How the House of Delegates’ dreaded sub-committee system killed LGBT protections, driver’s license suspension reform and, maybe, the ERA

What do the Equal Rights Amendment, driver’s license suspension reform and legislation to ban housing discrimination based on gender or sexual orientation have in common?

They were all the subject of high-profile legislative pushes.

They all appeared to have enough bipartisan support to pass the General Assembly.

And, despite surviving the Senate, they’re all likely to die without a vote on the floor of the House of Delegates, ensnared in the body’s often-maligned system of subcommittees, where four or five members of the majority party wield the power to block just about anything that comes their way.

“The inequities, the lack of due process, the lack of transparency and fairness, I believe, are apparent,” said Sen. Bill Stanley, R-Franklin County, whose legislation to end the practice of suspending driver’s licenses for unpaid fines and court costs, which affects more than 600,000 state residents, died this week on a 4-3 vote in a House subcommittee dominated by two conservative former prosecutors.

He called it “rule by fiat.”

Grumbling about the House’s use of subcommittees to vet legislation is a perennial pastime, particularly after the midpoint of the session, when legislation that’s cleared the Senate hits the House.

The House speaker’s discretion to appoint committee chairs and decide which legislation goes where is a key component of the office’s power. The system lets leadership bury bills they don’t like and shield their caucus from uncomfortable or potentially politically damaging votes.

But complaints about how the House handles legislation have become more pronounced since the 2016 election, which cut the once sizeable Republican majority to 51-49.

“The killing of bills in subcommittee didn’t matter all that much when the Republicans had a two-to-one majority in the legislature,” said Stephen Farnsworth, a political scientist at the University of Mary Washington. “Something that wasn’t going to get through the committee wasn’t likely to pass on the floor anyway.”

Things are different now.

“There’s a reasonable chance that centrist-oriented legislation could pass on the floor if it ever got there. … I think this is particularly galling for senators, whose Republican caucus isn’t as conservative as the House caucus. And things that pass comfortably in the Senate may still die in the House at 7:30 in the morning without all that much consideration,” Farnsworth said.

House leaders defend their use of subcommittees as a necessary tool to devote meaningful consideration to the 2,649 pieces of legislation introduced this year.

“There’s nothing nefarious about it,” said House Majority Leader Todd Gilbert, R-Shenandoah, who chairs the subcommittee that killed Stanley’s drivers license bill. “Not a lot of productive work happens at the full committee level. The subcommittee is there to actually get down into the policy issues and the wording to try to craft the legislation to be as precise as possible.

“It’s only ever a problem when people don’t get their way.”

The Senate uses subcommittees too. But their actions are only taken as recommendations to the full committee, generally around 15 people — a number likely to include a broader cross section of opinion.

In the House, if legislation is voted down in subcommittee, it won’t go before the full committee, in most cases 22 members, for consideration.

Stanley called the Senate’s approach more democratic.

“We give everybody a fair shot,” he said. “There was not one delegate’s bill last year or this year that did not get a full hearing by a committee once it passed over from the House.”

Sometimes, bills introduced in the House or passed over from the Senate never even get a subcommittee hearing. It’s up to the chair what legislation to take up and what legislation to ignore.

That was the fate of a bill introduced by Del. Roxann Robinson, R-Chesterfield, to ban housing discrimination based on sexual orientation and gender identity.

It was first referred by Speaker Kirk Cox, R-Colonial Heights, to the committee he chairs on rules, which he uses as a holding pen while negotiations play out behind the scenes. After apparently being unable to reach a consensus, it was then referred without discussion to General Laws, where it was never heard.

The bill is backed by LGBTQ rights groups and was pitched by Robinson as a common-sense protection that polling shows is supported by a majority of Republican voters in the state. It’s not clear if the Senate version will be handled similarly.

Sometimes there are efforts to make procedural moves to sidestep the power of the subcommittee, but they are rarely successful.

Advocates for the Equal Rights Amendment are still hopeful that the legislation can be heard on the floor. The resolution failed in subcommittee and a procedural vote to get the full committee to take up the resolution also failed. House rules say if the subcommittee does not recommend legislation by a majority vote, “the chairman need not consider the legislation in the full committee.”

Their “Hail Mary pass,” as they described it in an email to supporters, is a rules change on the floor of the House of Delegates that would allow a full vote anyway. It’s a rarely seen move.

Del. Hala Ayala, D-Woodbridge, began the process Thursday evening, filing a resolution that now needs to be read by the clerk for five days in a row before a vote can take place.

Gilbert filed a dueling resolution attempting to block the procedural workaround. It specifies that the rule change proposed by Ayala can only be adopted by a vote of two-thirds of the House, rather than a simple majority.

He called Ayala’s approach “very unorthodox and very unfortunate way to try to drive a specific agenda, and we just don’t do that in House rules, and my rule is intended to solidify that longstanding practice.”

Ayala, meanwhile, said she believes the ERA is so important it calls for extraordinary measures, calling the rule change Gilbert proposed in response to her’s as “hostile toward women.”

The story has been updated to add additional comment from delegates.