Episode 17: What's the General Assembly doing about the state budget and police reform?

Virginia's General Assembly convened on August 18 for a special session, originally dedicated to balancing the state budget in the face of COVID-19. Now following nationwide protests, the special session also promises to tackle the issue of criminal justice reform. W

This week, in a special crossover episode the Transition Virginia podcast, we talk to hosts Michael Pope and Thomas Bowman about the first week of the special session. You can find the full discussion in their latest episode, or visit them at www.transitionvirginia.com.

Episode Transcript

Nathan Moore: This is Bold Dominion, an explainer for state politics in a changing Virginia. I’m Nathan Moore.

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Last week, the Virginia General Assembly reconvened in a special session to deal with the budget fallout of the coronavirus pandemic. The original goal was just to make the numbers work in the face of lower tax revenues.

But in recent months, America has seen the killings of George Floyd, Breonna Taylor, Ahmaud Arbery, and now Jacob Blake. That has brought police reform to the front and center in political conversations across the country -- and here in Virginia.

Michael Pope: So this is some of the stuff that we're debating in the special session is training for police officers, or mental health response units. And this cost money! And so part of the debate is okay, these are all great ideas. We're also trying to slash millions of dollars out of our budget! So it's a balancing act they're doing this year.

NM: That’s journalist and author Michael Pope. He and strategic consultant Thomas Bowman are the co-hosts of the podcast Transition Virginia. That podcast documents the transition of power in Virginia from Republican to Democratic majorities in the General Assembly this year. 

A few weeks ago, Thomas asked me if we could do a crossover episode between Bold Dominion and Transition Virginia. That’s a grand idea, I thought. Bunch of political nerds talking shop about the state legislature. And so here we are. 

I should mention that you should also listen and subscribe to their podcast over at TransitionVA.com. Check out their latest episode. It dropped a couple days ago, and it includes a longer version of this discussion. 

In a couple weeks, we’ll know more about what actual bills and priorities will come out of this year’s General Assembly special session. But this week on Bold Dominion, we’re dicing through what we can expect from the special session and the realities of power in the Virginia legislature.

MP: When the pandemic hit, Virginia's revenues took a huge hit. And so that budget that lawmakers passed earlier this year, they've got to throw that in the garbage can. And so one of the first things that happened when the economic crisis hit was that lawmakers un-allotted all the money that they had previously allotted. By the way, this is a word that only was recently created--"unallotted."

NM: The neologism of the week.

MP: This is a new bit of the lexicon that we've created this year during the pandemic, to unallot. But so basically what that means is, it's the new spending. So this is another sort of wrinkle on this. So Democrats just recently took power after 20 years being out of power. So they pass their own budget with new spending priorities. So this is the new liberal progressive spending priorities. So think about this. You've been out of power for so long, you finally gain power, you pass a budget that has all your priorities, and then immediately, before the money starts flowing, bam, they're all put on hold.

NM: What's on this list of new spending priorities that are now unalotted?

Thomas Bowman: They're unalloting $2.7 billion of all the new spending, which, by unalloting, really what they're doing is they're just pressing pause. And then they're coming back in these weeks here to turn on those lights if they have the money for it. And they will be leaving lights off probably until January if they think they don't have the money for it.

MP: The biggest pot of money and the thing that's gotten people worked up is raises for teachers and spending on public education. So if you think about what happened the last time the economy crashed, funding for the schools, which is a major chunk of the state's budget, was cut severely. And so this budget cycle, with the Democrats taking power is actually the first opportunity to restore funding to the levels that they had been before the last economic crisis. So when they left town, before the pandemic hit earlier this year, Democrats were patting themselves on the back for finally restoring education funding to what it had been a decade ago. And so now, all of that is in jeopardy, and they're going to need to figure out how much of that they can afford and how much of that they can't afford.

NM: What do we think the amount is going to be, like how much they can then afford or not afford with all this? I mean, it sounded like, you know, the COVID related tax revenues are definitely gonna be down. Like, substantially down. But not quite as catastrophic as maybe some of the early projections and fears would have suggested.

TB: Yeah, Nathan, the reason for that is that a lot of Virginia's budget comes from its investments in the stock market. We're actually at 2% growth according to the member of appropriations that I spoke with last night. So that 2% growth rate means that it's not actually as big of a budget emergency as they assumed it was going to be going into this when it was declared.

I would throw out there though that in some ways, it's premature to even consider that the final chapter on Virginia's budget woes during the COVID era, because we're pretty sure this is going to come and go in waves, right? And so you're gonna have payroll withholdings going up and going down based off whether or not people are working. And the stock market could also take a dive, which puts Virginia's budget back into crisis. And so, in my opinion, just as a strategist who has been actually studying Coronavirus policy, you might be able to level the criticism that they're not being ambitious enough in the scope and breadth of social reforms that are going to be needed to get Virginians through this crisis in the long term. But from their perspective as like, "We're here to put out a fire," there's actually a much smaller fire at this moment in time than they expected there to be.

NM: So we have Democratic majorities in both the House and the Senate--House Delegates and the State Senate. What are they hoping to accomplish with the special session this week?

MP: Well, aside from creating a new budget and seeing how many of their unallotted priorities they can reallot--is reallot a word? Let's add this to the lexicon.

NM: It is now. If unallot is a word, reallot definitely is.

MP: They're trying to figure out how much of the unalloted stuff they can reallot. But the real debate and the drama is going to be about criminal justice reform and how much criminal justice reform they're able to do and how much they're not going to be able to do.

There is also some drama with COVID relief. You know, one of the things that just barely didn't make it over the finish line earlier this year was paid sick days. And we've already seen some drama on this on the Senate side, where Senator Barbara Favola had a bill that would require all employers to offer paid sick days. And she tweaked it a little bit. So it only applies to full time employees. Because the reason this actually died was a concern with the state budget, that if the state required paid sick days for all of its part time employees, that would actually be really expensive. And so they decided not to do that. It sort of died. Then the pandemic hit and people said, "you know, paid sick days might actually be a pretty good idea!" So they brought it back during the special session. But the business community came out hard against this thing, and the Chamber of Commerce and all the business groups and the Trucking Association as it died on the Senate side.

Now, there's still a House version of this. Delegate Elizabeth Guzman apparently will have a bill on this it actually hasn't dropped yet. It'll get back to the Senate. And who knows what's going to happen there. You know, there was a rather lopsided vote in the Senate committee that took this up. The vast majority of members voted against it. I think there were only three members that voted in favor of it.

NM: With paid sick leave, you know, I see this off and on in Virginia politics where the state has definitely turned more blue, right. And so we've got a number of reforms built around different social issues and social causes. And those are all well and good. When it comes to sort of like pro-worker legislation, we're still not exactly what I'd call progressive, even though Democratic majorities are in both houses.

MP: Thomas, you want to talk about the Right-to-Work law and how it has shaped Virginia labor policies since the 1940s?

NM: I'd love to hear more about Right-to-Work law and how it's shaped between the late 1940s!

TB: Look, Virginia has got a history of anti-labor that goes back around to the 1880s in its more modern pro-business, euphemistic form. And it really goes back of course to Virginia's slave status, where it believes that you shouldn't have to pay for labor. It believes that labor is an asset, right, to the individual, and you can own it. And the way that modern plantation economy works in 2020, is that you get the Retail Federation coming out and you get the NFIB coming out and saying, "No, we can't give people benefits, even though we're in the middle of a pandemic, because it could overly burden a few employers if they're retailer probably going under anyway, right." So what you're really hearing is just more of the same. It's just been whitewashed for socially acceptable PR.

Harry Byrd pioneered this back in the 1920s when he debuted the model of fiscally conservative and socially liberal, right and so what he used were fiscally conservative arguments to say that we don't have the money anymore to help black people and institute programs that were actually going to help more black people, in his opinion, than white people. And so that led to him convincing Governor Tuck, who was a wildly populist governor who had already supported the New Deal, for example, that when he came to kiss Harry Byrd's ring for an endorsement, he ended up having to publicly go back and unendorse the New Deal, right? Because it was going to help more people of color than it was going to help white people in Senator Byrd's mind. And so what you see now is not a Republican or a Democratic majority, but a conservative business majority, which are the owners, right and this is the owners arguing amongst themselves as to how many new benefits, how much money they can extend to people that they would rather not pay in the first place. And you see a lot of material and substantive differences in attitude between the House and the Senate. A lot of that's generational. And for all of us, gung-ho, wild eyed liberals as we've been called in the past, the risk is like you might be able to get it through the House, but you can't get it through the Senate.

And so what the risk is for this session,--this is a really long winded way of getting around to, Nathan, your original question. So the Senate's doing its fast docket trying to just kind of slip everything out as quickly as it can, in bills that it believes those owners will find acceptable, right. And the House, which was going to do a lot more progressive, hard-hitting legislation has been delayed for a week to slow down the train. So the risk is that they end up killing each other's bills.

And I don't think you're not going to have anything come out of this session. It's just the risk is that this session is not nearly as productive as you want it to be. If the Senate doesn't go far enough, the House is going to kill that bill. And if the House version goes too far, the Senate is going to kill that bill. So, you know, where the rubber meets the road on individual legislation is gonna be determined by whether or not there's consensus among the stakeholders.

NM: And tell me, you know, during the Republican majorities, when the Republicans had majorities in both the House and the Senate, did it play out similarly, was the house more conservative and far right, then the Senate and was the senate more tempered? Or is that just--

TB: Nathan, you know, each House member today represents about, I think it's like 80,000 constituents, right? So what you have is a pretty parochial House member, when it comes to their district issues. If you compare that with the Senator who's got I think it's 280,000 or 300,000 individual constituents in that district. Yeah, they're gonna be pretty homogenous in places like Northern Virginia, where there are a lot of Senate districts packed in with each other. But if you go out, you know, past Charlottesville down toward 81, and South Side those Senate districts become pretty expansive. And so you wind up having to juggle--Republican or Democrat--you have to juggle very diverse constituencies in these places.

And yeah, so what you get is the Senate is always probably going to track toward the middle, no matter who's in charge, just because of the way that Virginia has set up its government. It also--the House, though, the best member to be in the House is the Speaker, right? Because the Speaker is all-powerful in Virginia, and you want to leverage your power as the Speaker amongst your members. But if you are the Senate, you don't have an equivalent power of Speaker. So you have to build consensus, by definition of your governmental system. So it's, I think you can change the generation of the people in charge, but you're not going to change the character of the elected body as a 400-year-old institution, just because you get a little bit of new blood.

MP: Also, it's important to think about how the system actually works. House districts are really small and they're elected every two years. Senate districts are very large, and they're elected every four years. So what you see is, a lot of times, the House members will do what they think is popular in their district, and they're constantly in an election cycle and they're constantly going back to their voters and hearing "You should do this, and you shouldn't do this. Why haven't you done this yet?" And the Senators, at least the way this system is supposed to work, are able to take a longer-term view and take difficult votes and what do they have to worry about it? They're not going to be elected again for another three years. And yes, that is how things happen when Republicans were in power. The Republican House was always much more aggressive with their conservative agenda, and they were constantly being pulled back by the more moderate Republican senators.

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NM: You’re listening to Bold Dominion, a state politics explainer for a changing Virginia. Visit us online at BoldDominion.org. Have a friend who’s trying to figure out Virginia state politics? Tell them about this show. And then subscribe in Spotify, Apple Podcasts, and wherever fine podcasts are served up. 

Bold Dominion is a member of the Virginia Audio Collective, online at Virginia Audio.org. Check out all the podcasts from the collective, including Charlottesville Soundboard. If you’re in central Virginia, Soundboard is your source for news, culture, and community. Each week, we dig into in-depth reporting and analysis on local issues with the reporters from Charlottesville Tomorrow. Soundboard is available at Virginia Audio.org. 

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Welcome back to the show. Today, we’re talking with Michael Pope and Thomas Bowman. They’re the co-hosts of the podcast Transition Virginia, which you can find at TransitionVA.com. 

In this half of the show, we’re looking at police reform in Virginia. There’s a batch of bills currently being considered in the General Assembly’s special session. Michael Pope starts us off.

MP: You know, we're only a couple of hours really into the special session. But the Senate has already taken very dramatic steps on this. They had a policing reform bill that made it out of a committee that does a lot of what we're talking about here in terms of reforming policing. And it was done in a way where the senators who were working on this actually got buy-in from the police chiefs, and they got buy-in from all the sheriffs in Virginia and buy-in from the state police. And it was done in a way where they negotiated bits and pieces of this to--so that there was no opposition. So when the bill was presented in the Senate committee, there were zero people that spoke in opposition to it.

And this was done by a series of compromises that were made before the bill was even presented. So I'll give you a couple of good examples on this. The original version that people were talking about was a ban on chokeholds. You probably heard people talk about this ban on chokeholds. So they negotiated with the police chiefs, who said, "Well, you know what, sometimes a chokehold is warranted and there might be a life threatening situation." And so what they ended up doing is not a ban on chokeholds. The version that got out of the Senate actually allows chokeholds in some circumstances. Now, you might say: "Well, that's a compromise. And that's a bad idea, and it doesn't achieve all the things that we want to." But lawmaking is--people compare it to sausage-making for this reason, because you're not really going to get anything unless you compromise. And so that's the compromise that they made in the Senate committee.

However, the important part is: it got out of the Senate committee! So this is something that actually will get a vote in the Senate and probably will make its way over to the House. So you know, we're only really a few hours into the special session and they've already achieved movement on a lot of this stuff like banning no-knock warrants. And they got the police chiefs to sign off on a lot of this stuff by giving them what they want on decertification. So it's actually really hard to decertify, a police officer in Virginia because the way the system is set up, they can game the system. So if you're an officer who is facing a decertification procedure, you can actually resign while the procedure is going on, and it terminates the proceeding. And then you can go to another department and get hired. And they don't know that you had a termination proceeding. And they can't get that documentation because of the way the system is set up. So the police agencies actually have been pushing really hard for new decertification procedures, which is in the bill.

So the approach that they've taken on the Senate side is to put all this stuff in an omnibus bill. And you can get the police agencies to swallow the ban on no-knock warrants, which they don't like. But you also give them what they wanted on the decertification. That's the approach they've taken on the Senate. The House, they're taking a different approach, which is each one of these things is going to be an individual bill. And so I think what you're going to see there is the police agencies are actually going push back on some of the stuff that's in the omnibus version of the Senate bill. So I guess we'll end up saying which strategy is more successful.

NM: Yeah, that'll be an interesting thing to see for sure. You know, you mentioned a couple things that already are not in the Senate's omnibus bill, as far as compromises and loopholes and different things that are sort of tempering some of the reforms. One of the big ones that's been discussed in the press a bit is is qualified immunity and how that's not in that bill. What does qualified immunity mean? And why is the Senate not including that one in their in their bill yet?

MP: Qualified immunity is a judicial doctrine that makes it really difficult for you to sue a police officer in his or her individual capacity. And so this has long been a problem for people who feel like it's a way to challenge authority when the authority has done wrong things. And so there are lots of defense attorneys that want to either get rid of qualified immunity or soften it up.

So in any event, we've seen movement on the House side. Or at least we've seen House members who are interested in doing this. I don't think they've actually dropped the bills on this yet. But you're right, that qualified immunity is not in the Senate version. I think their strategy was, if pushing back on qualified immunity is in our policing reform bill, it won't pass. And we want this to pass. Just my gut feeling is they were doing the headcount and the votes weren't there for it.

TB: And to add to Michael, a lot of the legislature feels that qualified immunity and the problems that we are having with it--it's a symptom of underlying issues. Like the cops are not trained well enough, the cops are overburdened and all of the things that society asks them to do, and how little they get paid. So from that perspective, it's like okay, well, you're creating more hurdles to a job that's already not worth it from the police perspective.

And then from a--what we learned in our last published episode of Transition Virginia is that localities use qualified immunity all the time! They use them in case their garbage collector runs over your mailbox, right, if or the fireman knocks out your window trying to get into your burning house, right? And so in my opinion, while qualified immunity is certainly a sexy policy topic, it's probably not the area where we're going to get the most bang for our buck as reformers. We need to--and I think the legislature is taking this track, they're really looking at what are the underlying causes, and that's what they want to change so they don't have to deal with the hot potato of qualified immunity. You know, maybe there's going to be an exemption to qualified immunity based off intent or some other kind of narrowly tailored resolve, but the reality is that legislature's more focused on other elements that go into police reform.

NM: Some of the demands and reforms and actions called for by the defund activists, things like actually reducing armed officers--the notion that if you've got armed officers, you know they're going to treat every problem is a nail and all they've got is a hammer. And this idea of replacing policing with public safety as a mindset and framework to approach this.

What I'm hearing as far as the reforms in the Assembly right now is a lot of, you know, reforms to particular parts of the code that might rein in certain behaviors of police. But is there anything or any talk more in line with this notion of changing the framework of public safety?

MP: Yes, I think a lot of that discussion is actually about the mental health issues. So because of the way the mental health system works in America and in Virginia, your first responders are often police officers and people with mental health problems often get wrapped up in the criminal justice system which does nobody any good. I mean, recently, I've covered a really tragic case up here in Northern Virginia of a woman with very serious mental illness who had a run-in with police. And then she ended up in the Fairfax County Jail. And then the sheriff's deputies out there hit her with a taser and she died because of being hit with a taser. And so, I mean, this woman, she was suffering from serious mental illness, she should not have been wrapped up in the criminal justice system, she should not have been in the jail and she also should not have been hit by a taser.

But going back to what you're talking about, if the police officers who responded to that incident, maybe had the training in mental health, or if they were able to take her somewhere other than the jail, she might be alive today. And so this is some of the stuff that we're debating in the special session is training for police officers or mental health response units as opposed to police response to units. And this cost money. And so part of the debate is okay, these are all great ideas. We're also trying to slash millions of dollars out of our budget. So that's a balancing act they're doing this year.

TB: Nathan, the other thing too is they are looking at this special session as really closing the arteries, stopping the bleeding. This is not, in the legislators' mind, this session for large systemic reforms that take policy research and sussing things out with all the advocates and stakeholders. That's gonna come in January. What you're seeing this special session are "What are the things we can do? What can we nibble around the edges on that relieve the pressure quickly, both economically and also socially?" And yeah, the criticism that they're going to open themselves up to is not having gone far enough at the time when it was needed, but from their perspective and the perspective of a lot of Virginia government policymakers, it's a marathon and not a sprint and give us time to get it right.

NM: Well, and trying to slash $2.7 billion out of a state budget is certainly a challenge. And for I understand the mental health reforms that Michael is just talking about, are some of those that have been unallocated for a period of time.

Thomas and Michael, I want to ask one more time, just to sort of recap: what's going to happen? Put on your prediction hat, what's going to come out of this special session on on budget on criminal justice reform?

MP: After 2016, do people still make predictions? I wasn't really into the prediction game before 2016. Now I know it's like a fatal error.

So I will say if you look at what's already happened on policing reform immediately right out of the gate, I mean, like the first committee meeting and in the Senate, they come up with this gigantic policing reform bill. Where, it's important to remember, the Senators who were pushing this thing had already worked out a compromise on chokeholds with the police. They already worked out a compromise with the search warrants with the sheriffs. They already worked out a compromise on military equipment from all these law enforcement agencies. So a lot of the work has already been done in terms of making the compromises, lining up the votes. And so I think what we're going to see play out is how much of that advanced planning is successful.

You know, was it Mike Tyson who once said: "Everybody has a plan until you get punched in the face," right? So everybody's getting punched in the face right now in Richmond. So how much of their plan is successful in their own chamber, but then of course, they've got to deal with the enemies down the hall and then also how much money is available. These are all moving targets, because they got to cut $2 billion while they're also adding new stuff.

So how all that shakes out? I guess we'll have to listen to the Bold Dominon podcast to find out.

NM: Ooh...thanks for the plug! Thomas. what do you think? What's gonna happen?

TB: I think that a lot of people are going to walk away disappointed from this session. It's not gonna be the session everybody hoped it's gonna be in a lot of ways. I don't see the House taking kindly to getting stymied for a week, right. And then a lot of ways you have the Senate Republicans making that happen in conjunction with the House Republicans. So--

NM: Let me jump in. Just to clarify, the state Republican lawmakers are intentionally slowing things down in the House so that the Senate can move more moderate versions of these bills through in order to own the framing, right? And then that's the start.

TB: Right. And so I see that on Sunday after the House is able to ramp up, that's gonna have a huge resulting counter-fire and I, you know, who they fire at? I don't know. Is it gonna be the Republicans? I don't know. Is it gonna be the Senate? Maybe.

But what's on the table is that a bunch of very offended House members are going to look at a Senate bill that doesn't go far enough, most likely. House versions of bills that they're terrified of, and they all have their friends who have been lobbyists, so they're going to be advocating against these bills coming out of the House. And so the risk, of course, is that nobody's happy, everything dies. I don't think it's going to be quite that extreme. I think you're going to get a bunch of mild reforms that do relieve some of the immediate pressure. I think you're probably gonna have most of the budget light switches go back on since you do have growth. But the risk is if the bottom drops out of the stock market once again, do we have to come back and change everything again?

So I don't know. Like, is this session gonna have anything conclusive? Maybe, but honestly, I think probably not.

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NM: Michael Pope and Thomas Bowman are the hosts of transition Virginia, a news commentary podcast documenting the transition of power in Virginia politics, and this has been a crossover episode. So thanks to those guys for having the idea. You can find them on Apple podcasts, Google podcasts or anywhere else. You get your podcasts, their website is transition va.com Well, my name is Nathan Moore, and I'm the host of Bold Dominon. Huge thanks as always to our producer Aaryan Balu. You can find this show online at BoldDominon.org go ahead and subscribe. It's just a click away. Keep social distancing, y'all and I'll talk with you again in two weeks.