Governor's Veto 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. Partrick Henry was elected the first governor. He lost the ability to vote on bills, lacked the power to veto any bills, and could not block action by the legislature like colonial governors because the Virginia 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

In 1902, a new state constitution gave the governor the power to veto bills passed by the General Assembly:3

Every bill, which shall have passed the Senate and House of Delegates, shall, before itbecomes a law, be presented to the Governor. If he approve, he shall sign it; but, if not, he may return it with his objections to the house, in which it originated...

As a result, if a bill is approved by both houses of the General Assembly, the governor has the opportunity to veto it. Most bills proposed by members are blocked during the legislature's deliberative process; the percentage approved by both houses and blocked by the governor is tiny. The Virginia Mercury has noted:4

Like a school of fish in a sea of predators, many of the hundreds of bills filed during every General Assembly session fail to advance to even a floor vote, never mind the governorís desk.

In Virginia, the governor has authority to veto or propose amendments to bills that reach his or her desk.

Bills are printed after passage with the exact same language by both houses ("enrolled"), then signed by the Speaker of the House and the Lieutenant Governor (who presides over the State Senate) and delivered to the governor's office on the third floor of the State Capitol. The governor can recommend one or more amendments to a bill that reaches his desk and submit his amendments to the General Assembly.

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

If an amendment is approved by a majority in each house, the governor's revision becomes part of the new law. If not accepted by both houses, the governor can agree to let the original bill become law or veto it.

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.

In 1994, voters approved an amendment 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 and the bill, as originally passed, would be returned to the Governor for complete veto or complete approval.5

The governor has seven days to veto a law if the General Assembly is still in session, after it has delivered a bill to the governor's office. If the session ends within seven days of delivery, or if the bill is delivered after the session has ended, then the governor has 30 days to act.

The "pocket veto," blocking a bill from becoming a law by taking no action, is not an option in Virginia. If the governor refuses to sign or veto a bill before the deadline for action (seven days or 30 days), then the state constitutions says that it automatically becomes a law.6

In addition to the right to recommend amendments, the governor has line-item veto authority for appropriations bills. He or she can block just a portion of a bill that allocates money to a state program. The entire line in the appropriation bill must be vetoed, ending all funding for the item and the direction on how it should be spent. The governor does not have the authority to increase or reduce the appropriated amount, or to retain the funding but redirect its use.

That provision was added in the constitution adopted in 1902, so governor's no longer had to veto an entire budget in order to address one narrow conflict. The line-item veto authority had first been included in the Confederate Constitution.

Appropriations item in budget bills passed by the General Assembly must have comply with the "single object" requirement. That blocks legislators from combining unrelated issues into one bill, "logrolling" separate parts together. That practice could get support from diffferent members of the General Assembly who might oppose portions of the bill, but would vote for the consolidated language in order to get the piece they desired. Logrolling would result in a veto blocking unrelated actions.

The Supreme Court of Virginia is the umpire who determines if a bill meets the single purpose standard. For budget bills, it has stated:7

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

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.

A special "veto session" is scheduled each year on the sixth Wednesday after the adjournment of the regular session of the General Assembly, to react to the governor's amendments and vetoes. The state constitution was modified in 1981, creating that special session and reducing the power of the governor. Between 1902-1981, governors could veto bills after the regular session ended and leave the legislature with no opportunity to override the veto, unless 2/3 of the members in each house called for a special session.8

A governor still has one path for preventing the General Assembly from overriding his or her veto. If amendments were submitted on a bill, the legislaure will accept or reject each one during the veto session. After that session adjourns, the governor can veto the bill even if the amendments were accepted. Unless the General Assembly meets in a special session later that year, there is no opportunity to override the veto. The best opportunity for the legislature to impose its will occurs at the next regular session, when the legislators can pass a new law.

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.9

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.

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. "Article V - Executive Department," Constitution of Virginia - 1902, for Virginians: Government Matters, Virginia Department of Education, http://vagovernmentmatters.org/archive/files/vaconstitution1902_6885e65b9d.pdf (last checked February 4, 2019)
4. "In memoriam: Regulations for hemp products, a definition of sweet treats and campaign contribution restrictions," Virginia Mercury, February 4, 2019, https://www.virginiamercury.com/2019/02/04/in-memoriam-regulations-for-hemp-products-a-definition-of-sweet-treats-and-campaign-contribution-restrictions/ (last checked February 4, 2019)
5. 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)
6. "Article V. Executive Ľ 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)
7. 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)
8. "Article V. Executive Ľ 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: Governorís 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. "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)


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