McDonnell Warns of 'Constitutional Crisis'; Attorney General Says Kaine Can't Spend Without Budget

By Michael D. Shear and Rosalind S. Helderman
Washington Post

RICHMOND, June 8 -- Virginia Attorney General Robert F. McDonnell warned Thursday of an "unprecedented constitutional crisis" if Gov. Timothy M. Kaine instructs agencies to spend money without a state budget in place July 1.

The state's top attorney said Kaine's promise to keep government running -- repeated by the governor Thursday -- would amount to an illegal power grab, stripping the General Assembly of its constitutional duty to pass a two-year budget.

That could immediately spark a legal challenge, McDonnell (R) said, though he refused to say whether he would feel compelled to try to stop Kaine.

"I'll tell you on July 1," McDonnell told reporters.

In response, Kaine (D) repeated his pledge to keep providing government services even if lawmakers are unable to agree on a new state budget to replace the one that expires in 22 days.

"I'm going to execute the laws," Kaine said, dismissing McDonnell's legal advice as just the opinion of one of many lawyers. "I'm not going to open the prison doors. . . . I'm not going to tell state troopers not to arrest crooks. I'm going to execute the laws."

The confrontation between the two state leaders came as members of the House of Delegates and the Senate continued to work toward a breakthrough in budget negotiations that have forced a lengthy special session of the legislature.

The two sides argued for months about whether to raise taxes to pay for improvements to the state's transportation network. Several weeks ago, they agreed to delay that debate until later in the year, but they have continued to bicker over the details of the state's two-year, $72 billion spending plan.

As the budget expiration approaches, leaders in both major parties have struggled with the politics of a shutdown. A poll by House Republicans found that Virginians blamed the House and Senate equally. Democrats called the poll "cynical."

Kaine has expressed optimism while issuing executive orders allowing money to be spent and hinting that he will act boldly.

"I'm going to lay out a plan about what I will do at an appropriate time, probably 10 days to the end of the month," Kaine said. "I don't want to right now say here are all the things I'm going to do after July 1, because I don't want any legislator for one second to think, 'Okay, the pressure is off.' "

McDonnell's position, issued as an advisory opinion Thursday morning, is not binding on Kaine. The attorney general said it represents weeks of research by his staff after lawmakers asked about the limits of Kaine's power.

He said Kaine might attempt to operate state government with IOU's, ordering state prison guards, for example, to work with no guarantee of being paid. But he said the governor would be violating the Constitution if he directs state money to be spent.

"It is my duty to interpret the laws as they are, not as I, or others, may wish them to be," he told reporters at a morning news conference. "I know it doesn't make any practical sense. My job isn't to make a plan for July 1."

McDonnell urged lawmakers to pass a budget in the next several days. He said if that is not possible, the lawmakers should adopt a temporary spending measure much like those Congress uses when it experiences similar deadlocks. It would give Kaine the authority to continue operations for between 15 and 30 days.

"The time for action is immediate," McDonnell said.

The chief budget writers in the House and Senate said they have agreed informally that they would adopt such a continuing resolution if they cannot agree by July 1. They said, however, that McDonnell's call was premature and that they have several weeks' leeway.

"It's not a case where we will get to July 1st and the checks will bounce," said Del. Vincent F. Callahan Jr. (R-Fairfax), chairman of the House Appropriations Committee. "All of these sky-are-falling scenarios are totally inappropriate."

Kaine also dismissed McDonnell's call for a stopgap budget as premature. In his statement, he said he was aware of discussion about that idea but insisted that "there should instead be a focused and concerted effort to pass a budget bill in the next few days."

McDonnell, who observers believe is likely to run for governor in 2009, praised Kaine's desire to "find a pragmatic alternative to a disruption in state services."

But he said Article 10, Section 7, of the Constitution is clear: "No money shall be paid out of the state treasury expect in pursuance of appropriations made by law." McDonnell said other parts of the Constitution, which grant "implied" powers to the governor, do not give Kaine the broad powers he claims.

The governor, meanwhile, received fresh support for his position from University of Virginia professor A.E. Dick Howard, who helped draft the document in 1971 and has been consulting with administration attorneys. Howard argued that running government is a "core purpose" of the Constitution and that it trumps even the clear language of Article 10. "It simply cannot be the case that if July 1st comes and there's no budget, the governor has to stand by and watch the commonwealth close up shop," he said. "I certainly understand [McDonnell's] argument. I think common sense stands in the way of it."

If Kaine attempted to keep government running as normal after July 1, a member of the General Assembly could mount a legal challenge arguing that the governor had trod on legislative authority.

Del. Robert G. Marshall (R-Prince William), a conservative critic of executive power, said Thursday that he supports a continuing resolution but that he would not rule out the possibility that he would file such a suit if one is not adopted.

"If Tim Kaine wants to be a constitutional cowboy, that's his prerogative," Marshall said.

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