David Toscano – Page 38

Supreme Court Decisions and Virginia

July 2, 2015 by David Toscano

Last week was a week that will not be forgotten for many years – and I’m not just talking about the fantastic run of the UVA men’s baseball team to the NCAA Championship. On two separate days, and in two dramatic decisions, the U. S. Supreme Court took actions that will influence the United States for decades to come. They also set the stage for the next series of debates in the General Assembly about healthcare and discrimination.

Many of us who are lawyers felt that the court would have been on sound legal ground with their endorsement of same-sex marriage and their refusal to embrace the arguments of the critics of the Affordable Care Act (ACA) in King v. Burwell, a case attacking the ability of the federal government to provide subsidies to citizens seeking to purchase health insurance. But until the opinions were issued, many of us remained anxious that the conservative forces on the court would find a way to turn back the tide of history.

In King v. Burwell, a great deal was at stake. More than 7 million Americans would have lost these subsidies. This included over 268,000 Virginians. The result would have been chaos. People would have lost their coverage, the health insurance markets would likely have gone into a tailspin, and the ACA would have been put at risk. Fortunately, we did not have to endure this, and the ACA emerged stronger than ever. Fight as they might, the options for the detractors of the Act are becoming increasingly limited. Even with a Republican president, undoing the Act will be very difficult, if not impossible, and there are very few fundamental legal attacks that now can be mounted in order to destroy the Act.

In the aftermath of King v. Burwell, the issue for Virginia remains largely the same, that is, will the General Assembly find a way to capture what is now almost $2 billion in Virginia taxpayer dollars that have been transferred to Washington and are being used to support Medicaid expansion in other states of the country? Many of us feel that it is fiscally irresponsible to use Virginia monies to help insure citizens in other states. It would be better used here to help 400,000 Virginians who would benefit by expansion and assist hospitals and healthcare providers who are facing financial challenges in the aftermath of the changes brought on by the ACA. Republicans in the House of Delegates have largely remained opposed to Medicaid expansion, arguing that the state cannot afford it, even though 100 percent of the expansion in the first three years would have been paid by the federal government. We are hoping that our colleagues will realize that expansion is not just about helping those in need, but also about being fiscally responsible in using Virginia taxpayer dollars to support its citizens and businesses.

The Supreme Court’s endorsement of same-sex marriage in Obergefell v. Hodges was something that many legal analysts had come to accept as a foregone conclusion. Most of the federal courts in this country had already accepted this view, and any Supreme Court’s rejection of the concept would have come to many as a shock. Nonetheless, as President Obama said, the decision arrived as a “thunderbolt.” When one thinks about how this country has changed in less than a decade, it provides great hope for the future.

But make no mistake about it – there are many things that remain to be done. As one pundit recently put it, the decision means that “you can be married on Saturday but still be fired on Monday.” Many states, including Virginia, do not extend the protection of anti-discrimination employment and housing laws to gay citizens. Consequently, you will see many of us advocating for those changes when we return to Richmond in January. In addition, there are thousands of places in the Virginia Code that will require changes to conform to the Supreme Court’s decision. Many of these changes will be routine, but others may turn out to be controversial and provide the conservative element of the General Assembly an opportunity to resist a Supreme Court decision that they are having a hard time accepting. Many of these arguments will be couched in the language of religious freedom, which will make for very interesting and emotional debate, but I am hoping that religious freedom will not be used as rationale for discrimination and that our desires for inclusion will not compromise religious liberty. Hopefully, the fact that the country is now in a very different place than it was a decade ago will allow us to embrace anti-discrimination measures and, therefore, continue to bend the arc of history a little closer to justice.

Not to be outdone, the final Supreme Court decision, which has implications for Virginia, was issued in a 5-4 decision on June 29, 2015. The case of Harris v. Arizona Independent Redistricting Commission gave constitutional backing to Arizona’s use of an independent commission to draw new election district maps for its members of Congress. In the case, the Supreme Court ruled that a state’s voters can delegate the task of fashioning congressional district boundaries to an independent commission. Although the situation in Arizona is not totally analogous to Virginia, as we could not enact an independent commission by a public referendum, it provides an argument to counter some of the opposition to these commissions. Some have argued that creating independent commissions takes away the requirement under the Constitution that lawmakers create the election districts. This court case suggests otherwise.

More important to the Virginia situation, however, are two cases that are in various stages of court action, and which potentially have tremendous implications for the composition of the Virginia Congressional delegation as well as the House of Delegates. In Page v. Virginia State Board of Elections, the federal courts have already ruled that the General Assembly’s recent drawing of congressional districts is unconstitutional, and directed the legislature to return before September 1 to redraw the lines. The Republican-controlled House of Delegates has, to this point, refused to return by September 1 and argued that there will be additional appeals and a stay (delay) of the court’s order. The U. S. Supreme Court has already refused to consider the Page case so it is likely that we will be forced to redistrict congressionally in the next several months. The more significant case for the House of Delegates, however, is Bethune-Hill v. Virginia State Board of Elections. That case was filed by fourteen plaintiffs early in 2015 and has its first hearing set for this month. The same logic which prevailed in the Page case is being used to attack the House of Delegates’ redistricting in the Bethune-Hill case. If plaintiffs prevail in this case, the entire House of Delegates’ district map will be scrambled, perhaps as early as the 2016 election. This would have huge implications for the composition of the House of Delegates as ten to fifteen seats would likely become competitive overnight. It this happens, it will perhaps be the most significant political development to occur in Virginia in a decade and, therefore, merits close attention.

In my next reports, I’ll talk a bit about the work I’m doing as leader statewide, my optimism about the upcoming House races, and the continuing controversy over the heinous shootings in South Carolina and the Confederate flag.

If you need any assistance with or have questions/comments about matters before the Commonwealth, please do not hesitate to contact my office at 434-220-1660, or email me at david@davidtoscano.com. As always, it is a pleasure to serve you in Richmond.

Sincerely,

David Toscano

The Impact of King v. Burwell

June 25, 2015 by David Toscano

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With the decision in King v. Burwell, the Supreme Court has further confirmed the constitutionality of the Affordable Care Act (ACA) and allowed to stand the subsidies that have been provided to thousands of Virginians who have signed up for insurance on the federal ACA marketplace. I am very happy for the 286,000 Virginians who would otherwise have lost reasonably-priced insurance and for the many Americans who continue to benefit from provisions of the ACA. In Virginia, though, there is much work that needs to be done. Almost 400,000 of our friends and neighbors would benefit by state expansion of Medicaid. If we expanded, we would also bring Virginians’ tax dollars back to the Commonwealth, where they could be used to create jobs, insure people, and help our hospitals rather than have them sent to places like Connecticut and New York to fund their own expansions. In the next session, we will try again to expand Medicaid. I hope my Republican colleagues will finally conclude it is a good deal for the Commonwealth and their constituents.

Three Books Prompting Thoughts on Civility

May 14, 2015 by David Toscano

It’s great to be here with you tonight to talk about everything from civility to what it is like to be in the minority. And let me tell you, after 10 years in the House of Delegates, I know a lot about what it feels like to be in the minority.

I believe, of course, that the primary role of the minority is to become the majority. But beyond that, minorities have a special role to play in how political discourse is conducted. In my view, just saying “no” is not enough. To be sure, we have a key role critiquing the majority-in-committee, on the floor, and in the public, and using the weaknesses in their positions to draw distinctions. But we are also aware that we have a key role in how political discourse will be conducted. If all the minority does is to constantly roll hand grenades into the middle of the room, we will miss a great opportunity. There are, of course, times when we must take the offensive and that surely irritates the majority. But the way that we do it is important, not only to making our points, but also setting the stage for how we handle debate when we resume majority, as we inevitably will.

David Toscano speaking at the Sorensen Institute — Speech given by Delegate David Toscano at the Sorensen Institute 2015 Spring Gala, on May 14, 2015, at the Greater Richmond Convention Center, Richmond, VA

When you are in the minority, you sometimes feel you are starving for attention. So you seize every opportunity and resort to gimmicks – anything that makes things more interesting. For example, props. The ability to use props and charts is unique to the house chamber, and frankly speaking, it makes the house a much more interesting place to debate than in the senate where such props are prohibited. Well, tonight we are not on the house floor, but I brought some props.

So let’s start with one which will get the attention of my friend, Kirk Cox. He is a Yankee fan, and all I need to get his attention is to wave this Red Sox cap in front of him. If we didn’t do things like this, Kirk would simply fall asleep watching a succession of 67-33 votes. Hell, I would fall asleep too.

So tonight, in honor of the House, I brought you some props in the form of books for summer reading. Don’t worry, these books are all very quick reads, unlike Thomas Piketty’s Capital, which remains on my bedstand for use in helping me get to sleep at night.

So, what do I have? First, let us start with a book on Jefferson. Would you expect anything else from one of the delegates who holds the seat once held by Jefferson in the House of Delegates? The book is called Democracy’s Muse: How Thomas Jefferson became an FDR Liberal, a Reagan Republican, and a Tea Party fanatic, all the while being dead. There are great takeaways from this book – not the least of which are some wonderful Jefferson quotes. For example, Jefferson once wrote “If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.” This, of course, was from the letter he wrote to the House of Delegates in 1816 to convince them to create the University of Virginia. Historical note, especially for Dick and Bryce (and senators) – the Senate had little power at this time – it couldn’t even introduce bills. Oh, for the good old days! For Jefferson, creating UVa wasn’t an easy sell; it took years for the Commonwealth to approve this plan. Good thing they did. Go hoos!

Over and over again, Jefferson’s quotes are used for all kinds of purposes. Many are twisted. For example, the quote displayed on the t-shirt worn by Timothy McVeigh as he carried out the Oklahoma City terror bombing in 1995, read “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Twisted to be sure because Jefferson never viewed his statement as a call-to-arms or rebellion. In fact, he was using it as a part of his condemnation of Shays’ Rebellion in Massachusetts in the 1780s.

Many quotes are attributed to him that he never said. How about this one: “if your government is big enough to give you everything you want, it is big enough to take everything you have.” According to Monticello scholars, Jefferson never said it. And, this one: “My reading of history convinces me that most bad government results from too much government.” He never said that either. How about, “the Bible is the source of liberty”? Nope. “That government is best which governs least”? Nope – that’s Henry David Thoreau.

The book also puts into perspective the political discourse of our day. When we think about a dysfunctional congress and negative campaigning, we need to realize that in the first years of the Republic, all was not hearts and flowers. For example, during Jefferson’s numerous campaigns, rumors were spread about all kinds of his personal and romantic activities, some of which later proved actually to be true. Similar comments were made and directed at John Adams, Jefferson’s chief antagonist at the time. How ironic that they became close to each other after they both left the presidency.

But even after all of the attacks, Jefferson extended the olive branch to his opponents – sought to bring people together. In his first inaugural, he not only emerges as a conciliator, but as the ultimate rationalist. Let me quote, “every difference of opinion is not a difference of principle. We are called by different names brethrens of the same principle. We are all Republicans. We are all Federalists.” What an amazing thing to say after the divisive 1800 election! What a uniquely american thing to say!

But he went further, I quote, “If there be any among us who would wish to dissolve this union or to change this republican forum, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it.” Reason would triumph over the error of opinion. That is so Sorensen!

With that comment, I move to the next book worthy of reading. This is also written by a Virginian, Stephen Nash, who is a science writer. It’s entitled, Virginia Climate Fever: How Global Warming Will Transform Our Cities, Shorelines and Forests. The book provides us with a number of sobering facts and challenges us to embrace a course of scientific consensus that global warming and climate disruption is being caused by human activity. There are shocking facts in this book that are worthy of our consideration in Virginia. For example:

Sea level rise was about 6.7 inches throughout the last century. The rate in the last decade is double that.
Seventy-eight percent of all Virginians live within 20 miles of the Chesapeake Bay, the atlantic, or tidal rivers
over 600,000 people live within 6.5 feet of sea level.

Some scientists predict 1 foot of sea level rise by the year 2050, a change that would bring momentous and expensive change to Tidewater Virginia, pushing salt water onto roughly 40 square miles of dry land, and that doesn’t even account for possibilities of tidal surges during serious storms.

I go on and on, but that is a partisan speech that can wait for another day (I have props for that too.) But the big concern that I draw from this book – and one which I hope you will consider – is how we got to the point in this country where we no longer trust our scientists. (t didn’t used to be this way. In America, we revered our scientists. They helped end World War II, put a man on the moon, and eliminated all kinds of serious disease. This skepticism in science is relatively recent – really over the last decade, and is a trend about which Jefferson would be deeply troubled. If Sorensen can do anything, I hope it can explore how we can restore respect for how empirical data can inform political discourse and sound social policy. We used to have a high regard for scientists in this country. The debate on climate change seems to be eroding that.

And, finally, I wish to bring a book to your attention written by Jason Grumet, president of the Bipartisan Policy Center in Washington. City of Rivals offers practical steps for how to govern a polarized nation and tries to restore our faith in government and the ability to get things done. And while Grumet has a lot of tangible steps that can help increase public participation in the electoral process – things as structural as changing the way we do redistricting and ease of voting to encourage political opponents simply to share a meal or a drink together, he raises two very fundamental questions.

First, are we electing and appointing people who actually want to work together? Second, can the “best and brightest” in our society be attracted to government service? I submit that the jury on those two questions is still out. I would like to think that in Virginia we are still electing people who actually want to get things done, but what about the long term?

Part of the answer can be found right here in this room and in the mission of Sorensen – to recruit the best and the brightest and help them develop both the skills and the relationships necessary to work together and get things done. Sorensen knows that the essence of people learning to work together and get things done involves the slow and steady process of building relationships and trust. We have more of this than you would think in Virginia, but not as much as we had and certainly not as much as we need. And without constant rededication to this task, we will only generate greater polarization and fewer opportunities for change that enriches all of our lives. If we can get it right in Virginia, we will have a competitive advantage because there are so many other places which are going in the opposite direction.

In conclusion, then, I again congratulate Sorensen for all of the fine work that is it does and in so doing, let me leave you with the words of John F. Kennedy, who seized upon Jefferson so many times during his presidency and who said that, “we must remember that civility is not a sign of weakness and sincerity is always subject to proof.” So, here’s to Sorensen, summer book reading, Jefferson, and the fellowship borne out of sharing a meal and a drink.

Toscano Announces Reelection Bid

April 23, 2015 by David Toscano

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CHARLOTTESVILLE – Delegate David J. Toscano announced today that he will seek a sixth term to represent the 57th District in Virginia’s House of Delegates. In a letter to supporters announcing his reelection, Toscano commented on his efforts to represent the values important to the constituents of the district, noting that this seat is a successor seat to the one once held by Thomas Jefferson:

Friends,

I have often heard it said that “Decisions are made by those in the room at the time.”

Your support has allowed me to be “in the room” at the General Assembly for the last ten years. For the last four of those, my position as House Democratic Leader has allowed me the access to fight even more strongly for a progressive agenda to improve our Commonwealth.

During this time, I have been supporting the values of this community, including enhanced funding for education at all levels, initiatives that create jobs and spread economic opportunity throughout the Commonwealth, measures to expand the use of renewable energy and combat the dangers of climate change, efforts to expand Medicaid and to provide access to 400,000 Virginians who do not presently have healthcare coverage, and struggles to protecting the rights of women seeking control of their reproductive healthcare. You can review my record at davidtoscano.com.

I would like a chance to continue this work, and today am announcing my decision to seek another term as your Delegate in the 57th House District. As many of you know, this is the successor seat to the one once held by Thomas Jefferson when he served the Commonwealth in the House of Delegates and I do not take the responsibility of occupying it lightly.

I will continue to work hard to earn your support and vote. I thank you in advance for your support and look forward to working with you in the months and years ahead.

Sincerely,

Since 2006, David Toscano has represented the 57th District, which is compromised of the City of Charlottesville and a portion of Albemarle County. He succeeded Mitch Van Yahres who represented the district from 1981-2005. The seat is a successor seat to the one once held by Thomas Jefferson. Delegate Toscano also serves as House Democratic Leader, a position he has held since elected to by his peers in 2011. Mr. Toscano is an attorney with Buck, Toscano & Tereskerz, Ltd., and lives in Charlottesville with his wife, Nancy Tramontin and their son, Matthew.

Vetoes, the Ethics Bill, and a Three-Day Session

April 21, 2015 by David Toscano

The House and Senate returned to Richmond on Wednesday, April 15, 2015, for our annual “Reconvene Session” or “Veto Session.” This is typically a day-long event, as the General Assembly considers the Governor’s vetoes and any amendments he might want to make to various bills passed during the regular session. (Unlike Washington, D.C., the executive in Virginia has the ability to make changes in portions of specific legislation without vetoing an entire bill.)

The Governor proposed 17 vetoes on a wide variety of measures, and all of them were sustained by one or both chambers. To sustain a governor’s veto requires only that 33 percent of those voting to agree with the governor. If so, the veto stands and the bill does not become law. Among the vetoes that were sustained were several bills that would have made modification in legislative district lines, a bill that would infringe on the Board of Education’s authority to adopt curricula for public schools, a bill that would have prevented local governments from contracting with private business to require higher wages and benefits as a condition of doing business with that locality, several gun expansion bills, the so-called “Tebow bill” (providing special privileges for home schooled children to access public school sports and extracurricular activities), and a bill that would have required people who seek absentee ballots to provide photo identification in order to receive them. I voted to sustain every one of the Governor’s vetoes.

The Governor also proposed a number of line amendments to bills that were passed this past winter. Most of those changes were technical and drew no controversy. Several, however, were more substantive. Most notable of them involved the bill that would have prevented the use of certain surveillance equipment by law enforcement. This sparked a lively debate on the House floor and produced some strange bedfellows. The ACLU and the Tea Party argued that law enforcement should be able to use surveillance equipment only upon obtaining a warrant. Many of us were concerned, however, that such a position might make it more difficult for police to conduct investigations, or for dashboard cameras and body cameras to be used to protect citizens against overzealous police enforcement efforts. The bill began as an effort to prevent law enforcement agencies from keeping the data received from reading license plates for an indefinite period of time. It was transformed into a full-blown prohibition against the use of certain kinds of surveillance video. If you look at incidents like the Boston Marathon bombing, the recent South Carolina police shooting of an African-American male, and even the Hannah Graham case, you can see how important surveillance video and dashboard cameras can be in determining what happened in a specific incident. Fortunately, our arguments prevailed and the Governor’s amendments that permit continued use of these video surveillance techniques were passed; the bill now only applied to license plate readers. At the same time, the ability of law enforcement to keep data generated from license plate readers was limited to seven days, a time period which I believe is too short, but is certainly better than the indefinite period of time that they had been able to keep the data at present.

We had also thought that we would vote on a series of amendments to the ethics package that has been passed in the winter. At the last minute, however, concern developed that the bill’s provisions requiring a $100 gift ban were not written tightly enough. You may recall that the Governor issued an Executive Order when he came into office preventing the administration from accepting gifts in excess of $100 per year from lobbyists or anyone who did business with state government. The legislature did not accept this approach last year, but the Governor kept pushing, and we now have passed such a ban. This will still allow legislators to be taken to inexpensive lunches and receive gifts such coffee cups or an inexpensive bottle of wine as a token, but would prevent the kind of excesses and inappropriate gifts that we saw in the McDonnell case. It will also allow gifts to be received from friends. The gift ban almost fell apart at the last minute, as some suggested that the language was not tight enough. Given the desire to fix the bill, we had to use some procedural maneuvering that had not been used in over 20 years and required us to return to Richmond on Friday, April 17. We got what we wanted, that is, the $100 gift ban. Many of us hope and believe that this action will allow some restoration of the public trust that had been lost in the aftermath of the McDonnell trial.

With the legislative session now over, we return to our districts, constituent service and to our day jobs. It is an election year and many of us are readying ourselves for fall campaigns. I will announce my intentions soon.

If you want to hear more about the General Assembly session, or have issues you wish to discuss, Senator Deeds and I are holding two town hall meetings, one on this Tuesday, April 21, at 5:30 p.m. at PVCC, and the other on Tuesday, May 5, from 5:30-7:30 p.m. at the Northside Library. You can sign up to participate on Facebook or call our offices, 434-220-1660 or 434-296-5491.