Its actions can still be countered by a powerful executive and strong judiciary. But Virginia legislators actually appoint the members of the judiciary. And they hold unusual amounts of power relative to the executive due to Virginia’s single-term limit on governors and favorable quirks in the budget process and legislative calendar.
Unlike all other states, Virginia’s governors cannot serve consecutive terms. This places the executive at a distinct disadvantage. Unless a governor has had experience in the legislature — a characteristic shared by only two of the last seven — they barely have time to learn the players before facing the end of their term. Virginia governors often struggle when they first take office and find it difficult to learn the customs and rules quickly enough to gain success.
Governors in Virginia can’t even craft budgets during their first two years in office. Virginia is one of 20 states that passes a biennial budget, but the only one where newly elected governors do not introduce their own funding proposal until the midpoint of his or her four-year term. Instead, the first biennial budget of a new governor’s term is developed by the previous governor and sent to the legislature in December, a month prior to the inauguration. In the second year of the biennium, a governor can submit new proposals, but these are typically amendments to the plan passed a year prior.
Legislators tend to frown on any gubernatorial initiative that is more than a tweak to the previously adopted two-year budget, such as accounting for projected changes in revenue. If a governor has major initiatives that need new funding, he or she must work within the framework of the previous budget, limiting their ability to push initiatives.
This dynamic extends beyond budgets. Democrat Mark Warner, a former Virginia governor who's now in the U.S. Senate, was stymied in his first year by an unresponsive legislature. The early initiatives of Republican Glenn Youngkin, the current governor, foundered partly because he failed to understand the importance of courting the powerful Democratic chair of the Senate Finance and Appropriations Committee, Louise Lucas.
Reflecting his lame-duck status, Youngkin in the last year of his term is having problems gaining approval of his appointments, especially those to university boards. Under Virginia law, most gubernatorial appointments require confirmation by the legislature, and the state Senate has told this governor, in the aftermath of the forced resignation of former UVA President Jim Ryan, to forget gaining any further approvals. As they say in Richmond, “the governor proposes, the legislature disposes.”
Further, the short-timer standing of Virginia governors creates challenges when it comes to implementing major initiatives. Efforts to overhaul education or undertake major economic projects take time; with only four years as chief executive, Virginia governors may make progress only to see it scuttled by the next election.
Katie King/TNS
Control of the Courts
Not only does the Virginia legislature write state law: It determines how it is interpreted and applied through its selection of judges. That factor alone may make it the most powerful legislature in the nation.
Virginia is only one of two states, along with South Carolina, where judges are chosen by the legislature. Every court in the commonwealth, from the general district and traffic courts to the highest court in the state, is stocked with people tapped by legislators. A Virginia governor can make temporary appointments to the judiciary when the legislature is not in session, but even these are subject to legislative approval, and a qualified appointee can be cast aside for any reason when the General Assembly next convenes (as happened in 2016 in 2018).
In addition, the Virginia legislature has recently adopted a practice by which it technically remains in session — although not formally meeting — throughout the year to prevent recess appointments from occurring. In 2021, it expanded the state’s court of appeals from 11 to 17 judges, thereby allowing it to make more appointments.
In many states, judges must face the voters at some point in their careers. They are either directly elected at the outset or are initially appointed to a term by the governor, and then face the voters in retention elections to grant them subsequent terms. In some states, governors make appointments from a pool of applicants deemed “qualified,” usually by a panel of prominent lawyers. In Virginia, the legislature reigns supreme. Neither governors nor the public have formal influence in the selection process.
This gives Virginia’s legislature tremendous power over the law in the state. And since Virginia judges serve for defined terms that are extended only by the legislature, they understand that tenure may not be renewed if legislators conclude their temperament or interpretation of the law does not meet expected standards.
The power of the Virginia legislature also extends to the most powerful regulatory body in the state — the State Corporation Commission (SCC). Its powers are extensive, ranging from the regulation of utilities to insurance. It was established in 1902 as an independent department of state government with extensive powers, but the 1971 Virginia constitution provided the legislature with greater control of the body. The three commissioners that head the SCC are selected by the General Assembly, and the body takes direction from the legislature by statutory instructions.
In other states, not only do similar bodies have less power, but the regulators are either directly elected by citizens or appointed by governors.
Few Lame-Duck Legislators
Elected officials can build power based on seniority and their ability to reward friends and penalize enemies. Thus, if legislators or governors are term-limited, they become lame ducks at some point, and their influence is diminished.
Unlike some of its counterparts, Virginia’s legislature is not term-limited, making it comparable to states like Illinois and New York that impose no limits on either their legislators or their governors. Virginia does not allow citizen ballot initiatives, the major driver of term limits (and other challenges to state lawmakers' authority). By contrast, 16 states, including some with full-time assemblies such as California, Ohio and Michigan, impose term limits on their legislatures.
The shorter the term limit, the less likely legislators are able to acquire power based on seniority. Legislatures with term-limited representatives can also lose their policy champions, individuals who build expertise in a specialized area and can help produce better policy results. Without their expertise, policy tends to be driven by the executive or staff. Hence, when assessing the most powerful legislatures, it is hard to include states with legislative term limits.
Virginia’s short legislative sessions only serve to increase a new governor’s challenges. New governors in Virginia can propose amendments, but they do not have much time; both the Virginia House and Senate typically enact separate budgets by the midpoint of session, just 30 days after the beginning. There’s a saying around Richmond that the House does what it wants and it does it in a hurry.
The short Virginia session, typically viewed as a disadvantage to lawmakers in tussles between the governor and the legislature, creates just the opposite dynamic, as chief executives have a very short window within which to develop new policy initiatives and determine how to fund them.
Moreover, a governor’s threat to veto a modified budget bill in his or her second year does not carry the same weight as it might with a one-year budget, where a veto could mean no authorized funding at the beginning of the fiscal year. Such a veto in the governor’s second year only means that spending would revert to the previously approved two-year plan.
The structural advantages of Virginia’s General Assembly doesn’t make it inherently more conservative or liberal than other state legislatures. But it does grant lawmakers powers that their counterparts elsewhere can only envy—making meaningful institutional reform in the commonwealth unlikely anytime soon.
David J. Toscano practices law in Charlottesville and served 14 years in the Virginia House of Delegates. He is the author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives and Bellwether: Virginia's Political Transformation, 2006-2010. His Substack is available here.
