The Atlantic: Virginia’s Pathetic Leadership

With proposals such as mandated ultrasounds for abortion seekers and bans on Sharia law, state legislatures avoid actual governance in favor of dead-end ideas.

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Virginia’s attempt to intrude (literally and figuratively) upon the privacy of its pregnant women would be bad enough if it were merely a rare example of state lawmakers unhinging proposed legislation from law, science, and sense. Unfortunately, however, such official recklessness has become a national trend. All over the country, and especially since the 2010 election that swept Tea Party candidates into office, local lawmakers have spent a great deal of time and effort promoting measures they either don’t fully understand or can’t reasonably believe are constitutional.

Here’s how The Washington Post explained how and why Virginia’s anti-abortion measure got as far as it did before enough grown-ups began to pay attention:

Confusion over the legislation and ultrasounds — and considerable national media attention — preceded the unraveling of the bill. The original measure stated, simply, that a woman needed an ultrasound before an abortion. Many lawmakers did not understand that at the young fetal age abortions usually occur, the invasive vaginal ultrasound would be needed to establish gestational age, as required by the bill.

The fact that these lawmakers evidently didn’t understand what their law would mean to women, and what it would require of doctors, didn’t stop the legislators from pushing forward with the measure anyway. Ignorance of the law may be no legal defense to you and me, but ignorance of the law among those who are passing the law surely is the definition of bad governance. For the politicians now scrambling away from Virginia’s measure, however, pleading ignorance perhaps is easier today than confessing the truth, which is that the pols who supported the measure probably didn’t care in the first place if its mandated procedures offended women. That was the whole point, wasn’t it?

At a minimum, the barely-averted disaster in the commonwealth raises questions about whether the same intellectual disconnect is happening in New Hampshire, where the Republican-dominated legislature is pressing ahead with anti-abortion measures over the objections of medical experts. Or in Iowa, where a GOP lawmaker recently introduced a bill that would ban abortions and generate potential life sentences in prison for doctors who perform what the law calls “feticide.” Or in Nebraska, where legislators are considering a bill that would create a legal defense — justifiable homicide, it’s called — for the murder of a doctor who intends to harm a fetus.

It’s not just the divisive issue of abortion that has generated legislation divorced from reality. According to Bill Raftery, who smartly tracks such trends at the Gavel to Gavel site of the National Center for State Courts, 22 states have legislation pending now that would ban the use of Sharia law or international law in their state courts. Never mind that there is no discernible proof that state or federal judges are suddenly swooning over sharia law, or that there is some vast judicial conspiracy afoot to supersede constitutional doctrine with foreign principles. It’s enough that the proposed legislation merely suggests that this is so.

Most of these newer anti-sharia measures do not explicitly use the word “sharia law” — a lesson lawmakers seem to have learned from the thumping Oklahoma’s voter-approved Sharia law ban has received so far from the federal courts that have reviewed it. Such stylistic alterations likely won’t matter. The Bill of Rights and the Constitution — which were themselves based upon English common law and other international norms — forbids the government from discriminating in this fashion. Did I say discrimination? In Iowa, a measure now before the state senate would imprison any judge (on a Class 4 Felony) who employs international law in a decision.

Indeed, the past 16 months have seen persistent and pernicious efforts by state lawmakers to undermine the independence of the judiciary. I have written about this topic before as it relates to New Hampshire. But it’s rampant all over. In Arizona, lawmakers angry about a state court’s redistricting decision are trying to punish the state’s judicial system by dramatically reducing the number of appellate judges from 22 to six. Meanwhile, in Maryland, Florida, Minnesota, and Tennessee, to name just a few states, conservative legislators are seeking to strengthen rules that would allow “commissions” to remove judges from office for unpopular decisions. Kansas has even managed a quinella, combining anti-judicial sentiment with the “birther” movement, by pushing a measure that would require judges to prove their citizenship.

At a time of great economic turmoil and pain, while Americans have clamored for jobs and financial security, how many thousands of official hours have our state legislators spent since the 2010 election on bills that purport to solve problems that don’t exist (like a Sharia-led takeover of American law) or which cannot exist in conformity with criminal law (like a state law which protects those who kill abortion providers) or which contravene individual constitutional rights (like laws that are aimed at religious minorities)? These legislative Jeremiads, frivolous even in the best of times, seem downright obscene today.

America, sadly, has grown accustomed to “symbolic” legislation which is designed not to advance the public good, or even to become sustainable law, but rather to appease particular interest groups. The campaign promise becomes the pending measure; the donor’s crusade becomes the subject of public hearings. And what is squeezed out of the legislative process as a result of such pandering is the more moderate legislation, the more practical measures, which do stand a chance of passing constitutional muster and which do solve real problems in sensible ways. That’s no way to run a country — or even a state.

When public outrage forced them into a choice this week between appearing stupid about the ultrasound law or appearing venal toward it, Virginia’s Republican lawmakers, and the Commonwealth’s governor, chose to act stupid. It’s a choice that zealous lawmakers all over the country would be forced to make if their own senseless, unlawful legislation ever made it to the Supreme Court. But chances are those bills never will. Instead, America’s pet legislation will continue to whistle to all the political dogs out there while wasting everyone else’s time and money.

Taken from Andrew Cohen’s essay in The Atlantic.

Posted by Peter Galuszka

15 Responses to The Atlantic: Virginia’s Pathetic Leadership

  1. the group to watch on this issue is not the left. They’re going to jumping like Tasmanian devils …as expected.

    The people to watch are the ones in the middle and the second group – women of all political stripes.

    and of course the really, really bad thing about all of this is that it did not happen the last week in Oct because the memory of it would have been fresh enough to assure a GOP blood bath.

    Unfortunately between now and Fall – the GOP will morp back into “respectable” fiscal conservatives and have wonderful excuses about “not understanding” what they voted on in February.

  2. I was interviewed on WRIR radio this morning (Will Snyder’s “Open Source” show), mainly about transportation — which no one is paying attention to. I characterized the General Assembly’s focus on culture-war issues as the Republican Party’s “id” on display. The R’s had better get their primal impulses under control, or they will be the minority party in two years.

  3. Peter, do you have a link to the Atlantic piece?

  4. Jim,
    Maybe, but you are sure fast to apologize for these people. LarryG’s right. Once this blows over, we will be listening once again to more righteous GOP lectures on financial responsibility, “ids” or no.

  5. Here’s the bottom line. Republicans in Virginia and Nationally have some incredible built-in advantages that make them natural choices for many people in elections and they’ve benefited enormously from that advantage in elections.

    but it’s almost as if they can’t stand their own success and are destined to succumb to the far right wing ideological zombies that infest their ranks much like a drug-resistant infection.

    I trace this back to the point in the not-to-distant past when the here-to-fore apolitical evangelicals decided to “get involved”.

    From that point on – the party of fiscal values became infected with various “social” and “family” values which is very oxymoronish given the chronic hypocritical behaviors of many who claim such virtues.

    The Republican engine now is running on contaminated fuel sputtering and wheezing and trying to get back to running smoothly but doomed from it’s bad fuel.

    The GOP tended towards delusional views anyhow given their insipid insistence that cutting taxes always supercharged supply side economics and Reagan “proved it”.

    so ..it’s not too surprising that those weak in their thinking to start with could succumb so easily to the tortured lunacy logic of the whacko right.

    the GOP’s “big tent” welcomes conspiracy theorists of all stripes from the Secret Muslim of Obama to Global Warming to Agenda 21… all welcomed with open arms.

    Finally those who profess to be Pro-Life but also oppose contraceptives… now, not only tolerated but invited to lead the party.

    this proves there is no God. If there were, the man would busy, busy, busy.

    :-)

  6. It is heart warming to see many on this blog finally coming to the realization that our General Assembly is truly The Clown Show in Richmond.

    However, the buffoonery crosses political lines. Who can forget Tim Kaine’s signature transportation bill that was written and passed by the lawyer laden General Assembly, signed by lawyer-governor Kaine and then almost immediately held unconstitutional in a unanimous decision of the state courts?

    Who can forget Dick Saslaw’s comment in a crowded elevator in Richmond during a legislative session a few years ago – something to the effect of, We must be debating gun control today. This whole place looks like a scene from Deliverance?

    Who can forget that 100% of the Democratic State senators who get 100% of the money paid by organized labor to state senators voted to allow mandatory PLAs in a right to work state?

    The real tragedy isn’t just that we have a Clown Show in Richmond. The real tragedy is that the Clown Show is almost omnipotent. Between the one term governor, no elections for judge, Dillon’s Rule and other contrivances the General Assembly is the all powerful nanny in our nanny state.

    The governance process in Virginia is broken. The General Assembly has too much power and too little competence. It is time for a new state constitution.

  7. G. Groovy,
    It’s not “heart warming.” It is “heart wrenching.”

  8. I think a LOT of state legislatures are SIMILAR to Va. After all, around 10 of them have ALREADY passed required ultrasounds for abortion.

    and after all is said and done..when Kaine signed … he was only agreeing with a majority of the signers of that legislation presumably with both the GA and the Gov having legal counsel…. also…

    I do not forgive the GA their transgressions – I only point out that there are 49 other similar ones and at least in Va – we do have a reputation for fiscal responsibility and operation… which essentially allows the social zealots to masquerade as “ordinary” conservatives.

    I keep saying – Home Rule in exchange for the right to recall and initiate referenda but otherwise, I’d not trust Fairfax or any other jurisdiction to do any better than the Clown Show..just take over the franchise.

  9. DJ – remember that the transportation bill was originally thought up by then Attorney General/now Governor McDonnell and push thru by a strongly R House of Delegates, let by the now-Speaker Howell and now-majority leader Kirk Cox. Bosun

  10. ” I’d not trust Fairfax or any other jurisdiction to do any better than the Clown Show.”.

    When Spotsylvania County votes whether or not to implement home rule you can vote “no”.

    However, you have no voice in any other jurisdiction.

    Why do you think it’s your right to decide how we should govern ourselves in Fairfax County?

  11. Bosun:

    Your point is well taken. However, it amplifies my point. Regardless of who is in power or in the majority – our General Assembly is shambolic.

  12. LarryG:

    No state legislature is similar to Virginia.

    For example …

    Virginia is the only state in the US where the governor cannot serve two consecutive terms.

    17 states have term limits for their state legislature. Virginia is not one of those states.

    Only four states let their state legislature elect high court judges. Virginia is one of those four states.

    In 27 states, citizens can place matters on the ballot through some form of initiative or referendum process. Virginia is not among them.

    Four states have independent cities. Missouri, Maryland and Nevada each have one. Virginia has 39.

    Only four states hold state elections on “off years” (i.e. odd numbered years). Virginia is one of those states.

    Virginia has, by far, the most arduous process for national politicians to get on the primary ballot.

    19 states allow some form of recall election for state politicians. Virginia is not one of them.

    13 states have some form of non-partisan redistricting commission. Virginia allows the state legislature to draw the district maps.

    4 states held legislative elections in 2011. Ballot News rated Virginia the least competitive of the four.

    Using Ballot News’ absolute index of state election competitiveness, Virginia has the least competitive state elections in the United States with a rating of 19.6. The next least competitive was Texas in 2010 with a rating of 20.8.

    Virginia has many counties relative to its total size. Virginia ranks #49 in average county size (by sq mi). Only Rhode Island has a lower average county size.

    LarryG – The Clown Show is both inept and over-powered. Virginia’s governor is an extremely weak position limited to one consecutive four year term. Virginia’s judiciary is under the thumb of the Clown Show. The localities are too small, riddled with independent cities and subject to a very strict implementation of Dillon’s Rule.

  13. re: ” Why do you think it’s your right to decide how we should govern ourselves in Fairfax County?”

    because it would set a precedent for other counties but I’m pretty agnostic about it for the most part.

    re: similarities to Va.

    You’ve convinced me that we are different but I still think we are, on balance, one of the better run states in terms of fiscal responsibility.

    I worry about our unfunded pensions but we are better than many states and I worry about borrowing for roads… that’s gotten some other states in trouble.

    what you did not mention about other states is that many allow citizen referenda and the right to recall elected.

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