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.
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