THE UNIVERSITY OF VIRGINIA

THE GOVERNOR'S VETO POWERBy ALEXANDER J. WALKER

Vol. 54, No.4

The author is a research aide on the staff of

the Institute of Government.

The governor of Virginia is oftenidentified by political scientists asone of the strongest of the fifty statechief executives. In a number of otherstates, for example, governors shareappointive and budgetary powerswith civil servants, legislators, otherelected officials, or a special group.Likewise, power is oftentimesdispersed through an array of popu­larly elected state officials. In Virgin­ia, however, the consolidation ofadministration, control of the budget,the IIshort ballot," and a strong vetoare all formal powers which supportthe governor's position. In fact, by allthe usual measures of gubernatorialpower but one-the abi Iity to succeedoneself-Virginia's governor isranked on the strong side of thescale. 1

The Commonwealth's long succes­sion of conservative Democraticgovernors allied with the so-calledIIOrganization" reinforced the formalpowers of the office. (Indeed, it wasthe reform administration of Gover­nor Harry F. Byrd, Sr. that did so muchto streamline and consolidate theadministration of the government.)Most of the state's governors havehad personal experience in theGeneral Assembly, and for manyyears most of the key leaders inRichmond were men with longcareers in the Organization and inpublic office. Thus were establishedties of personal and political loyalty

'See, for example, Joseph A. Schlesinger, "A Comparison of

the Relative Positions of the Governors," in Thad Beyle and J.

Oliver Williams, eds., The American Governor in Behavioral

Perspective (New York: Harper and Row, 1972), pp. 141-150.

between Virginia's governors andher legislative leaders. Over theyears, a set of expectations hasgrown about the office which trans­cends personalities and parties.These expectations have outlived thedominance of the Organization, andthe strength of the office remainsamidst increased two-party competi­tion and ideological conflict.

A governor must IIwear manyhats," including that of chief legisla­tive leader. In all the states, gover­nors are expected to have a legisla­tive program and to work with thelegislatures to bring such a programto fruition. The veto is the ultimateweapon that a governor may use tocontrol the flow of legislation. Thepower of the veto varies among thestates. Governors may have no vetoat all, may have no item veto, or asimple majority may be all that isneeded to override the veto. Onceagain, the governor of the OldDominion finds himself in a goodposition. If both houses of the Gener­al Assembly pass a bill that isunacceptable to the governor, he maysend it back, along with his objec­tions, to the house in which itoriginated. Once there, the bill mustbe reconsidered. If two-thirds of themembers of that house present andvoting agree to pass the bill again(with the two-thirds equal to at least amajority of the total elected member­ship), it goes to the other house for asimilar reconsideration. If the secondhouse agrees to the bill in the samemanner, then the bill becomes law.

The governor may also in effectveto legislation simply by failing tosign a bill on his desk within thirtydays after the General Assembly hasadjourned (just as with the IIpocket

veto" of the President of the UnitedStates). This particular provision isactually very potent because so manybills are usually passed during thelast week or so of the session. Afurther provision allowing the presid­ing officers of the House and Senatetwenty days in which to sign enrolledbills has also worked to· strengthenthe governor's hand. The effect ofthis provision has been to bring stillmore bills to the governor's desk afteradjournment when there is no possi­bility for vetoed bills to be returned tothe General Assembly for a vote tooverride.

In addition to his general vetopower, the governor enjoys an itemveto on appropriations bills; that is,he mayveto one item of an appropria­tion without having to veto the wholepackage. Finally, the governor ofVirginia may wield a power pos­sessed by only three other stategovernors: the power of lIexecutiveamendment." If the governor gener­ally approves a measure passed byboth houses but has objections tospecific parts, he may return the billwith specific recommendations foramendment. The General Assemblymay then vote to pass the amendedbill by simple majority.THE VETO PROCESS

What is the process by which thedecision to veto is made? At thenational level, the process of "Iegis­lative clearance" by the ExecutiveOffice of the President grew out ofthe need to coordinate departmentalrequests for appropriations withpresidential budgetary policy. Asgovernment grew more complex, thesame machinery handled clearancefor "policy" legislation as well. Achief executive's time is valuable;

INSTITUTE OF GOVERNMENT UNIVERSITY OF VIRGINIA / CHARLOTTESVILLE / DECEMBER 1977

TABLE 1

Bills Vetoed by Governor of Virginia,

1968-1977

Session Bills Bills Vetoes as Percent

Passed Vetoed of Bills Passed

1968 824 17 2.06

1969 27 1 3.07

1970 809 24 2.97

1971 269 4 1.49

1972 889 22 2.47

1973 563 15 2.66

1974 712 26 3.65

1975 675 23 3.41

1976 822 42 5.11

1977 71-9 34 4.73

Total 6,309 208 3.30

SOURCE: Virginia General Assembly, Acts of Assembly, 1968-1977.

therefore, legislation must be pro­cessed in such a way as to separatethe routine matters, in order that themost important information is on hisdesk for him to make an intelligentdecision efficiently.

In Virginia, all bills passed by theAssembly go through a routineprocedure. The bill goes first to theDivision of Legislative Services,where a cover sheet is attachedgiving a synopsis of the bill and listingthe departments having a specialinterest in the bill. Copies of the billare rushed to each of these depart­ments for comments. Every bill alsogoes to the Office of the AttorneyGeneral for clearance on its legal andconstitutional impact. All of thismaterial then comes through theOffice of the Executive Assistant tothe Governor, which serves as acentral clearinghouse. It is here thatthe bills in which the governor isparticularly interested, or bills whichcome back questioned by one of thedepartments, are set aside for apainstaking review. 2

As the time for a final decisiondraws near, there are often meetingsbetween the governor and individu­als involved with the legislation,including the bill's patron and localgovernment officials. As a matter offact, the governor's schedule isarranged so that the last week of thethirty-day period following adjourn­ment is left entirely open for meet­ings with groups or individuals onbills that have been questioned.

In every instance in which thegovernor is inclined to veto a bill, thepatron of the bill will be notified. In alarge number of cases, when the billhas been questioned for technicalreasons, the patrons will agree totheveto. The bill m-ay be introduced againin an amended form, perhaps in thenext session, or an alternative billmay be signed. The Virginia traditionof electing governors who have statelegislative experience seems to facili­tate this arrangement. The big glut oflegislation passed the last week ofthe session presents a logisticalproblem, but it is still manageable.

USE OF THE VETO

The overall strength of the gover­norship in Virginia naturally hasaffected the use of the veto power.Gibson's study of the governorshipreveals that during the period from1952 to 1966, a total of 6,084 billswere passed by the Virginia GeneralAssembly. Only 73 of these bills were

21nterview with Robert Mcilwain, Executive Assistant to the

Governor, November 3, 1977.

vetoed, and in no instance did theveto represent a major confrontationon policy. Furthermore, noneofthesevetoes was overridden bytheAssem­bly. During that same period, 173bills were returned with an executiveammendment, all but two of whichwere passed in the amended form. 3

The governor's veto, then, hasbeen an instrument of power usedonly rarely, but always used effec­tively. The combination of a flexibleitem veto on appropriations and theexecutive amendment, mixed andmatched with an absolutely effectivelast resort, secures the governor'sposition. Even so, there has been ageneral tendency toward an in­creased use of the veto power sincethe late 1960s. An examination of theyears from 1968 to 1977 shows thatof a total of 6,309 bills passed, 208were vetoed (see Table 1). Computa­tions based on Gibson's previouslycited study indicate that during theperiod 1952-1966 an average ofabout five vetoes a year were exer­cised, out of an average of about 405bills passed per year. This is incontrast to an average of twentyvetoes a year from 1968 to 1977,when an average of 630 bills werepassed each year. Stated in percen­tages, only 1.20 percent of the totalbills passed were vetoed from 1952to 1966, whereas 3.30 percent of thetotal bills passed were vetoed during

3L. Tucker Gibson, Jr., "The Governor of Virginia as

Legislative Leader," University of Virginia News Letter,

January 15, 1969.

the period 1968-1977. Though this isa considerable increase in thenumber of vetoes, one must exercisegreat caution when interpretingthese figures.

Consider the 1976 and 1977sessions of the General Assembly.These two sessions alone account forseventy-six vetoes, over one-third ofthe total since 1968. However, inexamining the reasons given by thegovernor for vetoing each bill, onefinds that thirty-six of these wererejected by the governor simplybecause an alternative bill, similar oridentical and usually originating inthe other house, was signed into law.Thus, almost half of the vetoes werenot " rea I" vetoes at aII.

Still other bills are vetoed becauseof some technical flaw. The bill mightbe in conflict with existing law orworded in such a way as to producean unintended effect. For example,Senate Bill 246 in 1976 related toretirement under the Judicial Retire­ment System. As amended duringpassage, that bill would have pro­duced the unintended effect of forc­ing the early retirement of justices ofthe State Supreme Court. Anotherexample is Senate Bill 165 of thatsame year, which amended provi­sions of the Virginia UnemploymentCompensation Act. However, the billmight have created a nonconformitywith federal law, so the governorvetoed it while signing House Bill923, which was substantially similarbut did not present the troublesomenonconformity.

It may be fruitful to examine thetypes of bills vetoed. Given theproblems of reduced revenues andincreased demands for services in atime of recession, one might expectmany controversies over taxation andappropriations. One study of vetoesin other states found that bills ontaxation were about 12 percent of allvetoes. 4 However, in Virginia suchbills constituted only about 8 percentof all vetoes for the 1976 and 1977sessions. Bills relating to areas suchas the regulation of business andlabor, state administration, criminaljustice, and conservation (i.e., IIsub­stantive" and IIprocedural" bills)constituted the greater portion of allvetoes in Virginia-a finding whichconforms to the McCally study.However, "party interest" bills-billsrelating to apportionment, politicalappointments, election laws, etc.­did not figure in the Virginia vetosituation at all. Yet such bills werealmost 7 percent of the total in thestates covered by the study citedabove. Appropriations did not makeup a sizeable percentage, and therewere no great fights here (the oneconspicuous exception being thebattle in 1976 over funding for theMetro subway system for NorthernVirginia).

It may well be a sign of the timesthat 17 percent of the bills vetoed inVirginia during 1976 and 1977 wererelated to state and local intergovern­mental relations. Judging from thesevetoes, some uncertainty exists inthe state as to the proper relationbetween branches and levels ofgovernment. Such a problem is to beexpected in a time of rapid growth,but the balancing act that must beperformed by governors is a delicateone, nonetheless. A few exampleswill illustrate this point.

House Bill 2160 in 1977 wouldhave established a complicated for­mula to determine state aid tolocalities for health, foster care,hospitalization, and law enforce­ment. This measure was vetoed onthe grounds (stated in the vetomessage) that it was IIdrastic andextremely costly in some instances"and required much more extensiveresearch. House Bill 2096, creating acommission to study the wholematter of state aid to local govern­ments, was signed into law.

Cities and counties are limited bythe state in the kinds of taxes theycan levy, and the state has closely

4Sarah P. McCally, "The Governor and His Legislative

Party," in Beyle and Williams, eds., The American Governor in

Behavioral Perspective, p.1 40.

guarded its power. House Bill 440 in1976 would have permitted Arling­ton County to prorate personal prop­erty taxes on a monthy basis incertain instances. The governorvetoed the bill, stating that, since thewhole matter of proration of personalproperty taxes was being studied bythe Finance Committee of the House,the bill was "premature." As aninteresting contrast, House Bill 1919in 1977, establishing guidelines forgeographic school attendance zonespursuant to guidelines adopted by theState Board of Education, was vetoedon the ground that such matters werelIand should remain, the exclusiveprovince of local school boards." So itwent on a number of matters: hold­ing the line against granting newprivileges to local authorities whileresisting attempts to set up uniformstandards in those areas now under

. local control. One of the governor'sprime concerns apparently has beenthe maintenance of this delicatebalance underscored by a classicalconservative view of untried fiscaland administrative schemes.

CONTROVERSIAL VETOES

One would expect that bills vetoedfor other than technical reasonswould be very controversial billsdividing the General Assembly, as isusually the situation in the U.S.Congress. An examination of the keyvotes on the floor of the GeneralAssembly for these vetoed billsindicates that this is not the case.Many of these bills were passedeither by lopsided margins or un­animously. Three examples willillustrate the phenomenon. Housebills 877 in 1976 and 1481 in 1977would have forbidden execution of asearch warrant by forced entry untilnotice of authority and purpose hadbeen given by the police officerexecuting the warrant. In both ses­sions the measure was passedunanimously or near unanimously.The governor, maintaining that sucha bill not only went beyond therequirements of the Fourth Amend­ment but also nullified certain deci­sions of the Supreme Court ofVirginia permitting forced entry,vetoed it both times. In one of themost publicized vetoes of 1977,Senate Bill 643, as amended, wouldhave established January 1 as MartinLuther King Day as well as the NewYear's Day holiday. It passed theHouse 67-12 and the Senate withouta single dissenting vote, 37-0. De­claring that there were many distin­guished Virglnians not so recognizedby a legal holiday, Governor Godwinvetoed the bill.

Fifteen bills from the 1976 and1977 sessions of the Virginia Gener­al Assembly have been identified asIIreal veto/real controversy" bills­vetoes which do seem to have anideological dimension. Not only werethese fifteen bills vetoed for otherthan technical reasons, but also theywere bills which provoked significantdissent from the members of theGeneral Assembly, as measured bykey floor votes.

As a basis for analysis of thesefifteen IIreal veto/real controversy"bills, the forty Democratic senatemembers were classified accordingto IIpol itical orientation" into twogroups: moderate-liberal and con­servative. 5 Key votes cast in theSenate on each of these bills werethen examined in terms of agreementwith the governor's vetoes. Of the144 votes cast by the "conservative"group of Democratic senators, 76were votes in agreement with thegovernor's vetoes, while 68 votesreflected disagreement with thegovernor's decisions. However, inthe category of IImoderate-liberal"Democratic senators, only 55 of the323 votes cast on the fifteen billsindicated agreement with the gover­nor's vetoes; a substantial 268 votescast by this group showed disagree­ment with the governor's subsequentvetoes.

The most controversial of thevetoed bills were those dealing withthe regulation of business, laborrelations, and conflicts of interest.For example, on the proposal torequire pharmacists to post drugprices (HB 206), the moderate-liberalDemocrats were 16 to 7 in favor,while the conservative Democratswere solidly 0 to 7 opposed. On thatsame measure, the Republicansvoted 4 to 2 in favor. On the proposalto allow counties, cities, and towns toengage in the electrical energybusiness (SB 166), moderate-liberalDemocrats were solidly 21 to 0 infavor, while conservative Democratswere only 7 to 3 in favor, withRepublicans 2 to 3 opposed.

Two bills (SB 797 and HB 1661)were designed to prevent any convictin a work-release program fromcrossing the picket line of a legallysanctioned strike. For the Senate bill,

!>This classification is based on Larry Sabato, Aftermath of

" Armageddon": An Analysis of the 1973 Virginia Guberna­

torial Election (CharlotteSVille: Institute of Government,

University of Virginia, 1975), Table 17 and explanation on p.

74. A good reference for political biographies of delegates and

senators is Flora Crater, Carolyn Brickey, and Meg Williams,

The Alamanac of Virginia Politics, 1977 (Falls Church,

Va.: The Woman Activist. Inc., 1977).

moderate-liberal Democrats voted 21to 1 in favor and conservative Demo­crats split 5 to 4 in favor, whileRepublicans voted 1 to 5 against themeasure. For the correspondingHouse bill, it was 20 to 1 for themoderate-liberal Democrats, 6 to 4for conservative Democrats, and 2 to4 for the Republicans. Party differen­ces were sharpest on these two billsdealing indirectly with labor unions.

A majority of the moderate-liberalDemocrats voted with the majority ofthe conservative Democrats on onlyseven of the fifteen bills. The 11 to 12split over an amendment to deletefunds for the Metro rail project wasas close as the moderate-liberalDemocrats ever came to casting amajority of their votes in agreementwith the governor.

The number of Republicans in theSenate is still so small that it isunwise to attempt any rigorousstatistical treatment. Suffice it to saythat the majority of the Republicanscast their votes with the majority ofmoderate-liberal Democrats on elev­en of the fifteen test votes. The GOPsenators cast a majority of their votesin agreement with the governor ononly four of the fifteen bills. This isprobably a resu It of the fact thatRepublicans are still more likely torepresent moderate and/or urbanconstituencies. Thus, the main ideo­logical conflict remains under theDemocratic tent. However, it isinteresting to speculate how thissituation might change under amoderate-liberal Democratic gover­nor or under a conservative Republi­can lacking Mills Godwin's ties toconservative Democrats in the Gen­eraJ Assembly.

THE UNIVERSITY OF VIRGINIA

EWSLETTER

Editor / Clifton McCleskeyAssistant Editor / Sandra Wilkinson

Published each month from Septemberthrough August by the Institute of Gov~rn­ment University of Virginia, CharlotteSVille,Virginia 22903. The views and opinions ex­pressed herein are those of the auth<?r, andare not to be interpreted as representmg theofficial position of the Institute or the Uni-

ver~i~fered as second-class matter January 2,1925, at the post office at Charlottesville,Virginia, under the act of August 24, 1912.

© 1977 by The Rector and Visitors ofthe University of Virginia.

Printed by the University Printing Office.

One must remember to keep theseparticular controversies in perspec­tive. Political pundits and partisanshave spoken of the lIunm istakabledrift to the left" in the Senate, a newspirit of independence within theGeneral Assembly, and a new neces­sity for governors to be willing toexercise the veto power. However,such comments about the IIshift" inthe legislature should not obscurethe fact that the "real veto/realcontroversy" bills discussed here areonly fifteen out of over fifteenhundred passed by the GeneralAssembly in the last two sessions.The ideological factor in the vetosituation is real enough, but it is onlyone of several to be considered.

A PROPOSED CONSTITUTIONAL

AMENDMENT

A move is currently underway tomake it easier for the GeneralAssembly to override gubernatorialvetoes in the future. This year bothhouses passed a resolution (SJR 81)starting the process of amending theVirginia Constitution. The proposalwould require enrolled bills to besigned within three days by theSpeaker of the House and the lieu­tentant governor, thus speedinglegislation to the governor's desk.The proposal would further providefor the General Assembly to recon­vene on the sixth Wednesday afteradjournment for the sole purpose ofconsidering bills returned by thegovernor. Such a reconvened sessionwould continue for three days or,upon the vote of the membership, amaximum of ten days. Of course, themain work of this special sessionwould probably be the passage of

bills with amendments suggested bythe governor. Nevertheless, the clearintention of this new,provision also isto allow the Assembly to overridesome vetoes.

Critics of the plan might well assertthat the proposal is unnecessary.With the General Assembly nowhaving annual sessions, it is actuallyonly a matter of months between thetime the governor vetoes late billsand the time the General Assemblycan pass the bill again at the nextsession early enough to override. Thenew proposal might simply be onemore step in the direction of a full­time General Assembly. In any case,it has cleared one major hurdle. Theproposed amendment must now beapproved by the 1978 session of theGeneral Assembly before it goesbefore the voters in a referendum.

CONCLUSION

Formal powers and political tradi­tion have made the office of governorof Virginia one of the strongest in thenation. An increased workload in theGeneral Assembly and uncertaintiesabout the future relationship amongthe various branches and levels ofgovernment have produced an in­crease in vetoes, though the majorityof them still remain technical, non­controversial vetoes. Even so, a smallnumber of bills are vetoed because offundamental policy differences. Thegrowing independence of the Gener­al Assembly and the prospect ofautomatic sessions to consider ve­toed bills may force tougher bargain­ing between the governor and legis­lative leaders and contribute to thedevelopment of two-party politics.

Entered as second-class matterCharlottesville, Virginia