2022 Special Session – Governor’s Recommendations
The last time I wrote, I told you about the legislature passing a budget. With all its warts, the General Assembly finally agreed to a budget on June 1. The Governor had seven days after it reached him to offer amendments or veto the budget. The Governor of Virginia has an extraordinary power in that he can line-item veto articles of the budget.
The budget got to the Governor on the 9th of June, which means he had until midnight of the 16th of June to offer amendments or vetoes. Instead of vetoing line items, he offered a series of amendments that were made available to us on June 15. The General Assembly was called back on Friday, June 17, to vote on those amendments.
The three amendments he offered to House Bill 29, the caboose budget that covers the fiscal year through the end of this month, were all very technical and passed without any debate. The Governor offered 35 amendments to the new biennial budget that takes effect on July 1 of this year. Some of these amendments were substantive. Some, in fact, were not budgetary matters at all but attempts to make significant changes to the law.
Since the two budget bills are house bills, the amendments had to be acted upon by the House of Delegates first before coming to the Senate. The House rejected on a voice vote two related budget amendments that were substantive in nature. One amendment would have created a new felony for someone who picketed outside of a judge’s residence and the other covered the increased cost of establishing the new felony. The Governor’s recommendation may be worthy of a policy discussion given the recent protests outside the homes of U.S. Supreme Court justices, but it had a lot of issues that needed a good bit of consideration. Typically bills like that get worked over by the subject matter committees in both the House and the Senate. This amendment not only would have created a new felony, but it may also have been unconstitutional. The House of Delegates quietly defeated the amendments and were right to do so.
The remaining 33 amendments came to the Senate.
Some of the amendments were merely technical. They used surplus dollars to provide additional pay to correctional officers and to provide more security staff to our public psychiatric hospitals. There was not much debate over amendments such as that. There were a number of substantive amendments that took a deal of debate. In truth, the House had taken more than four hours to debate those amendments. The Senate took about three hours to do the same.
Politics is a team sport. You have to be able to work together. Often ambition or ego get in the way, but at the end of the day, you need to be able to put those things aside and work jointly for the greater good. That is especially true within a legislative body. We knew, in the Senate Democratic Caucus, that we would be one member short if we scheduled anything before June 20. We were also three Democrats short in the House of Delegates on June 17. Scheduling during the summer months is always a challenge due to vacation plans and scheduled medical appointments, and we had limited days from which to choose before the end of the fiscal year.
So when we met last week, we only held a majority of 20-19 in the Senate.
Presumptions against Bail
In 2021, I wrote extensively about the legislation I successfully sponsored to eliminate the presumptions against bond. The bill maintained the provisions of the Code of Virginia requiring the judge and magistrate to consider many factors when determining if the person can safely live in the community while awaiting trial. The Governor proposed a budget amendment, similar to a bill that was defeated in 2022, to reinstate those presumptions. In this country, we are innocent until proven guilty. And under the law, people can be denied bail based on a multitude of other considerations. The amendment was defeated.
Under current law, the Virginia Department of Health provides state funding for abortions in the cases of rape, incest, and fetal abnormality (gross and totally incapacitating physical deformity or mental deficiency). The process requires the agreement of two doctors who agree the fetus is unlikely to survive because of the abnormality. The Hyde amendment only covers cases of rape, incest, and to save the life of the mother. The Governor put forward an amendment to restrict state funding for abortions consistent with the Hyde amendment. While this sounds somewhat innocuous, the reality is that if this amendment passed, it would punish poor women who have received devastating news about their pregnancies. These situations are heartbreaking, and we should not be putting up barriers to care. This amendment was narrowly defeated along a party-line vote.
Gas Tax Freeze
The Governor offered an amendment to try to appeal to those of us who are struggling with the higher gas prices by freezing the gas tax for three months. The price of gas is the highest I’ve ever seen. In fact, it is higher than any of us have ever seen except for those who travel abroad. At first impression, it sounds like a great idea. Why not freeze the gas tax? Why not give people a chance to have more money in their pockets? However, on second glance, a lot of questions are raised.
First, there is not a lot of evidence that suggests the gas tax has a huge impact on the retail price of gasoline. The gas tax in Virginia is an excise tax, not a sales tax levied at the pump. There is certainly more evidence to suggest that the retail price of gasoline is driven by the law of supply and demand. The price of crude oil by the barrel has gone up in recent months, but it has declined recently. It is now about $117 a barrel, which is close to what it was in 2008. But we weren’t paying $5 a gallon for gasoline then. Coming out of the pandemic, there’s a lot more demand for gasoline as people returned to work and renewed travel plans. The higher demand, across the globe, has driven the price of gas even higher. The invasion of Ukraine has also played a role.
Even the Governor admitted that he could not guarantee this freeze of the gas tax would put extra money in people’s pockets. However, it would guarantee to take at least $400 million out of the maintenance fund for our highways. That essentially would have drained the fund, throwing people out of jobs and slowing road maintenance projects. After significant debate, the Senate defeated the amendment.
While we were successful on these measures, we lost on three significant issues.
First, the Governor offered two amendments on laboratory schools. His lab school plan was an effort to allow colleges to form partnerships with local school boards to create these laboratory schools. Historically they have been allowed with public colleges and universities that have schools of education. This budget has $100 million to increase the number of lab schools across the Commonwealth. The Governor’s first amendment would have redirected state per pupil funding to these lab schools for those students who participate. That amendment was rejected. Local school divisions should not be penalized because of the lab school experiment. The second lab school amendment, which expands the program to include private colleges and universities that do not have education schools and to any public higher education center, institute, or authority, passed when the Lieutenant Governor broke a tie resulting from one member of the Democratic caucus being away from his desk. I am not convinced all those schools have the ability to successfully put together a lab school and am worried the $100 million would be better spent making improvements on our existing public education system.
The General Assembly allocated $5 million for financial aid for DACA students, who are ineligible for federal financial aid. The Governor proposed to remove this funding and direct it instead towards increasing financial aid at public and private Historically Black Colleges and Universities (HBCUs). The budget that arrived on the Governor’s desk included significant new funding for our HBCUs. If the Governor wished to provide additional funding to those institutions, he could have done so without targeting the funds to assist DACA students. Frankly, the amendment cynically pits black students against brown students. This amendment also passed, with the support of two Democratic Senators.
Earned Sentence Credits
The third loss we suffered was frankly the most painful. In Virginia, everyone who is incarcerated must serve at least 85% of their sentence. Those who choose to abide by the rules, work jobs, and complete programs can earn sentence credits to reduce their time to that 85% threshold. In 2020 we passed legislation to allow enhanced earned sentence credits for certain non-violent convictions that would accrue from the beginning of their incarceration. We agreed to a delayed effective date to allow VDOC time to recalculate release dates. Beginning July 1 of this year, people would have a better chance to be released early.
The Virginia Department of Corrections had already calculated the new release dates and informed people who were slated to be released early. The VDOC has worked with the families and developed home plans. Some of the individuals who were slated to be released had multiple convictions, non-violent and violent. Even though these individuals have served their time for the violent offense, and only earned enhanced sentence credits for the non-violent offenses, the fact that they had been convicted of a violent offense created a red herring for those who like to scream about law and order and create boogeymen on the political hustings.
The Governor offered an amendment basically to strip those enhanced sentence credits from several hundred inmates who had also been convicted of violent offenses. For two years, those individuals have anticipated an early release because they have already served their time on the violent offenses and have worked to earn those credits. It is important to remember that these individuals are going to be released anyway and many have already served decades in prison. In most cases, the amendment will add a few months to a year on the time remaining for them to serve. In my view, this is the most cynical form of politics. We let down families who had been counting on having their loved ones home. We lost that vote because three Democratic members of the Senate disagreed with me.
The budget bills went back to the Governor and were signed by him yesterday. It was important for him to act fast given the new fiscal year begins next week. Although we have had many extended sessions on the budget over the past twenty years, we have never missed the deadline to adopt a biennial budget before the end of the fiscal year, which would force a shut down. In 2001, the Republicans, who then controlled the Senate, were feuding with then Governor Jim Gilmore and failed to pass a budget. However, since that was an odd year, we had a biennial budget already in place and relied on the budget that passed in 2000.
It continues to be a high honor to serve in the Senate of Virginia. If I can be of assistance to you or if you have any questions, please reach out to me at [email protected]. Or you can call my Hot Springs office at 540-839-2473 or Charlottesville at 434-296-5491.