Legislating is Harder Than It Looks!

I have to say, this year of local political activism has been quite humbling. Humbling to know that I should’ve been paying attention to a lot of this before now. Humbling to meet people who’ve been doing this for decades. Humbling to know that there are people who hold office and run for office who are willing to work a hell of a lot for crappy pay (unless they go with the somewhat unethical use of campaign funds allowed by Virginia law). Humbling to realize just how hard it is to run for office, to raise money, to run a campaign…a Caucus…a party.

And now, it’s humbling to learn how hard it is to legislate! Not in the way I’d have thought though. It turns out that legislators don’t have to know all the legal language and the Virginia Code, and every line of the Virginia Constitution. They don’t have to know which laws are on the books or not, which potential laws might conflict with federal laws. Nope, that turns out to be the easy part—there’s a whole legislative services staff of lawyers who do all that.

What’s hard is that not every problem has an easy and obvious solution. The solution that helps fix one problem may cause others; the solution that helps one person harms another.

I’ll give you some examples, from bills I’ve been paying attention to. The first is HB203, HB188, and SB35, which are very similar in language “snitch bills.” A snitch bill basically reduces the sentence of someone serving time in exchange for testimony that can be used to convict someone else of some other crime.

Here’s why snitch bills are terrible: they increase the chances of wrongful convictions. They encourage prosecutors and Commonwealth Attorneys to threaten those facing jail time with more strict sentences if they “don’t cooperate.” (You’ve all seen this on Law & Order episodes, right?) And surprisingly, cooperating sometimes means making up completely fabricated stories—sometimes at the specific prompting of the prosecutor—about somebody else, to save your own skin. This is a really bad outcome, right?

So why might our legislators support “snitch bills?” Well, apparently snitch bills are one viable solution to a problem that is really severe here in Virginia—long jail sentences, even for minor offenses. And it’s hard to pass legislation to lower sentences for offenses—many don’t want to be seen as soft on crime. So snitch bills allow them to reduce the amount of time people spend in jail. But also increase the risk of putting innocent people in jail. How do we weigh the benefits of reduced jail time against the costs of increased risk of wrongful convictions?

My second example is another criminal justice issue. HB645 and SB68 would allow someone taken into custody to be strip searched based on suspicion of possession of a controlled substance. Outrageous, right? A violation of someone’s dignity and human rights, and certainly likely to be a policy that is abused by correctional officers, and probably applied in a discriminatory way.

But also, people are dying in jail from drug overdoses because of drugs being smuggled in in body cavities. This has always been a danger, but looks to be becoming more prevalent with the current drug crisis. How do we weigh the benefits of preventing these deaths against the costs of people’s human rights being violated?

In my third example, we have two different solutions to the same underlying question: can we reduce reliance on private funds for election campaigns? HB263 filed by Delegate Simon would issue a hundred dollars in vouchers to every registered voter to be spent on donations to any participating candidate. Candidates who participate must agree not to take large donations from any other individual, business, or organization, and must agree to certain spending limits. But if they participate and their opponent does not, and their opponent raises a substantial amount more money, there’s a waiver to get out of the spending and donation limits.

HB275 filed by Delegate Rasoul, on the other hand gives every participating candidate a certain base amount (i.e. $2,000,000 for gubernatorial candidates), and then matches small individual donations at varying rates over the election cycle, up to a set maximum (i.e. $4 per registered voter for gubernatorial races) from a state fund set up for this purpose. Again, participants must abide by limits on donations from individuals and organizations, and spending limits.

Comparing the two alternatives is complicated. Some goals that we might want to consider include: lowering overall spending on elections, incentivizing candidates to refuse large donations, giving more voters—especially those who typically can’t afford to donate to politics—a voice in campaigns, encouraging candidates to run who might otherwise find it too financially difficult to enter a contest, and so on. At the same time, it’s important to consider how much each alternative would cost the public, especially bearing in mind that with different incentives come different expected behaviors by candidates, donors and voters. Legislating is harder than it looks, right?

I’ve always thought, and there’s a part of me that still wants to think, I’m not a policy expert, I don’t need to read every line of bills and figure out whether I agree with them or not—that’s what I elect someone else to do. But here’s the problem: money in politics makes me look through that lens all the time. So, in part, I look at every Republican-sponsored bill with a chip on my shoulder, looking to see which fat cat corporation will benefit from it (but sometimes a bill like HB242 filed by Delegate Webert comes along, that seems to defy that expectation). But I look with a skeptical eye to Democrats’ bills too, because those in my party take plenty of donations that could create a conflict of interest too. So when I see a bill that I’m not sure I agree with, my first thought is: what lobbying group or corporate donor might be pushing that legislation? I go check their big donors on VPAP. It’s sad and unfortunate, because the vast majority of the legislation I’ve seen filed is really amazing, and is clearly designed to tackle real problems faced by people across the Commonwealth. But the possibility that somebody’s money bought a piece of legislation taints that.