Governor's Veto and Amendment Authority

at the start of the French and Indian War, Gov. Dinwiddie called the General Assembly into session
at the start of the French and Indian War, Gov. Dinwiddie called the General Assembly into session
Source: Colonial Williamsburg, Virginia Gazette (Hunter: March 21, 1755, p.4)

When the General Assembly started in 1619, the Virginia Company began to grant authority to the residents in the colony to govern themselves. Since the arrival of Sir George Yeardley from Bermuda in 1610, the company's appointed governor had possessed all executive authority in Virginia. The Virginia Company chose to share authority with colonists, and reduce the power of the governor, by issuing the Great Charter in 1618.

That set of instructions in 1618 created the headright system, offering 50 acres of land to all new settlers. Creation of a colonist-led General Assembly and an appointed Council of State to advise the governor was expected to alter the negative perception that colonists must accept arbitrary Virginia Company policies in Virginia.1

When the private company lost its charter and Virginia became royal colony in 1624, the king or queen of England apointed a Royal Governor and a Council of State to advise him. Officials in London issued royal instructions to the governor, who sought to shape the decisions of the elected House of Burgesses and the appointed Council of State. The governor decided when the House of Burgesses would start meeting, , when it ended, and when there would be elections for new burgesses.

Technically, the colonial governor in Jamestown and then Williamsburg lacked the direct authority to veto bills passed by the House of Burgesses. He did have substantial leverage, including the ability to determine who received appointments to various official positions that generated fees for the appointee.

To block passage on an undesired bill, the governor could force an immediate cessation of a meeting of the House of Burgesses. He could "prorogue" the legislature, foring an end to a meeting but leaving the membership of legislature unchanged until he recall the house back into sesssion later. The governor had a stronger option of dissolving the House of Burgesses, forcing a new election in which some opponents might not run again or might not get re-elected.

During the colonial period, the Council of State could refuse to assent to a bill and block action by the House of Burgesses, but the Council also could outvote the governor and approve a law despite his opposition. When outvoted, the governor had one more option. Laws passed by the General Assembly required royal assent before going into effect. The governor could advise officials in London to exercise the king's prerogative to veto legislation.

The practical authority of the colonial governor morphed over time, reflecting the increasing economic power of the First Families of Virginia who controlled tobacco exports. One, the colony's leaders "thrust out" the governor. The General Assembly forced Governor Harvey out in the 1630's, by declaring he was no longer the governor and placing him on a ship back to England.

Governor Harvey was sent back to Virginia by King George II for just a token term of service, and his replacement Sir Francis Wyatt re-established the authority of the royal governor. The next governor, Sir William Berkeley, then negotiated deals with the gentry that dominated the House of Burgesses. The cooperative relationship eliminated the effective checks and balances within colonial government. The result was high taxes that enriched just a few officials rather than provided services for many colonists, and such income inequality that Bacon's Rebellion erupted in 1776.

Starting with the appointment of Sir Thomas Culpeper as governor in 1677, a lieutenant was sent to Virginia to represent an actual governor who stayed in England. During the 1700's, the House of Burgessess' control over taxes and appropriations allowed the Virginia gentry to gain power over the acting governor, the representative in Williamsburg of the king/queen in England. In 1768, George III required Lord Botetourt to go in person to Virginia and re-establish executive control within the colonial government.

In the 1760's and early 1770's, proroguing/dissolving the House of Burgesses and the use of the royal prerogative to block colonial laws spurred Virginians to rebel against executive direction from London. The Fifth Virginia Convention declared Virginia to be an independent state in June, 1776.

The members of the Fifth Virginia Convention rebelled against the king, and were opposed to creating a strong executive in the new state government to replace him. The first state constitution, adopted in 1776, reduced the governor's authority by having the legislature appoint him to just a one-year term.

Patrick Henry was elected the first governor. His opponents supported his election because moving him to the governor's office reduced his capacity to shape legislation through his extraordinary speaking ability in the General Assembly, and he lost the ability to vote on bills.

Under the first state constitution adopted in 1776, the legislature was perceived as the primary agent of the people. The governor was the agent of the king or queen during the colonial period, so Virginia's first constitution did not give him authority to veto specific bills. Patrick Henry also could not block action by the legislature like colonial governors, because the 1776 state constitution declared:2

The Governor shall not prorogue or adjourn the Assembly, during their sitting, nor dissolve them at any time...

Patrick Henry was elected the first governor after Virginia declared its independence in 1776, and placing him in that executive position minimized his power in the state government
Patrick Henry was elected the first governor after Virginia declared its independence in 1776, and placing him in that executive position minimized his power in the state government
Source: Library of Congress, "Give me liberty, or give me death!" Patrick Henry delivering his great speech on the rights of the colonies, before the Virginia Assembly, convened at Richmond, March 23rd 1775, concluding with the above sentiment, which became the war cry of the revolution

The ability of a governor to exercise executive authority has grown gradually but substantially since 1776. In 1830, a new state constitution created a three-year term for the governor, though sequential elections were banned to ensure no executive gained too much political power. The 1851 constitution extended the governor's term to four years, while also starting the process of electing governors directly by the voters rather than by the legislature.

In 1870, a new state constitution gave the governor the power to veto bills passed by the General Assembly. If he rejected a bill passed by the two houses of the legislature, they could override his veto by re-passing the bill with a two-thirds majority of all the members present. However, the governor gained the power to block legislation that may have been endorsed by a majority of legislators, but was opposed by at least one-third of the members in each house.

The governor was also given the opportunity in the 1870 constitution to allow a bill to become law without his approval. If he simply failed to act on a bill within five days after it was sent to him, it became law automatically. However, if the General Assembly adjourned within that five-day window, any bill not signed by the governor was "pocket vetoed." As a result, the governor had greater authority over legislation passed at the very end of a legislative session.3

Since the 1902 constitution was proclaimed to be in effect, Virginia governors have had the right to propose amendments to legislation. The General Assembly had to approve the amendments for them to go into effect. If the amendments came too late in the session for consideration or were rejected by the legislature, then the recommended changes would not be incorporated into the bill. That left the governor with the option of accepting the original legislation as passed by the General Assembly, or vetoing it.

The 1902 constitution also expanded the power of the governor by authorizing the line item veto for appropriations bills. Since 1902, a governor has been able to veto just a slice of the state budget, the line that allocates money to a state program. The budget line item veto authority had first been included in the constitution adopted by the Confederate States of America.4

Between 1870-1928, the governor's veto power was one of his few management tools for controlling state operations.

In 1928, Governor Harry Byrd led a reorganization of state government that culminated in major amendments to the state constitution. In that process, the governor's authority to manage the executive branch was greatly expanded. He gained control over previously-fragmented state agencies. Centralized decisionmaking and financial management since 1928 has enabled the governor to shape the implementation of laws without having to veto them.

Based on the 1971 constitution, the governor can sign, veto, or propose amendments to bills passed by the General Assembly. The "pocket veto," blocking a bill from becoming a law by taking no action, is no longer an option in Virginia. If the governor refuses to sign or veto a bill, then the state constitution says that it automatically becomes a law.5

The governor has seven days to act, if the General Assembly is still in session after it has delivered a bill to the governor's office. If the bill was passed at the end of the session and the General Assembly adjourned within seven days of delivery, or if the bill was delivered after the session had ended, then the governor has 30 days to act on it.6

since 1849, the governor has had an office on the third floor of the state Capitol
since 1849, the governor has had an office on the third floor of the state Capitol
Source: Commonwealth of Virginia, Virginia State Capitol - Third Floor Virtual Tour

The percentage of bills approved by both houses but ultimately blocked by the governor is tiny. In the General Assembly's January-March 2019 session, by one calculation the governor signed 883 laws passed by both houses, vetoed 17 bills, and recommended amendments to 48 others. He also suggested 40 amendments to the appropriations bill, giving legislators a chance to modify the budget before exercising his line item veto authority.7

Under the state constitution, the General Assembly can override any veto by a vote of two-thirds of the members present in the House of Delegates and two-thirds of the members present in the State Senate. However, between 1902-1980 governors could veto bills passed at the end of the session with confidence that the veto would stick. The General Assembly would not reconvene for another year and have a chance to override the veto, unless two-thirds of the members in each house called for a special session.

Constitutional amendments passed in 1980 and 1994 have created today's automatic Reconvened Session (typically called the "veto session") of the legislature. Reconvening the General Assembly on the sixth Wednesday after adjournment gives it an opportunity to override the governor's vetoes of legislation passed in the last session, and to approve, modify, or reject amendments proposed by the governor.8

The governor's amendments can be rejected by the General Assembly. If it does not concur, the legislation with rejected amendments is returned to the governor for action. If the governor vetoes the bill, then it does not become law. If the governor takes no action on the bills with rejected amendments, then the original legislation becomes law after 30 days.9

If a governor's proposed amendment is approved by a majority in each house during the veto session, the governor's revision becomes part of the new law. An amendment proposed by the governor can be altered by the General Assembly; it is not a "take it or leave it" proposition.

Determining how an amendment might alter all aspects of existing or proposed law is not always clear and simple. A governor could even submit contradictory amendments for consideration. An amendment may trigger negotiations that result in a substantive change in the bill, which can become law if the modified version is approved by both houses and signed by the governor.

In 2019, for example, the General Assembly could not resolve how to pay for upgrades to I-81. It passed a bill creating the I-81 Corridor Improvement Fund but rejected proposals to generate funding, after the trucking industry objected to plans for adding tolls to the interstate highway. Via an amendment, Governor Northam proposed a different funding mechanism, based on a regional tax on gasoline sales and a statewide increase in truck registration and diesel fuel taxes. That was acceptable to the legislators in the region, and the amendment led to a final decision rather than an extension of debate for yet another year.10

If both houses do not approve an amendment as proposed or in some revised version, the governor has two choices. The governor can agree to let the original bill become law, without the amendment, or can veto the law.

the General Assembly has an automatically-scheduled veto session
athe General Assembly has an automatically-scheduled "veto session"
Source: Virginia Legislative Information System, Constitution of Virginia

A governor still has one path for preventing the General Assembly from overriding his or her veto. After the veto session adjourns, the governor can veto an amended bill. Typically that occurs when the amendments were altered, but a veto is possible even if the governor's proposed amendments had been accepted without change. Unless the General Assembly meets in a special session later that year, there is no opportunity to override a veto which occurs after the veto session until the next regular session. At that point, almost a year later, legislators can pass new law to "correct" the veto, but an election before the next regular session might have altered the membership of the General Assembly.

The governor's line item veto authority for appropriations bills can modify a budget without vetoing the entire bill, which would be a drastic action that could leave the state unable to legally incure any expenses and dramatically interrupt operations. Vetoing a line item also enables a governor to eliminate funding that would implement a policy initiative which the governor opposed, but could not block by vetoing a different bill.

The governor does not have the authority to increase or reduce the appropriated amount, or to retain the funding but redirect its use.

The entire line in the appropriation bill must be vetoed, ending all funding for that item and eliminating the direction on how it should be spent. Each line item must have a distinct purpose, so the impacts of an appropriation and a veto would be clear to the voters.

Appropriations item in budget bills passed by the General Assembly must have comply with the "single object" requirement in the state constitution. That requirement blocks legislators from combining unrelated issues into one line item, "logrolling" separate parts together. The logrolling practice could capture support from diffferent members of the General Assembly who might vote for the consolidated language in order to get the one piece they desired, even though there was not a majority within the legislature for any of the pieces individually.

The Supreme Court of Virginia used to be the ultimate umpire who could determined if a bill meets the single object standard. For budget bills, it has stated:11

An item in an appropriation bill is an indivisible sum of money dedicated to a stated purpose

The legislature has clawed back some of its power regarding how it considers gubernatorial amendments. In 1994, voters approved a revision to the state constitution which gave the legislature authority to determine, by majority vote of the members present in either house, if one or more amendments proposed by the governor were specific enough for a separate vote. If not, then the amendments could be ignored. The unchanged bill, as originally passed, would be returned to the Governor for complete veto or complete approval.12

Governor Terry McAuliffe set the record for Virginia governors and vetoed 111 bills while serving in 2014-2018, including proposals to deny public funding to Planned Parenthood because it offered abortion-related services. None of the 111 vetoes were overturned by the General Assembly, even though both houses were controlled by the opposition party (Republicans) during his term. Gov. McAuliffe made 80 amendments to appropriations bills during his four-year term, and the General Assembly approved over 80% of them.13

One of the hottest amendments not accepted from Gov. McAuliffe' was his proposal to expand Medicaid and implement "Obamacare" in Virginia. That expansion did not occur until after the 2017 election, when a "blue wave" flipped 15 seats in the House of Delegates and the Republican majority dropped to 51-49. In the first year of Gov. Ralph Northam's term, the General Assembly approved Medicaid expansion as part of a regular bill, not through the amendment process.

In 2018 and 2019, his first two years as governor, Gov. Ralph Northam dealt with a General Assembly in which Republicans controlled both the House of Delegates and the State Senate. He vetoed 54 bills.

In 2020, after the 2019 elections, Democrats were in control of both houses. Gov. Northam vetoed just four bills.

He blocked a proposal from the dairy industry that would have required all items labeled "milk" to come from mammals and not from almonds, soy, or other vegetable products. The other three dealt with the Affordable Care Act. After the three bills had been passed by the General Assembly with broad bipartisan support, the governor proposed amendments because he thought they might raise the cost of medical care for the poorest members of society. When the legislators rejected his amendments, Gov. Northam vetoed those three bills.14

for all four years he was in offfice, Gov. McAuliffe was a Democratic governor with a Republican-controlled legislature
for all four years he was in offfice, Gov. McAuliffe was a Democratic governor with a Republican-controlled legislature
Source: Virginia Public Access Project (VPAP), Gubernatorial Vetoes After Three Years

Constitutions of Virginia

Governors of Virginia

Local Government Autonomy and the Dillon Rule in Virginia

Redistricting in Virginia

Links

References

1. Brendan Wolfe, "Virginia Company of London," Encyclopedia Virginia, Virginia Foundation for the Humanities, November 10, 2016, https://www.encyclopediavirginia.org/Virginia_Company_of_London (last checked February 4, 2019)
2. "The Constitution of Virginia, June 29, 1776," National Humanities Institute, http://www.nhinet.org/ccs/docs/va-1776.htm (last checked February 4, 2019)
3. "Virginia Constitution, 1870 (Underwood Constitution)," for Virginians: Government Matters, http://vagovernmentmatters.org/primary-sources/516 (last checked June 22, 2019)
4. John J. Dinan, The Virginia State Constitution, Oxford University Press, 2011, p.17, https://books.google.com/books?id=fe9MAgAAQBAJ (last checked June 23, 2019)
5. "Article V. Executive - Section 6. Presentation of bills; powers of Governor; vetoes and amendments," Constitution of Virginia, https://law.lis.virginia.gov/constitution/article5/section6/ (last checked February 4, 2019)
6. "Article V. Executive - Section 6. Presentation of bills; powers of Governor; vetoes and amendments," Constitution of Virginia, https://law.lis.virginia.gov/constitution/article5/section6/; "Del. Ken Plum: Governor's Vetoes Have Saved Virginia Much Embarrassment," RestonNOW, March 30, 2017, https://www.restonnow.com/2017/03/30/del-ken-plum-governors-vetoes-have-saved-virginia-much-embarrassment/ (last checked February 4, 2019)
7. "Opinion: Commentary: 17 Bills Vetoed and 48 Bills Amended in Virginia," Mount Vernon Gazette, April 8, 2019, http://www.mountvernongazette.com/news/2019/apr/08/opinion-commentary-17-bills-vetoed-and-48-bills-am/ (last checked June 23, 2019)
8. "Article V. Executive - Section 6. Presentation of bills; powers of Governor; vetoes and amendments," Constitution of Virginia, https://law.lis.virginia.gov/constitution/article5/section6/; "Del. Ken Plum: Governor's Vetoes Have Saved Virginia Much Embarrassment," RestonNOW, March 30, 2017, https://www.restonnow.com/2017/03/30/del-ken-plum-governors-vetoes-have-saved-virginia-much-embarrassment/ (last checked February 4, 2019)
9. John J. Dinan, The Virginia State Constitution, Oxford University Press, 2011, p.14, p.17, https://books.google.com/books?id=fe9MAgAAQBAJ; "Frequently Used Terms," State Government Relations, University of Virginia, https://sgr.virginia.edu/frequently-used-terms (last checked June 23, 2019)
10. "Virginia Lawmakers Approve Gov. Ralph Northam's Funding Plan for I-81," Transport Topics, April 19, 2019, https://www.ttnews.com/articles/virginia-lawmakers-approve-gov-ralph-northams-funding-plan-i-81 (last checked June 23, 2019)
11. Bernard L. McNamee, "Executive Veto: The Power of the Pen In Virginia," Regent Law Review, Volume 9 (Fall 1997), pp.19-23, https://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v9/9RegentULRev9.pdf (last checked February 4, 2019)
12. Bernard L. McNamee, "Executive Veto: The Power of the Pen In Virginia," Regent Law Review, Volume 9 (Fall 1997), pp.19-23, https://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v9/9RegentULRev9.pdf; "Article V. Executive - Section 6. Presentation of bills; powers of Governor; vetoes and amendments," Constitution of Virginia, https://law.lis.virginia.gov/constitution/article5/section6/ (last checked February 4, 2019)
13. "Gov. McAuliffe keeps a perfect veto record," WTKR, April 6, 2017, https://wtkr.com/2017/04/06/gov-mcauliffe-keeps-a-perfect-veto-record/ (last checked February 4, 2019)
14. "Northam vetoes three bills intended to expand insurance access," Washington Post, May 21, 2020, https://www.washingtonpost.com/local/virginia-politics/northam-vetoes-three-bills-intended-to-expand-insurance-access/2020/05/21/1d5f8166-9b9b-11ea-a2b3-5c3f2d1586df_story.html; "Gubernatorial Vetoes After Three Years," Virginia Public Access Project, https://www.vpap.org/visuals/visual/gubernatorial-vetoes-3rd-year/ (last checked May 26, 2020)


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