Virginia’s may be the most powerful legislature of them all

Virginia’s legislature and governor are embroiled in a “two scorpions in a bottle” fight over the new biennial budget, which must be passed by June 30, 2024, to fund the government. On Wednesday, both sides return to Richmond for the “reconvened” or “veto” session.

Budget battles in the commonwealth are not unusual, but this one is unique, both in the number of changes Republican Gov. Glenn Youngkin proposed to the bipartisan spending plan and the rhetoric that has accompanied the process. Youngkin called the bill a “backward budget” and traveled the state on this theme. Legislators fired back, did their own tour and likened Youngkin’s actions to “ what spoiled brats do when they don’t get what they want.”

The governor has vetoed a record number of bills, including measures to protect reproductive rights and enhance gun safety. Since overriding a veto requires a two-thirds vote, expect the governor to win most of these contests.

The politics of ‘gotcha’

The fight over the budget bill will be different. Youngkin was initially expected to use the power of the “line-item veto,” by striking specific provisions in the budget and then challenging the legislature to produce a two-thirds vote to override them. His targets were thought to be a tax on digital services he originally proposed and language that requires the commonwealth to rejoin the Regional Greenhouse Gas Initiative (RGGI). But he abandoned this approach when legislators shrewdly drafted these provisions to make a line-item veto legally problematic.

Youngkin instead proposed a record number of 233 separate amendments to the budget bill. Expect few of substance to pass. Each requires a simple majority vote to be included in the budget, and Democrats are still fuming over Youngkin’s rhetoric and vetoes over the last month. Youngkin will then face a difficult choice: He can sign the budget “as presented,” or veto the entire plan, demand a special session and a new budget. 

The July 1 deadline for a new budget will then loom large. Fearing a government shutdown, agencies and local governments would scramble to construct contingency plans. Such uncertainty might even prompt a revisiting of Virginia’s celebrated Triple A bond rating, a fixture for more than 50 years. A lot is at stake. Ultimately, the legislature will get most of what it wants, even if it takes a special session to do so.

The legislature is the most powerful branch of government

Youngkin is now learning what his predecessors discovered a long time ago — that the legislature is the strongest branch of government, and the commonwealth’s legislature is perhaps the strongest of all the states.

The Virginia General Assembly’s power over governors is a function of history, strong leadership and most importantly, the Virginia Constitution. Leery of executive power that evidenced itself in dictatorial colonial governors, our founders wrote the state constitutions to favor governance that is closest to the people — the legislature. 

This legislative advantage is found in the Virginia Constitution. Virginia is the only state where the chief executive cannot serve consecutive terms, making it difficult for governors to extract concessions from legislators who will serve much longer. In their first year, they are learning the system. By their third year, they are viewed as “lame ducks.” 

This dynamic is now playing out in the budget bill. When Virginia governors take office, they are dealing with a two-year budget prepared by the previous chief executive. In most states, newly elected governors submit a budget at the beginning of their term. Not so in Virginia!  Newly sworn governors can propose budget amendments, but they are painting on a canvas that has been provided by their predecessor. The only budget plan that is uniquely theirs is created at the end of their second year in office. In their final year, they prepare another two-year budget, but they leave office before the legislature debates it in a new session with a new governor. This gives the legislature an edge in budget deliberations, and further fuels the adage frequently heard in Richmond that “governors come and go; the legislature is forever.”  

The commonwealth is now considering the only budget that is Youngkin’s alone. His best chance to leave a legacy is this budget; but his relationship with the legislature is putting this at severe risk.

Virginia’s legislature is uniquely powerful

The power of the Virginia legislature extends beyond appropriations. The body has greater appointment powers than most state legislatures and can derail key nominees that the governor desires. Virginia’s State Corporation Commission (SCC) is a good example. Almost its own branch of government, its decisions affect everything from utility rates to insurance regulation. SCC judges are solely appointed by the legislature. In other states, not only do similar bodies have less power, but the regulators are either elected by citizens or appointed by governors.  

In addition, our legislature appoints the entire judiciary. Judges in most states  — including state supreme court members — are either appointed by the governor or elected by the citizenry.    

This is not the case in Virginia. The commonwealth and South Carolina are the only states where the legislature has total control of these selections. A Virginia governor cannot dispense political perks through judicial appointments. 

The system appears almost quaint by comparison to the rough and tumble statewide political campaigns for state supreme court positions recently witnessed in Wisconsin and Pennsylvania. As more fundamental rights are litigated in the state courts, greater attention will be paid to the legislature’s choice of judges. 

This week, Richmond is focused on the budget, and my bet is that the legislature eventually will get most of what it wants. And it will then continue to exercise powers that its colleagues in other states cannot, and that arguably makes it the most powerful legislature in the country.