Senate Democrats and Separation of Powers
By Brian Kirwin | Tuesday, December 6th, 2011 | PolicyVirginia Senate Democrats filed a lawsuit asking for an injunction to prevent Lieutenant Governor Bill Bolling from voting on organizational matters in the Senate. The Lawsuit asks the courts to declare that the LG can not break ties in organizational votes.
Democrats have crossed a line here. The Judiciary and the Legislature are co-equal branches of government. Heck, the 5th paragraph in the Virginia Constitution is the Separation of Powers clause.
“That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct;”
The legislature should govern its organizational rules. I think allowing the Judiciary to dictate how the Senate organizes its committee assignments would be a grave mistake.
No, this isn’t the first time Democrats run to the Judiciary when they lose elections. But this is an organizational vote, and I think it’s completely improper for the courts to decide how the legislature structures committee assignments.
What’s next? If some Senator doesn’t like Bolling’s ruling on a Point of Order, are we headed to the Supreme Court?
It would be interesting if someone requested an opinion from the Attorney General concerning Separation of Powers issues in the Democrats’ lawsuit.
It might be the only thing Cuccinelli and Bolling agree on for the next two years.
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The right wants to jeer him. The left wants to censor him. Moderates usually want both. Brian Kirwin is a political consultant and public relations strategist in Virginia Beach with a lightning-rod flair. Brian also serves on the VB Arts & Humanities Commission and frequently appears on Hampton Roads theatrical stages, if only to prove that all actors aren’t liberals. Kirwin’s columns stir up debate and hit the political scene with no punches pulled.
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12 Responses to "Senate Democrats and Separation of Powers"
Brian- I do not agree that this is a violation of the separation of powers. The court was not asked to decide the organization of the Senate. It was asked to decide whether under the Virginia Constitution the Lt. Gov. has the power to break ties in the Senate on organizational matters. Questions of constitutional interpretation are legitimate issues for courts to decide, and the fact that the answer to this question may impact how the Senate will be organized doesn’t change that fact.
Also, as I previously reported in my previous post on this subject, the Attorney General has, in fact, been asked to provide an opinion. The source of that request has not been disclosed. My article on this subject can be found here: http://www.bearingdrift.com/2011/11/18/senate-democrats-hollow-demands-for-power-sharing/
As I wrote in that article, I believe both the Attorney General and the courts will decide that the Lt. Gov. does have the power to break ties on these organizational matters. In rendering those opinions, the AG and the courts will be mindful that they will be setting precedents that will apply to all future Lt. Govs. of both parties.
Ken, I disagree. I don’t think questions of Senate organization should be decided by the Judiciary.
Then you should be happy that the courts will not be considering that question.
The Democrats have asked the courts to interpret Virginia’s constitution.
That would seem to be their proper role.
I think the Dems will lose. They were right about this issue in 1996, but they are wrong now.
A Supreme Court decision settles it once and for all.
And it will be interesting to see Dems in court relying on an A.G.’s opinion by Jim Gilmore and Republicans relying on the opinion of A.E. Dick Howard, the drafter of the constitution, written at the request of Dems in ’96.
Ken, I disagree with you. This is an inherently political question, hinging on the results of an election. The question goes directly to how the Senate organizes itself. As a result there should be no question that the court should decline to hear the case.
Whichever side the judiciary comes down on, they will have been directly interfering in the internal mechanisms of a chamber of the General Assembly. That’s a lose/lose situation and one that puts the judiciary in the crosshairs, especially given the GA’s role in the appointment of judges.
Brian S.: With all due respect, because I know you recently passed the bar. Isn’t the central question here, what are the Lt. Gov.’s powers, as defined in the Constitution of Virginia? Isn’t that a proper question for the courts? Since Howard says there was no intention to say that the l.g. couldn’t vote on these question when the Constitution was drafted, I agree that he can. But it does seem to be a question of constitutional interpretation, and the courts have the final word on that.
Court involvement in Senate procedural rules is a slippery slope and will significantly protract the legislative process, especially with controversial legislation. Lest we not forget Wisconsin and Judge Sumi’s rulings on legislative committees violating “open meetings” laws, publishing by the Secretary of State and the legal firestorms that followed about who in the Wisconsin state government can sue who.
Steve, that may be a part of the question, but you can’t ignore the context, and the court won’t ignore the context, either. The question could just as easily be one for the General Assembly – they could clarify the Lt. Gov’s role in the Code. It could also easily be clarified in the Senate’s rules, restricting the prerogative of the chair on certain questions. It’s not simply the judiciary’s responsibility to interpret the Constitution. Both the legislative and executive have a responsibility there as well.
The courts are exceedingly hesitant to step in to a situation like this. Regardless of what the decision is, it is a bad one for somebody and that somebody has the ability to tinker with the judiciary’s prerogatives.
The fact is, the decision as to what the LG’s powers in this regard is should be made in the Senate, not in the courts. If voters disagree with this, they can elect a Democrat LG in 2013, or elected a Democratic majority in 2015 and they can overturn this precedent.
I just don’t see a court being willing to stick their neck out on this issue. It makes little sense, either politically or legally.
Brian- The question of whether the LG can cast the tie-breaking vote on organizing the Senate is strictly one of constitutional interpretation. It cannot be resolved by revising the Senate Rules of setting some kind of Senate precedent. Matters of constitutional interpretation are the purview of the courts. The fact that the court’s ruling might affect the outcome of how the Senate gets organized is incidental to the fact that the court’s are the branch of government empowered to interpret the constitution. It is important to remember that no one has asked the court to decide on how the Senate gets organized. They have asked the court to interpret a provision of the Virginia Constitution.
Ken, it goes beyond constitutional interpretation because the impact of their decision will directly decide what is a fundamentally political question.
The courts do not have any Constitutional empowerment to interpret the Constitution. Not in Virginia and not federally either. That is a power that has accreted to the judiciary, but not one that is explicit. Article III says nothing about judicial review. Likewise, Article VI Section 1 of the Virginia Constitution notes that the Supreme Court has appellate jurisdiction on constitutional questions, but nowhere in the Virginia Constitution does it say that matters of constitutional interpretation are solely the purview of the courts.
The courts should not get involved in political questions, particularly those that directly impact the internal workings of one of their sister branches of government.
Asking the court if the LG has the ability to break tie votes on matters of organization is no different than asking them to decide how the Senate gets organized. If the Republicans win (meaning the Court holds that the LG can break the tie), we get the gavels. If we lose (meaning the Court holds that the LG can’t break the tie), there’s power sharing. That’s what the Democrats want. Thus, the decision specifically will result in a political outcome. Saying the question doesn’t go to organization because of how it’s worded is a distinction without a difference.
Brian: So you feel that the court will refuse to rule on this? I’m not sure I agree. I think they rule and the GOP wins. We’ll see.
That’s my gut feeling. Were I sitting on the bench, my knee jerk reaction would be to punt on this one.
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