A distinguished University of Virginia law professor makes a serious claim: Virginia legislators are circumventing not only the intent of statute, but the state Constitution itself, by appointing themselves to policy boards in the executive branch of government.
Douglas Laycock says the practice is “Unconstitutional, Period” in the title of his treatise.
He delivers some cogent arguments. At the very least, the questions he raises ought to be examined — by legislators, policymakers, other lawyers and anyone with an interest in fair government and constitutional separation of powers. Ultimately, the fundamental question could be examined by the Supreme Court.
At issue is whether lawmakers are inappropriately — or even illegally — inserting themselves into executive branch functions of government by placing their own members on executive policy boards.
There are both statutory and constitutional angles to the controversy.
By statute, Virginia law says, “Members of the General Assembly shall be ineligible to serve on boards, commissions, and councils within the executive branch of state government who are responsible for administering programs established by the General Assembly.”
The law then lists general exceptions to that standard, including — reasonably enough — boards that are conducting policy studies or those established for commemorative activities only.
But the next paragraph of the statute goes on to list specific policy boards that are exempted from these constraints — including the Board of Visitors of the Virginia School for the Deaf and the Blind, the Virginia Growth and Opportunity Board and more than a dozen others.
The list and description of exemptions, in fact, is four times longer than the initial language deeming legislators ineligible for these boards and commissions.
Mr. Laycock seems particularly concerned about one possibility: “There are rumors in Richmond that some legislators would like to put legislators on the Boards of Visitors of other public universities in the Commonwealth,” he says early in his essay.
That would give lawmakers an inordinate amount of power over colleges and universities — not only deciding as legislators how much public money should go to the schools, but then also deciding as board members exactly how that money would be spent.
Indeed, that argument against over-concentration of power is at the heart of the complaint.
The Virginia GO Board confronted the same problem when it was established under then-Gov. Terry McAuliffe. The initial legislation setting up the board gave majority control to a combination of legislators and legislator-appointed members, and established other measures enhancing General Assembly power over the board. The attorney general warned that these features could pose a constitutional challenge. Lawmakers and Mr. McAuliffe compromised by revising the board so that it would contain a majority of members appointed by the governor.
The attorney general’s warning illustrates the second, and ultimately more important, aspect of this issue. Virginia’s Constitution, similar to that of the federal government, requires that: “The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time….”
Then it adds: “…provided, however, administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe.”
Legislative leaders may say that’s exactly what the General Assembly is doing — creating "agencies" as allowed and filling them with appointees as allowed.
Sen. Tommy Norment, R-James City, now Senate minority leader, told The Richmond Times-Dispatch that he didn’t believe the Legislative Services Division, which assists legislators in writing proposed laws, would produce bills that were unconstitutional.
And he pointed out that no one has found reason to launch a constitutional challenge against any of the General Assembly’s actions in implementing the statute or obeying the Constitution.
The General Assembly might have embedded into statute, and even into the Constitution, mechanisms allowing it to take many of the actions it has taken.
We believe there is value in having legislative knowledge on state boards and commissions, enhancing the boards’ perspective and perhaps even providing specific expertise on how the General Assembly might react to board actions.
Nonetheless, Mr. Laycock’s overarching thesis is compelling: that the Assembly is encroaching across the normal boundary between the legislative and executive branches.
The Division of Powers Clause is intended to protect Virginians from too much power exercised by any of the three branches of government, just as the separation of powers at the federal level is meant to generate a system of checks and balances that safeguards the public.
The legislature already has exempted itself from the law in an eyebrow-raising number of instances. If these special exclusions continue, soon the statute will have little meaning at all.
This is a serious issue that deserves debate among the commonwealth’s constitutional experts, legislators and voters.
Let the debate begin.