Episode 21: Did the General Assembly go far enough in its special session?

After two long months of socially distanced and Zoom-based negotiations, the Virginia General Assembly has finally finished its 2020 Special Session -- called to deal with police reform and Covid-related changes to the state budget.

This week, we're joined by state Delegate Sally Hudson. She walks us through some coming changes to criminal justice, the state's strategy for economic recovery, and how Virginia could improve our approach to both, going forward.

Episode Transcript

Nathan Moore: This is Bold Dominion, an explainer for state politics in a changing Virginia. I’m Nathan Moore.

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Dear listeners, it finally happened. After two months of socially distanced and zoom-based negotiations, the Virginia General Assembly has finally finished its 2020 Special Session. It started as a budget meeting to deal with the budget impacts of the pandemic. But then the murder of George Floyd sparked nationwide protests for black lives, and lawmakers added as suite of police reform measures to the agenda. Pretty soon, more proposals were added to the docket.

Sally Hudson: And I think it's just a symptom of the backlog of progressive priorities. You know, we've been out of power for so long that the to-do list on everything as long.

NM: That’s friend of the show, Sally Hudson. She’s a labor economist, UVA professor, and state Delegate representing Virginia’s 57th District in the Virginia House of Delegates.

But the General Assembly got through it. On the budget, Virginia’s state budget is going to take a hit because of lower tax revenues related to COVID-19. Lawmakers decided to cut spending rather than dip into reserves or raise taxes on wealthy Virginians. Sally Hudson again.

SH: By my lights, a Triple-A bond rating is really more like an austerity merit badge than a measure of fiscal solvency.

NM: “Austerity merit badge” is heck of a phrase. Stay with us for the back half of this episode… We’ll hear more from Sally about the economics and budget portion of the Assembly session.

We begin our conversation with an overview of this special session. And the issue that dominated much of the session: police reform and criminal justice. The bills that died and the bills that made it, and what they mean for Virginia as a whole.

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SH: The must-do that had to get done was reworking the budget in response to the revenue shortfall that we're now facing. And that did get packaged up and is now on its way to the Governor. So that got done. And we also did the work that we could to respond in this timeframe to the long overdue need for criminal justice reform in Virginia. That to-do list is very long. And so consider the work that we did during Special Session a down payment on a lot of work still to come.

NM: It sounded like a whole bunch of things were sort of bandied around in the special session. Like it was almost treated as like another full session by some lawmakers.

SH: I think that's true. And I think it's just a symptom of the backlog of progressive priorities. You know, we've been out of power for so long that the to-do list on everything is long. We could have a special session on health insurance and a special session on energy and the special session on mental health. I mean, we could we could do a dozen special sessions just to clear the backlog. And so I think that's really what we saw. So I--like I said, I'm glad that we made some headway and demonstrated our clear commitment to criminal justice reform. But we still have a lot of work to do.

NM: Yeah, let's go into that more. You know, Virginia Mercury and several outlets around the state kind of reporting that the Sheriff's Association kind of left this session like: "Oh, well, that wasn't so bad." And a lot of the progressive activists that wanted more substantive criminal justice reform were kind of like: "Eh, some good steps..." you know, how would you characterize it?

SH: I think that's accurate. I mean, I think, for all the problems that progressives want to tackle, the biggest limiting factor right now is how far the Senate is willing to push on a lot of things. And it is the case that there were things that there was appetite for in the House that we were not yet ready to move through the Senate. So for example, the House made some headway on qualified immunity and on expungement. I think that there are members of the Senate who share those priorities as projects and in earnest want to come back during special session and keep working on them. And then there are members of the Senate for which those are ideological nonstarters.

NM: Take me through what's the--a little bit of the specifics of some of these things that we're talking about. I mean, criminal justice reform is a huge package of potential items. What all was involved in in the House efforts and what got stymied?

SH: So if you think about the pipeline of an interaction between a resident and a law enforcement officer, and then the court system thereafter, there's a lot of different places where we can do criminal justice reform. So we can intervene before that altercation ever happens, and that's why we passed a law that limits pretextual traffic stops. So the excuses that are so often used by some law enforcement officers to pull over black drivers more often than white ones, like: "Oh, I can smell marijuana in the car" or "You have a broken taillight." That's the kind of criminal justice reform that makes it less likely that a civilian and an officer ever even have an interaction.

Then you can think about what are the things you can do to make it less likely that some people get charged or tried. And we passed some legislation that will make it easier for prosecutors to decide not to prosecute some kinds of offenses. And then there are all sorts of things further down the pipeline. So we passed a bill that is a huge overdue step for Virginia, which finally eliminates the jury penalty for opting to have a trial by jury. It used to be the case that if you wanted to be tried by a jury in Virginia, then you also had to be sentenced by a jury. And overwhelmingly, juries impose harsher sentences than judges, in part because they don't fully understand the implications and the instructions--like they lost track of the fact that we don't really have parole, for example. And so that is a threat that prosecutors have often used to bully defendants into guilty pleas for crimes they didn't commit. Because they would rather take a plea and a short or shorter certain sentence than risk going to trial and then being sentenced by a jury, which is likely to put them behind bars for two or three or four times more. So that was what's called the jury penalty in Virginia. We were one of the last states in the country--Virginia and Kentucky--to still do that. And that was one of the last big bills we passed on Friday, which would eliminate that jury penalty and make it possible to have a jury trial, but then be sentenced by a judge who would have a clearer sense of the range of sentencing options.

And then there's lots of things that we can do on the back end for how long do you serve, like parole reform and good time credit, which is something we started to make some headway on. And then I think the real endgame is how do we restore for past harm done by an unjust criminal justice system? And that's the idea behind expungement and restitution. You know, if you've got crimes that were disproportionately handed out, how do we sort of set the record straight and let people get a clean slate, and hit the reset button, so that they don't have a criminal record that prevents them from getting jobs and homes and credit cards for the rest of their life.

NM: And was their progress made on an expungement?

SH: Expungement was one of the things we did not get done this session. And let me say that expungement is hands-down the top priority for the constituents that I talked to here in Charlottesville who have been incarcerated, because they felt firsthand what it's like to apply for a job or a loan and not had that shake out. It is also something that is logistically complicated, because expungement is all about eliminating the traces of a criminal record in the many different places where they're stored. And if we think about our data-driven lives, where there are little pieces of our history in all sorts of different places, then the act of cleaning that up reliably is really a major IT endeavor. And so I think that that's why the bill was pushed down the line to a regular session, is that there was disagreement over the mechanics of how would you actually ensure that all of the appropriate records got scrubbed from the many different databases where they live?

NM: So we've talked a little bit about the pretextual reform--how likely it is for somebody to interact with the police in the first place. Ad then also some things afterward. What about some of the matters of when people are actually interacting with the police, you know, active in real time. Things like chokeholds, I know, was a big one on the docket this year.

SH: Based on what I hear from my constituents, they're less invested in bills that say law enforcement have to treat them well, than they are in measures that provide meaningful oversight--so that when things go south, there can be consequences. So when I talk to my constituents, they care way more about the bill we passed to empower civilian review boards, than they do the bill that bans chokeholds, because they kind of assume that there will be some cops who use undue force. And so what they care more about is being able to report and discipline those incidents than ban them on paper.

I think the Civilian Review Board bill is the most important one we passed for exactly that reason. So that bill enables a number of the things that have been on the wish list of Charlottesville CRB for ages. So subpoena power so that the board can access records and compel testimony from people and then the authority to provide binding disciplinary decisions. So to say: "And here are the consequences of the investigation that we've decided." That bill also will include not just law enforcement officers of police departments like ours here in Charlottesville, but also sheriffs, which are the primary source of law enforcement for a lot of counties around Virginia. So I think that's the biggest thing that we did when it comes to really meaningfully getting residents a say in public safety.

NM: And take me through again, just explain again why that matters the most.

SH: You can make rules that govern behavior. But if there is no way to prosecute someone for violating them, and if communities don't have faith that law enforcement officers will ever face consequences if they don't abide by the rules, then I think it's all for not from their perspective. And so I think what they're saying is, "Look, we've got plenty of rules on the books about what governs good behavior, and yet we have consistent examples of bad altercations between civilians and law enforcement. So you know, what we need is a mechanism for allowing civilians a way to file complaints." I mean, right now, when you talk to residents of Charlottesville, who are living in over police communities, what they'll say is: "Why would I go to the police to report a problem? They're the ones who caused it." So we needed another outlet for those complaints, where people felt like they had a safe place to go when they wanted to say something was wrong.

NM: All right, Sally, will the end of the day, how much did activists and progressives get what they wanted on police reform?

SH: As a progressive, you're never satisfied, right? If you're one of the top five to ten most progressive lawmakers in the legislature then you're never going to get everything you want. Because number 51 gets to drive that bus. But there is a lot of good work that got done in this session, and that shouldn't be forgotten. And it is the case that Virginia is moving forward in leaps and bounds--now, we start a little bit behind the pack. But it shouldn't, it shouldn't be overshadowed that some of the work that we did like ending the jury penalty and stopping pretextual stops. Those will, as soon as they take effect, make a major difference in the lives of real people. And I hear that from all the thank-you notes I'm getting from public defenders already saying: "I've lived those cases I've watched people plead guilty to crimes they didn't commit and know now that their lives will have a totally different trajectory." So that is work that we should be proud of.

NM: Sally Hudson represents the Charlottesville area in the Virginia House of Delegates. We’ll hear more from her after the break.

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NM: You’re listening to Bold Dominion, a state politics explainer for a changing Virginia. Visit us online at BoldDominion.org. Have a friend who’s trying to figure out Virginia state politics? Tell them about this show. And then subscribe in Spotify, Apple Podcasts, and wherever fine podcasts are served up.

Bold Dominion is a member of the Virginia Audio Collective, online at Virginia Audio dot org. Check out all the podcasts from the collective, including Democracy in Danger. All over the world, liberal democracy is getting turned upside-down. And here in the United States in 2020, we're no exception. Can we save democracy -- and make it work better? Join hosts Will Hitchcock and Siva Vaidhyanathan as they talk to leading scholars, writers and thinkers about the most pressing challenges facing government of, by and for the people. That’s Democracy in Danger, available at VirginiaAudio.org.

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NM: After criminal justice reform, the biggest goal of this year’s General Assembly special session was, simply put, to balance the budget. Since the pandemic started, Virginia’s revenue has taken a hit to the tune of two billion dollars. That’s right after the new Democratic majorities in the Assembly passed a budget that were set to increase spending by two billion. So without those revenues, what does the new budget plan look like?

In addition to her job as a state lawmaker, Sally is a labor economist and UVA professor. In other words, she knows a thing or two about budgeting and economic policy. In the second half of this episode, Sally and I discuss Virginia’s new spending priorities, the role of lobbyists, and the reasons why legislators still seem to tie their own hands when it comes to finding solutions in an economic crisis.

SH: So, ballpark. If you go back to March, when we passed the budget before COVID hit, we had expanded public spending in Virginia by about $2 billion, and funded a lot of things that had been on the wish list for a long time. Expanded Medicaid payments, higher wages for a lot of health care workers, lots of different investments. And then came the COVID recession, and our projected revenue in Virginia fell by about $2 billion. And so the question was, what of those expanded spending priorities were going to stay? What new costs that COVID has imposed were going to be funded? And then what things we're going to be on the chopping block?

NM: So the things that we're going to be an additional $2 billion in expenses--what ones are going to continue to be funded and what ones are on the block?

SH: A number of good things were preserved. So some of the expanded Medicaid benefits for new moms and for dental care, some of those things came back and that's good. Some of the additional funding for K-12 education has been preserved. Some of the funding for broadband and affordable housing. I think some of the biggest sacrifices have been the planned salary increases for teachers, which were long overdue. Across the board, what the Appropriations Committee tried to do was put some of the money back in each of the pieces, and then also spread the pain around. So, you know, lots of little things here and there. But it all adds up to the things that matter.

NM: Was there any one priority that really just kind of got left behind in the process of this budget?

SH: I'm not sure. I mean, I'm not sure that I would say that there was any one thing that's more or less painful than the other. But, you know, count me among the people who thinks that we're leaving tools on the table that we should be using. When you want to make ends meet and you have to balance a budget, there's really four things that you can do. You can cut spending, you can raise revenue, you can use your savings, or you can borrow. And we left three out of the four off the table. We only cut spending. So we have not talked about: what would you do to raise more revenue? How would you draw on the reserves that we've been building up over the last many years? And then, you know, in what ways might we borrow to fund spending in the short term and smooth things out over time? And I think, you know, we did a little bitty bit of borrowing. But by and large, we're not using three out of the four tools you can to balance a budget. And I find that to be an unduly conservative approach to making ends meet in a major recession.

NM: Why were the other three tools not pursued as ways to make our budget work?

SH: You know, a lot of things have changed since Democrats took control of Richmond.  There's a lot of old ways of thinking that are now cast by the wayside. But the budget thinking hasn't shifted. We still have a very conservative mindset around finance. And a, in my mind, really overzealous appreciation for our Triple-A bond rating. It's like the one excuse that you can pop up in Virginia and be case-closed on any budget conversation. If anybody raises concern that a budget move would threaten the bond rating, the conversation's over, whether or not it's a real threat. So--I mean, I say this as an economist with a background in public finance--there's pretty solid evidence that you can reasonably draw down reserves during recession without threatening your bond rating. That's what reserves are for. And it's just a total non-starter in Richmond to even talk about what would it mean to tap our reserves. It gets portrayed as like the far-left position to use savings. Nothing is further from the truth. There are a lot more far left things that you could do to inject some more revenue into the system.

NM: Yeah, raise money, raise taxes on the wealthy.

SH: Yeah, well, that's even the left position. I mean, it's like the conservative position is cut spending. The moderate position is use reserves. The left position is raise taxes, the far-left position is like strategic default. Just let the bonds go under and deal with the fallout, and have the investors share in the pain of the other recession. That's the far-left position. "Use savings" is like pretty middle of the road.

NM: Well, you would think to why have a reserve if we don't use it during a global pandemic that's hit everybody crazy hard?

SH: It's a one way piggy bank. And the here's what's I think really odd about it, is that the strategy gets portrayed as like the sensible businessman thing to do. There are only two Fortune 500 companies that even bother with a Triple-A bond rating anymore. Most of them know that the juice ain't worth the squeeze. That interest rates are so low that the virtue of getting the tiniest little bit shaved off your interest from having a Triple-A bond rating is not on net worth it. And that's just like not--we don't do that kind of calculus in Richmond, where we say: "Yes, it's true. Having a lower bond rating might mean a marginally higher cost of capital in the future. But that's not the only cost that matters. There are lots of other costs."

So by my lights, a Triple-A bond rating is really more like an austerity merit badge than a measure of fiscal solvency. I mean, the other states that have Triple-A bond ratings are places that haven't even expanded Medicaid. That is free health care picked up by the federal government for the people who need it most. And we're supposed to think those are the financial servants we want to follow in recession?

NM: Yeah, you know, Virginia--the state of Virginia is not the only government body I've heard of--I mean, you know, the city of Charlottesville is talk about its bond rating, lots of places talking about their bond rating. And it is a very fiscally conservative thing. It lends a lot of power to the rating from a Standard & Poor's. You know, why do we give away that much power?

SH: Ratings agencies...my understanding is that they make most of their money off of consulting. So our secretary of finance openly acknowledges that the CEO of Moody's is one of our primary financial advisors. I would call that a conflict of interest--that the agency that gives us advice then grades us on how well we follow their advice. You would think we would want to separate those duties and have somebody play ref and somebody play coach. But that is not what we do.

NM: Back to some of the other spending priorities and budget thinking. You mentioned some of the different tools in the toolkit that could be done to balance the budget. You know, with Democrats now in majorities in both houses and the governorship. Why do we still only have the conservative cut-spending austerity approach?

SH: You know, I think it just hasn't kicked in yet. And I think it's important to remember that the wave elections have put a lot of new people in office, but they're still very junior and they don't hold the leadership positions that really get to drive those powerful money committees. So it is the case that there are more Democrats, and that makes some things possible. But it doesn't really change the top ranks of leadership, where the major budget decisions get made.

NM: I would say, too, Sally, you kind of come at this with a unique perspective as a freshman lawmaker, but with a background in like public sector finance. You know, so you actually understand these levers in a way that that somebody who's running on, you know, health care access or criminal justice reform may not understand the nuts and bolts numbers piece of it to the same degree.

SH: It's an interesting experience, because I'm the only economist in the General Assembly. And there are a lot of lawyers. And if you tell them there are a lot of lawyers, they'll say: "There aren't as many lawyers as there used to be!" I mean, that there might be only a couple dozen practicing attorneys. And I'm sitting there thinking, okay, but that's still like 20 times more than there are economists.

So it is it is interesting, when I go hang out in the back of the Courts Committee, and watch the really rich debate that they get to have over the finer points of the state criminal code, I gotta confess, I get a little jealous. If we could have the same kind of conversation about the tax code, with the same level of shared professional vocabulary and history and comfort, the finance discussions would be a whole different ballgame.

NM: So special sessions usually run all of you know, a few days or when there was one about gun control, it ran a few minutes. This time, it ran a few months, basically. You know, it started in the middle of August. Here we are in the middle of October, and it just wrapped up. It was longer than full session. You and I kind of joked early on that, you know, it's almost like you're becoming a full time legislature. Does this kind of length of a special session point to the need for that?

SH: I think so. I think there are other people who feel that way as well. I know that there are people who like things the old-fashioned way. I mean, I think that--if you think about the word "conservative," and it's sort of purest sense of "hesitant to change," then a part-time legislature makes sense. Because by and large, don't want to make a bunch of brand-new things, or a bunch of major changes. And so from a conservative perspective, meeting infrequently to make occasional tweaks around the edges of how society already works is just fine. But if you're coming from a progressive perspective, where you think that there's a lot of overdue work to be done, and a lot of new systems to be built up, then it's harder to do that on a rush timeline for six weeks a year. And so I think those of us who do want to build new systems in health care and education, and IT, that's work we would rather be doing year round.

NM: Mm hmm. You know, I also talked about--back in our very first episode of this podcast, how when you have a part-time legislature, when you have people who have day jobs doing something completely different, there's still power in Richmond, but it ends up concentrated in lots of other hands except the lawmakers. How does that play out now, after a year of doing this?

SH: I think that for me, that's just been confirmed in spades--is that you're constantly aware that there's somebody else who has the luxury of doing this as their full-time job. Especially if you're someone like me, who wants to read everything and go down in the details. And I think as much as I love teaching, you know, what would I do with those 30, 40 hours a week when I could be reading more and asking more thoughtful questions and you know, doing more to study up on what we're doing? It is really frustrating to know that you've got organizations that have a team of a dozen lawyers working on one bill and you're working with less time to cover more topics.

NM: And you have, what, one staffer? Two staffers?

SH: One on the courtesy of the government and then the other one we have to fundraise for.

NM: And so, you know, this year you've been operating way more full-time than normal, with the same staff and the same sort of limited resources.

SH: Yeah, I mean, honestly, if if you think about the incremental path to a more professional legislature, I would say the first thing would be more staff. In a heartbeat, I would triple my staff budget before I changed the length of the session. Because I just do think that you can--just giving us more eyeballs to be able to vet things would level the playing field enormously against the lobbyists who have, you know, multiple people per bill.

NM: Who actually has that power? Who are the lobbyists? Who are the the power lever, people with their hands on?

SH: The word “lobbyist” means a lot of different things, depending on the topic. Because there are lots of people who represent organizations that we consider deep allies who are technically registered lobbyists. You know, the folks who are helping us with reproductive health care legislation for Planned Parenthood or for criminal justice reform from the legal aid Justice Center, the southern Environmental Law Center, those are technically lobbying organizations as well. So I don't want to say that everyone who's a lobbyist is someone who somehow has ill intent. But there are also people who are paid to achieve objectives by for-profit entities, by corporations, you know. Or by organizations with ideologies that I don't share. And you know, whether or not you think they're the good kind or the bad time usually is about whether or not you agree with them from the beginning.

But it definitely is the case that most of the policy bandwidth for good or ill is outside of the legislature. We don't have, for example, something like a Congressional Research Service, where we have dedicated staffers whose job it is to help us dig into bills and get more information and get an independent read on things. We have a wonderful team of amazing civil service lawyers who do drafting of legislation for us--the Division of Legislative Services--but we don't have a corresponding research arm that helps us get to the bottom of things and vet information and say: "Hey, you know, that talking point that they're pitching you doesn't quite pan out in practice."

NM: So like, at the federal level, when they were, you know, debating about Obamacare, for example, I remember reading reports that said: "This will lead to insurance coverage for X number of Americans that don't have it. And this number of preventable deaths will be avoided each year." And that came from essentially a Legislative Research Unit, right?

SH: The Congressional Budget Office. Yeah.

NM: Yeah. And there isn't one of those in Virginia.

SH: No, we have an amazing organization called JLARC, the Joint Legislative Audit Review Commission that does studies, usually retrospective, of how well is an agency performing its tasks? And they're fantastic. They do amazing work, but they're under-resourced. So they don't have nearly as much people and time to cover as many topics as we would love to have them. They can't, for example, kind of score a bill quickly like that.

NM: Sally, what comes next?

SH: January comes next, and it's coming up quick. It is the middle of October. And so we're already starting to look ahead to what we will file for legislation in the coming session. It's a short one, which means that there will be a cap. So we will only be able to submit probably about 15 bills. But we will definitely need to prioritize and coordinate with our teammates and try to get as much done in the window as we can. I think that we have a lot of work to do on supporting workers, especially the teachers and the nurses and the frontline workers who have been stretched so thin in this process. There's a lot of important work we have to do on the environment because that clock has not stopped ticking amid the COVID crisis.

And then from my mind, also, I think a lot of what I'm going to be focusing on is a lot of consumer protection work, because that's always what we see in recession, is that there are going to be scavengers who to try to make the most of the tough straits that other folks are in. And so as an economist, I feel like I have an obligation to keep an eye out for that kind of work.

Nathan Moore: Sally Hudson represents the Charlottesville area in the Virginia House of Delegates. Thanks to her for joining the show this week to break down exactly what the state legislature got done over the last two months.

My name’s Nathan Moore, and I’m the host of Bold Dominion. Huge thanks as always to our producer Aaryan Balu. Find this show online at BoldDominion.org. Go ahead and subscribe… it’s just a click away.

Keep social distancing, y’all, and I’ll talk with you in two weeks!