Category Archives: General Assembly

Somebody Must Think We’re Stupid

David Poole and his team at VPAP have provided another illustration of how the reporting requirements placed on lobbyists at the state Capitol are intentionally vague and useless.  The chart above deals with the reports on lobbyist compensation.

This is usually the figure at the heart of the occasional stories about the amount spent by an individual company, or the gross amount spent on lobbying by all who file these forms.  But in practice almost nobody reports in full what they are paid, and they of course do things other than lobbying with their time.  So they pro-rate their fee and salary and report only a portion of it.

Who draws the line?  Who picks the formula for pro-rating the time? The lobbyist or the principal do so for themselves and are never asked to report their rationale.  That’s why comparisons are impossible – some report 5 percent and some 100.  Partly there is the natural reluctance everybody has to reveal their income, but there is also a reluctance to stand out as a big spender on charts like those produced by VPAP or in a news story.

A Peek Inside the Process

Years ago, one of the best lobbyists I ever worked with, a fine lawyer, instructed me that only the time I spent talking or writing to a legislative or executive branch official about a specific bill or vote was lobbying.  The time I spent researching the issue, drafting legislation or talking points, driving to the meeting, sitting in the anteroom – none of those hours, the bulk of the time, constituted lobbying.  The ten or fifteen minutes in the room, that was the only actual lobbying.

This all flows back to the very narrow definition of lobbying in Virginia law, which does not get into indirect lobbying or grassroots lobbying or lobbying preparation, all things that come up when companies are deciding what is and isn’t lobbying for federal tax compliance purposes.  This situation is too ridiculous to be accident or oversight, and extremely convenient for both the lobbyists and the lobbied.

Compensation is not that relevant.  What matters far more, the real glaring gap in the reports, are the details about what specific subject matters, bills, budget amendments, gubernatorial appointments or procurement decisions are being influenced.   The shameful gaps in the reports include loopholes that allow expensive dinners, gifts or entertainment to be given with no recipients named, or money to shuffle between various entities under the guise of some unregistered coalition.

Also, the full extent of grassroots or indirect efforts needs to be revealed.  More and more issues now spark television, direct mail, phone bank and other campaign style communications efforts, and every dime spent on those should be just as transparent as if they were being spent on a candidate.

One area where compensation should be reported in full is when the client is the government.  Beyond that, we need to focus on those other more important failings in the current non-disclosure disclosure regime, although this contribution by VPAP is useful in demonstrating that somebody out there thinks we’re stupid.

Sport of Kings Needs Peasants Playing Slots

Horse Race Slot Machine Circa 1937 (Not What’s Coming Now)

The Sport of Kings apparently cannot survive today unless between races the peasants are pumping their copper into slots.

“The new law acknowledges what several other horse racing states already have concluded: that the new economic realities to sustain a viable horse racing industry require an alternative form of gaming to offset the high cost of live racing,” writes industry advocate Jeb Hannum in today’s Richmond Times-Dispatch.

The column hit print two days after a Virginia Racing Commission (VRC) public hearing on implementing the proposal approved by the 2018 General Assembly to allow up to 3,000 “historical horse racing” machines.  No machine was on display during the meeting, and the commission apparently wants to see one before making some decisions. 

“I want to see one of those machines sitting right down here. I want someone to explain exactly how that machine works. And why it’s not a slot machine,” said Commissioner I. Clinton Miller. “I want to be able to look people in the face and say ‘This is different. This is not Charles Town. This is not Las Vegas.’”

Looks like a slot machine to me.

Taxable Wager Data from VRC Annual Report

All of this is rehash but Bacon’s Rebellion adds value. Pari-mutuel gambling has been legal in Virginia less than 25 years, making it slightly younger than the far larger and more ubiquitous state lottery. According to the VRC annual report, total wagering (the licensed kind) since 1996 is slightly under $3 billion, far less than the $37 billion taken in by the state lottery.

The placement of Colonial Downs in New Kent, instead of far more populous Northern Virginia or vacation destination Hampton Roads, ranks as the one of the dumbest economic development decision of the age. Revenue was anemic and declined rapidly after the recession of 2008.

Colonial Downs closed the track and eight off-track betting facilities in 2014, and only limited racing has taken place at other locations, detailed in the report.   Virginia Equine Alliance, Hannum’s group, has since opened three satellite wagering facilities of its own with three more planned.

Those spread the revenue to localities. Before its collapse Colonial Downs was sharing revenue with nine localities, peaking at about $1.4 million in 2006 and 2007. Last year six localities received almost $400,000 in revenue, most of it for New Kent. The localities attending the hearing Tuesday clearly want plenty of local machines.

But technology is changing. Starting in 2004 “advance deposit wagering” by internet or telephone was allowed and almost $800 million in bets were placed that way through 2017, the largest source of revenue since the track closed. Four different websites are linked to the VEA website, with this as a fair example. With the Virginia Lottery happily taking bets via subscriptions online, that will be next for horse-race gambling.

Two more interesting links for background: the key roll calls in the House of Delegates and State Senate on House Bill 1609, which authorized the expansion into machine gambling. They too were placing a bet that Virginia’s voters are less antagonistic to gaming by machine than in the past.

Lobbyist Forms Not Mentioned At Council Meeting

A Peek Inside the Process

The state’s Conflicts of Interest and Ethics Advisory Council met Tuesday making no mention of  my column published in July 21’s Richmond Times-Dispatch, pressing for specific bill numbers, budget item numbers and other details on the state’s lobbyist disclosure forms.  I had been told in advance the issue wouldn’t be added to the agenda.

In fact the council’s meeting lasted less than 30 minutes, had no business items, and the only vote was on previous meeting minutes.  Those minutes reveal that the June meeting’s big decision was to approve a staff suggestion to add student loan balances among debts disclosed by public officials.

I don’t want anybody to think I’m making up the complaint that the forms disclose nothing at all, despite a direction to be as specific as possible, so I pulled a few examples at random.  Who owns up to working on which of the 3,722 individual pieces of legislation at the 2018 session?   

As previously noted on July 9 most of the filings lack specifics and the Conflict of Interest and Ethics Advisory Council has sent signals this is acceptable with its published examples.

Loudoun County Chamber of Commerce: “Business Issues.”  Well, that narrows it down to 600 or so bills.

Virginia Chamber of Commerce: “Executive and Legislative Actions and Procurement Transactions.”  I looked at this a few times before I realized it simply repeated back the phrase from the question.    

Mecklenburg County: “Matters involving issues affecting local government.”

Fairfax County Water Authority: “Matters of interest to the Fairfax County Water Authority, including but not limited to, issues arising under the Virginia Water and Waste Authorities Act.”  But not limited to. 

Norfolk Southern Corporation: “All matters affecting Norfolk Southern Corporation.”

City of Norfolk: “Local government.”

Virginia League of Conservation Voters: “Matters related to land conservation, land use, energy issues, and transportation financing.” Continue reading

The Underground Saga Continues: I-66

October 2017: Legislators and Prince William County supervisors announce support for an underground transmission line paid for almost in full by other people’s constituents. U.S. Senate nominee Corey Stewart is second from left, Hugo fourth from left.

The saga of expensive underground transmission continues:  Now comes the Dominion Energy Virginia 230-KV line along I-66 which is needed for an Amazon facility and the growing data center industry. The State Corporation Commission has signed off and reports in the order a cost of $170 million or more to build it.

Every step in this process has been heralded by press releases from Delegate Tim Hugo, R-Centreville, who sponsored legislation to order the SCC to approve the underground approach, which then became a major chip in the poker game behind the 2018 Dominion Energy legislation. The power line to serve the data center was first opposed outright, and then the push was to bury it. The parties reached an agreement on this route a few months ago.

“Now that the State Corporation Commission has accepted Dominion’s application, western Prince William County residents can be assured that the Haymarket power lines will be buried,” said Del. Tim Hugo, R-Centreville, in  a release Friday. “This community-led effort, which I was proud to contribute to, will ensure the quality of life in western Prince William County is maintained. Last year, I promised to pass legislation to bury the power lines, and working together, we did.”

The SCC estimated the cost of the 5-mile overhead project, which includes a new substation, at $51 million. So, that’s our cost to deliver reliable power in that region to Amazon and others, and $120 million extra is charged to maintain the lustrous beauty of I-66 through three miles of the  route. Much of the route east of Haymarket is lined by subdivisions and 100-foot towers would be hard to miss.

Again, as with the previously-discussed plan to place 4,000 miles of small residential tap lines underground, the cost is paid by all company ratepayers,  it is paid off over a very long period with a comfortable profit margin, thus the final all-in cost is more than twice the initial window sticker. As seems to be the rule now and not the exception, the General Assembly and Governor overruled the decision made by the commission to go with a lower-cost option. What the SCC “accepted,” to use Hugo’s word, is its reduced circumstances.

Utility transmission improvements should be paid for by ratepayers across the system, but the trade-off is that the regulator should be zealous about demonstrated need and reasonable cost. The idea is to prevent the raw political horsetrading on display here.

The neighborhood underground program is paid for with a special rider on everybody’s bills, Rider U, but this Haymarket transmission project will eventually be incorporated in the larger Rider T. The enactment clause in the 2018 bill that ordered the SCC to approve the underground approach also authorized a second “pilot project,” yet unnamed (a card still face down on the table.)

A powerful precedent has been set and those two projects may be followed by more. Large overhead power lines are very unpopular and the path to force them underground has been found. The added cost also adds profit for the utility. This is just another skirmish in the overall battle plan to leave the SCC and anybody else putting consumers first dying in a ditch.

Want more evidence? I commend to your reading a report in the Times-Dispatch that, buried in the recent 200-plus application by Dominion Energy Virginia on its grid enhancement plan, is a request to avoid any cost-benefit analysis of that at all.

Dillon’s Rule, the RPV and the Marylandization of Virginia

by Don Rippert

Doppler shift from red to blue. As recently as 1977 both of Maryland’s US Senators were Republican.   From 1993 through 2003 Maryland’s eight US House seats were evenly split between Republicans and Democrats.   Today, Maryland’s 10 person Congressional delegation consists of 9 Democrats and a lone Republican.  This shift caused Maryland to be routinely rated as one of America’s most liberal states but also one of the worst states for conservatives.

Yes, Virginia there is a trend here too. Maryland last saw a Republican US Senator in 1989, Virginia made it to 2009.  In the state legislature nothing more than pure luck kept Republicans in control of the house.  Republicans still hold the state senate but all of those seats come up in 2019.  Maryland went from light blue to royal blue about 15 years ago and Virginia is tracking 20 years behind Maryland.  Simple math says that Virginia will be fully liberal / Democratic by 2023.  Arguably, the RPV’s recent bungling could accelerate this timeline.

In the RPV hope really does spring eternal.  Unfortunately, hope is not a strategy.  Hope gives Virginia’s Republicans a choice of EW Jackson (unelectable), Corey Stewart (unelectable) and Nick Freitas (a longshot, but maybe electable) in the recently held US Senate primary.  The rightwing radicals who vote in primaries insist on the futile opposition to abortion as a litmus test and voila … “unelectable” wins the Republican nomination.  When Stewart loses, those same lunatic fringe members will declare that Stewart just wasn’t conservative enough.  Fast forward to 2019, repeat the same RPV process and the Dems are in perfect position to dominate the statehouse right in time for the next round of census-driven gerrymandering.  Stick a fork in the RPV.

Judge Dillon’s revenge on Virginia’s conservatives.  Contrary to popular opinion there are some very conservative areas in Maryland.  They are too few to affect the state overall but they’re still very conservative.  Secession has been discussed frequently in Maryland’s Eastern Shore and recently in Western Maryland, the most conservative areas of the state.  Nobody thinks either plan has a snowball’s chance in hell of success but it’s “fun talk” anyway.  However, conservative Marylanders have something conservative Virginians don’t – local autonomy.  Even income taxes vary by county in Maryland.  So, a liberal county like Montgomery has a high county income tax (3.2%) and many government services while conservative Worcester County has a low income tax (1.25%) and fewer government services.  Conservative counties can stay somewhat conservative – even in the so-called Free State.  Once the libs get full control of Virginia everybody in the state will pour ever more money down the rabbit hole in Richmond.  Guns will become a dirty four letter word.  School curricula will be standardized along liberal lines and designated safe spaces will be mandatory for all government buildings (including schools).  When that happens I’ll be laughing at the addle brained Virginia conservatives who so loved our idiotic implementation of Dillon’s Rule here in the Old Dominion.  They’ll have it far worse than the conservatives in Maryland.

Public Meetings And Private Texts Don’t Mix

A Peek Inside the Process

As a registered lobbyist I am prohibited from walking onto or sitting on the floor of either chamber of Virginia’s legislature while in session, and can get no closer than the desk at the front door or the benches in gallery.  If I wish to speak to a member during session the custom is to send in a business card and ask that legislator to step out to the hallway for a chat.

I might provide an answer to a question they raised on the floor, offer a draft of some amending language, ask for a copy of something they have or ask them why they cast that last bonehead vote (well, I’d be more polite.)  If I ask them to the door just to discuss trivia they will not come next time I ask.

But wait!  That was the rule in the dark ages!  Now all I have to do to communicate with members at the height of floor debate (or committee debate) is email them on their laptops, now present and open on every desk, or even better text their personal cell phone.  The downside is there is a chance they will miss it or ignore me (a good chance, normally, which is why I still use the hallway chat), but the upside is the message may remain in the ether and never be subject to the Freedom of Information Act.

The huge holes in the Virginia’s public meetings and public records law caused by the new communications options were highlighted in a FOI Advisory Council debate Tuesday covered by Graham Moomaw of the Times-Dispatch.  The case at hand involved local officers texting among themselves during a public meeting and hearing from a member not in attendance (but not plugged in by phone as provided by law).  You can compare it to middle school kids passing notes and giggling, but sometimes the real decisions are being made in total secrecy with the public cut out.  This is a way to meet in executive session on matters that could not be the subject of a proper executive session.

Missing from the story was the discussion of how this has also changed lobbying.  The original intent of that quaint rule about lobbyists on the floor has been blown to pieces for several years now, and direct lobbyist communication is probably continuous all session long.  Amendments and votes are discussed directly, and bill language is parsed or changed.  It would make fascinating reading.  We will never get to read any of it.

Communication on Facebook and Twitter and other platforms is also common but I suspect are considered far less secure.  Most people work on the assumption that texts to private phones are FOIA-proof unless somebody chooses to leak or forward them.  Apparently the advice given during the meeting was that is correct unless and until the rules are changed.

So change them.  The law should prohibit electronic communications during legislative sessions or other public meetings about issues on the calendar.  Absent that (and it would hard to ban all communication) open the messages to full FOIA disclosure.  It would be fine with me to prohibit any communication with lobbyists during meetings on those electronic platforms, or to subject those to FOIA.  It would not be fine with many of the other lobbyists.

Open meetings means open meetings.  If you have something to say to a colleague, speak into the mic or go find a corner and have that conversation quietly face to face (knowing all of us in the room can see it happening). If the trends continue, it is possible to imagine a meeting where all the real debate goes on with no spoken discussion at all, and the outcome is swayed by a last-minute text from a lobbyist which will never be made public.  I bet it happens already.

OK, We Enacted Medicaid Expansion. Let’s Measure How Well It Works.

A “die-in” held at Capitol Square: Long on symbolism, short on data. Photo credit: Washington Post

So… The General Assembly has enacted Medicaid reform. That’s a big win for Governor Ralph Northam and Virginia Democrats, and potentially good news for 400,000 of near-poor Virginia adults who now will qualify for a healthcare program that will be 90% funded by the federal government and 10% by the state. It’s not such good news for budget hawks concerned about Medicaid’s runaway impact on Virginia’s General Fund budget or for patients who could pick up the tab for a new $300 million-a-year assessment on hospitals.

The reporting on Medicaid expansion, the biggest entitlement expansion in recent Virginia history, has been truly dreadful — a fact that I attribute to the downsizing of newsrooms across Virginia and the resulting inability of Virginia media to field the manpower to do anything more than cover General Assembly hearings. It is astonishing how little we really know about the impact this legislation will have on the cost and delivery of health care in Virginia.

My big questions now: (1) Will the program improve the health of Virginia’s near poor; (2) will it do so within the budget constraints that have been promised; and (3) how much of the cost, if any, will get passed on to the privately insured?

In all likelihood we will never know. That’s because no one appears to have identified benchmarks by which the effectiveness of the legislation can be measured. The politicians, activists and pundits will declare victory and move on to the next cause of the day. The last thing they want is to lay down markers by which this entitlement expansion can be judged to be effective or not. We don’t have the capacity here at Bacon’s Rebellion to do that heavy lifting, but we  can ask questions that are worth bearing in mind as the Medicaid juggernaut rolls forward.

Budget savings. A key promise in getting Medicaid expansion enacted is that the program will pay for the state contribution through savings in state programs. In theory, the Commonwealth will save $370 million in prison healthcare, mental health, indigent care funding, FAMIS pregnant women, and the like, over the next two-year budget. Will those savings materialize? I’m fairly confident that they will — budget items like this are among the easiest things to predict. But we won’t know for sure if we don’t check.

Impact on the Affordable Care Act. Steve Haner noted in a previous post that an estimated 60,000 Virginians now covered by Affordable Care Act health plans will be enrolled in Medicaid. What does it say about Medicaid expansion if, to a significant degree, it is just shifting tens of thousands of patients from one government-subsidized program to a different government subsidized program? Another question: Does Medicaid provide better coverage than Obamacare or worse? Yet another: What actuarial impact will the loss of 60,000 patients have on the Obamacare plans?

Speaking of Obamacare… The Affordable Care Act insurance markets continue their meltdown in Virginia. According to HealthInsurance.org, the weighted average of next-year rate increases filed by all insurers in Virginia is 13.4%. Some fraction of that increase can be attributed to Trump administration actions, but the markets also have been in a death spiral in which healthy patients bail out, forcing insurers to hike rates to cover the remaining, sicker patients. Regardless of who or what is to blame, it is difficult to appraise what is happening in the Obamacare markets. Plans vary so widely by the amount of deductibles and discounts negotiated from listed prices that it is impossible to compare Plan A with Plan B. The situation could be worse than it appears from comparing premiums alone. What will happen to the near-near poor (as opposed to the near-poor enrolled in Medicaid) if they get priced out of the market? Will Medicaid have to expand to cover them, too?

Quality of Medicaid care. Medicaid reimburses hospitals and doctors at the lowest rate of anybody in town, and most providers lose money on their Medicaid patients. Combine that with an acute shortage of doctors, and you get a situation in which it is exceedingly difficult for Medicaid patients to find primary case physicians. The General Assembly has done nothing to alleviate the doc shortage. Perhaps the managed care plans set up for Medicaid patients will devise work-arounds for the problem. Perhaps not. Nationally, there has been considerable debate about whether Medicaid patients are better off with Medicaid than if they just threw themselves upon the mercy of hospitals and doctors. Inevitably, that debate will be reprised here in Virginia. The Northam administration should settle upon metrics that track outcomes for Virginia’s near-poor population before and after Medicaid expansion.

Cost shifting. The financing of the health care system is stacked against the middle class. Hospitals shift a portion of the cost of treating their money-losing patients (indigent, uninsured, and Medicaid) to patients with privately insured health plans. Privately insured patients could get a triple whammy next year. Not only will they pay higher premiums due to general health care inflation (the first whammy), but they’ll eat the estimated $300 million hospital assessment enacted as part of Medicaid expansion (the second whammy). Plus, they could take another hit as docs and hospitals treat more money-losing Medicaid patients and shift costs to the privately insured (the third whammy). On the other hand, Medicaid expansion will inject a couple billion dollars into the system, so maybe cost-shifting pressures will diminish. Frankly, nobody knows. But it would inform future debate if someone tracked the numbers and performed the analysis.

Hospital profitability. With the exception of some rural hospitals, putatively nonprofit hospitals have consistently maintained high levels of profitability through the twists and turns of health care markets over the years. Will Medicaid expansion pad or diminish their profitability? I’m predicting that overall industry profits in Virginia will surge, but I could be wrong. Again, it would be helpful if someone kept track so we can understand what’s happening.

I offer this list just to get the conversation started. I’m sure readers can refine the thinking. What’s important is that we start measuring now. I would hate to find ourselves revisiting Medicaid expansion two or three years knowing no more than we do now.

Most States Use Provider Tax for Medicaid

The pending proposed amendments to the stalled state budget bill, which almost broke the log jam earlier this week, did indeed include not one but two new provider assessments/fees/taxes (you pick the term) on Virginia private hospitals. When both chambers return next week with their “this time we’ll really do something” promises on the line, the fate of both should be determined.

The payments are interchangeably referred to as taxes, fees or assessments around the country. Virginia already imposes one on intermediate care facilities and only one state, Alaska, has avoided any use of this revenue method for Medicaid.

Based on my short research the federal government allows the states to use these “tax the provider to pay the provider” schemes on the whole range of providers, and most states do also tax nursing homes. Others tap pharmacies and managed care providers. There are good summaries here from the National Conference of State Legislatures and from Kaiser Family Foundation. The federal rules do limit just how much the state can tax and still pledge to recycle the money back, but these proposals stay under that limit.

The existing Virginia provider tax on intermediate care facilities raises about $13 million per year. The two new ones proposed for Virginia private hospitals would raise about $383 million in Fiscal Year 2020, the first full year of implementation.

Right between the two provider taxes in the list of proposed amendments there is another new provision calling on a joint legislative group to take another look at Virginia’s tobacco taxes, to see how to handle the new vape products and to see if changes should be made to the restrictions on local tobacco taxes. There is no reference to a health care funding angle as motivation for that. Perhaps there should be.

The provider tax approach to funding Medicaid has a long history. It was proposed and shot down under Governors Gerald Baliles and Douglas Wilder.  During this year’s debate I gave somebody my 26-year-old “No Sick Tax!” lapel pin.

The idea’s attraction is obvious. The hospital or other provider pays the state $1 dollar toward Medicaid expansion and the state uses that to draw down more than $9 from federal matching funds. The second $1 now proposed is collected for payment reimbursement rate increases, but that only draws down $1 additional from Washington’s coffers because that is under the cost share match formula for existing Medicaid programs.

Will those taxes, which appear to exceed 2 percent of gross patient revenue at the 70 hospitals involved, end up coming from individual patients or from their insurance carriers? Hospitals point out correctly that with the federal matching dollars they come out ahead, implying that there would be no need to pass on the cost. Hard guarantees are lacking. Clearly costs are being shifted around, but it seems unlikely they will shrink.

There is an interesting parallel with the proposal related to the Regional Greenhouse Gas Initiative, where people are being told to disregard the carbon tax which the power companies will pay and then get back. Won’t cost us a dime! One difference is the RGGI taxes don’t attract any match. Both ideas have me turning over walnut shells looking for the pea.

In 1992, when Wilder was pushing his own $68 million proposal, the Virginia hospitals led the opposition. “The health care groups say the Medicaid tax inevitably would get passed on to consumers through increased fees and insurance premiums,” was how John Harris of the Washington Post summarized their position. Wilder pushed back citing hospital profits and executive compensation.

The 1992 story also notes that Medicaid had grown from 5 percent to 13 percent of the General Fund budget in just five years. Where it is now and where it is going can be seen in this recent Senate Finance Committee staff slide. Another ten years and it is bumping up against 30 percent.

Call them an assessment or a tax these dollars will not be General Fund dollars and will not change that projection. That is another reason some legislators like the idea. The same Senate Finance Committee staff presentation stated as advantages of this approach:  “Eliminates need for GF support” and “Frees up all Medicaid expansion savings for investment in other budget areas.”

Continue reading

Will Ghosts Haunt The Senate Today?

Hunter B. Andrews

If you listen very, very carefully you can hear it:  A double whirring sound.  It is the sound of the late state Senators Ed Willey and Hunter Andrews spinning in their graves.

Four decades ago as Finance Committee chairs they were responsible for establishing the independent authority of the Senate in the state budget process, which before their day was led by the House of Delegates with the House offering the only actual bills.  The Senate ended its subsidiary role by introducing its own bills to bring to the inevitable annual conference committee.

News broke late yesterday that the 2018 budget impasse may break later today, with the Senate expected to vote to discharge the Finance Committee and bring the House budget bill directly to the Senate floor for consideration.  There will still be Senate amendments offered and adopted, but in reality what will be offered is the final version – the result of an unofficial conference led by Senate Finance Co-chair Emmett Hanger and House Appropriations Committee Chair S. Chris Jones.

Also late yesterday it became obvious that the actual Senate amendments and some summaries were floating around, but initially I couldn’t find them.  They were not posted on the Senate Finance Committee web page.  I emailed a member of the Senate Finance staff and was politely directed to find them on (ahem) the House Appropriations Committee web page.   The Senate hasn’t even met yet but the full amendments are posted by the House.  That to me said it all.

Here is the summary if you’d like to go through it on your own.  I may follow up on the content after adoption but wanted to note this amazing turn of events.  If you are  watching the Senate this afternoon and  the voting board gets glitchy or paintings start falling to the floor, the names of the poltergeists responsible will be easy to guess.

Behavior Has Changed But Within Limits

Gifts per legislator. Source: Virginia Public Access Project

There are plenty of complaints these days that the legislative process is unduly influenced by money, but when the spotlight shines or a major scandal erupts, behavior can change. For example, Virginia legislators simply do not want to report that they have received gifts or attended lobbyist dinners, on public records which are available to their voters, the media and potential opponents.

How few actually do show up on 2018 reports is well-illustrated in the graphic above recently posted on the Virginia Public Access Project (click here for interactive features). Readers of Bacon’s Rebellion are probably already following VPAP as well, but if not this is worth a look.

Except for one very popular event, the annual Agribusiness Council Dinner, 91 of Virginia’s 140 legislators would have reported no gifts or meals at all. In many rural districts the political cost of skipping the Ag Dinner and not being seen by constituents attending would also be high. Yet 64 legislators missed that one, too, and avoided having to explain that $69.48 repast.

Several legislative offices have signs out front expressing a policy against accepting any gifts, even innocuous gifts such as a ball point pen or a box of candy or a calendar. That is growing but is not universal. It is the aversion to reporting gifts or entertainment that is becoming more widespread.

That report makes one think the place has really changed since the Bob McDonnell case, right? Not so fast. First note the data covers the period of the regular General Assembly session, from January 1 to Sine Die in March, not the whole year. As you can see with the full 2017 data here the totals tend to grow through the year, especially with paid trips to summer conferences. But there is no dispute that the number and value of reported gifts and meals is shrinking. For example look at the same report for 2012.

Second, remember that gifts or entertainment expenses of $50 or less do not trigger a reporting requirement. Lobbyists or organizations are keeping a closer eye on the cost of items, but $50 can still pay for some very nice gifts or meals.

Does it at least mean the days of the big restaurant dinners are over? Oh my no – and here is how they do it. It can be tracked on VPAP as well but it takes research. The $50 reporting trigger is interpreted to mean $50 per person per lobbying principal (client) paying the bill. If two clients for the same firm split the tab the trigger is $100 per person, and if three – well, you get the drift.

To confirm this is still the practice I easily found an example, but will not provide the details because I did not reach out to the major lobbying firm involved. I noted that one client reported a dinner on January 25, 2017 with 12 persons and a bill of $149 – well below the cost that would require naming the legislators. But by clicking down its full client list I found four more clients reporting a dinner for 12 at $149 on the same date.

Assuming the firm didn’t host five different dinners that night, the real bill was $745 for 12 people, or $62 per person.  That’s hardly lavish, but the intent to disclose the names of attendees has apparently been thwarted. They could stay on the list of those with no reportable gifts for 2017.

As VPAP helpfully explains: “Disclosure forms do not require clients to state clearly the average cost per person. Calculating the average cost per person may not be as simple as dividing the total cost by the number of people attending. Because the forms and instructions are unclear, the amount listed can represent either the total cost of the event, the amount spent on only the officials who attended or the average cost per person.”

It is silly and arbitrary to assume that somebody who accepts a $51 dinner has been compromised while somebody who skips dessert or drinks and spends $40 has not. Frankly neither has been compromised in my book. The real purpose of these dinners is to get the undivided attention of the legislators for a while – admittedly an advantage for that lobbyist and an edge on the competition. That is reason enough they should be fully reported.

If the costs of a dinner can be shared among multiple clients then the costs of other forms of entertainment or gifts could also be divided, seeking to keep the cost below $50 per client per recipient and keeping the recipient(s) off reports. I have not scoured the records to see if that happens, but nobody should have to.  The General Assembly needs to end this particular game.