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The Hidden Poison Pill?

By Greg L | 28 March 2007 | Virginia Politics | 2 Comments

Governor Kaine has proposed a number of changes to HB 3202 which are being evaluated by members of the General Assembly as they prepare for their upcoming session.  As the details of these proposals are emerging, we’re starting to get a better picture on whether Kaine has tried to insert potentially unworkable changes into the legislation in order to kill it, or is actually trying to work out a compromise.  So far there seems to be a couple of items which make me think he tried to slip in a deal-breaker or two, and do so under the radar of most voters.

First up is the change he’s proposed to how regional authorities are formed.  Previously, any locality that wants to participate can freely opt-in, which helped localities such as Prince William.  Since Prince William County already bonds it’s own transportation improvements, it’s pretty likely that it would forgo participation in the regional authority if it doesn’t offer much beyond what the county already does while imposing significant costs on the taxpayers.  Kaine’s change to HB 3202 is that if at least six out of nine Northern Virginia jurisdictions opt-in to the plan, all of the nine localities would be required to participate, including those who don’t want to.  So if the City of Manassas doesn’t see much value in something which dedicates so much revenue to metrorail, which doesn’t serve the City of Manassas, city residents could end up being saddled with new taxes in order to pay for something which they can’t use.  This could be a major problem, as the democratic nature of thee original plan has been gutted, and counties and cities can easily be forced to participate in a new taxing authority when they don’t want to.

Next are some potential constitutional issues.  Delegate Robert Marshall is requesting guidance from the Attorney General in relation to several potential issues related to the Governor’s proposals which are troubling.  There are no provisions in the Governor’s proposed changes for regional voter approval for the transportation authorities.  Without permitting voter approval for the establishment of regional authorities with the power to impose fees and taxes, and not merely collect them, it would appear that this would violate the Virginia State Constitution, Article VII, Section 1.  Article VII, Section 2, Paragraph 3 states that regional governments must be approved by a majority of voters in each jurisdiction which would participate, but instead the Governor’s substitute effectively places this power in the hands of six representatives in Northern Virginia, and seven representatives in Hampton Roads.  None of these representatives currently have the constitutional authority to enter into regional authorities, and nothing in the Governor’s proposed changes would provide that constitutional authority.

Not only is the mechanism for establishing participation in the regional authorities problematic from a practical standpoint, but there are severe constitutional difficulties as well.  Demanding that members of the General Assembly approve legislation that is very likely unconstitutional is absolutely the poison pill that Kaine has searched for, and it’s down in the weeds far enough that most voters wouldn’t easily understand what the issue is, or the General Assembly’s rationale for potentially not accepting the Governor’s changes.

There’s a possibility that the General Assembly could throw away the Governor’s substitute bill, report out a different version of HB 3202 that lacks the practical and constitutional problems the Governor has introduced, and essentially dare him to veto it.  If there actually are constitutional problems with what the Governor has introduced, the General Assembly may have no other choice, and Speaker Howell will have to work overtime to once again to get this legislation through.

Nice trick, Governor Gridlock.  I think they’re on to you, though.

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  1. Not Bill Howell said on 31 Mar 2007 at 12:36 pm:
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    Marshall was against the bill BEFORE it went to Kaine because it ALREADY had unconstitutional elements.

  2. Greg L said on 31 Mar 2007 at 12:51 pm:
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    And Governor Kaine added additional elements to it that may have moved the legislation from the category of “potentially troublesome” to that of “dangerously flawed”. Hopefully more will weigh in on these issues in time for these questions to be adequately discussed.

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