Virginia Capitol Connections Winter 2023

Virginia Capitol Connections, Winter 2023 8 The Myth of the 45-Day Session BY B. SCOTT MADDREA AND JEFFREY A. FINCH Everyone knows the odd-year Regular Session of the Virginia General Assembly is 45-days (wink wink). The mainstream media certainly tells us so. Last month, the state’s leading newspaper, the Richmond Times-Dispatch published a story about delays in completing the new General Assembly Building in which they noted: “The delay means legislators and assembly employees will remain in the Pocahontas Building, a makeshift home next to Capitol Square on East Main Street, through the 45-day assembly session that will begin on Jan. 11.” Governors and administration officials say so. Members and former members of the legislature say so, and politicians wouldn’t lie. Lobbyists say so and where would the process be if you couldn’t trust the lobbyists? One of the state’s largest and most prestigious law firms wrote in its 2022 Virginia General Assembly Session Overview, “This year’s session was a so-called ’long session,’ and lasted 60 days instead of the 45 day ’short session,’ which occurs in odd-numbered years.” Academics teach their students that Virginia’s short session is 45days in length. Blogger Richard Meagher, who has a PhD. in Political Science from the City University of New York (CUNY) and teaches politics at Randolph-Macon College, wrote in his political blog in 2021, “’The Virginia Constitution lays out the rules for this short session: 45 days in even years, when we do the full budget, and 30 days in odd years. Both are typically extended an extra 15 days by a vote, so 60 and 45.’”1 And yet they are all incorrect, mistaken, erroneous, inaccurate, and wrong! So, why does the myth of the 45-day odd-year Regular Session persist? Usually, the answer is simple. People don’t bother to read, and people don’t take the time to count. One must only read and absorb Section 6 of Article IV of the Virginia Constitution which states that the General Assembly is to convene annually on the secondWednesday in January and continues, that in even-numbered years, Regular Sessions are limited to sixty days and in odd-numbered years, thirty days, with the added provision that by a two-thirds vote of the members of each house, either may be extended for a period not to exceed an additional 30 days. Note (with emphasis): The Virginia Constitution has contained this language since 1972. The Commonwealth’s first constitutions were silent on the length of the legislative session. Limits on the length of Regular Sessions first appeared in the Constitution of Virginia in 1851, which limited Regular Sessions to 90 days unless extended by a three-fifths vote for no more than an additional 30 days (120 total). At that time, sessions occurred biennially rather than annually so the total number of legislative days in a two-year period was not dramatically different than today. The Constitution of 1870 established annual sessions, but an 1876 amendment undid the change and restored Regular Sessions to every other year. The Constitutional Convention of 1901-02 seriously considered, but ultimately rejected by a single vote a proposal to move to quadrennial (every four years) sessions. In the end, biennial 60-day sessions were retained along with the provision that such session could be extended by an additional 30 days upon a three-fifths vote of each house. The 1968-69 Virginia Commission on Constitutional Revision debated the issue extensively before recommending that biennial sessions be retained and lengthened to 90 days. In addition, the Commission recommended removing the ability of the General Assembly to extend a Regular Session beyond the authorized 90 calendar days. The General Assembly, meeting in Special Session in 1969, rejected the Commission's proposal and compromised on the language we see today—a 60-day Regular Session in even years, a 30-day Regular Session in odd years, and the ability to extend either for an additional 30 days by a two-thirds vote of each house. Ironically, in 1973 the General Assembly actually considered a proposal (HJR 266) which would have amended the Constitution to provide for 60-day, even-year Regular Sessions and 45-day odd year Regular Sessions, but it was defeated. That bears repeating, the idea of a 45-day, odd year Regular Session was considered and DEFEATED. Two years later, Speaker John Warren Cooke wrote in the University of Virginia newsletter, “Although the present arrangement of meeting annually—60 days in even-numbered years and 30 days in odd-numbered years—has existed only since 1972, there is already substantial sentiment that changes should be made to provide for greater efficiency. However, there is a great divergence of opinion over which changes to make. The Senate, for example, passed a resolution calling for a return to biennial sessions, but expanding those Regular Sessions to 90 days. On the other hand, the House adopted a resolution maintaining annual sessions and expanding the odd-year Regular Session to 60 days. In addition, the House proposal would have counted only days the legislature was in session rather than calendar days.” Many states utilize this counting of “legislative days” in lieu of calendar days or have a combined requirement of legislative days within a defined set of calendar days, but for now Virginia persists with a calendar day system. Of course, none of this history explains how we arrived at 46day extended odd-year Regular Sessions. The document that best explains the evolution of the Virginia General Assembly’s 46-day, odd-year Regular Session is our friend, the Julian calendar. Let’s start with the area of most common agreement—the even-year Regular Session. Virtually no one (sorry Dr. Meagher) disputes the fact that the Constitution establishes a 60-day Regular Session in even years beginning on the second Wednesday in January. Start counting and you will find the 60th day ALWAYS falls on a Saturday. Take a look at the General Assembly’s annual procedural resolution which establishes a host of procedural, legislative deadlines throughout the Session. Virtually every day during the last two weeks is some sort of deadline. 1Richard Meagher, “VA Politics Explainer: Why is VA legislative session so short?”, March 9, 2021. blog/2021/3/9/va-politics-explainer-why-is-va-legislative-session-soshort MADDREA FINCH