The budget conference: the secretive, transactional process where a dozen people write Virginia law

In the wee hours of an unseasonably balmy, humid Sunday in mid-March, legislative staff on the ninth and 10th floors of Capitol Square’s decrepit, old General Assembly Building had opened their windows wide to mitigate the swelter from unrelenting, clanking steam radiators. Beyond exhaustion from a week of late nights, many hours of work lay ahead for them.

Those top floors were rarefied real estate, home to the most powerful committees in state government — those with the final say over how the state spends tens of billions of dollars — and the expert staffs who did the heavy lifting. And on this last long night, days behind schedule and hours past the 2010 legislature’s scheduled final adjournment, a dozen delegates and senators cloistered behind closed doors, bickering and dickering over the fine print of what would be the $77 billion state government spending blueprint through June 2012.

It’s known as the budget conference, an innocuous-sounding insider term that means little or nothing to ordinary Virginians. But the agreement that rival House and Senate members sealed with a handshake around 2 a.m. on that warm, late-winter Sunday — and at the conclusion of budget conferences every year — was highly consequential to their daily lives from the taxes they pay to funding for their kids’ schools and everything in between. It’s no less true in the current special session as House and Senate budget negotiators try to square differing versions of a pandemic-ravaged proposed budget of $137 billion, 77 percent larger than that budget adopted 10 years earlier.

No other piece of legislation holds as much sway as state budget bills, which not only form the 24-month financial framework for the commonwealth but also supersedes other state law. That such critical legislating is done at the last minute in sometimes chaotic, often contentious late-night sessions well out of public view by sleep-starved people amid the intermingled odors of cold pizza and burned coffee did not — and should not — inspire confidence.

Nobody has seen the budget conference process from more different perspectives than Bill Leighty, an immensely accomplished senior state government veteran who cut his teeth in the 1980s with a seven-year stint on the Senate Finance Committee staff. From there, Leighty would direct the sprawling Virginia Retirement System before serving as chief of staff to two successive governors, Mark Warner and Tim Kaine.

“What makes them (budget conferences) so powerful is that what they agree on and put in the conference report goes directly to the floor and can only be voted up or down — no amendments,” said Leighty, now retired and an adviser to the L. Douglas Wilder School of Government and Public Affairs at Virginia Commonwealth University. “And, because they’re presented so late, everyone is loath to send it back to conference for a redo.”

How late? In 2010, the committee staffs had only 15 hours that Sunday to write the budget conferees’ agreement into its final form and have printed copies on all 140 legislators’ desks for that up-or-down floor vote, leaving them barely enough time to go home, change clothes and return to Capitol Square. The House and Senate convened at 5 p.m., agreed to the conferees’ work and adjourned sine die before 6.

That’s the lawmaking equivalent of driving down a twisting, one-lane mountain road on a moonless night with one working headlight and brakes that didn’t pass inspection. Yet somehow, mainly through the exacting work of highly professional staffs fighting off sleep with energy drinks and raw adrenalin, it has never jumped the guardrails and tumbled into the abyss.

Budget conferences don’t always bust their deadlines, and it’s not as though there aren’t weighty issues at play when they do. In 2010, like this year, the state was in the grips of a monstrous economic collapse that ravaged the official revenue estimates on which the budget is built. Both years forced significant cuts in state operating outlays.

In 2004, during a battle over reforms Warner proposed to fix what he called a structural imbalance in the state budget (Republicans labeled it a tax increase, and they weren’t wrong), the House and Senate deferred passage of a budget to an April special session. In the end, Warner got most of what he wanted from a GOP House and Senate through the budget bill.

Leighty recalls that budget battle as significant because of its use of the “repealer clause,” a provision in the budget that trumps statutory law. He said he authored dozens of them over his years on the Finance Committee and said the clauses can be spotted in any budget bill by looking for sections that begin with the words “Notwithstanding any other provision of law… .”

“We put all the tax changes in the (2004) budget bill so that it overrode tax law,” he said.

Opacity and even occasional sleight-of-hand is an old tradition of budget conferences. Reporters and their voice on Capitol Square — the Virginia Capitol Correspondents Association — have stormed and huffed about it many times over the decades (including two years when this writer was its president) to no avail.

Over the decades, conferees have gone to bizarre, almost zany lengths to shield the byzantine proceedings from public view. In his years as a cub Finance Committee staffer, Leighty was assigned by the committee chairman, the late Sen. Ed Willey, to walk conspicuously past the cramped press filing room in the musty bowels of the Capitol with a boxload of budget documents and calculators, luring reporters in the opposite direction of where the conferees would actually meet.

“Ed Willey had one hard-and-fast rule: that the conference committee had to meet in a public building. So we picked some wonderful places: the Science Museum, the Virginia Museum of Fine Arts, the budget offices, the Old Finance Building,” he said.

In one such cat-and-mouse adventure in the 1980s, the conferees had covertly gathered in an empty room in the then-mothballed Old Finance Building (since renovated to its former splendor and renamed the Oliver Hill Building) that sits just down the hill from the Capitol and nextdoor to the Executive Mansion. The tactic worked, Leighty recalled, until Joe Gatins, a sharp-eyed reporter for the Richmond Times-Dispatch, spotted a single room with lights blazing in a darkened, derelict building.

“He went through the system of tunnels that connect the buildings on Capitol Square and popped up right in the middle of the conference committee,” Leighty said with a chuckle. “When he did, they scattered.”

What does the public miss in those closed cabals? It’s hard to say.

We know the items that are in conflict between the House and Senate budget bills, we know there is argument — sometimes loud enough to penetrate the closed doors — and we know there is compromise. The biggest disputes were not partisan but between House and Senate members battling over conflicting provisions in their rival budget bills. Their final resolution on those disagreements was usually pretty clear when it was over.

This week, that process starts anew, but possibly with a wrinkle. It’s not clear whether the budget conferees will gather socially distanced in person (doubtful considering that floor sessions have been conducted virtually) or via Zoom conference. And if it’s the latter, will the press (and public) be able to watch?

That’s a prospect that would have been unimaginable when Joe Gatins was sleuthing for stealthy conferees.