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

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

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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.

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