Commentary: Is Virginia the most powerful legislature of all?

Commentary from former Minority Leader David Toscano.

Please consider becoming the ultimate political insider by supporting non-partisan, independent news and becoming a paid subscriber to this newsletter today.

Have a tip? You can reply to this email or reach out to me directly at Brandon@virginiascope.com

---

Virginia Capitol

IS VIRGINIA THE MOST POWERFUL LEGISLATURE OF ALL?

By former delegate and House minority leader, David J. Toscano

The Commonwealth of Virginia is known for many things. It is the birthplace of eight U.S. presidents, including four of our first five. Virginians wrote the Declaration of Independence and the Virginia Statute on Religious Freedom, statements that have inspired millions who seek freedom across the globe. It is also(alas) the former capital of the Confederacy and a leader in the “massive resistance” to desegregation in the sixties. In the last decade, it has won accolades as the best state for business and the best managed state in the country. Its natural beauty is unparalleled, with mountains, rivers, and the ocean, all within short driving distances for its residents.

But there is something else special about the Old Dominion—its legislature—and not only because it is the longest continuously operating democratic institution in the Western world. Of all the legislatures in the U.S., the Virginia General Assembly arguably has more political power than any other, enjoying structural advantages over the executive and judicial branches that are not found in other states. The state’s Constitution, statutory law, and the norms and values that have permeated the body since the founding of the Republic provide it with opportunities to control public policy that are not found in other legislatures, no matter their size or the length of their sessions.

This does mean that Virginia is the most progressive legislature in the nation; that distinction probably belongs to Massachusetts or California. Nor is it the most conservative; Mississippi and Alabama probably win that contest. And its structural advantages do not make it the most effective or productive elected body, if it is even possible to make such judgments. Its actions can still be countered, as in other states, by a powerful executive and strong judiciary. But its uniqueness cannot be overlooked, especially when budgetary and policy decisions are in the balance.

LEGISLATURES ARE SUPREME

The 7,500 representatives to state legislative assemblies never learned the key lessons most of us were taught in grade school—that there are three coequal branches of government–the executive, legislative, and the judiciary. State legislators never got the memo. Instead, most believe they are the key political actors on the democratic stage. This phrase heard in state capitols summarizes the mindset: “governors come and go; the legislature is forever.”

Jockeying for bragging rights between governors and lawmakers is a constant feature of state government. Governors have their bully pulpits and substantial constitutional powers, including the power of the veto. They serve full-time, and control major bureaucracies in their states. As the COVID crisis showed, their emergency powers are immense. And their personalities can impact the legislative process; charismatic governors can sweep away obstacles that may initially have seemed fatal to their proposals.

But state legislatures have their own reservoir of powers. They are stocked with larger-than-life characters who have built long careers in their bodies and frequently impose their will, even against the odds. While governors often serve 8 years, it is common for senior lawmakers to spend decades plying their trade and assembling power along the way. More importantly, state legislatures enjoy critical legal and constitutional powers that provide advantages over their executive counterparts.

Unlike the U.S. Constitution, state constitutions were written to magnify legislative dominance over the other two branches. In many states, including Virginia until 1851, state governors were initially chosen by the legislature. State legislatures used to select their state’s representative to the U.S. Senate. While these powers are now gone, many more remain, with some having more than others. When comparing the relative advantages of state assemblies, one that emerges with a distinct edge is not in the largest state nor one where the legislature is full-time. Instead, the state legislature with the most structural power is found in the Commonwealth of Virginia.

VIRGINIA’S ONE-TERM GOVERNOR

Many argue that legislatures in the ten states that operate full-time¹ are more powerful than those that meet less often. Four of these states-- California, Michigan, New York, and Pennsylvania--have extensive staff and lawmakers who are paid salaries consistent with full-time employment. But they do not have what Virginia does—a one-term governor!

Unlike any state in the nation, Virginia’s governors cannot serve consecutive terms. This places this executive at a distinct disadvantage. Unless a governor has had experience in the legislature, a characteristic of only two of the commonwealth’s last seven,² he or she barely has time to learn the players before facing the end of the term. Virginia governors often struggle when they first take office and find it difficult to learn the customs and rules quickly enough to gain success. Former Governor (presently U.S. Senator) Mark Warner was stymied in his first year by an unresponsive legislature. Present Gov. Youngkin’s early legislative initiatives foundered partly because he failed to understand the importance of courting the powerful chair of the Senate Finance committee, Louise Lucas.

It is difficult for many state governors to push their agenda, especially if it requires convincing recalcitrant legislators to embrace positions perceived as against their interests. This problem is magnified when a governor will not be around for more than four years. Further, the “lame duck” quality of Virginia governors creates challenges to the adoption and implementation of major initiatives. Efforts to reform education or undertake major economic projects take time, and with only four years as chief executive, Virginia governors can make progress only to see it scuttled by the next election. No other governor in the United States faces such a dilemma. No other state gives its legislature such a distinct advantage.

THE VIRGINIA LEGISLATURE HAS FEW “LAME DUCKS”

Elected officials can build power based on seniority and their ability to reward friends and penalize enemies. Hence, if legislators or governors are term-limited, they become “lame ducks” at some point, and their influence is diminished.

Unlike several of its counterparts, Virginia’s legislature is not term-limited, making it more comparable to states like New York and Pennsylvania, both of which impose no limits on either their legislators or their governors.³ Virginia’s most recent constitution was written in 1971. Legislative term limits were not seriously considered at the time and have not been seriously considered since. By contrast, sixteen states, including those with full-time assemblies like California, Ohio, and Michigan, impose term limits on their legislatures. Many of these are fixed at 8 years, the same limits as are usually imposed on governors.

The shorter the term limit, the less likely legislators are to acquire power based on seniority. Legislatures with term-limited representatives can also lose their “policy champions,” individuals who build expertise in a specialized area, and who can help produce better policy results. Without their expertise, policy tends to be driven by the executive or paid staff. Hence, when assessing the most powerful legislatures, it is hard to include states with legislative term limits.

THE MYTH OF THE PART-TIME LEGISLATOR

Thomas Jefferson viewed state representatives as “citizen-legislators” who came to their state capitols for limited periods and then returned to their communities to resume their jobs and relationships with friends and neighbors. It is not that way anymore; even in states with relatively short sessions like Virginia, there are numerous commissions and study groups that meet all year, and constituent service does not end with the sound of the gavel signifying adjournment.

In earlier decades, legislatures were more dependent on governors’ offices for information and help while in session. Now, with professional staff and a lobbying corps not shy about providing information about every issue, legislatures are generally better informed and engaged throughout the year. Virginia has one of the most professional legislative staffs in the nation, and while their numbers may be fewer than those in full-time bodies, their quality is unsurpassed. If knowledge is power, the presence of a strong staff makes a big difference to the status of a legislature.

CONTROLLING THE JUDGES AND THE LAW.

Not only does the Virginia legislature write state law; it determines how it is interpreted and applied by its selection of judges. That factor alone may make it the most powerful legislature in the nation. The commonwealth is one of only two states (the other being South Carolina) where judges are chosen by the legislature. Every court in the commonwealth, from the general district and traffic courts to the highest court in the state, is stocked with people tabbed by legislators. A Virginia governor can make temporary appointments to the judiciary when the legislature is not in session, but even these are subject to legislative approval, and a qualified appointee can be cast aside for any reason when the General Assembly next convenes.⁴ In addition, the Virginia legislature has recently adopted a practice by which it remains in session—while never formally meeting—throughout the year to prevent recess appointments from occurring. And in 2021, it expanded the state’s court of appeals from 11 to 17 judges, thereby allowing it to make more appointments.

In many states, judges must face the voters at some point in their careers. They are either directly elected at the onset or are initially appointed to a term by the governors and then face the voters in so-called “retention elections” to grant them subsequent terms. In some states, governors make appointments from a pool of applicants deemed “qualified”, usually by a panel of prominent lawyers in the state. In Virginia, the legislature reigns supreme. Both governors and the public have little influence in the selection process. This gives Virginia’s legislature tremendous power over the law in the state. And since Virginia judges serve for defined terms that are extended only by the legislature, they understand that tenure may not be renewed if legislators conclude their temperament or interpretation of the law does not meet appropriate standards. As some judges say in their hearings before the Assembly, “our job is not to make the law, but interpret it according to what the legislature intends.”

The power of the Virginia legislature also extends to the most powerful regulatory body in the state—the State Corporation Commission (SCC). Constitutionally organized in 1902 as an independent department of state government with extensive powers, the 1971 Virginia Constitution provided the legislature with greater control of the body. The three commissioners who head the SCC are selected by the General Assembly, and the body takes direction from the legislature by statutory instructions. Its powers are extensive, extending from the regulation of utilities to insurance. In other states, not only do similar bodies have less power, but the regulators are either directly elected by citizens or appointed by governors.

VIRGINIA’S TWO -YEAR BUDGET

Another structural advantage for Virginia’s General Assembly is its budget process, where the timing of its introduction and adoption works to the advantage of the legislature at the expense of the executive. Virginia is one of 20 states that passes a biennial budget, but the only one⁵ where a newly elected governor does not introduce a two-year funding proposal until the mid-point of his or her 4-year term. In the commonwealth, the first biennial budget of a new governor’s term is developed by the previous governor and sent to the legislature in December, one month prior to the inauguration of the incoming chief executive.⁶ Virginia’s constitutional provision preventing governors from succeeding themselves means that every four years, an incoming Virginia governor must immediately face a budget prepared and proposed by his or her predecessor.

When the General Assembly convenes in the January following a statewide election, then, an incoming governor is typically left to propose amendments to an introduced budget. In the second year of the biennium, a governor can submit other proposals, but these are typically amendments to the plan passed a year prior. Moreover, legislators’ frown on any gubernatorial initiative that is more than a “tweak” to the previously adopted two-year budget, or that accounts for projected changes in revenue. If a governor has major initiatives that require funding (which is usually the case), they must work within the framework of the previous budget. This limits the initiative of a new governor. Often, he or she is left to react by vetoing pieces of the legislative plan (allowed in 43 other states) or proposing amendments to it. When a governor vetoes a traditional bill, the legislature typically needs a supermajority to override, but with amendments, a majority is all that is necessary to override a governor’s proposals. That imposes more challenges for a governor, especially one that faces a legislature that is of a different party.

Virginia’s short legislative sessions only increase a new governor’s challenges. With the session fixed at 60 days (in alternate years, it is typically 46 days), the budget is generally adopted by the legislature within two months of a new governor’s inauguration. New governors in Virginia can propose amendments, but they do not have much time; both the Virginia House and Senate typically enact separate budgets by the midpoint of session, just 30 days from the beginning.

The short Virginia session, typically viewed as a disadvantage to lawmakers in tussles between the governor and the legislature, creates just the opposite dynamic, as chief executives have a very short window within which to develop new policy initiatives and determine how to fund them. Moreover, a governor’s threat to veto a modified budget bill in his or her second year, does not carry the same weight as it might with a one-year budget, where a veto could mean no authorized funding at the beginning of the fiscal year. Such a veto in the governor’s second year only means that the commonwealth would revert to the previously- approved two-year plan.

Other states where there is a change in governors prior to a new legislative session allow a new chief executive to introduce his or her own budget, either by law or tradition. This does not occur in the commonwealth and leaves a new Virginia governor less control of the most important document of state government.⁷

Governors in states with one-year budgets have many chances to cement their legacy with spending plans each year. In Virginia, governors’ greatest opportunity rests with the budget introduced in their second year. Virginia governors will also offer a two-year budget at the end of their term, in their fourth year. But they leave office before that budget bill faces the legislature and therefore can exert little impact on the outcome. The state’s present governor, Glenn Youngkin, faces this problem. He came into office with budget proposed by his predecessor, Ralph Northam. And next year, he will leave another budget to his successor, who may or may not share his priorities.

Of the ten states with full time legislatures, only Ohio and Wisconsin use two-year budgets, and in each, new governors can propose new budgets when they take office, thereby giving them more control in the legislative process than in Virginia. Moreover, budgets in those two states are submitted much later in the year (remember these are full time legislatures).

EASE OF CONSTITUTIONAL AMENDMENTS

Virginia’s legislature is also more powerful than most other states when it comes to amending its states constitution. Governors play no formal role in constitutional amendments, and legislatures generally drive the process. But in 17 states,⁸ the legislature’s power is reduced because citizens can force constitutional amendments onto the ballot for public approval through the process known as “citizen initiative.” Originating during the progressive era, this process was designed to check the power of the legislatures and inject more direct democracy into the process. In recent years, prominent ballot initiatives have passed to protect reproductive rights, change the process of redistricting, and legalize marijuana. These have often been passed in face of legislative opposition.

In 49 of 50 states, voter approval is required to amend a state constitution. When citizens can overrule legislatures in determining state constitutional provisions, the power of the assembly is limited. Of the 10 states with full-time legislatures, five of them—California, Michigan, Ohio, Massachusetts, and Illinois--allow citizens to directly change their constitutions by initiatives. Wisconsin, Pennsylvania, and New York do not, making them more similar to Virginia or New Jersey, where citizen initiative is not permitted. These states vest the power to submit amendments to the voters exclusively with the legislature; two sessions of legislative approval are typically necessary before an amendment is voted on by the public. Ohio, California, Colorado, and Illinois, all states with citizen initiative, can approve an initiative for the ballot in one session, but only by a supermajority vote. A higher threshold means less legislative power.

THE MORE THINGS CHANGE…

The Virginia system of legislative power has operated since before the founding of the Republic—and for good reason. Legislators love their prerogatives, and these arrangements provide them with many by comparison to their counterparts in other states. Much has been written about the defects of a one-term governor, but no serious effort has been made to change this for decades. The commonwealth is likely to remain an outlier nationally, but one that its legislators firmly support.

David J. Toscano practices law in Charlottesville and served 14 years in the Va. House of Delegates. He is the author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives, University of Virginia Press, 2021, and Bellwether: Virginia’s Political Transformation, 2006-2020, Hamilton Books, 2022.

You can see his other writings at:

1. Only 10 legislatures in the country are considered fulltime. Of those, only 4 --- California, Michigan, New York, and Pennsylvania –have extensive staffs and receive compensation consistent with fulltime employment. Alaska, Hawaii, Illinois, Massachusetts, Ohio, and Wisconsin are technically fulltime, but have limited staff, and receive lower compensation than the four. https://www.ncsl.org/about-state-legislatures/full-and-part-time-legislatures

2. Only Ralph Northam and Bob McDonnell were legislators prior to their inaugurations. Present governor Glenn Youngkin and two of his predecessors, Mark Warner and Terry McAuliffe, were elected without any prior legislative experience. Jim Gilmore did not serve in the General Assembly, though he was the state’s attorney general. Tim Kaine was a former Richmond Mayor and served as Lieutenant Governor, which in Virginia, presides over the Senate. Legislative experience was more common decades ago. Former Governors George Allen, L. Douglas Wilder, and Gerald Baliles all served in the legislature.

3. Wisconsin, Massachusetts, and Illinois are also fulltime legislatures that do not impose legislative term limits, but all three also impose no term limits on governors.

4. The Republican-controlled legislature did this in 2018, when it rejected Democratic governor Terry McAuliffe’s proposal to install of Jane Roush to the Virginia Supreme Court. https://richmond.com/news/local/government-politics/in-latest-twist-senate-votes-for-roush-then-house-votes-her-down/article_3cb45a84-29fe-5fef-a934-34481cede026.html

5. Kentucky and Wyoming enact their biennial budget in even calendar years; their new governors take office in odd years.

6. States like North Dakota and Washington have a similar arrangement to Virginia, where a new governor faces a budget from a predecessor, but often introduces their own budgets shortly after inauguration. This is difficult in Virginia, as inauguration and the convening of a new session occurs at the same time in early January

7. New York permits a new Governor to submit a budget on or before February 1 in any year following a gubernatorial election. In Pennsylvania, the Governor’s budget in his or her first term is submitted the 1st full week in March. Newly elected Michigan governors are allowed up to 60 additional days following the convening of the legislature to present a new budget. None of these are two-year plans. To further complicate matters for newly elected Virginia governors, there is no state money set aside for transition planning, with the result that new governors must cobble together a team relying on volunteers and corporate donors. It is hard to analyze a new budget under those conditions. By contrast, the money committees in each chamber employ full-time professional and nonpartisan analysts and lawyers that provide useful budget information as requested.

8. The constitutions of Arizona, Arkansas, California, Colorado, Florida, Illinois, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, and South Dakota all recognize the people’s right to adopt amendments by initiative. See Jessica Bulman-Pozen & Miriam Seifter, “The Right to Amend State Constitutions,” Yale Law Journal, 29 Mar 2024, vol. 33, https://www.yalelawjournal.org/forum/the-right-to-amend-state-constitutions#_ftnref24accessed 1 Janurary 2025. Mississippi was on the list until recently, after the state’s supreme court invalidated the process. The court suggested that a new initiative process be developed, but that has not occurred. Twenty-one states provide a similar process for citizens to make new statutory law.

---