Five Things to Expect in the Upcoming Special Session

The COVID-19 pandemic turned the world on its head just days after the 2020 General Assembly adjourned, all but guaranteeing that the General Assembly would reconvene for a Special Session sometime this year to reconcile the state budget and deal with the fallout from the outbreak.

Since then, the murder of George Floyd created a sense of urgency around the need for police and criminal justice reform, producing a second set of issues to address.

Governor Ralph Northam has now called the General Assembly back to Richmond on August 18 to take up both of these issues.

At a broader level, the COVID-19 pandemic and the death of George Floyd demonstrate how much of the Commonwealth’s politics and policy debates are driven by major moments – and how leaders are often slow to recognize, acknowledge, and address change. We looked in detail at the big-picture in our quarterly “State of Play” report released earlier this month. You can view that here.

In addition to understanding the big picture, it’s important to know what’s immediately on the horizon.

As we count down the days until the special session, here are five things you can expect.

The House and Senate will not operate normally.

Under normal circumstances, Special Sessions look and feel a lot like regular sessions.

Members of the House and Senate work out of their offices and convene in their chambers in the State Capitol. The General Assembly Building is teeming with lobbyists and advocacy groups looking to get in face time with legislators ahead of key committee meetings and votes.

Not this year. All of the work ahead of the special session will be done remotely. The House and Senate likely won’t meet in their regular chambers. Very few legislators will even go to their offices. The public may not even be allowed back in the currently closed General Assembly Building and State Capitol.

Existing relationships and a deep understanding of the legislative process will be more important than ever for those attempting to influence the legislative process. It’s safe to say that more lobbying will occur over text message during this Special Session than ever before in Virginia history.

The Budget picture will be both better and worse than expected.

The two-year state budget was largely left in limbo due to the pandemic after the General Assembly adopted most of the governor’s budget amendments in April. The legislature rolled back over $2 billion in proposed spending.

Throughout the special session, you can view the budget picture as both better and worse than expected. Confused by that? Here’s what we mean.

The General Assembly ended the fiscal year (June 31) with a shortfall of $236.5 million. That was way better than the expected $1 billion shortfall that was originally estimated. And even though it’s a shortfall, it’s only a deficit against the projected increases. The state still collected more money this year than the previous year. In that sense, the budget picture is better than expected when COVID-19 first emerged.

Going forward, what really matters are new revenue projections. Virginia only budgets in a given year what it expects to bring in as tax revenue. There’s a complicated methodology that goes into calculating projected tax revenue, but the important thing to know is that it’s compounding.

So originally, the state expected to receive a certain amount in the fiscal year that just ended. And what the state expected to receive in the next two fiscal years was based on that number – a number that just came in $225 million below expectations.

Many states are revising their projections down by 10-20%. If Virginia did the same, it could mean a $2-3 billion cut in projected revenues. That means the General Assembly would have to make corresponding spending reductions relative to the most recent budget. Those changes could turn out to be worse than expected for many who are hoping to escape this special session with their funding intact.

Legislators will have their priorities, but the budget is where you will see the most attention given to addressing COVID-19. People and organizations with funding needs will have to make the case that the services they offer are essential and directly tied to the pandemic or some other core function of government.

It will also be important to understand the budget cycle – and the long list of tricks that budget writers have up their sleeve – if you want to preserve your position in a $40 billion annual budget.

Members of the Black Caucus will decide the fate of criminal justice and police reforms.

Democratic leaders in the House and Senate have both said they will make policing and criminal justice reforms top priorities in the special session, following the death of George Floyd.

The list of policy options is already long – and will only grow as more legislators throw their ideas into the ring closer to August 18.

The reality is that given the compressed timetable and the complexity of these matters, most of these policy choices will be made by a few key players in the General Assembly – and for the first time since at least Reconstruction and probably ever, the decisions will be made by now powerful members of the Legislative Black Caucus.

Senator Mamie Locke chairs the Senate Democratic Caucus. Delegate Lamont Bagby chairs the Legislative Black Caucus. Delegate Charniele Herring chairs the House Courts Committee. Senator Jennifer McClellan and Delegate Jennifer Carroll-Foy are both running for Governor. Delegate Jay Jones is running for Attorney General. Delegate Jeff Bourne serves on the House Courts Committee as Chairman of the Civil Law Subcommittee and as Vice Chairman of the Committee on Public Safety. Senator Louise Lucas serves on both the Senate Judiciary and Senate Finance and Appropriations Committees.

Speaker Eileen Filler-Corn and Senate Majority Leader Dick Saslaw will, of course, be influential power brokers as they manage their respective caucuses. But Legislative Black Caucus members may have a more influential voice in terms of what policies will take priority and which ones get punted until 2021.

COVID-19 is an imposing backdrop for everything.

There is still an immense amount of uncertainty around COVID-19 itself, and the issues stemming from the pandemic reach far and wide.

There will be discussions, debates, and speeches around rent relief and evictions, new state workplace regulations, local government permitting deadlines and extensions, unemployment benefits, colleges, child care, transportation, and workforce development, all of which will stem from the COVID-19 pandemic.

Amidst the focus on the budget and criminal justice issues, many have lost sight of the long list of new laws affecting businesses and employers, who are now facing the added burden of adhering to Virginia’s new COVID-19 workplace safety laws, which was the first state to do so.

Don’t be surprised to hear lawmakers express how important these issues are before admitting they just do not have the time or the bandwidth to tackle them during the special session. Much as the virus has lingered, so will its fallout.

Republicans will try to interject K-12 education.

Republicans in the General Assembly will be at the mercy of the Democratic majority, a sharp reversal of where things were one year ago when the General Assembly convened for a special session last July. The Republican leadership surprised the world by adjourning the special session without forewarning – setting off a round of fury from Democrats eager to address firearm safety and gun laws.

Despite this disadvantage, Republicans will do their level best to interject  K-12 education and school reopening as a critical issue.

Virginia Republicans have been beating this drum since late June, castigating the Governor for what they see as weak and ineffective guidance and support for local school districts. Boasting support from the American Academy of Pediatrics and parent groups, they are championing calls for a path to 5-day classroom learning this fall.

Look for Republicans to attempt to divert Democrats attention to this issue. And look for Democrats to set up roadblocks by limiting the types and topics of legislation that can be filed during the Special Session. The procedural votes at the start of session will determine whether Republicans get to make their case at all.

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.