Home Virginia Politics Update: “Moderate Bolling” myth explodes, but Democrats back down too

Update: “Moderate Bolling” myth explodes, but Democrats back down too


( – promoted by lowkell)

by Paul Goldman

UPDATE # 4: The Quick and the Dead

At the time, Mr. Cuccinelli – then Senator Cuccinelli – didn’t know he might be helping out the VA Democrats in their fight against the GOP redistricting power-grab. But the Miller v Brown case he argued at 462 F.3d 312 (2006) seems to say that if the House GOP and Governor MCD back the GOP Senate redistricting power grab, Virginia Democrats might be able to get a legal ruling on the merits possibly as early as this fall, surely far sooner than I had first thought. However, quicker doesn’t mean you win, it can mean you are just dead a lot sooner. Moreover, if VA Democrats stay too passive, it might open them up to being pressured to make a deal with Governor McDonnell.

Latest Update 3: SHOCK BUT NO AWE:

For all the “trash talk”, Bill Bolling proved he was just an empty suit, and VA Democratic Senators sat on their stools like Sonny Liston when he refused to come out and fight “The Greatest.” I realize a Howell or a Wilder doesn’t come around all that often in terms of leaders willing to risk it all for a moral or principled cause, fearless as to the conventional wisdom, able to walk the walk, not just talk the talk. They weren’t perfect by any means: But most of  the progress Democrats today take for granted can be traced back to their willingness to fight for what was right. If you are afraid to ever roll the dice on a matter of principle, then what do you get in the final analysis in real terms, not feel good stats and awards? Yes, you might lose. But your ideas never lose if you are right.

After milking a news cycle with complaints about how Republicans had crossed the line…the SHOCK…When push finally came to shove…we fell short on the AWE. What did we do as a matter of principle to send a message? In essence, the Senate went about its business….as usual. No one suggested a sit-in, a march on the Capitol, symbolic burning of the Senate rule book.

And yes, all the references to Dr. King were great. BUT…SURELY…Dr. King wouldn’t have just stopped with words, or speeches, indeed we know that FOR A FACT. He never rolled over…did nothing….and he faced real bullets, real attack dogs, really evil men.

Dr. King wouldn’t have merely gone along to get along. As FDR pointed out: All there was to fear was fear itself.  

AS FOR A LAW SUIT. Let’s review the facts. Under Article 2, Section 6 of the VA Constitution, Senator Deeds and every other Democratic Senators will continue to represent their current district even should the House pass, then the Governor sign the GOP power grab. There will not be new elections until 2015 except for a special election due to a vacancy. This may or may not occur. Until then, the Constitution is clear.  

Thus, when can Democrats actually bring a law suit, which right now appears to be our chosen sword? It might not be until 2015, it certainly can not be until the right plaintiff can present a real case or controversy, not one in theory. When will this arise since the plaintiff has to show special injury under the Goldman v. Lansidle decision of the VA Supreme Court. Since the district lines for purposes of representation don’t change, what sufficient legal beef would Virginians or Senators have upon mere signing of the bill?

BOTTOM LINE: Despite the legal and legislative optics, this is largely a political fight for the hearts and minds of Virginians.  

Howell and Wilder were unique. And yes, they were from a different political age. But right now, Democrats could use another fighter. Yes, you can’t fight all the time or most of the time. But you do have to fight sometime.

Update # 1: Based on previous rulings by Speaker Howell, the GOP power-grab redistricting amendments added to the House bill yesterday should be disallowed as not germane based on previous his previous rulings. But of course, he can do what he wants as a practical matter.

Update # 2: In terms of hardball politics, should the 20 Democratic Senators refuse to take the Senate floor today, thus denying the body the constitutional quorum required for doing business? There is some risk of a public backlash for what would be an unprecedented move in VA politics. Yet it would guarantee huge statewide press and serve to focus public attention on the power-grab. A part of me really likes this play: but it would surely be out of character for today’s DEM party, more from the Howell and Wilder days, when we had to fight for every inch of turf [ and we won of course!].

Had all the attending 19 Democratic Senators walked off the floor yesterday, the GOP redistricting power play would have failed due to a lack of a constitutional quorum to do business. But that is water under the dam. “Stuff happens”, all those complaining to me about this or that need to move on. Besides, there is an easy fix if Mr. Bolling’s claim of wanting to be bipartisan has even a scintilla of truth.

If the LG is truly serious about being viewed as a serious state leader, not to mention a potentially serious candidate for Governor, it starts today. From my days advising LG Doug Wilder, one of the unappreciated powers of the state’s second spot is the authority of Bolling to interpret the Senate’s rules. Conventional wisdom focuses on the LG’s power to break ties. But the ability to make rulings is potentially a greater power.

In 1986, Wilder’s rulings on legislation – for example the Baliles Transportation Package legislation – played a key role in how the final shape of the law.

Now, 37 years later, a Republican LG can step into the spotlight on a very high profile, hot potato legislative matter. Wilder’s decision in 1986 played a direct role in his having any chance of winning the Governorship in 1989. This maneuvers have never been appreciated by others even now.

Given Bolling’s interest in running as a “moderate” independent for governor, he can use Wilder’s example to at least appear credible for a day.

Here’s how.

As a general rule of law, the Senate, like the House, is the sole authority on the rules of the body. That is to say: The Judicial Branch is not supposed to interpret the rules of a legislative body except when it violates specific constitutional provisions. It may be that a court might find the VA Constitutional provision discussing the need to redistrict every ten years as prohibiting yesterday’s Senate action due to it having occurred outside of the allowable time frame. But this would not be the Judiciary dictating Senate rules, but rather a substantive decision on constitutional law.

However, I don’t read the Constitution as barring a redistricting bill in 2013. The Colorado case often cited involved a situation where the state legislature tried to change a judicially mandated plan passed by the court because legislators had failed to live up to their constitutional requirement to enact a plan in the first place. This is not the case here in Virginia in 2013.

Thus, if the Watkins bill, as radioactive as it might be politically, is deemed to have been passed according to the rules, and then is signed by the Governor, it is likely to rise or fall under the Voting Rights Act, the state constitution, and the federal constitution on the merits, not the process.

BUT IF MR. BOLLING is willing to be the moderate, thoughtful, independent thinking guy he claims to be after all those years as a loyal GOP apparatchik, then he, along with Democratic leaders McEachin and Saslaw, can do the right thing by the Commonwealth to help each other.

Yes, it will take some bipartisanship. But it is really not that hard at all.

Why? For three basic reasons.

ONE: As an example, the legislative rules in New Hampshire allow a bill passed by both houses and sent to the Governor for signature TO BE RECALLED BEFORE SIGNING. In the Granite State, the legislative body in last possession of the bill can do the recalling. I don’t know the rules for all legislative bodies. But clearly the principle of recalling a bill even after it has been passed is long established. Now I suppose in technical legislative language, the bill in New Hampshire may be considered still “before” the body last passing it, so it can be recalled on that technical theory. But the broader principle is plain: a legislative body can recall a bill even after it has been passed and eligible to be signed by the governor.

Surely the broad principle here logically extends to allowing either body of a legislative branch to recall a measure before signing if a majority of the body votes to get it back. It could be a messy situation, and surely not one to be used except in rare circumstances. But under the principle of majority rules, if a majority of a body decides that such is the only way to protect the public interest, there is nothing in the VA constitution, or common sense, to deny lawmakers this right.

In reading stuff last night, I don’t see that such a recall provision exists in the rules of the Senate, or Jefferson’s Manual, which has long been considered the bible of such things (did that guy ever sleep, how did he write everything?).  Does the lack of such a provision mean it doesn’t exist, or is the failure to address the matter specifically better seen as an area requiring a ruling from the Chair of the body, in this case the Lt. Gov?

Which brings us to point TWO: The power of the LG to make rulings about the rules of the Senate. Normally, such rulings are made when the bill is being debated before a final vote. So in that regard, the normal time to make such ruling would have been yesterday. So in that regard, he should not have merely complained to the media yesterday about what his GOP colleagues did: rather, he should have ruled their power-play out of order. He could have done that. HOWEVER, a ruling of the chair can be appealed. That is to say, Senator Watkins could have moved to have the body overrule the chair. If all 20 GOP senators had remained united, then whatever Bolling might have ruled could have been overruled.

Which brings us to THREE: The power of Bolling and the 20 Democratic Senators to turn the tables on the Watkins uranium reactor having gone way past critical mass.

While belated, Democrats can move today to ask Bolling to rule the passage of the redistricting bill yesterday in violation of Senate rules. Under Jefferson’s Manual, Section XLIV offers an opening given its wording as this is an existing rule. It is a stretch perhaps but as I say, the LG is the presiding officer and he gets to rule. XLIV, in my view, would allow the LG to rule the bill had not properly been reviewed according to his interpretation of the Senate committee process required. Thus, Saslaw or McEachin could ask for said ruling and Bolling could oblige. The GOP would then have to move object. But a 20-20 tie vote sustains the ruling of the Chair. Or Democrats could make a motion saying passage of the bill had violated the Senate rules. The vote would be 20-20 and Bolling could break the tie.

The bottom line: Bolling and the Democrats can work together to say the Watkins bill was not properly passed by the Senate.

OR FOUR I SUPPOSE: When Wilder was LG, I believe a senator actually went over to the House and retrieved a bill that had been passed by the Senate, bringing it back. If I remember correctly, Wilder ruled the bill still properly before the Senate, negating its previously “passage.”

Bottom line:

If the LG and the Democrats vote to declare the Watkins’ bill improperly passed, this puts the House and the Governor in a very “sticky wicket” as King George and the parliament might have said at the height of the Revolutionary War.

Again: Each legislative body is considered the final authority as regards its rules. If the Senate communicates to the House a ruling that the Watkins bill was not properly passed, tradition if not the law requires the House Speaker to send it back. The actual return might be unprecedented: but the legal/custom/legislative rule making theory as old as Cromwell’s Rump Parliament.

This is particularly true given the VA tradition of each legislative body allowing the other to determine redistricting matters. So it puts Howell and his GOP in a very tough spot.

Moreover, should they refuse and pass the bill onto the governor, it puts MCD in a no-win position to sign the bill. It would seem likely his legal counsel would question the lawfulness of the bill.

True, AG Cuccinelli might side with his GOP partisans, but surely even the K-man realizes such a posture puts another nail in his gubernatorial coffin. His rulings are only as important as he thinks they are: they have no actual legal authority in this situation for anyone else.

What does Governor McD have to gain by joining the nuclear explosion created by the Atomic Senator?

Boiled Down for Bolling: It is a lay-up really if he or the Democrats have any credible legal advisors, which is useful when political passions run this high.

If Bolling lives up to his GUV candidate hype, then it is a no-brainer when the Senate convenes today.

The actual mechanism for getting the ruling can be worked out My hunch is Senator Saslaw would have to make a motion of some sort, either to declare the Watkins bill having passed in violation of the rules, or a motion to ask the House to send the bill back on the grounds the Senate rules allow such power inherently. Bolling would then make the appropriate ruling, the GOP would challenge it I suppose, and it would be upheld when they couldn’t get a majority to overturn the ruling of the Chair.

At which point: Speaker Howell could unilaterally send it back on his own call. There is no way the GOP in the House is going to get into a public feud over such action with the Speaker. They are up for re-election this year and this would hand Democrats a great issue. Moreover, Howell would be under  pressure from Governor McD not to blow up the whole GA Session. Moreover, the Speaker would realize the issue is really one of whether the Senate has the right to set its own rules, the same for the House. I think he would not want to say YES, since to do otherwise could bite the House in the future.

Complaining about how the GOP played hardball to the Dem softball strikes me as the default posture, not the best posture today. Democratic Senators need to be legalistic, dispassionate, professional, even bipartisan with Bolling’s help.

Bolling might not be up to the job. But it is really an easy call for any serious candidate for governor.

  • Another way this crap could be thwarted is for Vaginal Bob to do the honorable thing by signaling an intention to veto the bill when it hits his desk.

    Yeah – I know – fat chance.

  • Paul Goldman has another idea:

    This type of protest move has never been done before in Virginia history. But is this the time to do it for the first time in order to focus public attention the GOP power grab?

    This is surely worth considering prior to the normal start of today’s Senate Session.

    It is an issue that cuts a lot of ways.

  • As a matter of legislative procedure, what the GOP Senate did yesterday was an amendment to a House bill aimed at technical amendments to deal with certain matters as relates to house districts and split precincts. What Watkins and posse did was to turn the bill, through amendments, into a full Senate redistricting measure.

    Based on Howell’s previous rulings, he should rule the Watkins’ amendments non-germane when the amended bill comes to the floor of the House if it ever does.    

  • Captain Obvious

    The quorum is determined at the beginning of the day.  Leaving after roll has been taken wouldn’t have changed the establishment of the quorum.

  • pashin

    According to an authoritative-sounding commenter in Waldo Jaquith’s blog (cited in the VA News list below), the quorum call is taken at the beginning of the day, and is considered to be established for the remainder of the day. A mass walk-out, while a potentially effective PR tactic, would not have stopped that day’s business.  

    However, this and other procedural tactics should definitely be in the Democratic toolbox for the remainder of the session. Everyone has to realize that legislatively speaking, nothing good can come out of this session. The most we can hope for is our Democratic representatives can stop as many bad things from happening as they can – using every tactic in the book. If that means using delay tactics and being called “obstructionist” – so be it. Some legislation  deserves obstruction – and some (for example, allocating electoral votes by gerrymandered congressional districts) have such significant long-term negative implications that they warrant leaving the state to deny quorum, as the Wisconsin Senators did in 2011.

    I return to the comment on Waldo’s blog (about tenth from the top).   One thing that the commenter (Not Susan Clarke Schaar) suggested was:

    If Senate Democrats are genuinely as pissed off about this as they should be, nothing should pass by unanimous consent for the rest of this session. Every motion, even the procedural motions, should be opposed by the whole caucus. No more routine approvals of the previous days’ legislative journals; no more waivers of constitutional readings of bills; no more routinely passing bills en bloc; and certainly no more routine votes to pass bills by for the day. Senate Republicans will respond by saying that Senate Democrats are throwing a temper tantrum-that’s what they said about the judicial election blockade last year, and last year’s threatened budget blockade that never materialized. But until Senate Democrats are ready to go to the mattresses, as they said in The Godfather, Senate Republicans will continue to walk all over them.

    I think that there’s a lot of truth in this. It would hold up the Senate’s work, meaning less bad legislation could be passed this term, and it would make the public point that the Rethugs had crossed a line with this one and that it was no longer “business as usual” in the Senate.

    Of course, this would take a fairly major change in attitude on the part of the Senate Dems – but now is the best time for grassroots activists to push for that change of attitude. Even the most “go-along to get along” members of the caucus should feel resentment about how they were treated here. Let’s see if we can encourage them to transform that resentment into solidarity and a collective will to act.


    ~On yesterday’s Virginia Senate action on redistricting~

    WASHINGTON – U.S. Sens. Mark R. Warner (D-VA) and Tim Kaine (D-VA) released the following joint statement today on the surprise action by the Virginia Senate to push through a redrawn district map:

    “On a day when Americans celebrated Martin Luther King, Jr.’s birthday and inaugurated Barack Obama as President, Virginia Senate Republicans took advantage of the absence of civil rights leader Sen. Henry Marsh to push through a hyper-partisan change to Virginia’s already gerrymandered legislative district map.  This is not the way we should be conducting the people’s business in Virginia. We are encouraged by Governor McDonnell’s statements today expressing disapproval of the tactics that were used.  We urge legislative leaders and other elected officials to do the right thing to correct this disappointing and disruptive partisan action.”

  • Jim B

    How the heck do we overcome this stuff when our ordinary republican neighbors don’t object to their party leaders lying, cheating and stealing?

  • totallynext

    Look at the video – he pushed this crap through with his immediate procedural process with out waiting for the votes, i.e. voice votes to be done.

  • totallynext

    Where was the Republican leader?

  • Senator Henry Marsh’s Statement

    on Yesterday’s Redistricting Vote

    RICHMOND, VA – Senator Henry L. Marsh (D-Richmond) made the following statement in response to the Senate Republicans’ forcing through a partisan redistricting plan.

    Republicans waited until Senator Marsh, a legendary Virginia civil rights hero and a 22-year veteran of the Senate, was away at President Obama’s inauguration on Martin Luther King, Jr. Day, to ram this bill through the Senate on a 20-19 vote.

    The first African-American mayor of Richmond, Senator Marsh was a leading Virginia civil rights lawyer, trying scores of school desegregation and employment discrimination cases, representing thousands of African-American clients.

    Senator Henry Marsh said:

    “I was outraged and I was saddened yesterday afternoon to learn that the Senate Republicans had used my absence to force through radical changes to all 40 Senate districts.”

    “I wanted to attend the historic second inauguration of President Obama in person. For Senate Republicans to use my absence to push through a partisan redistricting plan that hurts voters across the state is shameful.

    “I’ve been a lawyer for over 50 years, and I’m certain these changes are unconstitutional. Also, allowing this to stand would mean that the people of Virginia could be subjected to ten different redistricting plans in a decade.”


    Herring Calls On Governor To Go Further And Pledge To Veto

    Leesburg – Democratic candidate for Attorney General State Senator Mark Herring (Loudoun & Fairfax) issued the following statement today after Governor Bob McDonnell condemned the Senate GOP redistricting move as a “bad way to do business”:

    “I am pleased that the Governor has condemned the outrageous actions of the Senate Republicans. If the Governor is serious about working in a bipartisan manner to move our Commonwealth forward, he should assure the public that he will veto the redistricting plan to ensure this session remains on track.”

  • DJRippert

    My only quibble with your column is the heading.  It’s really too early to declare that the “Moderate Bolling” myth has exploded yet (at least over this issue).  Otherwise, a brilliant piece of political diagnosis and prescription.

    Yet, I wonder if McDonnell might be more of the man to spotlight than Bolling.

    McDonnell desperately wants a transportation deal as a big part of his legacy.  He also has national political ambitions.  I assume he watched as Chris Christie enhanced his appeal by touring New Jersey with Barack Obama and with his criticism of Republicans for delaying Sandy aid.

    Meanwhile, he has Ken Cuccinelli likely to say or do something embarrassing over the next ten months (OK, he’ll probably do and say many embarrassing things).

    Now may be the time to distance himself from Virginia Republicans.  Let’s face it – even among national Republicans the Virginia variety is considered looney.  It might not really hurt McDonnell with the national Republicans to stiff arm the hapless Virginia Republicans.

    And being able to work across the aisle is about the best thing someone can say about a Republican these days.

    So, McDonnell’s play ….

    1. Call in Democrats for a chat on transportation.

    2. Be willing to modify his plan.  Perhaps a change in the state income tax rates to make them more progressive to go along with the transportation bill?

    3. Make it clear that he’ll veto the redistricting bill in return for cooperation on transportation.

    4. Start visiting Republican Delegates’ districts to talk up the new transportation plan.  Make suburban delegates like Barbara Comstock think twice about opposing a plan that brings more money for transportation.

    5. Sign the transportation bill and veto the redistricting bill.

    6. Get photographed with Democratic politicians as the transportation bill is signed.

    Bob McDonnell – the man who reached across the aisle, solved the transportation crisis and squashed the undemocratic redistricting scam?  Not a bad start to a national political career.

  • Sorry for the mediocre video, I shot it from my computer screen, wasn’t really set up to do it, so it’s a bit shaky. Still, I think timeliness in this case is more important than getting the perfect quality video. Anyway, enjoy! 🙂

  • Quizzical
  • Bludog

    Ken Saslaw is so awful of a party leader that he cannot understand when the game is on him.  And don’t chortle, Donald, because you ain’t got game either.

    Only in Virginia can a majority party go through redistricting and come out as the minority.  

    That’s what you get with Saslaw and McEachin.

    And the ring master who twisted the Saslaw and McEachin redistricting disaster was none other than Sen. John Watkins.  At least in Barnum and Bailey the lion trainer needed a big stick, but in the Virginia Senate no stick is necessary.  The “lion” meekly goes back in the cage, hoping for a bowl of milk. Maybe it will roar a couple of times or something, out of reflex.

    So the R’s do the outrageous the other day, something so over the top and so insulting that it blows one’s mind.  Surely they will suffer the indignation of the the 99.8% of Virginians who could absolutely care less. The Dems hearing about it while watching the inauguration will absolutely reaffirm their eagerness to vote for Dems, and to make sure their Dem friends do likewise.

    It was brilliant, especially against over-matched opponents.

    You see, the R’s don’t want to vote on transportation.  Whether it’s the Watkins Bill or the McDonnell Bill, either way there are big tax increases.  And none of them can abide that heading into an election year.  Best for them is for all of it to head into a gigantic mess that bogs down.  Nothing is something, to them.

    But the optics of doing nothing are really bad for them, because as we all know, transportation issues will be a big deal in northern Virginia and Hampton Roads, where more than half of the votes are found and plenty of frustration abounds.

    So … let’s have the Democrats kill transportation!  Now there’s a message.  We killed transportation because we were all mad, and gosh knows nobody gets mad like Ken Saslaw.  His quotes are big time fall debate fodder – the R’s put forward TWO plans, and the D’s nothing.  There you go.  Figure it out and pay yourself a fat consulting fee.

    It’s a set up.  The Senate needs to get a better lawyer than it had during redistricting and file a lawsuit for an injunction.  Bring out all of the big bullets – Dick Howard, civil rights.  Obama owes us one, anyway.  

    And then vote on a transportation bill.  I think that McDonnell’s bill is a joke, so go with Watkins’.  Praise the man for raising the gas tax!  Put everybody on the record for or against.  Make Cuccinelli take a position.  Nobody cares a whit about McDonnell, or needs Bolling to do anything.

    You see – it’s all a game.  The R’s KNEW Saslaw and his nurse McEachin would react the way they did, and that they would walk into yet another pothole.  And that Watkins was the guy to do it, because he’s batting 1.000 against those guys.

    It worked like a charm two years ago, and the R’s are counting on consistency.

    So far, they’re getting it.

    And then you wonder why the Democratic Party is such a mess.  

  • h.m. smith

    This is VA, where the Republicans can do that kind of thing, and on the same day that they try to redistrict out the Democratic Senator (Creigh Deeds), who ran against transvaginal Bob for both attorney general and governor and lost horribly because he was such a bad candidate and refused to align himself with President Obama. On that same day, that same Democratic Senator Deeds made a big speech about what a wonderful person Stonewall Jackson was and asked the VA Senate to adjourn “in honor” of the Confederate general – on Martin Luther King Day and the day that civil rights leader Senator Marsh was attending the 2nd inauguration of our first African-Amercan President??? Did he not think that the power grab from the Republicans in the Senate on that day was bad enough???  It was in extremely poor taste!! This is the same guy that Stephen Colbert made fun of a couple of years ago for trying to give lifetime gun permits to 2 year olds – yeah, that guy. The same guy who voted to make it possible to buy as many guns as you want last year and to carry a concealed weapon into a bar. The same guy who apparently saw the young women’s rights activists on the Capitol as a good excuse to proposition them. Maybe he is so enthralled with Confederate generals because he is also a loser, both as a politician and a person. Unfortunately that’s what still passes for a Democrat on the state level in VA.