McDonnell: Kaine can't spend without new or interim budget

By BOB LEWIS
AP Political Writer

RICHMOND, Va. - Virginia lawmakers have days to either pass a new budget, extend one that's about to expire, or let the governor try to run the state with no power to spend a dime, Attorney General Bob McDonnell said Thursday.

Gov. Timothy M. Kaine could declare an emergency and press the National Guard, state police and prison personnel into essential services, McDonnell said. But he could not write checks to cover any costs, he said.

At most, 10 days remain for the House and Senate to authorize state spending beyond the June 30 end of the 2006 fiscal year or risk a constitutional crisis, widespread unprecedented shutdowns and fiscal chaos in government.

"That is my ardent hope _ that we don't reach that point," said McDonnell, a Republican. "We are in uncharted legal waters."

A legal opinion McDonnell issued to legislative leaders is blunt, saying that the General Assembly alone has the duty to authorize government funding. Should it fail, the governor has no constitutional power to bail the state out of a fiscal calamity.

Constitutional scholar A.E. Dick Howard, who presided over the most recent rewrite of the Constitution 35 years ago, has said the issue is less clear and that the governor has some leeway.

Kaine was hopeful that the budget dispute, begun 150 days ago, would be resolved but said he could operate the bulk of state government if it's not.

"In a constitutional form of government, with three coequal branches, the legislature, ... by not acting, cannot destroy the other two branches. That's not what the Constitution contemplates," Kaine said.

"I believe I can execute the laws, and I will," Kaine said.

Legislators differed on McDonnell's guidance.

The Senate's top budget writer, Finance Committee Chairman John H. Chichester, R-Stafford, said he's confident the Constitution empowers Kaine to see to the state's welfare should the legislature fail to.

"I don't think the people who framed the Constitution _ and A.E. Dick Howard was at top of it _ ever intended it would do such a thing: not this, not shutting the government down," Chichester said.

Del. Phillip A. Hamilton, R-Newport News and a House budget negotiator, said that finalizing a budget is solely the legislature's constitutional right and burden.

"That Constitution clearly says that an executive can't take over because of another branch's failure," Hamilton said.

One way to avoid a crisis if absent a new budget is a stopgap appropriations authorization, McDonnell said.

His chief deputy, former state Sen. Bill Mims, said it could be done with as little as a paragraph that simply gives the governor spending authority, perhaps for a month or two, at existing budgeted levels. Legislation giving the governor that power "during any period of time when there is not a general appropriation act in effect" was introduced Thursday.

"There are three options to resolve this. One is a full, comprehensive biennial budget. Second is the ongoing spending authority short-term at '06 levels. Third is do nothing and let the governor usurp legislative authority," McDonnell said.

The second option is akin to one the federal government routinely employs when Congress can't complete appropriations bills on time. It has never been used in Virginia, which until recent years prided itself on budgetary punctuality and discipline.

Chichester and House Appropriations Committee Chairman Vincent F. Callahan Jr., R-Fairfax, said an emergency extension of spending authority would be only a last recourse, but was preferable to a governmental collapse.

Never has Virginia government come so close to a fiscal meltdown as it is now. Budgets that bust the traditional deadline of the end of Virginia's 46- or 60-day legislative sessions were once unheard of. This year marks the third time in five years lawmakers have obliterated the deadline.