the Virginia legislature has never acted to incorporate in the Code of Virginia an explicit and comprehensive ban on discrimination in public employment. And, as then Attorney General McDonnell said in an opinion he issued in 2006, the legislature's failure to act deprives the Governor of the authority to extend anti-discrimination policies to Virginia's gay, lesbian, bi-sexual or transgender employees by executive order.

It is past time for the Virginia legislature to make the Commonwealth’s equal opportunity policy clear and applicable equally to all public employees.

No state employee should have reason to doubt Virginia's commitment to equal opportunity in employment for all regardless of race, color, religion, national origin, sex, pregnancy, childbirth or related conditions, age, marital status, disability, sexual orientation, or veteran status.

Today, eight members of the Senate General Laws Committee voted to report a bill that codifies past executive actions and makes equal opportunity a matter of legislative enactment.

Much has been made of the fact that this bill would include sexual orientation in the legislature's statement of the Commonwealth’s nondiscrimination policy.

Protecting Virginia’s gay, lesbian, bi-sexual and transgender public employees from discrimination is not a radical idea.

Virginia is far behind private sector employers in adopting such a nondiscrimination policy. Top employers protect their workers from discrimination based on sexual orientation, because it simply makes good business sense.

All of Virginia’s top ten largest private employers have sexual orientation protections in their non-discrimination policies:
• Wal-Mart
• Northrop Grumman Newport News
• Food Lion
• Sentara
• Inova Fairfax Hospital
• Science Applications International (SAIC)
• Booz Allen Hamilton
• Target
• UPS

30 states now have laws and ordinances that ban discrimination by all employers (public and private) based on sexual orientation; 12 and the District of Columbia include gender identity. Such nondiscrimination laws now cover over half of the United States population.

A poll of Virginia voters conducted by a bi-partisan polling team has found that, even among Virginia voters who would vote for a marriage amendment, 86% said gays and lesbians should have the right to work for the government.

It is time for the Virginia General Assembly to reject the insubstantial, biased, and fear based arguments against this legislation and make equal opportunity in employment the law for all Virginia state employees regardless of race, national origin, sex, age, disability, political affiliation, religion, and, yes, sexual orientation.

It is simply the RIGHT thing to do.

Please urge your Senator to vote YES on SB 66. You can find out who your senator is and how to contact him or her on the Virginia General Assembly home page.

Controlling the Headline (or not)

So, prompted by the recent active inclusion of state employees in political ads during the recent campaign cycle, I set out to write a piece that would provoke debate on a simple question -- should Virginia have a state level Hatch Act that would protect state employees from pressure to engage in partisan political activities? And, I thought I'd managed to focus the piece on the issue rather than the people. But, having submitted the piece with the title "Hatching Virginia?," I didn't remember to ask what title the headline writers were going to use. Unfortunately, their choice focused the reader on the person who used the ads rather than the issue, and made it seem as if I was attacking the individual rather than the topic. Perhaps this was too nuanced a distinction. I still think that the issue is an important one.

So, here's a link to the Back Page piece I wrote that appeared in Style Weekly today.

And, here's the text of the Letter to the Editor that I've written and asked be published next week:

To the Editor:

I should have known better. I wrote what I believed was a thoughtful Back Page piece meant to invite discussion on a simple question -- should Virginia have a law like the federal Hatch Act that would limit the participation of public employees in partisan political campaigns? My title for the piece as submitted to Style was "Hatching Virginia?" I held the piece until after the election because I didn't want it to be seen as either partisan or personal. I wrote the piece to focus on the issue and how it should be decided in the future ... not to criticize any one candidate or any one campaign. All my care went for naught, however, because I didn't have control either of Style Weekly's choice of title for my Back Page piece or of the graphic. No one who saw either the title or the graphic for last week's Back Page would think the op-ed was anything other than a personal attack on our Governor-elect. That was neither my purpose nor intent. I hope that the Governor-elect will accept this as a public and heartfelt apology for my inexcusable naïveté in allowing this to happen. I should have known better.

Very truly yours,

Claire Guthrie Gastanaga

I'd love to hear what you think ... about the issue and the questions raised in the op-ed and about the choice of headline and whether my concern about it is well-founded.

Gay Republicans Praise McDonnell, Dis Cooch

David Lampo and other members of the Log Cabin Republican Club of Virginia have been active the last couple of days ... first complimenting gubernatorial candidate Bob McDonnell for his recent statements affirming his view that government should not discrimination against people based on sexual orientation and, then, blasting Cooch in an oped in the Augusta Free Press for his promise to discriminate actively against gay people as Attorney General.

Today, the Log Cabin Republicans issued a statement reacting specifically to quotes from Cooch included in the Virginian Pilot endorsement of Steve Shannon. Amy Gardner has the story on her Post blog.

Cooch told the Pilot:

He declined to commit to a nondiscrimination policy against gays and lesbians observed by former Attorney General Bob McDonnell: “ My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. ... They don’t comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be polite) behavior that is not healthy to an individual and in aggregate is not healthy to society.”

The Pilot's response?

To put it politely, Cuccinelli’s election would bring embarrassment to Virginia, instability to the state’s law firm and untold harm to the long list of people who don’t fit his personal definition of morality.

The reaction from Log Cabin Republicans?

... we call on Republican leaders and candidates throughout Virginia to repudiate Cuccinelli's hateful remarks and stand with Bob McDonnell on this important issue.

Couldn't have said it better myself.

Choosing the People’s Lawyer: Questions to Ask Candidates for Virginia Attorney General

This is an update of a blog entry I wrote before the 2005 elections regarding the role of the Attorney General and the scope of the power we afford the person we elect to this too little discussed, "down ballot" race. I hope that you will find it helpful.

Choosing the People's Lawyer: Questions to Ask Candidates for Virginia Attorney General
The Virginia Attorney General is the people’s lawyer serving as our advocate in consumer matters, defending our decisions as jurors in criminal appeals, protecting our investments in charitable organizations and institutions, initiating and overseeing prosecution of government fraud and conflicts of interest, and advising the state officials and agencies who serve us.

Just as you choose carefully the lawyer who advises your business and your family, each Virginian should look carefully at the qualifications and stated priorities of the two men running for Attorney General this year, Delegate Steve Shannon (D) and Senator Ken Cuccinelli (R).

Here are some questions to ask that will help you can decide which man to "hire" as your lawyer when you enter the polling booth to vote on November 3rd:

How will the candidates represent your interests as "consumer counsel?"

The Attorney General is required by state law to represent the "interests of the people as consumers." What does this mean to the candidates for Attorney General? Will either of them take an active role in investigating and enforcing Virginia’s Consumer Protection Act prosecuting actively those who deceive consumers by making false claims about their products or services? What action will either take to protect consumers’ interests when electric and telephone rates are reviewed by the State Corporation Commission? One past Attorney General helped reduce workers’ compensation insurance costs for businesses by aggressively fighting insurance rate cases before the State Corporation Commission. Others have been less active.

How will each candidate decide when to challenge or defend a law passed by the legislature, appeal a case or sign an amicus ("friend of the court") brief?
Past Virginia Attorneys General, acting on behalf of the people of the Commonwealth of Virginia (their ultimate client), have: 1) refused to defend the legislature’s decision to increase office allowances for members of the House and Senate (the legislature won); 2) defended at trial and on appeal a plainly unconstitutional statute passed by the legislature that sought to ban a particular abortion procedure (the so-called partial birth abortion bill); 3) filed lawsuits attacking the application of certain EPA rules and the federal Motor Voter Law to Virginia; and 4) authored or signed briefs that advocated severe limitations on the right of individuals to sue the state for discrimination under the Americans with Disabilities Act, the Age Discrimination Act and Title IX of the Education Amendments of 1972.

How will this year’s candidates make these decisions? Will their choices reflect their personal beliefs, those of their respective political parties or some other standard? Will they consult with the Governor before committing the people of the Commonwealth to a side in a legal dispute?

Will the candidates be "activists" or "strict constructionists when it comes to interpreting the law?

The Attorney General is required to issue formal opinions regarding how the law should be interpreted when asked by certain public officials. The questions asked each year cover far reaching issues from the legality of "pull tabs" in fraternal lodges to the right of localities to regulate shooting ranges to the Lieutenant Governor’s authority to vote as "a member of the Senate."

Just as it is important to know how a judge will apply the law, it is important to know how a candidate for the office of Attorney General will carry out this judge-like responsibility.

One example shows the power the Attorney General can wield through the opinion function. In 1962-63, in 1966-67 and in 1991, three Attorneys General opined that it was unconstitutional under the Virginia Constitution for public school divisions to provide free bus service to students attending private religious schools. The three Attorneys General interpreted the Virginia Constitution as setting a stricter standard for the separation of church and state than is set by the First Amendment. This longstanding interpretation was never addressed by the Virginia legislature nor overturned by the Virginia courts. In 1995, stating simply that "I am of the opinion that these prior opinions do not accurately state the current law," then Attorney General James Gilmore issued an opinion overruling the prior opinions and interpreting the law as permitting local school divisions to provide bus transportation to students attending private religious schools. How will this year's candidates approach this important duty?

Will the candidate be a good steward of your tax dollars?

The Attorney General of Virginia, who makes a salary of $150,000 a year, is the managing partner of a public law firm with almost 350 employees and a budget of more than $36 million -- not including the cost of additional lawyers paid for by various state agencies but supervised by the Attorney General, and the millions of dollars spent annually on outside counsel (private lawyers and law firms) who handle matters ranging from issuance of bonds to collection work.

What steps will each candidate take to be sure that dollars spent on the state’s legal work are well invested and that the quality of representation provided to taxpayers is high? What will the candidates do to improve the state’s collection of debts owed and fines and penalties unpaid? How will each candidate account for the $9,000 a year that he will receive as Attorney General for expenses "not otherwise reimbursed?"

Will the candidate’s management practices as Attorney General reflect a commitment to full equality of opportunity at all levels?

The Attorney General can hire and fire employees at will. Will the candidate seek and hire employees based on merit? Will the candidate commit not to discriminate in employment based on race, national origin, gender, religion, disability, Veterans’ status, sexual orientation or gender identity? Will the candidate commit to ensure that the Office’s hiring and personnel practices reflect a commitment to merit over political affiliation and full equality of opportunity and compensation at all levels of employment? How will each candidate assure that the contracting and procurement practices of the Office of the Attorney General under his leadership assure that small, women and minority owned businesses get their fair share of the state dollars that the Office spends?

How the candidates for Attorney General answer these questions will reveal much about what kind of leader each will be in the role he is now seeking and more about what kind of leader he might be as Governor when he (inevitably, it seems) decides to move up in four years.

Save Lives Save Money

100,000 Lives Lost Each Year; $45 Billion Wasted

A critical issue that must be a part of any health care reform initiative is patient safety. Reducing hospital acquired infections and preventing in-facility accidents and medical mistakes will save lives and money.

Consumers Union reports that hospital acquired infections and other preventable medical injuries continue each year to kill 100,000 people and cost the health care system at least $45 Billion dollars. That's no change since the original To Err is Human report was published 10 years ago. Think about that folks ... that's like the airline industry crashing 300 jumbo jets a year with no one raising any serious questions about airline safety practices. And, the failure to respond effectively to this issue has allowed 1,000,000 people to die in the last decade without serious outcry from the public.

I first wrote about this in a two part article that appeared in Richmond Woman magazine in June and July 2005. In the second article, I recommended adoption of a simple proposal that would begin to make patient safety a "bottom line" concern for Virginia hospitals:

It is time to start paying for performance, and rewarding health care institutions that save lives and money. According to Leape and Berwick, “[t]he current reimbursement structure works against improving safety and actually rewards less safe care in many instances.” … In most industries, defects cost money and generate warranty claims. In health care, perversely, under most forms of payment, health care professionals receive a premium for a defective product; physicians and hospitals can bill for the additional services that are needed when patients are injured by their mistakes.” JAMA, May 18, 2005, page 2388.

In a report to Congress on March 1 of this year, the Medicare Payment Advisory Commission concluded, “it is time for the Medicare program to differentiate among providers when making payments.” The Commission called for Congress to instruct the Medicare program to design a pay-for-performance system that rewards improvement, as well as attaining or exceeding certain benchmarks.

It is time for us to call on the Virginia legislature to implement a Medicaid reimbursement system that is structured to reward institutions that implement these safe practices. Private insurers should follow suit.

Since I wrote this, the Medicare system has adopted rules that prohibit reimbursing hospitals and health care institutions for the costs of preventable medical injuries and infections. And, private insurers, including Anthem's parent Wellpoint, have taken action as well.

What has Virginia done?

• Adopted a "disclosure" law (enacted in 2005 but not effective until July 1, 2008) that requires hospitals to report hospital acquired infections to the CDC and the Board of Health and permits the Board of Health to release the information to the public "upon request." Consumers Union says that this is "not desirable" and that "web based reports are the way to go." Other states have much stronger reporting and disclosure laws.
• Failed to adopt budget language proposed by Governor Tim Kaine that would have allowed the Department of Medical Assistance Services to issue regulations conforming hospital reimbursements under Medicaid to the federal rule prohibiting Medicare from reimbursing for the costs of preventable medical injuries and infections. The language in the Governor's proposal was:

ZZ. Effective July 1, 2009, the department shall have the authority to amend the State Plan for Medical Assistance to eliminate reimbursement for hospital acquired conditions in a manner similar to the Medicare initiative implemented October 1, 2008. The department shall have the authority to implement this reimbursement change effective July 1, 2009, and prior to the completion of any regulatory process undertaken in order to effect such change. The department shall also revise its medical necessity criteria to be consistent with Medicare national coverage determinations as part of the overall Medicare initiative.

What can you do?

• If you care about patient safety and reducing the cost of health care, it's time to ask your Virginia legislators why this language wasn't in the final budget adopted during the 2009 Session, and to ask candidates for statewide office or the House of Delegates to commit to support this important change in Medicaid reimbursement rules in the future.
• In addition, take action though the Consumers Union Safe Patient Project to ensure that this issue gets priority treatment during the debate on health care reform.

Not acting means your loved one may be the next casualty of a system where mistakes pay. Take action now to save lives and save taxpayer dollars.

Update:
1) The America's Affordable Health Choices Act of 2009 would require disclosure of hospital acquired infections and conforming Medicaid reimbursement policies to Medicare's. See Subtitle E at page 654 of the introduced bill.
2) A Washington Post article by Lisa Rein published today, Hospitals Tally Their Avoidable Mistakes, includes the following information about recent developments in Virginia:

In Virginia, which so far is requiring reporting only of serious infections caused by IV insertions, the state hospital association is trying to get ahead of the curve: On behalf of the state's 95 hospitals, it reached a deal last month not to bill for several errors caused by hospital staff. "The hope is to send a message that if we make a mistake, we're going to own up and take the consequences," said Katharine Webb, the association's lobbyist.

Anthem Blue Cross and Blue Shield, Virginia's largest private insurer, has stopped paying hospitals for four surgical mistakes: when a wrong procedure is done; when the wrong body part is operated on; when the wrong patient is operated on, and when a foreign object is left inside the patient, requiring another incision. "We wanted to raise the profile of patient safety," said Jay Schukman, regional president and senior medical director for Anthem Blue Cross and Blue Shield's East Region.

An exeperience "sweet and sad" .. reflectons on the death of my General

I saw this moving quote from a Walt Whitman poem , The Wound Dresser, on the wall of the north entrance to the Dupont Circle Metro Station in DC today:

Thus in silence in dreams' projections,

Returning, resuming, I thread my way through the hospitals,

The hurt and wounded I pacify with soothing hand,

I sit by the restless all the dark night, some are so young,

Some suffer so much, I recall the experience sweet and sad, ...

The poem spoke to me powerfully because I've been struggling since Memorial Day to find words to define or convey something of what I felt and experienced during the long days and nights spent during the month of May with my father at Walter Reed.

Being there for my dad in a place and at a time when many young men and women were brought to the ICU gravely injured (six from Iraq one night), watching most of them "graduate" to the wards, seeing their predecessors farther along in their recovery moving confidently around the hospital with new prostheses/high tech wheel chairs, babies in laps, wives/husbands by their side, sharing a quiet moment of concern or hug with a soldier's parents, wife, brother, sister.

It was a layered emotional experience ... desperate hope for recovery, palpable pride in service and sacrifice, and what seemed to be uniformly high morale in the face of very difficult challenges.

And, my bedside vigil paled in comparison to the four year (and counting) investment in recovery made by one soldier's parents or to the sacrifice and commitment offered by the capable caregivers called up to serve from their "other lives" ... reservists who hadn't expected to have to set aside their families and practices, leave sheet covered furniture behind in empty homes .. to spend months on end filling in, without complaint, the gaps in the military's medical staff . A staff stretched beyond capacity by the critical care needs of young soldiers (and sailors and Marines) wounded in conflicts difficult to explain or comprehend.

"I recall the experience sweet and sad..."

Death of a Retired General Officer

This message went out from General George General W. Casey, Jr., Chief of Staff of the U.S. Army, today:

DEATH OF A RETIRED GENERAL OFFICER 17 JUN 09. "It is with deep regret that the Secretary of the Army and I inform you of the death of General John R. Guthrie, United States Army, Retired. He passed away on 25 May 2009 in Washington, DC. As a mark of respect to the memory of General John R. Guthrie, the national flag will be flown at half-staff at all installations, activities, and vessels of the Department of the Army in the District of Columbia and throughout the United States and its territories and possessions, from reveille to retreat on the day of interment 30 June 2009."

I am so very proud and grateful that the Army my father served and loved for more than 39 years has accorded him this amazing honor. His example of people centered leadership (in partnership with my mother for almost 58 years) will continue to guide and inspire me for the rest of my life as it has to this day.