Approaching CROSSOVER

DATE:              February 5, 2007

 

COMMITTES RACE TO “COMPLETE” THEIR DOCKETS.

 

The legislators’ self imposed deadlines sometime come back to make their workload much heavier for a period of time.  The “Crossover Day” is tomorrow, February 6.  This deadline means that by midnight (legislative time) each house has to have completed its work on its own bills. The Appropriation Acts are the exception to the rule.  With its much heavier load of bills, the House of Delegates had to work on Saturday to have a reasonable chance of adjourning tomorrow before some time early Wednesday morning. 

 

Various committees met Saturday morning to “finish their work.”  Most of the committees accomplished this task although several had to have meetings at the chairman’s desk upon the full bodies’ first “recess” to complete action on one or two bills, while others just left a number of bills resting in the bosom of the committee without ever hearing the patron or advocates on the bill.

 

Like one chairman explained to a waiting delegate as he gaveled the committee to adjournment, “I apologize to the delegate, but the session starts in five minutes and while I know your bill may be important to you, we are both aware the Commonwealth will not rise or fall on the passage of this bill before next year.  Please bring it back next session.  The committee is adjourned.”  It was the last scheduled meeting of the committee.  Now this isn’t as bad as it may sound.  The several meetings of committees on the floor “at the chairman’s desk” were for bills where the patron felt strongly enough about the content of the bill to request the chairman hold such a meeting. 

 

In at least one of these instances, the Courts Committee took up a bill it had “passed by indefinitely” (i.e. killed) in their Friday night meeting (it actually took place in the early hours of Saturday morning), reconsidered their earlier vote, and approved the bill on a 16-5 vote. The original action may have been influenced by the fact the committee’s chairman opposed the bill and took the initial vote on the bill when the patron wasn’t in the room.  The patron, a member of the Appropriations Committee, with a little help from the vice-chairman of the committee, “’splained it to his good friend the committee chairman.”  This led the chairman to a better understanding of the situation.  So he convened the committee in a special meeting at his desk and the bill was reported.  On yes, the chairman still voted against it.

 

THE CONSTITUTIONAL REQUIREMENT FOR THE “READING OF A BILL ON THREE DIFFERENT CALENDAR DAYS”

 

You, of course, remember reading the Virginia Constitution (in high school perhaps?) on the “…enactment of laws.”  As a gentle refresher, Section 11, of Article IV states “No law shall be enacted except by bill…No bill shall become a law unless, prior to its passage:

(a) it has been referred to a committee of each house, considered by such committee in session, and reported;

(b) it has been printed by the house in which it originated prior to its passage therein;

(c) it has been read by its title, or its title has been printed in a daily calendar, on three different calendar days in each house; and

(d) upon its passage a vote has been taken thereon in each house, …”

 

As this is being written the leaders in the House are pushing the members to debate bills “briefly.” They would like to get all of the 247 bills on “second reading” moved to “third reading” by tomorrow.  In that manner they would not have to resort to motions “to dispense with the constitutional readings of the bills.”  This motion takes a positive vote by 4/5^th of the members voting.  When the time constraints imposed on themselves come into play most members will agree to this waving of the “constitutional readings.” 

 

There is always the possibility, however, that some member or some minority group of members will use this necessity of garnering 80% of the votes to show their muscle.  It’s a dangerous move since it is a “courtesy vote” and you may have a bill which needs this treatment to get passed.  You can be assured, it has been done.  After all, when a minority is excluded from the process and none of their bills are passed out of committee anyway, how can the majority extract their pound of flesh?  When used judiciously, this type of action can get the attention of the majority and even cause some changes in the process.

 

While this type of constitutional maneuver is unlikely to occur in this day and time, the present leadership of the House would prefer to avoid any chance of it.  In addition, they like to do things more efficiently than in the past and keep the process “nice and clean.”

 

On the other hand, the more collegial body, The Senate, doesn’t seem to have that concern.  They had meetings of committees this afternoon.  The committees reported bills.  Constitutional readings will be routinely waived tomorrow and the bills will move though the three readings in one day.  You know, what’s a constitutional requirement amongst friends?

 

TRANSPORTATION—A VERY, VERY INTERESTING FEW DAYS

 

You’ve certainly heard about the new Senate plan for solving our transportation problems in Virginia.  It differs from The Plan fashioned by some of the Senate and House Republican leadership in an effort to get a compromise that might see the light of day at the end of the session.  SB-1379, sponsored by Senator Potts R-Winchester, was adopted by the Senate Finance Committee (SFC) late Thursday afternoon.  The 9-6 vote came after 2 hours of debate and the defeat (by a 4-11 vote) of the Senate version of The Plan (SB 1417, Norment, R-Williamsburg).

 

The major item in SB-1379 is the removal of the present exemption from the sale of gasoline products.  Did you know that these products were exempt from the statewide and local sales taxes?  This was done by the legislature when it originally passed the sales tax in 1966.  The reasoning was, of course, that there was a special tax on gasoline at the pump.  It should be noted that the sales tax was applied to those products sold to general contractors when they build new facilities (residential or commercial) even though those structures will have real estate taxes applied to them as well as grantors taxes when ever they change owners.  In this Senate Plan the state share of the funds raised from removing this tax exemption (estimated at $400 million) will go to transportation while the normal local share (1%, estimated at $100 million goes to cities and towns).

 

One of the complaints from many about The Plan has been that it does not impact out-of-state drivers.  The SFC staff estimates that 25% of the gas tax is paid by drivers from other states.  This removal of a tax exemption would definitely impact them.  As the no-tax-increase delegates will tell you, it is also an increase in taxes on their constituents.  They haven’t bought the argument that this is removing an exemption rather than increasing a tax.  They point out this “exemption” if passed would in all likelihood raise the price of gas at the pump by 10 cents a gallon.

 

Now how did this new Senate Plan come to light after the deadline for the introduction of bills?  It appears to some of us capital observers that the Senate, like the House, has succumbed to the temptation to use any legislative vehicle available to accomplish their objective.  To do this you just wink at the “one subject” rule and ignore whether all of the “new sections of the code, the new material, the new subjects”, included in the substitute bill are germane to the original bill.

 

SB 1379 was introduced by Senator Potts to establish a Transportation Future Fund (the Fund).  It directed that certain net revenues derived from the imposition of some tolls and the increase in some specialized sales and use taxes be deposited in the Fund.  The Commonwealth Transportation Board would then use the Fund for eight specified projects including the Third Crossing of Hampton Roads, expansion of Metrorail service to Tyson’s Corner, several other northern Virginia projects, and the completion of the environmental impact studies for the I-81 corridor.  The Title for the four page introduced bill referred to two Titles of the Code—33.1 and 58.1.  It amended six sections of Title 58.1 and added three sections to Title 33.1.  Most former presiding officers of both the House and Senate have used the references in the Title and the “relating sentence” at the end of the Title as the controlling factors in determining the germaneness of amendments.

 

At the SFC meeting on Friday, the substitute for SB 1379 was put before the committee.  The committee was told (somewhat with tongue in cheek) that the substitute had “a few simple little amendments.”   Of course, the substitute expanded the bill to 52 pages, referred to four new Code Titles for a total of six, amended 36 sections of these six Titles, added 14 new sections and 3 new chapters, and more importantly expanded the “relating sentence” to include “…funding of transportation in the Commonwealth” (the original bill spoke only to “relating to the Transportation Future Fund…”) and “…to authorize the Commonwealth Transportation Board to issue certain bonds for the funding of transportation.” (the original bill stated, “…imposition and collection of tolls for use of certain highways; sales and use tax increase; disposition of revenues.”).

 

The debate in the committee was most interesting.  It put normal friend and allies on opposite sides.  Senators Norment and Stolle, normally close allies to Chairman Chichester pushed for The Plan (SB 1417).  Senators Wampler and Hanger, also normally in concert with John, also were on the losing side of the vote to report SB 1417. 

 

Remember, even though his name is not on the substitute for SB 1379, Senator Chichester is the power behind it.  The chair was challenged on his ruling the substitute was in order.  Sen. Stolle asked, “Is there anything in common between the original bill and the substitute?”  Chairman John Chichester replied, “They both address transportation!”  The substitute then went forward.  On the final vote on the substitute, six Republican senators voted no on the motion to report.  The four senators mentioned above were joined by Senators Stosch and Watkins in voting not to report.  The Chairman was joined by fellow Republican Senators Hawkins, Quayle and Potts and the five Democrats on the committee to report the bill. 

 

It will be an interesting debate on Tuesday on the floor of the Senate.  After the Lt. Governor rules on the germaneness of the substitute.  You can bet lawyers for both positions have been researching this over the weekend.  In fact Senator Chichester, the President Pro Tem of the Senate as well as the Chairman of the Finance Committee, has noted in writing that there are at least 51 bills passed during his tenure in the senate with different code sections from those noted in the introduced bill!

 

My bet, the substitute for SB 1379 will be ruled germane, and will pass the Senate.  (I was WRONG!  Before I could get this GP e-mailed today, Tues., Feb. 6, Sen. Potts, in a surprise move, sent the bill back to the SFC, which won’t meet again on senate bills.  So SB 1379 is dead.  My guess, the supporters of the bill didn’t want the Lt. Gov. ruling on the germaneness issue.   Now we’ll wait to see what the House does.  The other alternative is for the Governor to send a bill to the legislature.)

 

LET’S DISAGREE, AGREEABLY.

 

You can imagine with the tension in the atmosphere over this transportation issue, nerves have gotten frayed and tempers have flared.  An example of this came when, with unconcealed irritation, Senator Norment, during the Senate Rules Committee Friday afternoon, gaveled down Senators Potts and Saslaw.  These senators were having a side conversation obviously not related to the business of the committee.  After speaking to his colleagues in a raised voice and getting no results.  Tommy said very harshly, “Senators if you want to talk about the transportation bill, get out in the hall and do it!  I’m trying to get through our docket!” The two offending senators left the committee room.

 

In a similar situation before the Senate Finance Committee on Sunday afternoon, Chairman Chichester quietly got up from his chair and whispered to the conferring senators (the same two extreme extroverts, by the way).  They retook their respective chairs and the committee deliberations continued orderly.

 

Senator Chichester, however, made a comment during the meeting, stating, “The transportation controversy is certainly straining nerves, but hopefully not our friendships.”  One of the tough lessons one must learn in the legislature is that friends can disagree, agreeably.  Another lesson one must learn is you must keep your sense of humor.  If one doesn’t learn these two early in his or her career, that career will probably be a short one or a very stressful one.

 

ANOTHER POSSIBILITY IN THE TRANSPORTATION FUNDING?  

 

There are two bills moving though the legislative process that could be placed into play in the transportation debate in the coming three and a half weeks.  Delegate Jack Reid has HB 2626 to allow “advance deposit account wagering” (a method of pari-mutuel wagering.) He tried to amend the bill on the floor to allow a new form of simulcast pari-mutuel betting on “historical horse racing.”  Efforts to put this amendment on the bill in committee had been defeated on a voice vote.  The floor amendment died on a 54-42 vote.  So his bill passed the full house as an Amendment in the Nature of a Substitute offered by the General Laws Committee.

 

Now there is the opportunity for drama.  SB 1410, Norment R-Williamsburg, is very similar to Reid’s failed floor amendment.  It is positioned to be passed by the Senate today.  The historical horse racing, simulcast pari-mutuel betting is estimated, when fully implemented, to produce up to $300,000,000 per year in new general funds. 

 

Let’s look at this possible scenario.  The Senate can amend HB 2626 to be like SB 1410.  It then comes back to the House Floor, by-passing the House General Laws Committee.  By agreement, Del. Reid asks the House to reject the Senate amendments.  The Senate insists on their amendments and requests a committee of conference.  Reid asks the House to concur.  The conference committee agrees to the Senate version with some slight changes.  Now Reid only has to change six votes on the House floor to get the chamber to agree to the conference report.  Now there is an additional $300 million in revenue that could be dedicated to Transportation.  Improbable, but certainly possible.   

 

 

Links to Previous Giesen Perspectives:

Jan. 22, 2007 Jan. 15, 2007 Dec. 18, 2006 Nov. 22, 2006 Nov. 10, 2006 Sept. 7, 2006 August 23, 2006 June 30, 2006 June 1, 2006 May 24, 2006 April 10, 2006 March 30, 2006 March 20, 2006 March 6, 2006 Feb. 27, 2006 Feb. 17 and 19 2006 Feb. 10, 2006 Feb. 3, 2006 Jan. 27, 2006 Jan. 23, 2006 Jan. 16, 2006 Dec. 21, 2005 Nov. 9, 2005 Oct. 21, 2005 Sept. 16, 2005 Aug. 26, 2005 Aug. 19, 2005 July 7, 2005 June 8, 2005 May 27, 2005 April 7, 2005 March 10, 2005 February 21, 2005 February 14, 2005 February 8, 2005 January 31, 2005 January 15, 2005 December 23, 2004 November 19, 2004

 

 

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