UPDATED: Senate Democrats’ hollow demands for power-sharing

Senate of Virginia

In 1995, for the first time ever, the voters of Virginia elected a Senate evenly divided between Democrats and Republicans at 20 members each.  The Lieutenant Governor was Democrat Donald Beyer, and the Democrats decided that they wanted to declare themselves to be in the majority and organize the Senate accordingly.

The Republicans protested that the Senate committee memberships and chairmanships should be divided evenly, arguing that under the Virginia Constitution, only Members of the Senate can “select its officers and settle its procedures.”   The Democrats responded by securing an opinion from University of Virginia law professor A.E. Dick Howard, a highly respected expert on Virginia constitutional law, stating that there is nothing in the state constitution that limits the matters on which the Lieutenant Governor can cast a tie-breaking vote in the Senate.

On the basis on Professor Howard’s opinion, the Democrats announced their intention to act as the majority party and to organize the Senate accordingly . . . . That is until Virgil Goode, then a conservative Democrat state senator, announced that he would not support the Democrats having one-party control over the Senate and forced the Democrats to share power with the Republicans.

Thus, the last time the Senate was split evenly between the parties, the Democrats in the Virginia Senate shared power with the Republicans only because they were forced to do so by one of their own members.  On the question of whether they had the right to organize the Senate as the majority party with their Democrat Lieutenant Governor casting the tie-breaking votes, that had already publicly announced their belief that they had the legal right to do so based on Professor Howard’s opinion.

This year, the voters of Virginia once again elected an evenly divided Senate.  This time, however, the Lieutenant Governor, Bill Bolling, is a Republican, and the Republican Caucus is united in its intentions to act as the majority party.  And now that the opinion by Professor Howard that was originally solicited by and endorsed by the Democrats no longer serves their partisan interests, the Democrats have come out publicly against that opinion and declared that the Republicans should share power with them.  Understandly, the Republicans have announced that they have no intention of doing so and that they will, in fact, organize the Senate as the majority party.

It should be noted that a legal opinion by a law professor, no matter how highly and universally respected, does not carry the force of law.  Furthermore, it is hardly unusual for a political party – or any person or entity involved in a legal matter – to change their position on an unsettled issue of law to suit their unique interests.  Frankly, although the Senate Democrats come off as hypocrites in the court of public perception, I don’t blame them for asserting a position on this unsettled legal question that advances their interests.

Ken Cuccinelli

That said, I do not believe the Democrats have any options that are likely to carry the day for them.  Their most immediate option is to seek an opinion from Attorney General Ken Cuccinelli.  Some might argue that the Democrats’ would have a slim chance of receiving a favorable opinion because Cuccinelli is himself a Republican.  However, I disagree with that analysis because Cuccinelli has demonstrated that his legal positions are based on legal principles and not partisanship.  I believe he would decide this issue based on the law and with a realization that his opinion would be cited by future Lieutenant Governors of both parties whenever the Senate is divided.

That said, I do believe Cuccinelli’s opinion would favor the Republicans on the merits.  Cuccinelli is a strict constructionist who would follow the letter of the State Constitution and the intent of its framers.  The language of that document does not contain any limitation on the powers of the Lieutenant Governor to break ties.  It does leave it to the members of the Senate to organize itself, but it does not define who is a “member.”  The Lieutenant Governor is the President of the Senate, and, as previously discussed, has voting powers when his vote would be determinative of an issue.  Given the lack of any restriction on the matters on on which the Lieutenant Governor can exercise such a vote, I believe that as a matter of law he would be considered a “member” of the Senate with the power to exercise his vote to break ties freely on all matters.

It should be further noted, however, that an Attorney General’s opinion also does not carry the force of law.  Nevertheless, these opinions are highly influential with the courts, particularly on matters with political overtones.  Courts generally do not like to resolve political matters and try to avoid doing so wherever possible.  This is especially true for issues of contention that are internal to another branch of government, such as the organization of a legislative chamber.  However, since the question of whether a Lieutenant Governor has the power to break a tie on organizational matters is a question of constitutional interpretation, the Virginia courts might be willing to consider the question.  If they do, though, the Attorney General’s opinion will likely be taken as highly persuasive.

It is possible that the Democrats could obtain an opinion from the Attorney General before the Senate convenes in early January.  It is highly unlikely, however, that they could get a definitive ruling from a court on this question by that time.  So, their only option most likely would be to seek an injunction prohibiting the Lieutenant Governor from casting tie-breaking votes on organizational matters, which would have the effect of preventing the Republicans from organizing the Senate unilaterally.  However, in order to obtain an injunction, the Democrats would have to be able to demonstrate that they are likely to prevail in ultimately winning a judgment in their favor.  As discussed above, I do not believe they could meet that standard, and accordingly, I don’t believe a court would grant an injunction against the Lieutenant Governor.

Thus, the Democrats can scream all they want about their demands that the Republicans share power.  In doing so, they will appear as hypocrites in the court of public opinion and most likely lose in the courts of the Commonwealth.

UPDATE 11-21-11:  Bearing Drift has learned that the Attorney General has been requested to review this issue.  We do not know who made the request.   Because the matter is under review, the Attorney General declined to comment on this matter.

Contribute for Conservatism!

About the author

Ken Falkenstein

Ken Falkenstein has been a staffer in the United States Senate and the Virginia House of Delegates. He has managed political campaigns. He was a military intelligence analyst in the U.S. Army in West Germany during the Cold War. He is currently a civil litigation attorney with Poole Mahoney, P.C. in Virginia Beach. But his concern for his kids' future is what most informs his writing.