Giesen Perspective

The “Reconvened” or “The Veto Override” Session of

The 2007 General Assembly—The Rest of the Story

DATE: Thursday, April 05, 2007

AN OVERVIEW

The media has focused on the “emotional issues” of the Reconvened Session. You have read or heard how the delegates rejected his amendment to HB 2422 which would have said “no smoking in restaurants in Virginia;” how the legislators over-rode his vetoes of two bills adding two more capital murders to our death penalty statutes; and how his HB 3202 Sub (remember that’s the transportation bill) was easily approved by both houses.

There is more to the reconvened session than just these issues. The Governor, for instance, prevailed in seven of his 10 vetoes, and two of the rejected vetoes were on identical bills—one introduced in the House and one in the Senate—making the murder of a judge or justice a capital offense. (There are an awful lot of attorneys in both houses that just might have an eye on being on the bench in the latter days of their careers.) The third veto to go down was the addition of the murder of a witness in a criminal case to the list of crimes punishable by death.

On bills that he had amended, the Governor again did reasonably well. His amendments were rejected totally on five senate bills and eight house bills. On two identical bills—again one in the house and one in the senate—an agreement was reached by the administration and the patrons of the bills before the session to accept half of the 12 amendments and reject the other half. Then on another house bill the members accepted two of the Governor’s three amendments, while the Speaker ruled an amendment on another bill “not germane.” So out of 103 bills which the Administration amended (OK, technically the Governor does all of these amendments but in actuality various agencies review them, then the Cabinet Secretaries decide if any recommended amendments should go “to the third floor for action” and finally the Governor’s personal staff give their blessings before the Governor makes the final decision), eighty-six of his amendments were approved totally and three others partially.

That means this Democrat Governor prevailed on 70% of his vetoes and about 86% of his amendments. This included the full acceptance of his 16 amendments to the budget bill. This is a pretty good average for a man who had only 30 days to act on the 900 plus bills placed on his desk in the last week of the session. Particularly since he spent most of the month traveling the state and concentrating on an acceptable substitute for the transportation act.

THE RENOVATED CHAMBERS

Let’s look at some of the other parts of the “rest of the story” for Wednesday’s session. As noted in an earlier GP, the legislators and the media were allowed in the partially renovated Capitol. The Chambers for both houses were 99% completed. Other rooms and halls and displays and landscaping are still “under construction.” All of the legislators questioned after the session had high praise for their new surroundings. The audio feeds to the GAB committee rooms, where the lobbyists, visitors, members’ staffs, etc. were observing and listening to the proceedings, were not fully adjusted, but those are minor problems which certainly can be corrected before the next session.

More urgent is the push to finish the renovations sufficiently to allow the gala opening scheduled for May first. This is even more critical when considering the visit of the Queen of England for the 400^th anniversary of the English landings in Jamestown. Your legislators adopted a resolution inviting this royal visitor to address a joint session of the General Assembly during her visit. The exact date hasn’t been established (Buckingham Palace and the Jamestown Foundation will control her schedule) but the days of her visit are May 7-9.

While generally singing high praise for how Mr. Jefferson’s Capitol looks, some legislators expressed concern as to the time table for finishing the work. The Clerks of both houses, who have been doing a lot of the oversight on the renovation and addition along with the Department of General Services, gave strong assurances that the work would be complete by May 1. It would appear from the activities around the Capitol grounds (the number of cars and trucks going in and out of the entrance to the Capitol and the number of people with hard hats “putting their shoulders to the wheel,”) that the big push is on, and if it can be done, it will be.

“THE REST OF THE STORY” OR “Some Interesting side lights”

The Governor’s Substitute for the Transportation Reform Act of 2007

Prior to the beginning of the “reconvened session” (that’s the official constitutional name of the General Assembly session to be held “…on the sixth Wednesday after adjournment of each regular or special session for the purpose of considering bills which may have been returned by the Governor…”—Art. IV, Section 6. The “Veto Override Session” is what the legislators like to call it. (Is this a struggle between the branches of our state government?) Several statements were made by prominent House Republican Leaders about different possible parliamentary maneuvers to get the Governor’s Substitute for HB 3202 back to committee to “revise it.” For some reason this just didn’t happen. Now what is the rest of the story on the ease of passage achieved for HB 3202 Sub?

From talks made on the floor of the House and Senate, and from unofficial comments from some delegates on both sides of the aisle, it was apparent there had been some behind the scenes activity to prevent any derailing of the express train devised for the final version of the Transportation Reform Act of 2007. The Speaker, the Senate Majority Leader, the Senate Majority Floor Leader and the new House Minority Leader purportedly made some pointed phone calls suggesting rather strongly they had endorsed the “amendment in the nature of a substitute” for the Speaker’s bill, and therefore it would be appropriate for the bill to receive strong, bipartisan support on April 4. This happened with glowing speeches from both sides of the aisle and in both houses.

Delegate Ward Armstrong, D-Martinsville, recently elected Minority Leader (the change in leadership in the Democrat House Caucus was a surprise and interesting happening on the last day of the regular session but the discussion of that is for another GP on another day), took a much more active role in the floor debates all during the session. On the occasion of the speeches on HB 3202, he made a very “statesman-like talk” praising the Republican Leadership for coming forward with a compromise bill which gave His Excellency the ability to amend and make it an even better compromise. He added, “While this compromise doesn’t satisfy everyone, it is a step forward and one which we need to support.” (Does this kind of talk mean the transportation issue is muted for this Fall’s elections?)

The Gentleman from Salem, House Majority Leader, Morgan Griffith, explained the bill and gave due credit to the Governor for being willing to use General Funds to help fund the critical needs of transportation in the state. It was interesting to some old capitol watchers that the Speaker, as the bill’s patron, didn’t “vacate the Speaker’s chair” and explain the substitute to his colleagues. In a later conversation when asked about this possibility, he quipped, “I wasn’t going to give up the chair to anyone else. The members might get some ideas about needing a change.”

The most quoted comment made during this “House floor debate” (it was more like a love feast) came from Delegate Stephen C. Shannon, D-Vienna, a sophomore delegate and an infrequent speaker on the floor, when he said, “This isn’t a perfect bill, but we can come back and fix it next year. What we cannot fix is inaction.”

Interesting that Senator Tommy Norment, R-Williamsburg, in presenting the bill to the Senate said something very similar. In a little more dramatic fashion, he noted this bill didn’t provide sufficient funds for a department (VDOT), which needs a billion dollars a year more in revenue, and called it “one of the ugliest bastard step children to emerge from the Senate.” But he then encouraged his colleagues to vote in favor of it since it was the best that could be passed by both houses in this session. He also pledged to come back to the Assembly and help raise more funds for transportation next year. (The voters may have something to say about that, but it does appear Tommy is in a safe seat.)

Even the speeches made by the detractors of the bill were subdued and relatively short. The shortness and mildness of a speech on the questionable constitutionality of some parts of the bill by the usual contentious gentleman from Prince William, Del. Bob Marshall, surprised many watching the session.This was another indication of the effectiveness of some of the behind-closed-doors discussions which took place prior to the official floor session.

Here are a couple of other negative comments about the bill that need to be kept in mind. Del. Lionell Spruill, Sr., D-Chesapeake, criticized the bill and those voting for it because, “…if we pass this we are only hiding behind taxes put on by local government…” He stressed the state government was not living up to its responsibilities.

Senator Russ Potts, R-Winchester, questioned Neal Menkes, the Senate Finance Committee staff analyst for transportation who explained the Governor’s substitute to the committee, “So what I have to tell the citizens of Winchester and Frederick County is the state will finance transportation projects with $3 billion in borrowed money over the next eight years, for which they and their children will have to pay over $5.4 billion over the next 30 plus years.” The answer was, “Yes, that is correct senator!”

The final vote showed pressure that the legislators felt in this election year to “act NOW!” The House voted 85-15 for the Governor’s Substitute, and only 10 Senators voted “nay” with Senator John Chichester abstaining. Several of the “no” votes in the Senate came from senators who had voted on the final day of the regular session to pass the conferees report on HB 3202 “so the Governor will have a chance to amend it.” These were senators that still felt there should be a statewide tax increase to help solve the transportation crisis or ones who are no-tax-increase advocates, and a couple who were concerned about the constitutional questions. It was an interesting coalition with members of both parties in the “nay” voting group. The vote split in the House was similar, with nine Republicans, five Democrats, and one independent in the “nay” column.

Different Ways to Address the Governor’s Actions

As you are aware, the Governor vetoed the three bills which the GA had passed to increase the incidences where capital murder cases could be prosecuted. He also amended another bill to restrict smoking in all restaurants. Next to the transportation issue, these were probably the most publicized actions of the Governor. The Assembly’s action on them probably received the most “ink” following the session. The approaches of the patrons on these bills to get the Governor’s action overridden were quiet different, and in that fact rests “the rest of the story” on the actions of the delegates.

First on the Calendar of the House are the bills the Governor had vetoed. On the first four of these considered by the body, two were uncontested by the patron and no vote was taken. On the other two, one had not received enough votes to override and the second, dealing with the exemption of schools operated under the auspices of a religious institution from paying fees charged by building inspectors, received just enough (68 votes) to override. The Senate later upheld the veto.

Then the first of the vetoed capital murder bills was on the calendar for consideration. Many who have followed the legislature for the past several years commented about whether the patron of the bill, Del. Todd Gilbert, D-Shenandoah County, would be able to defend his bill. Todd is a good member in his committee work. Being a former law enforcement officer, he has made significant contributions to the activities of the Militia and Police Committee, but he is not known for his floor speeches.

On Wednesday, he surprised many by how exceedingly effective he was. He delivered his emotional appeal to override the Governor’s veto in a strong, even voice. He told the story of a young 18 year old, pregnant girl who turned state’s witness and was set to testify against her boy friend and the other members of his gang. She was found by the gang members and brutally murdered. Todd emphasized that under the federal code the perpetrators could be prosecuted for capital murder, but not under Virginia law. In the House, after that emotional speech, 83 members from both sides of the aisle voted to override the Governor’s veto.

This former law officer did a similar job on the bill to redefine the “triggerman rule.” Presently, only the person who pulls the trigger in the commission of a murder can be prosecuted under our capital murder statutes, even though there might be others directly involved in the crime resulting in the murder—such as three people sticking up a convenience store and one of them murdering the store clerk, or three people committing a gang rape but only the one strangling the victim to death can be brought up for capital murder.

Todd related two actual cases similar to those described above. Again, he did it in an even, strong delivery style which impressed those listening and watching on the large TV screens in the GAB. It also had its effect on the members. They overrode the Governor’s veto 79-21. Later in the Senate, the veto was upheld on a 24-14 vote (a two-thirds vote “of the members present” is required to override). Assuming the two senators who were recorded as “not voting” were out of the chambers, it still required 26 votes to prevail. Some speculated that if Del. Gilbert could have delivered his speech before the full Senate, the motion to override might have passed. Watch for this issue to be back next year.

Now on the defeat of the smoking ban amendments which the Governor placed on Del. Morgan Griffith’s HB 2422, the rest of the story is quite different. Morgan did not resort to an emotional appeal to have the body reject the amendments. He used legal logic. He stressed the unintentional consequences which would be caused by the amendments to the bill. He asked his colleagues to read the language in the bill (now there is a unique thing for a legislator to do). He told the members he was certain that the results of the wording in the bill weren’t what the Governor and the supporters of the Governor’s amendments intended to happen. But, “…just read the words for yourself and see what you think would be the results,” he implored. They read it, and must have agreed, since the vote to accept the Governor’s amendments went down 40-59. This vote was not along party lines. Thirteen Republicans voted for the Governor’s amendments, while fourteen Democrats voted against them, and remember this vote was in the face of published polls showing over 70% of the citizens now favor this type of ban on smoking in restaurants -- and this is an election year!

The Future, or What Options Does the Governor Have Now?

Despite his strong arguments, Morgan Griffith’s smoking bill, HB 2422, is not likely to survive. Art. V, Section 6, para. (c, iii) of the Constitution states, “…The Governor shall either sign or veto a bill returned to him from a reconvened session…” It doesn’t give the GA a second bite at the apple. If the Governor uses his veto pen, then the veto shall stand and the bill “shall not become law.” The Governor has stated he will veto this particular bill. He has not so stated for the other bills on which the GA rejected his amendments. However, none of the others were as high profile as HB 2422.

Now if Morgan had switched eight more votes during his deliberate presentation, then he could have made the motion, “The bill shall become law without the signature of the Governor.” If that motion received two-thirds of the votes cast, then the bill would have been considered “veto proof” and the Governor would not had the authority to veto it.

This is the case with the bills which he had vetoed but which the Assembly overrode. Those now become law without his signature.

But there is always next year! And who knows what might happen come election time.

In the meantime, and from all indications, the Governor will be out stumping very hard to change the make up of the Assembly, particularly the House of Delegates. On the evening of November 6, 2007, and perhaps even into the night, you can wager a sure bet on where all the Capital Watchers will be, including this one!

Links to Previous Giesen Perspectives:

Arthur R. Giesen, Jr., fondly known as Pete, served in the Virginia House of Delegates for over 30 years. He represented the citizens of the Central Shenandoah Valley surviving four different district realignments. During his career he represented Augusta, Bath, Highland and part of Rockingham County and the Cities of Staunton and Waynesboro.

Following his career as an elected official, Pete assisted Lt. Governor John H. Hager as his Chief of Staff.

Pete now keeps an eye on Virginia government and assists many clients with his unique perspective on the workings of the Virginia General Assembly and its relationship with the other branches of state government.

THE GIESEN PERSPECTIVE