Budget legalities debated

By CHELYEN DAVIS
Free Lance-Star

Attorney General Bob McDonnell and Gov. Tim Kaine are in disagreement over gubernatorial spending powers.

RICHMOND--Attorney General Bob McDonnell yesterday formally issued an opinion that Gov. Tim Kaine has no authority to spend money if the current state budget expires before a new one is approved.

Kaine disagrees with McDonnell's reading of the state constitution, and says he will spend money to keep core government services operating past July 1 if necessary.

McDonnell had been asked to issue an opinion on the issue by Sen. Thomas Norment, R-Williamsburg, and House Speaker Bill Howell, R-Stafford. At issue is whether Kaine can spend money to prevent a government shutdown if legislators don't reach a budget compromise by July 1.

The state constitution does not address this question specifically. It states that only the General Assembly can appropriate money, but it also says the governor has certain implied powers to operate the government in emergency situations.

McDonnell said in his legal opinion that the specific rule regarding appropriation of money trumps the general rule regarding the governor's powers.

"It was certainly my hope that I might find constitutional or statutory authority for gubernatorial action that would allow the commonwealth to function unimpeded," McDonnell said yesterday. "After a comprehensive review of the statutes and constitution of Virginia, the analysis reveals that such broad executive branch authority does not exist."

McDonnell said the constitution gives Kaine the authority to operate government services in an emergency--just not to spend money.

"I just don't think there's any legal authority to order the comptroller to write checks," he said.

"I would love to stand before you and give a different opinion [but] I can't arrive at a different conclusion. We can't find a way to support unilateral action with regard to spending."

However, Kaine said he interprets the constitution differently.

"I've looked at the same provisions," Kaine told reporters yesterday. "I took an oath to execute the laws, and I'm going to execute the laws. There's no way to enforce the vast majority of laws of the commonwealth without spending money to do it."

Kaine's position is shared by constitutional scholar A.E. Dick Howard, a University of Virginia professor who helped write the state's current constitution and who has said he believes the constitution contains implied powers that would allow Kaine to keep government running.

Both McDonnell and Kaine said they've talked extensively about the situation, and simply have different legal views of the matter. McDonnell said he could not speak to the practical choices Kaine might make.

"While I cannot lawfully endorse unilateral executive branch spending authority, I do understand the position of the governor to find a pragmatic alternative to a disruption in state services," McDonnell said. "My opinion is a legal opinion which deals solely with who has the authority to appropriate funds and make laws in Virginia."

McDonnell further said that the legislature must act soon--within mere days--to avoid creating an unprecedented constitutional crisis and to allow the state to meet its payroll. He called on legislators to either enact a budget or craft legislation that would extend the current spending levels, to render the constitutional question of the governor's powers moot. He added that such a bill would need to be passed next week, given the time it takes for legislation to be approved, reviewed by the governor and passed into law.

"The time for action is immediate and some action must be taken next week by the General Assembly," McDonnell said.

Kaine agreed that action must be soon, but he and legislative leaders said they do not want to contemplate an emergency spending resolution until they have no other options.

"That may well be an answer to eliminate the doubt but I think it's premature to energize such a document," said Sen. John Chichester, R-Northumberland, lead Senate budget negotiator.

He and his House counterpart, Del. Vince Callahan, R-McLean, both agree with Kaine's view that he has some spending authority if there's no budget by July 1.

"It's not a case where we'll get to July 1 and the checks will bounce," Callahan said. "I think [Kaine] can pay people. What's the alternative, is somebody going to sue him?''

Callahan and Chichester both want to keep pressure on budget negotiators--including themselves--to finally wrangle an end to the budget battle and the special session they've been in for three months. So they don't want to consider legislation to extend the current budget until the "last possible minute," they said.

"I wouldn't want to put anything before people that would suggest we'll make a habit [of being this late]," Chichester said. "I don't want to do anything that's akin to anything in Washington."

Both men, along with Kaine and McDonnell, also voiced optimism that a budget compromise will be reached in time--even though budget negotiators have been dickering over one section of the budget for over a week.

"All of these 'sky is falling' scenarios are totally inappropriate," Callahan said.



To reach CHELYEN DAVIS: 804/782-9362
Email: cdavis@freelancestar.com