The 10th of November saw a reconvening of the Virginia General Assembly during what seems to be a never ending session. Not since 2001 has the General Assembly been in session this long. While these extended sessions do not often occur, I fear the Jeffersonian ideal of a part-time citizen legislature is in jeopardy.
A part-time citizen legislature requires that people gather for short periods of time every year to consider changes to the law. Those people have to earn their principal living outside of government service and have to live among the people they represent. The idea is that citizen legislators remain closer to the people, and thus their work is more likely to reflect the needs of the community they represent.
Legislators are drawn to Richmond for a few months every winter, away from their families and jobs, to engage in lawmaking. It is always a challenge to find the right balance between all of one’s responsibilities. The system works because the Constitution of Virginia defines the legislative session as being no longer than 60 days in even-numbered years and 30 days in odd-numbered years unless there is an extension agreed to by a super majority or unless the Governor or a super majority of the legislature calls a special session.
Special sessions are called periodically to deal with very specific issues. In 1994, parole was abolished. In 1998, we adopted the plan to repeal the car tax. In 2004, we took up taxes. This year the special session was called because we failed to adopt a budget during our regular session, in large part because of disagreement over Medicaid expansion. In addition, certain judicial vacancies needed to be filled. Historically, special sessions are not protracted.
After gaining the majority in 1999 for the first time since Reconstruction, the Republican majority cut the Democratic minority to smithereens in the redistricting process in 2001. Litigation ensued and the Republicans kept the General Assembly in special session all year in order to avoid subpoena or deposition in the litigation.
This year, former Senator Phil Puckett’s abrupt resignation from the Senate in June gave the Republicans absolute control of both houses of the General Assembly and hastened the death of Medicaid expansion. It also helped resolve the judicial vacancy issue because appointments to the bench are a prerogative of the majority party. Since the Republicans controlled both the House and the Senate, appointments would not be bogged down by partisan disputes and should have made for a quick judicial selection process. But it has not been that easy.
A number of judicial vacancies were filled this past summer and a few more this past week. However, the majority party has not found consensus on the appellate court vacancies. There will be a vacancy on the Virginia Supreme Court at the end of the year, and there will be at least two vacancies on the Court of Appeals.
The General Assembly could just call it quits, end the Special Session and reach agreement when we convene in 2015. Legislators would have some normalcy for the remainder of the year and not have to worry about being called to Richmond again before January 14th. However that would also give the Governor certain prerogatives with respect to filling judicial vacancies. Continuing the Special Session not only serves to allow the majority party to resolve its disagreements about filling the vacancies, it serves as a check on gubernatorial power. In that respect, keeping the legislature in a Special Session this year – all year – is unprecedented and undermines the natural checks and balances built into our system of government by the Constitution.
Perhaps it is time for us to reconsider the notion of filling judicial vacancies on the basis of merit, a suggestion that has been made over the years by both Democrats and Republicans. I remember such ideas coming from Andy Guest, a Republican delegate from Warren County, and Whitt Clement, a Democratic delegate from Danville. I have sponsored legislation in the past as well because the administration of justice is one of the most important functions of government, and too important to be left to the partisan politics of the day.
It continues to be my honor to serve you in the Senate of Virginia. If you have questions or concerns, do not hesitate to contact my legislative office: P.O. Box 5462, Charlottesville, Virginia 22905, (434) 296-5491, or via email at [email protected] . The General Assembly will convene for the 2015 Session on January 14. Legislation is already being introduced and can be tracked here. If you have ideas or concerns that you think need to be addressed during this session, please let me know as soon as possible.
On the evening of the 23rd of June 2014, the General Assembly went back into session to consider Governor McAuliffe’s vetoes to the budget. You will recall from my last missive that I suggested that the Governor could use his constitutional power to line item veto certain articles in the budget, specifically the punitive language that was inserted by the Senate to prevent an executive expansion of Medicaid, and sign the rest of the budget.
The Governor went a little further than I suggested and line item vetoed other matters as well, including the appropriation for the new Virginia Conflicts of Interest and Ethics Advisory Commission, a potential forced partnership between Chesterfield County and Petersburg City schools, and an appropriation that would prevent the Governor from filling vacant judgeships.
The Governor’s ability to line item veto the budget is limited by the Constitution of Virginia. In general, as I explained before, the Governor can sign legislation or veto legislation. With respect to the budget, he can line item veto certain portions. The Constitution of Virginia, specifically Article 5, Section 6, Subparagraph D provides that “[t]he Governor shall have the power to veto any particular item or items of an appropriation bill, but the veto shall not affect the item or items to which he does not object. The item or items objected to shall not take effect except in the manner provided in this section for a bill vetoed by the Governor.”
In the few cases that have been argued about the Governor’s veto, the courts have ruled that the Governor must veto an entire appropriation. He is not entitled to cherry pick language out of a specific item within the appropriation bill or budget.
Republican legislators were aware of the limitations and attempted to interweave the anti-Medicaid expansion language in such a way that the Governor could not strike it from the bill without striking the entire Medicaid program. The Governor vetoed the amendment by striking the Medicaid Innovation and Reform Commission (MIRC) language from the budget. The MIRC was created as a compromise last year to establish a commission to reform our Medicaid program and provide a pathway to expansion once the reforms had been achieved. The MIRC has already fulfilled its responsibility to reform our Medicaid program, yet the commission members have not expanded Medicaid, so the continuation of the MIRC seems totally inappropriate and a waste of taxpayer dollars.
The Speaker of the House of Delegates ruled that the veto went beyond the scope of the Governor’s Constitutional authority and was not properly before the House for consideration. The Speaker claims his precedent from a ruling that former Speaker Tom Moss made in the 1990s. While I was in the House of Delegates during the 1990s while Tom Moss was the Speaker, I do not recall the specific ruling he made.
In spite of the specific language in the Constitution that an item does not become law if it vetoed by the Governor, unless that veto is overturned by a two-thirds majority of both houses, the Speaker’s ruling prevented a vote on the veto. He made a similar ruling with respect to the Governor’s ability to limit judicial appointments.
Now, instead of this matter being resolved by the democratically elected representative of the people, the legislature, the Governor will have to decide whether to pursue this issue in the courts.
The Special Session continues as the Governor’s appointments have been tied up by the newly Republican-controlled Senate, and the judgeships which are vacant still have to be filled. I would anticipate that the General Assembly will go back into session within the next two to three weeks to resolve these issues.
The Republicans used the new majority status to reorganize the committees. I lost the committee assignments – Finance and Rules – that I had gained earlier in the winter as well as my chairmanship. While it is true that most committees will not meet until next January, the move gives Republicans the ability to send their members to any interim committee meetings. The Finance Committee takes no action when we are out of session, but the Committee meets periodically to get information about the budget and the revenue situation. I expect the Rules Committee will also convene to reorganize the membership on study committees.
All of this action could change again depending on the results of the interesting contest underway in the 38th Senatorial District in southwest Virginia to fill the seat of former Senator Phillip Puckett. A Delegate from Russell County and a member of the Tobacco Commission, Ben Chafin, is the Republican nominee. The Democratic nominee is Mike Hymes. Mike is on the Tazewell County Board of Supervisors and works in human resources for a coal company. The special election is set for the 19th of August, and I anticipate that the race will be expensive, fast and furious.
It continues to be my pleasure to represent you in the Senate of Virginia. If I may be of assistance or answer any questions, please contact me at 434-296-5491 or [email protected].
After the Special Session began on the 24th of March, I started to write a column that never got published. The column began as follows:
I have always thought that it is important to maintain a sense of wonder, a sense of amazement at life’s twists and turns. That sense of wonder keeps you from taking for granted the people and places in your life that are important. So it is with some pride that I can report that on the 25th of March, the first daffodil bloomed in my yard. However, I can also report that bloom was soon covered with snow as winter is playing the part of Gilda Radner in that old Saturday Night Live skit about the guest who would not leave… speaking of guests that will not leave, the General Assembly is still in session.
The Governor called the Virginia General Assembly into Special Session for the purpose of passing the budget. The Constitution requires that we adopt a balanced budget every two years. For the most part, finalizing a budget compromise is not a significant problem. This year, the House and the Senate, Democrats and Republicans, are hung up on the notion of Medicaid expansion.
The real debate does not revolve around healthcare. After all, most people recognize that it makes sense for us to close the coverage gap and provide insurance for up to 400,000 people. After all, a healthier workforce makes for a smoother, more effective economy. Insurance coverage means more illnesses are prevented, and it is simply the right thing to do to help people stay well. The hang up is on the details of this particular plan. The column that I started a few weeks ago was shelved, at least in part, because it reflected my pessimism about the Special Session. I like to remain optimistic.
The real debate this year is about the way healthcare is provided. Those who argue against Medicaid expansion are concerned the federal government will not be able to meet its fiscal obligations and the burden will fall on Virginia’s taxpayers. It seems to me that this is an argument that can be made about any federal program. But unlike some federal programs, like Medicare Part D prescription coverage, Medicaid expansion has a funding source set out in the Affordable Care Act. In 2002-2003, Medicare was expanded to provide a prescription drug benefit. There is no question that this program was needed, but in passing it, Congress and the President failed to fund it. Every cent of Medicare Part D that has been spent over the last 12 years has been borrowed money. The Affordable Care Act on the other hand, is paid for through tax and fee increases at the federal level. In fact, Virginians are paying about $2.9 billion a year for Medicaid expansion. What sense does it make to pay for a program that Virginians cannot access?
For some, opposition to expansion is just a continuation of frustration over the passage of the Affordable Care Act. The appropriate place to have a debate over federal programs, how they are funded, and over the size and scope of the federal government is not in the state legislatures, but in Congress and in federal elections. That is precisely why Republican senators have joined Democratic senators to pass Marketplace Virginia. While we have rejected outright Medicaid expansion, we have adopted a Virginia approach that will allow us to provide insurance coverage to hundreds of thousands of people, and bring the federal dollars that Virginians pay in taxes for the Affordable Care Act back to Virginia. Who can argue that over $5 million a day in federal funds will not have a positive impact on Virginia’s economy?
In fact, expanding access to our healthcare system will require the addition of jobs to take care of those people. And, access to preventative health care, rather than relying on expensive treatment in emergency rooms for unmanaged illnesses, will save money. In part, the Affordable Care Act cuts some Medicare reimbursements. Those cuts will cost Virginia hospitals in excess of $300 million. Why should we not accept federal money to expand coverage, to make those hospitals whole, and to increase the healthcare workforce?
From where I sit, the hang up now is not over what is the right thing to do for Virginia. The hang up between the Senate and the House of Delegates is purely political. The House says no to Medicaid expansion, so the Senate offers Marketplace Virginia, a private insurance based program. The House continues to say no. Anything linked to the Affordable Care Act is anathema to some, whether or not it is beneficial to Virginians, to our hospitals, and to our overall healthcare system.
Anyone watching the recent episode of 60 Minutes that contained a story about healthcare in rural southwest Virginia recognizes that we have a huge gap in the number of people that are covered in Virginia. We need to address it now. The way to close the gap between the House and the Senate and get a budget passed in Virginia is to adopt Marketplace Virginia and do it now.