Oh, Not Him. He’s A Lobbyist!

“Will Republicans Put a Health Insurance Industry Lobbyist on the Powerful Virginia State Corporation Commission?” screams the headline on the website which to me epitomizes the intellectual depth of that particular political party.

It is responding of course to news that Richmond attorney and lobbyist David Clarke is now considered the most likely choice by the House of Delegates for the open seat on the SCC.  By House of Delegates I of course mean the Republicans in the House, since judicial selection remains a highly guarded prerogative of the majority. With the Special Session firing back up next week, somebody may finally be elected to replace the retired Commissioner James C. Dimitri.

David W. Clarke

“If Clarke ends up on the powerful SCC, he will be one of a few people overseeing the regulation of health insurance plans — and likely approve double digit increases — in Virginia,” is one of Blue Virginia’s points.  How about this point:  He will also be one of the few people who actually understand that industry and that market.  You cannot know what somebody will do once he’s put on the bench – it’s a liberating experience, I hear.  Judge Dimitri had Dominion Energy as a client, and then he was liberated.

I can’t stop the beloved public sport of lobbyist-bashing but I won’t pass up a chance to respond on behalf of my peers.  Clarke is one of four persons mentioned in the media as under consideration, and truth be told he’s not my favorite candidate.  But the fact that he is a lobbyist and a lawyer who has practiced in front of the SCC is what makes him extremely well qualified if he emerges as the consensus.  Everybody around the Capitol has had a chance to see him in action for years.

Like most of us who ply this benighted trade, Clarke actually has a very diverse list of clients over the years and the health care industry is hardly dominant on the list.  I’m a little surprised Blue Virginia didn’t focus on the gas industry.  The one time he and I crossed swords professionally, I was actually representing real estate lawyers and he was working for lay persons doing real estate closings.

The communication and study skills required to handle a long list of unrelated clients transfer well to other jobs. Few know better than lobbyists (or lawyers) where our clients are right and where they might be wrong.  There may be matters where he needs to recuse himself, but his personal financial entanglements (if any) may be more of a factor there than his old client list.

Despite the cheap partisan shot at Clarke, Blue Virginia is silent on the other known candidates:  a long-serving member of the Attorney General’s staff who specializes in utility matters, a former deputy AG who is now a university counsel, and a former member of the State Senate who is not an attorney (but that is not required by law.)  I suspect the qualifications of the candidates are secondary and any choice will become fodder for criticism.

“Don’t tell my mother I’m a lobbyist,” goes the old joke. “She thinks I play piano in a whorehouse.”  Well to the extent I did that, I listened and learned a few things along the way and it would be a very interesting experiment to try a session with none of us lobbyists around.  I predict you would not actually like the outcome.

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28 responses to “Oh, Not Him. He’s A Lobbyist!

  1. I don’t have a problem with any lobbyist per se but I’d venture to say also that there is likely diverse groups lobbying pro and con for health care in Virginia so it does matter who their clients are and what things they were pursuing.

    Besides – has anyone considered naming a Sierra Club or SELC lobbyist or pro-Solar lobbyist or pro Medicaid Expansion lobbyist to the SCC ?

    how about it? so no… it’s not just the “word” lobbyist…

    • Well said, LarrytheG. Thanks! When an industry lobbyist gets a job like this, it looks like the industry has an inside line. They’d never allow a consumer advocate or environmentalist in! We need someone who can be unbiased and who is not pushing an agenda, even inadvertently. Someone who has worked for years to build the industry would automatically support the industry, it seems. I don’t think the public would view that as having a fair decision maker. It would be like adding an alligator to the swamp. This has nothing personal to do with the candidate, but is how the public views the situation, I believe. Not a smart move.

  2. Maybe someone with a background in health insurance is exactly what the SCC needs right now. Consider this headline in the T-D today: “Cost of most individual market plans in Virginia set to jump by double digit percentages next year.”

  3. The cost is going up because of purposeful sabotage of the ACA by Congress and Trump – without any meaningful alternative being brought forth.

    They couldn’t kill it outright – so now they are essentially doing it piecemeal.

    This is a problem with Conservatives these days.

    They have no answers themselves for the issue other than “ideas” that are more wishful thinking ideology than real and practical things that might work.

    Like the GOP in Virginia – they oppose the MedicAid expansion but have no alternatives.. just do nothing or propose things – that work – no where else in the world.

    The simple reality is that health care that “works” is govt-driven AND it CAN BE govt-driven AND lower cost as it already is in 20+ other countries who cover all their people for 1/2 what we pay – and they live longer.

    Facts and realities do not dissuade these folks though. It’s not about facts and realities.. it’s about what they believe.

  4. Plenty do have a problem with the word “lobbyist”, Larry, but you clearly care instead who the clients are/were. That’s the fallacy I’m pointing to. A lobbyist or lawyer for an industry or group may not actually implement the agenda you would expect – including somebody who represented the industries or groups you support. We are hired to represent and we learn from that experience, but the role of “judge” is very different and calls for impartiality. (Yet I’m sure the word “lobbyist” would not appear if Blue VA were extolling a lobbyist for Sierra Club for a seat on the SCC.)

    • Steve – I think it DOES matter WHAT they were lobbying for and against, relative to their clients.

      If it’s such a fallacy then why would there be opposition to putting consumer or environmental lobbyist on the SCC?

      Hell… I’d admit that lobbyists for the SC or SELC or Blue Va would be expected to “lean” a particular way. So why would
      you try to convince me that other lobbyists for other interests would not?

      You seem to think SOME lobbyists are the salt of the earth – a gift to mankind… I’m from the Ronald Reagan school of trust but verify… We’re seeing what happens right now when you put industry folks in charge of agencies like the EPA.

      And I’d bet dollars to donuts that if Dominion could choose who would be on the SCC – they’d not pick who I would!

  5. “Be careful not to throw stones in glass houses.”

    Lawyers, too, have to watch out for conflicts of interest, but it’s usually deemed sufficient that a lawyer not simultaneously represent clients on both sides of a contested matter. How a lawyer got to be an expert in the arcane regulations and economics of a particular industry often involved working for “the bad guys” back when learning the ropes.

    Yes, political influence peddling (of the sort surrounding Mr. Cohen these days) and the “revolving door” give Washington lobbyists a bad name, but the time any politician can give to the complexities of government today is so scarce that he/she has to depend upon others to distill the issues and make recommendations. That’s what good lobbyists do, depending upon their own long term reputations to give them credibility.

    What bothers me is when the lobbyist trades “long term reputation” for handing out cash (aka “campaign contributions”) instead. Modern politics is entirely too much about raising money for re-election.

  6. I’m not opposed to lobbyists appointed to govt roles and positions.. per se… ditto with Lawyers… I don’t see them
    as “bad” guys… I see them as professionals who are working
    in the best interests of their clients.

    What happens when they take on a role of representing consumers and the public interest? If a Lobbyist is a died-in-the-wool hard core Conservative ..would they have a different perspective that a lefty in representing the public interest?

    Would you want a guy who represented Dominion to be in a role where public interest might prevail on an issue he used to represent Dominion on?

    I’m still not saying they ought not do that role – but I AM pointing out some obvious things at issue.

    • The person the next SCC commissioner will replace was a lawyer for Dominion, and he was the one who dissented on an SCC opinion and argued a 2015 bill Dominion pushed was unconstitutional.

    • Jimmy Dmitri started out working before the SCC for the A.G.’s Office of Consumer Protection. Then he did a notable job in that same forum with those same skills for industrial and commercial clients. Then he did a little work for the utility, as I recall. Then he joined the Commission as one of its three judges. He was elected by the GA, many of whom were his law partners or former law adversaries and respected his expertise. They knew he wouldn’t have wanted the job if he couldn’t do it fairly.

      Within its jurisdiction, the SCC is both a legislative body and a court. In selecting a new Commissioner, there is tension between the need for some familiarity with the issues and the need for absence of conflict of interest, and also the demand for loyalty from the GA’s political leadership in exchange for the SCC’s retention of agency independence (that bargain is at a low point these days). By statute, the Commissioners are elected by the GA, but the Commission’s client is the “public interest” and I have always thought the SCC took that obligation seriously. The average electric consumer would probably be ill served, at least for quite a while, if a complete novice were thrown into the fray as a new Commissioner and compelled to learn it all on the job. But everyone with knowledge also comes with the baggage of how he/she got that knowledge. So, we muddle through somehow “in the public interest.”

      • You missed one of Judge Dimitri’s resume entries, AC. Between working for the large industrial customer groups and working for the utility, Dimitri was the General Counsel of the SCC itself for a few years. Then, he left that post and went to work for a large law firm with Dominion as his principal client. Current commissioner Judith Jadgmann also worked in the General Counsel’s office before going over to the Attorney General’s office (and rising to temporary AG there) before being elected.

        Your salient points, that the structural independence of the SCC written into the Va. Constitution is at a low point but complete novices need not apply, are completely valid.

        • Correct; I was focused on time spent in an adversarial role. Could have used Hullie Moore as a similar example. Both of them were trained by the real “AC’ — I mean, A. C. Epps, who nurtured the original VCFUR.

  7. Foxes guarding henhouses. The Virginia Way.

    • Is that any different in MD? In the District?

      • Acbar:

        Yes, Maryland is different. Everywhere is different from Virginia. Virginia stands alone in its anti-democratic processes and level of legalized corruption.

        Members of the Maryland Public Service Commission (PSC) are nominated by the governor. Start there. Appointed by the adult in the room and then approved by the Maryland General Assembly. In Virginia the Imperial Clown Show in Richmond simply elects the SCC judges. As usual, any semblance of checks and balances is thrown out the window in Richmond all while the empty suits in the Virginia General Assembly spew about “Mr. Jefferson this” and “Mr. Jefferson that”.

        Maryland’s governor is intelligently term limited to two consecutive four year terms. So, the person who nominates the PSC commissioners isn’t elected for life into a cozy relationship with those regulators.

        Maryland has 5 PSC commissioners and a state law that requires the commissioners be representative of the state’s regions and demographics. No equivalent of piling up the inbred Richmond elite in the Free State.

        Some hearings of the Maryland PSC must be publicly held in the municipality affected by the decision.

        In Maryland a PSC commissioner must be nominated by the term limited governor who has no benefit of gerrymandering since governor is a state-wide position. While the approval of PSC commissioners must be decided by the Maryland General Assembly the state of Maryland limits corporations to a $6,000 contribution cap per election. Maryland law also clearly limits what campaign contributions can be used for. Expenditures must be election related; that is, they must enhance the candidate’s election chances, such that they would not have been incurred if there had been no candidacy. Furthermore, expenditures, including loans, may not be for the personal use of the candidate or any other individual.

        Acbar, what you are seeing here is the difference between an honest state and a state where political corruption is both legal and widespread.

      • I have practised before the Maryland PSC as well as the Virginia SCC and the DC PSC. Interesting contrasts there. Structurally I completely agree with you, the subservience of the SCC to the GA is not what was intended when the SCC was created, is not what obtains in most States, and is unhealthy for both the Commission and the Assembly. The fact that the SCC (1) consists of members directly elected by the legislature and (2) is now clearly subject to the legislature’s ratemaking, policy and procedural whims, severely diminishes its independence and sometimes reduces it to not much more than a fact-finding committee for the GA.

        And yet. The other two Commissions, in MD and DC, were certainly observant of political niceties, responsive to hidden undercurrents of the political scene. In a way the practice there was more difficult, certainly more subtle, no less political but more broadly so. To practice effectively in Maryland, or in DC, you had to know a lot about the local politics behind each Commissioner’s initial appointment and chances for reappointment, and work with greatly varying biases and levels of familiarity with the subject matter. In Virginia, the GA’s statutory mandates are out there for all to see; and the people elected to the Commission tend to be quite knowledgeable (which makes it all the more a shame that their expertise is often either rejected or ignored).

        I’m not a fan of the Maryland requirement for geographic diversity of commissioners. I think it was a frank attempt by more rural and agricultural interests to get a Commissioner from western Maryland and one or two from the eastern shore who would not reflect the urban, sometimes anti-business, outlook of the B-W (Hunt Valley to Bethesda) corridor where most of the State’s population lives. Public hearings out where the people live who are affected, now that’s a concept! As for those political contributions to legislators, whatever abuses occur under Virginia law, they are amplified in their effect by the legislature’s direct involvement in utility affairs. When it comes to utility regulation in Virginia, that is the main evil currently, in my opinion.

        • I appreciate your points, Acbar. My only “tweak” is that you have to consider the entirety of a state government’s operations. For example, if Dominion were prohibited from making political contributions in Virginia I strongly suspect the General Assembly would leave the SCC alone. If Virginia held elections concurrent with Federal elections (i.e. even years) then voter turnout would increase and it would be harder to be a “politician for life”. GA members who abuse their power would face a considerable chance of voter backlash. If the state constitution were followed to the greatest extent possible and political divisions were “compact and continuous” then using gerrymandering to preserve incumbents’ offices would decrease and GA members would have to be far more concerned with how their constituents thought of them.

          Virginia is a spiderweb of abuse.

    • You are completely right about the foxes and the henhouses. I stand with Blue Virginia on this one (despite the fact that Blue Virginia’s article criticized the nomination of Clarke as a political mistake more than picking the wrong person).

      Virginia in general and the Richmond area in particular is a clusterbomb of legalized corruption and opacity. The difference in perspective between Blue Virginia and BaconsRebellion is far more about Richmond vs elsewhere in Virginia than right vs left. The economic and political elite in the Richmond area see the state as their private feed trough and have seen it that way for generations. Clarke fits the mold. A native of Midlothian and current Resident of Church Hill he wants to go from lobbyist to regulator in that special revolving door that defines the entitled mentality of elite Richmonders right down to their DNA.

      In true Richmond fashion Steve Haner is quick to defend by writing, “How about this point: He will also be one of the few people who actually understand that industry and that market.” Really? In a state of 8+m people with large scale healthcare and health insurance operations this guy Clarke is one of the few who understands the industry or the market? Putting aside the fact that the SCC regulates a whole lot more than health care that statement is patently absurd. There are thousands of qualified Virginians for that appointment. The vast, vast majority of those qualified Virginians are not inbred Richmond elites with their snouts buried in the state bureaucracy.

      No, I don’t know David W. Clarke and yes – he might be a fine guy. But at some point appearances do matter. In a state where the General Assembly licks Altria’s feet by having the second lowest tobacco tax of any state … in a state where localities are prohibited from adding a meaningful local tax to that tobacco tax there does need to be some separation of active lobbying from active regulation. In a state where Dominion pours money into the pockets of our elected officials and those officials spend that money however they want there does need to be some independence of the SCC – in appearance and in fact. In a state where the Imperial Clown Show in Richmond picks a single fish species to regulate and then allows the massacre of that species by a foreign owned company which shovels money into our state politicians’ pockets there does need to be some decorum.

      Most states have protections against corruption. In Virginia it’s not just legalized it’s encouraged and openly applauded by many of the Richmond elite. Most states limit campaign contributions. Most states insist that politicians spend campaign contributions on their campaigns and require accurate and detailed record keeping of how the money is spent. Most states don’t allow the General Assembly’s practicing lawyers to elect judges with no qualifying panel. Most states have a governor who can function as the adult in the room by allowing that governor to run for two consecutive terms. Most states do not permit election for life through off year elections and unconscionable gerrymandering of political districts in direct violation of the state constitution. The list goes on and on and on.

      So, given the climate of corruption in the commonwealth, I completely oppose appointing an industry lobbyist to the powerful SCC (powerful unless, of course, the Clown Show doesn’t like it’s regulations in which case it simply overrules it).

      Tell Mr. Clarke to take a few years off from lobbying to gain some perspective and then apply for top ranking government appointments.

  8. There are not thousands of qualified candidates for a job like SCC commissioner but there are certainly way more than the four who have been mentioned in the process so far. DJ is correct that the firm grip of the GA majority party (and its a bipartisan problem) on the process discourages many candidates. Those with a history in the other party or those with no party connections at all usually start way behind, and usually don’t even try.

    I’m not sure that a requirement that the nominations start with the Governor is guaranteed to produce a better field of names – and I suppose that means each name is considered and dealt with before other candidates come up. Governors have cronies and campaign supporters to satisfy, too.

    Third party certifications of qualification might improve the appearances, but I’m not sure that would produce guaranteed-better candidates either.

    A mandatory waiting period? The most questionable suggestion of all. Is being a lobbyist really any different than being an attorney working in front of that court? Judicial rules already dictate which matters require recusal and any opposing counsel who feels a judge has a conflict can bring it up. Another candidate is now in the AG’s office as consumer counsel – should somebody in that job also be disqualified until a waiting period had passed?

    I also think potential candidates are discouraged by the rhetoric – the assumption of corrupt intent that is evident in the Blue Virginia commentary that started this discussion and culminated in DJ’s double barrel post this afternoon.

    • I have nothing against lobbyists. I do have something against insiders. Apparently, one of the four candidates can only serve two years before hitting the mandatory retirement age (after which he cannot be re-appointed). What’s the point? Does he then qualify for a pension?

      Many of the General Assembly members are practicing attorneys. Don’t some of them appear before the SCC on regulatory matters? Shouldn’t they recuse themselves from voting for the judges who will decide their cases?

      Virginia’s governor is term limited. I can’t think of the last Virginia governor who went into the General Assembly after being governor. While they certainly have cronies they aren’t going to be able to take campaign contributions from the companies the SCC regulates and spend those contributions on personal expenses. First, running for federal office puts the former governor far away from the day to day regulation of Dominion Virginia. Second, federal contribution law has limits. Finally, under federal law, the campaign donations have to be spent on campaign expenses (mostly).

      Virginia’s Constitution is broken. Far too much power vests with the General Assembly.

  9. Said above: “Most states have protections against corruption. In Virginia it’s not just legalized it’s encouraged and openly applauded by many of the Richmond elite.”

    The same could have been said of Maryland, and Baltimore’s role in its politics during the glory years of the Baltimore Sun and H. L. Mencken — in fact he did say as much. It has helped Maryland that the Capitol is actually in Annapolis. Maybe we should move the Capitol of Virginia back to Williamsburg. Like a dead fish, any capitol building looks better from a distance than it smells up close.

  10. The State Corporation Commission will strive to apply law and regulation to balance the interests of citizens, businesses, and customers in regulating Virginia’s business and economic concerns and work continually to improve the regulatory and administrative processes.

    The mission statement of the Maryland Public Service Commission is to ensure safe, reliable, and economic public utility and transportation service to the citizens of Maryland.

  11. Excellent discussion and excellent points. We need to return SCC independence so it can truly do that job it was given to do without interference. Neither side can always win, but our utilities have managed to set things up so they almost always do. We need strong, fearless, unbiased decision makers. They are hard to come by in Virginia, especially given our long history of legalized corruption and the strong good-ole boy system.

  12. Yup – and I’m trying to understand what he SCC does – and what it does not do – and why. Here’s the list:

    Businesses

    Creating a Business
    Existing Businesses
    Forms & Fees
    Reinstatements
    Uniform Commercial Code

    Financial Services

    Bureau of Financial Institutions
    Bureau of Insurance
    Securities & Retail Franchising

    Public Utilities

    Utility Regulation
    Utility Accounting & Finance
    Public Service Taxation

    Safety

    Underground Utility Damage Prevention
    Pipeline Safety
    Railroad Track & Equipment

    They don’t cover everything. I found out a couple of years back, they do not deal with propane at all… For instance, you’ll not find hardly any supplier of propane openly advertising the prices… nor the terms of getting propane tanks . Not sure about natural gas – but a fair amount of people in Virginia use natural gas and propane for heating… but also for on-demand water heaters and backup-generators…

    The Maryland PSC seems to be a different animal:

    ” To regulate public utilities and transportation companies conducting business in Maryland, the Public Service Commission was established in 1910 (Chapter 180, Acts of 1910). These utilities and companies concern electric, gas, telephone, water and sewage disposal companies; passenger motor vehicle carriers (sedans, limousines & charter buses); railroads; and toll bridges. The Commission also oversees taxicabs operating in Baltimore City, Baltimore County, Cumberland, and Hagerstown. Additionally, it sets rates for Bay pilots and docking masters.”

    Nothing about insurance or financial services.. etc…

    • They are more alike than not, I think. The Virginia SCC dates from 1903, essentially the same era. Both focus on regulating private corporations performing a public or quasi-public “natural monopoly” function, the principal example being electric, gas and telephone utilities. The SCC also has some duties handled in other states by the Secretary of State, i.e., the incorporation and registration process for corporations. The SCC also handles a bunch of miscellaneous business regulation in areas like insurance and banking, functions that are regulated in most other states by separate agencies.

      The main reason for regulating public utilities is that they are “natural monopolies” because they have exclusive territories, in which they have the exclusive right to place wires and pipes in the streets and so customers have no alternative supplier. Who wants two or three sets of wires and pipes down every main street? But that logic doesn’t apply to propane or fuel oil or, in the old days, coal and ice, because they are delivered by a truck that can go anywhere, and usually there is more than one supplier you can call (at least there is no barrier to entry of a new competitor). Wired telephone service is increasingly deregulated today because of competitive alternatives like cell phones.

      “Retail access” for electricity was a hybrid; it meant that the local utility retained the exclusive right to distribute electricity in a certain area, over its wires, and to charge a separate “distribution” charge for that service, but the law was changed to require the utility to serve as a “common carrier” obliged to deliver power purchased by any customer from retail competitors elsewhere on the grid. That is what Virginia experimented with from 2001 to 2007, then largely repealed. It would have worked, and does today in many states like Maryland (also in the same PJM market), but Virginia did not give it enough time to prove itself.

  13. I’ve enjoyed the discussion. Underlying some arguments is this assumption that a new judge who has had a career as an industry advocate (lawyer or lobbyist) will be anti-consumer, but that requires a similar assumption that a pro-consumer advocate will also enter the courtroom with the decisions made in advance, as well. When the General Assembly does this right it settles on candidates who will do the job impartially. I think either set of experiences (and people have worked from both perspectives in the same career) is vital to the function of the SCC. Will the Assembly now act, or will it hang up again – potentially leaving the choice to the governor?

  14. Maryland was a terrible mess up through Spiro Agnew and perhaps beyond. But they took definitive action to clean up their act. They are far from perfect but at least they are trying. In Virginia, government ethics is just a big joke. The General Assembly is like a fraternity house. Reasonable proposals to sunset company specific and industry specific tax breaks after five years die in committee. The state does a half assed job of assessing whether the business development funds are achieving their purpose or not. Reporting on what politicians do with their campaign contributions is a shambles.

    Moving the state capital might be a good idea but I’d argue for Charlottesville rather than Williamsburg. Think Austin.

    • Hmph. I nominated W’msburg because the restored buildings are already there, and of a constraining (tiny) scale. What a dreadful thing that would be for Charlottesville!

      But I do detect a theme in your comments. “There are thousands of qualified Virginians for that appointment. The vast, vast majority of those qualified Virginians are not inbred Richmond elites with their snouts buried in the state bureaucracy. . . . The economic and political elite in the Richmond area see the state as their private feed trough [and march through] that special revolving door that defines the entitled mentality of elite Richmonders right down to their DNA.”

      Oh, Richmond! The deepest hole in a small pond where all the little fish from across the State gather to preen and praise and see ‘who’s the biggest among us.’ Still playing by the rules laid down by the machinations of His Holiness, St. Harry Byrd, complete with off year elections and GA-elected judges and GA control of every agency and easy giving. It hardly seems to matter that the Party labels have changed, or will change again.

      But there is a blue wave coming in 2018 and it will not be dry in Richmond for some time thereafter. After it rolls through, I really do share with you some faint hope for campaign contribution reform — plainly it’s needed, plainly some of the early new wave have spurned the sellout — but the cynic in me says nothing will change. On the plus side, the Governor is not a Richmonder; the minority leaders of the House and Senate are not Richmonders. On the minus side — well, exhibit 1 is that ghastly giveaway indulged by both parties called the “Grid Transformation Act.” Reminds me of a phrase I’ve heard before on this blog: “the Imperial Clown Show.”

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