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The Return of Divided Government in Virginia: The State Budget as Ground Zero for the Power Struggle Over Virginia, Perhaps Headed to the Supreme Court of Virginia

Friday, March 8th, 2024

On January 10, 2024, Virginia returned to fully divided government, with the General Assembly entirely controlled by one party and the Executive Mansion controlled by the other party.  While hope springs eternal for bipartisanship and compromise, this era of political brinksmanship will make the Virginia Budget the legislative tool through which the General Assembly will attempt to force its will.  How far that can go implicates thorny and unanswered constitutional questions—questions that the Supreme Court of Virginia may soon be called upon to answer.

A Brief Virginia Government Lesson

First, a recap on the basics.  The legislative process requires both the Virginia House of Delegates and Virginia Senate to pass the same, identical bill.  The Governor may veto legislation he or she disapproves.  Only if 2/3 of both houses vote to override does the bill become law notwithstanding the Governor’s veto.  Otherwise, the veto stands and the bill does not become law.

With most legislation, a closely divided General Assembly means that the Governor’s veto will often be the last word, particularly on party-line issues.  That’s because there is unlikely to be a 2/3 majority in both houses to override the veto.  So divided government often means, in Virginia at least, that party-line bills do not become law.

The Budget is a Law, Not Just a Spending Plan

But these typical rules do not apply to the state’s budget (the “Budget”).  That’s because, by constitutional requirement, there has to be a law passed to authorize state spending, and that law cannot do so for longer than 2.5 years.  See Va. Const. Art. X, § 7 (“no such appropriation shall be made which is payable more than two years and six months after the end of the session of the General Assembly at which the law is enacted authorizing the same”).  That means that the Governor—and all of state government—needs a Budget bill to re-authorize government spending.  And therein lies the General Assembly’s ultimate leverage: it can “legislate” through the Budget.  And when the policy issue is tied up with the ability to operate state government, that puts the Governor in a potentially tough spot to exercise any veto authority.

Before joining the Governor’s Office as inhouse counsel, I had no idea just how expansive the budget was in enacting law and policy.  But it reaches in directions far and wide.  It directs state regulatory agencies to enact (or not enact) certain rules and regulations across the entire array of regulated entities—or even to approve or not approve particular projects or initiatives.  Indeed, the Budget bill generally contains language saying that it applies “[n]otwithstanding any other provision of law,” and so is supreme over any conflicting law (aside from the Virginia Constitution or controlling federal law).  HB 30 (Current Budget bill), § 4-13.00 Conflict with Other Laws.  More recently, the Budget has legislated on topics seemingly distant from any appropriation: criminal penalties for marijuana possession, casino referenda, and skilled gaming regulation, among other topics.

Now that the Democrats control both houses of the General Assembly, the Budget bill can (and already is) being used to push policy initiatives that the Governor opposes.  Indeed, based on the just-released conference report of the Budget bill, the General Assembly seems likely to require—through language in the Budget—Virginia to rejoin the Regional Greenhouse Gas Initiative (“RGGI”).[1]  Withdrawing from RGGI was a signature policy goal of the Governor.[2]

So what happens?  Is there any limit to using the Budget for this purpose?  Two Virginia constitutional provisions come into play: (1) the single-object rule, and (2) the Governor’s item veto.

Single-Object Rule

Article IV, § 12 of the Virginia Constitution provides that “[n]o law shall embrace more than one object, which shall be expressed in its title.”  This provision, which has been part of the Virginia Constitution since 1851, is designed to address two primary issues: to prevent “log-rolling, whereby two or more blocs (which might separately be minorities in the legislative body) combine forces on a bill containing several unrelated features” to pass it, and to ensure fair notice to legislators and the public regarding the content of bills before the General Assembly.[3]  Thus, there is a substantive rationale for the provision (anti-log-rolling) and, procedural (fair notice).

In practice, however, the Supreme Court of Virginia has generally focused on the procedural element as dispositive, i.e. that the object of the legislation be expressed in the bill’s title.  In Commonwealth v. Brown, the Supreme Court of Virginia stated that the single-object rule is satisfied if the contents of an act “are congruous, and have a natural connection with, or are germane to, the subject expressed in the title.”[4]  There, the legislation related to oysters.  And the legislation included numerous diverse provisions regulating the oyster industry, including taxes and fines for failing to comply and which the defendant (Brown) had been charged with violating.

Key for the Court in upholding the law was that the notice interest was satisfied.  It held that the purpose of the single-object rule was preventing “the use of deceptive titles as a cover for vicious legislation, to prevent the practice of bringing together into one bill for corrupt purposes subjects diverse and dissimilar in their nature, and having no necessary connection with each other; and to prevent surprise or fraud” in legislation.[5]

Modern cases have generally blessed broad uses of single acts to address multiple topics.  For instance, in Commonwealth v. Dodson, the Supreme Court of Virginia blessed certain provisions of the Budget bill that changed the structure of government, forcing more legislative control over the Governor’s budgetary process.  The Court found the provisions passed muster, even though they effected a change in statutory law, finding the nothing about them “which should have misled the Legislature or the people, and certainly there is nothing about them surreptitious,” again relying on the procedural purpose of the single-object rule.[6]

And, in 2007, the Supreme Court of Virginia found a comprehensive bill addressing transportation issues to comply with the single object rule.  There, the legislation “relating to transportation,” 2007 Va. Acts, Ch. 896, addressed 12 titles of the Code of Virginia, had 23 separate enactment clauses, and multiple provisions seemingly unrelated to transportation (at least not directly).  But the Supreme Court of Virginia found no issue under the single-object rule, finding that the topics, while diverse, all “are congruous and have a natural connection with the subject of transportation expressed in the title.”[7]

Thus, where the issue has been litigated, the Supreme Court of Virginia has generally been extremely deferential to the General Assembly.  But, it is not hard to imagine that an emboldened General Assembly might push things too far, even for the deference given to legislative acts.  And if the Governor believes he is unfairly (and unconstitutionally) being asked to choose between funding the government and acceding to provisions he would veto if in a standalone bill, there very well could be a constitutional conflict.

Similar standoffs occurred during the McAuliffe Administration, regarding Medicaid expansion and environmental regulation; however, they were never litigated.  Given the even stronger partisan divide today, I would bet on a case asking the Supreme Court of Virginia to revisit whether there is, substantively, any limit on what legislative topics can be included in the Budget bill.

Governor’s Item Veto Authority

The second Virginia constitutional provision that speaks to this conflict is under Va. Const. Art. V, § 6(d), creating authority for the Governor to “veto any particular item or items of an appropriation bill.”  Under this authority, could the Governor simply strike out the offensive part of the Budget bill and veto that?  Likely no, but the answer is unclear.

We return to Commonwealth v. Dodson, which addresses the item-veto authority.  There, the case defined what is an “item” under the Virginia Constitution, and whether the item-veto authority included the ability to strike conditions or restrictions imposed by the General Assembly in appropriating funds.  In short, the Court held that an item is an “indivisible sum of money dedicated to a stated purpose,” citing as an example funding for a library building and explaining that the library was an item while the various components of constructing a library were not.[8]  Thus, under the Court’s example, the Governor could veto funding for the library, but could not veto the components of constructing a library.

The Court also stated that the Governor may not veto particular conditions or restrictions on appropriated funds in the Budget, as that would violate separation of powers principles to allow the Governor to excise provisions the Legislature attached to its appropriations.[9]  Thus, if, as the General Assembly is now proposing, the Budget is conditioned on rejoining the Regional Greenhouse Gas Initiative, the Governor cannot simply item-veto that condition.

But here is where the item-veto authority and the single-object rule may come together.  In Dodson, the Supreme Court of Virginia stated that the Governor “undoubtedly” has the power to “veto[] items or unconstitutional provisions . . . in proper cases.”[10]  And this was not mere dicta.  The Court upheld certain “item” vetoes of provisions that, for instance, provided funding for the Virginia Military Institute for an indefinite period, which would violate the above-cited constitutional limit on the duration of state appropriations.[11]

Thus, armed with the item-veto authority, the Governor might decide to strike certain offensive provisions, if he or she determines that they violate constitutional provisions, perhaps such as the single-object rule.

Conclusion

These issues are, at this point, academic.  And, it remains the case that the new majorities in the General Assembly and the Governor likely both share a strong desire not to push past the breaking point and to ensure that a budget is enacted without disruption to the operation of state government.

But, for now, things are moving in the direction of conflict.  The General Assembly is using its budget power to push initiatives the Governor opposes.  No signs yet of any grand bargains.  And if the Governor acquiesces, what real relevance will the Governor have in the legislative process?

It’s all a recipe for a constitutional conflict that ultimately will need to be decided by the Supreme Court of Virginia.  Hopefully, before the lights go out.

Noah, and this article, were quoted in a recent VPM news article by Jahd Khalil about the Virginia Budget debate and how it could touch on constitutional issues. Read more on that article here.


[1] See Joint Conference Committee Report on House Bill 30 (Mar. 7, 2024) (inserting Item 366 #1c, “[t]his amendment requires the Commonwealth to rejoin [RGGI] and directs the appropriate agencies to take the necessary actions to rejoin RGGI”), available at budget.lis.virginia.gov/get/amendmentpdf/4915/
[2] See Executive Order Number Nine (2022), Protecting Ratepayers from the Rising Cost of Living Due to the Regional Greenhouse Gas Initiative, available at EO 9- RGGI.docx (virginia.gov)
[3] 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 528 (1974) (citing 1 Thomas M. Cooley, Constitutional Limitations 296 (8th ed.; Boston, 1927) and Millard H. Ruud, “No Law Shall Embrace More Than One Subject,” 42 Minn. L. Rev. 389 (1958)).
[4] Commonwealth v. Brown, 21 S.E. 357, 360 (Va. 1895).
[5] Id.
[6] Commonwealth v. Dodson, 11 S.E. 2d 120, 133 (Va. 1940).
[7] Marshall v. N. Va. Transp. Auth., 657 S.E. 2d 71, 78 (Va. 2008).  The Court ultimately found another, unrelated constitutional infirmity in the law related to taxation provisions.
[8] Dodson, 11 S.E.2d at 124, 127.
[9] Id. at 127.
[10] Id. at 133.
[11] Id. at 134.

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