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PARTISANSHIP IN THE HOUSE OF DELEGATESThe Hon. A. R. Pete Giesen, Jr.
Monday, January 28, 2008 Publish Date: January 29, 2008You were, I am certain, surprised to learn that a “heated, partisan debate erupted” on the floor of your House of Delegates on Thursday (the 24th). Why, who would have ever thought this might happen in a body where all 100 members just went through a partisan election and the party split in the chamber is getting very close to being equal?
Apparently this type of strongly worded debate was relatively new to the young reporters covering the House action. Take a look at the headlines generated by the actions of the Republican majority during the hour long “discussion” on the issue of allowing collective bargaining by public employees.
The headlines: “House fracas reveals bitter rift.”
“Rare procedural move, House floor clash prompts partisan meltdown.”
“Right-to-work issue unleashes strong words.”
The bill and some background The bill, HB 852, was sponsored by Delegate Adam Ebbin, D-Arlington and was the first bill “reported without recommendation” by the Committee on Rules.
The very simple, one line bill just repeals two sections of Article 2.1 of Chapter 4 of Title 40.1 of the Code of Virginia. Now, it does just happen that these two section deal with a very “sacred” part of the Virginia code. Section 40.1-57.2 prohibits collective bargaining by any “state, county, municipal, or like government officer, agent or governing body...” In fact, the section goes on to restrict the authority of any of these entities from even recognizing “any labor union or other employee association as a bargaining agent of any public officers or employees…with respect to any matter relating to them or their employment or service.”
The next section, 40.1-57.3, does say, “…nothing in this article shall be construed to prevent employees of the Commonwealth, its political subdivisions, or of any governmental agency of any of them from forming associations for the purpose of promoting their interests before the employing agency.”
The “New Wrinkle” for the Committee on Rules You might refer back to page 8 of the January 18 Giesen Perspective.
A bill with this content would have, under the past rules, gone to a standing committee, probably Commerce and Labor. The members of that committee would have voted the bill up or down. If the bill had been reported from the committee it would have had to have some of the Republicans shown as voting to report the bill, a clear vote for the bill (heaven forbid such a thing!). The new rule gives the Rules Committee another option. “The Committee on Rules may, on a vote of a majority of the members appointed plus one, send a bill, joint resolution, or resolution to the floor on a motion that ‘the bill, joint resolution, or resolution be reported to the floor by the committee without specific recommendation. The motion is a special motion and can only be made in the Committee on Rules.”
It now becomes clearer exactly why this new procedure was adopted. Of course, “it will only be used in special cases,” the Majority Leader assured the delegates as he explained the rule changes. One could reasonably consider a bill which would put the minority members of the whole house “on the spot,” no matter how they voted on it, a special case.
There are a number of capitol pundits who are now convinced this new rule is a rather clever way to make certain all those in the minority party are forced to vote on partisan oriented controversial bills. This is the first example; the second will be when the Committee on Rules “reports” to the floor its comprehensive immigration bill, on which most Republican candidates campaigned in the fall.
The actual unusual actions
While there is nothing in the 2008-2009 Rules of the House of Delegates about a patron “striking a bill” (to withdraw it from consideration), it has normally been the policy of the House (tradition, mind you) to allow a legislator to take this action anywhere during the process. Occasionally, just occasionally, a legislator will introduce a bill for some reason, like a constituent’s request, and realize later (under the glare of a committee’s inquiries, for instance) that it was a mistake and ask to have the bill stricken. Another example is when a bill gets amended so extensively that the patron wants it withdrawn. As I said, the other legislators usually accommodate their colleague. After all, the same thing could happen to each of them.
It does happen sometimes, though, when the legislators get on their “high horses” or their “political horses” that politeness, cooperation, accommodation, and tradition go by the board. One former instance comes to mind. A Henrico delegate, who was an avid motorcycle-rider, had a bill to make it possible for all bike riders to do so without wearing a helmet. The bill got out of committee intact but on the floor we amended it so it did exactly the opposite. All riders of motorcycles would be required to wear their helmets. Delegate Junie Bradshaw asked to “strike the bill.” The Speaker ruled the bill was now the province of the full House and it would move forward. Junie then requested his name be removed as the chief patron. The Speaker indicated there were no provisions for this in the rules, therefore his name would remain as the chief patron and “the gentleman from Henrico would just have to vote against his own bill!”
A similar position was taken by the current Speaker on HB 852, both in the Committee on Rules and on the floor of the House. Delegate Ebbin requested the bill be stricken in the Committee deliberations and then again on the Floor prior to the debate on the bill. He then made a motion “to strike.” This motion was rejected on essentially a party line vote, 43 yeas and 55 nays. It has been reported that the Republican majority was intent on having the Democrats take a floor vote that could embarrass them with the unions. Unions have been some of the strongest supporters of Democrat legislative candidates.
Once it was determined the bill was before the House, the fiery oratory began. The Minority Floor Leader, Delegate Ward Armstrong, accused the Republican majority of “bullying our side of the aisle.” Morgan Griffith, the Majority Floor Leader shot back, “Let’s get real. This is an issue placed before this body by your caucus…this bill scares me…Tell me if you’re for Virginia or for unions? What direction is the Democrat Party leading us?”
Armstrong retorted by asking his fellow Democrats not to debate or vote on the motion to engross the bill. He then pointed to the Virginia flag with the state motto “Sic Semper Tyrannis” (thus always to tyrants), and, facing the majority caucus, exclaimed, “The tyranny of the majority is what you want, it’s what you shall have!”
Griffith, in a rather strong voice, shot back, “I have not heard such philosophical tripe in all my years here, in all my life.”
In another statement, Griffith exclaimed, “The Democrats are bullying the people of the Commonwealth.”
Delegate Vivian Watts, in a calmer voice, stressed, “…the process used today has closed out the people just as we have done with the new rules in our subcommittee system.”
The debate was terminated when a delegate moved for “the pending question.” The motion passed on a voice vote. Some astute lobbyists, watching the proceedings on the closed circuit TVs in the General Assembly Building questioned the appropriateness of The Speaker allowing the motion since Delegate Watts technically still had the floor even though she had yielded for a question. No member challenged the ruling (by this time it was apparent most of the members were tired of the wrangling) so the vote went forward.
The fun still wasn’t complete, however. When the vote “for engrossment” showed on the electronic voting machine there were 55 nays and 0 yeas. The Democrats listened to their floor leader! So before the vote was announced the Republicans used another rarely invoked rule.
Rule 69 states “Upon a division of the House on any question, a member who is present and fails to vote shall on the demand of any member be counted on the negative of the question and when the yeas and nays are taken shall, in addition, be entered on the Journal as present and not voting…”
The Republican Floor Leader tried to involve the rule “en mass” but The Speaker correctly ruled the Rule 69 only refers to “member” not to “members” therefore each member sitting in his/her seat and not voting had to be identified. After reading 27 names Morgan said he was tired and sat down and the vote was recorded as 0-82. The Journal will actually show the vote as 0 yeas and 55 nays with one excused and not voting and 27 “present and not voting” and 16 just not voting.
Some Observations
First, re-read the headlines quoted above, and consider them and this newspaper quote about the floor discussion: “The floor speeches that ensued (following the vote against allowing Ebbin’s to withdraw his bill) bordered on breaching the House’s nearly 400-year-old rules on civility: fingers jabbed angrily toward partisan adversaries amid icy glares and hot rhetoric.”
Most of the reporters on this occasion seemed to feel it was unusual and would surely hamper cooperation between the members of the two parties for the rest of the session. This could very well be the case. But let me assure you there have been many other breaches of the “400-year-old rules on civility” and the legislators will “get over this” as their predecessors did. It might take a couple of elections, but it will happen.
This extraordinary rancor was partisan in nature. There have been some other partisan disagreements in the past 50 years, but the bitterest debates have occurred between different groups. For instance, in the late fifties the finger pointing and name calling were even more acrimonious. The adversaries, however, were all from the same party! It was the remnants of the Byrd Machine backers of Massive Resistance and the visionary, forward looking moderate Democrats (some even called them liberal) who teamed with the few Republican legislators to reestablish the public school system in the Commonwealth.
Then there were the controversies between the urban and rural legislators over annexation laws. Again, party labels meant very little. The name calling and finger pointing was based on geography, not party. So this kind of eruption of tempers leading to heated debates is not all that unusual.
Second, the type of partisan rancor may be more prevalent with the new rules. There is no question that the Republican majority devised this method of forcing some floor votes that might give them some political advantage. A letter from The Speaker to Virginia Business Leaders on HB 852 sent the day before the floor action on the bill described above is a clear indication of this possibility.
The Speaker’s letter, referring to HB 852 and its impact, stressed the Republicans support of Virginia’s status as a Right-to-Work state. Bill then goes on to say, “…However, it has become apparent that the bipartisan commitment to our Right to Work laws has been eroding over the last several years. In 2005, for example, the Democrat nominee for Lt. Gov. actively supported repealing Right to Work. In 2006, Governor Kaine nominated Danny LeBlanc, longtime leader of the Virginia AFL-CIO, for Secretary of the Commonwealth. In 2007, Democrat candidates for the General Assembly enjoyed unprecedented support from organized labor, winning additional seats in the House of Delegates and securing an outright majority in the Virginia Senate.”
The Speaker encouraged the business community to “weigh in on this debate.” There wasn’t much time for these business leaders to react since the bill was killed the next day. But there is another election in 2009 for members of the House of Delegates and you can be sure there will be a lot said about the vote on HB 852 between now and then.
FISCAL WOES
The legislators are now in control of the budget and how it will be structured for the balance of FY08 and for the biennium of 08-10. Even though the General Assembly now has the budget in its bosom, the Executive is still the branch which makes the “official revenue estimates” on which the expenditures of the Appropriations Acts are based.
Last week the Governor indicated the revenue estimates will probably have to be lowered from those on which he based his budgets given to the legislature on Monday, Dec. 17. There have been no official guesstimates from either the Secretary of Finance’s office or from the two money committee staff members who follow “the revenue figures.”
Despite having no clues from any knowledgeable official source, let’s make some educated estimates. There are three indicators in the December Revenue data reported to the Governor on January 14 which suggest the reasons for the Governor’s pronouncement. In the analysis below, remember when I talk about the forecasted or estimated figures I’m talking about those which the Governor used to revise the budget this past August. It was at that time that he announced there would be a $641.0 million “shortfall” from the budget adopted in March, ’07.
First, the individual income tax collections.
Individual income tax withholding revenues account for some 56% of the General Fund (GF) collections for the state. For the first six months of FY 08 (July thru Dec. of calendar year 2007) this source of state tax receipts grew 5.6%, which is right on target to the projected annual growth rate. However, the second part of the individual income tax revenue stream, the “nonwithholding individual income tax,” which makes up an additional 19% of the GF, was not so encouraging. Year-to-date collections in this source were 5.3% above the same period last year, lagging the estimate of a 10.0 percent increase.
The nonwithholding individual income taxes were one of the three factors which drove the double digit growth in state revenues during the early part of this decade. The other two were the growth in Corporate Income Taxes and Recordation taxes. The Secretary of Finance hedged on the impact of this “less than expected growth” in this category by reminding the legislators that December and January are significant months for the collections of these taxes and should be considered together. Individuals, like corporations, have until January 15 to submit their estimated payment for tax year 2007.
The Secretary, Jody Wagner, cautioned the money committee members with the same reasoning when she reported that Corporate Income Taxes (5% of GF revenues) ran 24.9% behind the same six months of fiscal year 2007. The official expectation plans for only a 15.0% decline for FY08.
The third major driver of the economic boom of the early part of the decade was the housing market and the steep increase in real estate values. As the media reminds us daily (and sometimes four or five times a day), “the housing market is declining” and values are going down. This continues to have a major negative impact on recordation tax collections which account for about 3% of the GF. On a year-to-date basis collections have declined 17.3% from last year, against a forecast of a 10.7% annual decline.
You will note that the Governor’s announcement of a possible reduction in the revenue forecast came shortly after January 15. While there has been no official report on the January collections to date (there won’t be until early in February) and the Department of Taxation is still doing their calculations, you can be assured that all of your hard working state financial experts are getting daily “unofficial reports” on total tax collections and by category. The timing of the Governor’s statement and the circumstances being reported in the financial journals indicate the situation has not improved since the end of December.
In the December Revenue Data report, Sales and Use Tax collections (19.0 % of the GF) were running 2.1% ahead of the year-to-date forecast and helped the total GF revenues to reach a growth rate of 3.5% against a 3.4% forecast for the first half of FY 08. Relying on the media reports (always a dangerous thing to do) about the “below expectations of Christmas season sales,” we can expect the Sales and Use Tax collections to drop back in January from the 4.9% six month figure to be closer to the 2.8% year-to-date growth forecast.
The anticipated outcome
If the conditions as I forecast them continue (now that’s a scary assumption — and it may make a, well, you know how you can divide the word assume!) — that is, net individual income taxes (63.0% of GF collections), corporation income taxes and recordation taxes will continue to lag forecast and sales tax collections will drop back to their estimated forecasted level — the Governor will give the money committees the bad news early in February that FY08 anticipated income will be some $130 million less than forecasted and therefore the “surplus” carried into FY09 will be about $115 million.
Forecasting revenues for FY09 and FY10 is much more precarious. But I am confident the prognostications will be lowered. My best guesstimate is for the first year of the new biennium the tax collection estimates will drop about $200 million and for FY10 about another $125 million.
It is not a good year to be seeking additional funding. Unless the actions by the Federal Reserve and the Federal Government stimulate the economy more than I anticipate, there will be more fiscal woes for your legislators during the balance of this General Assembly.
“The Giesen Perspective”© is written by the Honorable A. R. “Pete” Giesen, Jr. Pete served in Virginia’s House of Delegates for 32 years. When Pete retired from the Assembly in January 1996, he was a ranking member of the House of Appropriations Committee; the second ranking Republican on the Committee on Counties, Cities & Towns; the ranking Republican on Militia & Police; and an influential member of the Committee on Transportation. Then Pete joined the rank of lobbyists working the halls of the General Assembly, representing clients with a wide range of interests. Today, Professor Giesen is teaching government & political science at James Madison University, and still occasionally lobbies the Virginia General Assembly.
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© 2007 Eldon James & Associates, Inc.
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