David J. Toscano

Attorney at Law

The Budget and Adjournment

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House and Senate budget conferees came to an agreement late Tuesday, March 8, and published their proposed two-year budget on Wednesday in a “conference report.” The agreement contains many good things for which we have fought.

Highlights include:

  1. Major increases in K-12 education funding over the current biennium, including almost $200 million in lottery funding for school divisions, which will greatly help Charlottesville and Albemarle, a 2 percent salary incentive effective December 1, 2016, and additional money for eligible students to receive free or reduced lunch and breakfast at schools.
  2. Major new funding for higher education, including a 3 percent across-the-board raise for faculty. UVA will receive about $10 million for access and affordability, as well as $4 million for the Focused Ultrasound Program, a cutting edge research initiative, and monies for bioscience incentives.
  3. Full repayment to the Virginia Retirement System (VRS) of money the General Assembly borrowed several years ago – a move I voted against – and funding 100 percent of the VRS board-certified contribution rates. Both of these actions will enhance the fiscal viability of the system.
  4. An additional $76.2 million for mental health services.
  5. Fully funding the “Rainy Day Fund,” the special account we reserve for use if Virginia experiences a dramatic economic downturn.
  6. Additional monies for our community colleges to develop new programs to train the workforce of the next decade.
  7. Monies for the “Presidential Precinct,” an initiative developed by UVA, William and Mary, Monticello, Ash Lawn and Montpelier to bring scholars and elected officials from around the world to Virginia to be educated on how democracy works. This is an initiative that I and others in our area have supported, and worked with the Governor to get in his budget.
  8. Major initiatives for job creation through the “GoVirginia” concept. This will allow regions to cooperate in competing for economic development grants and projects necessary to build the New Virginia Economy. GoVirginia creates a great opportunity for our region given the degree to which the University, the city and the county cooperate on policy initiatives.
  9. Monies to fund a new General District Court judgeship in our Judicial Circuit.

In addition to these larger categories, some specific items I proposed are included in the Conference Report, such as:

  1. $900,000 extra funding for court-appointed counsel who take on complicated cases defending indigent clients.
  2. An increase in fees for court appointed mediators.
  3. Support for the Fostering Futures Program, which allows foster care and adoption assistance to be extended for youngsters who would otherwise “age-out” of the foster care program on their eighteenth birthday. Funded with $1.9 million from the general fund (Virginia tax dollars) and $3.9 million in non-general fund money (from the federal government or other sources), the program will benefit a large number of foster children who otherwise might experience tremendous difficulty transitioning to adult life.
  4. Additional money for the Centers for Independent Living. We have a wonderful center in Charlottesville called the Independence Resource Center, and this new money will help the IRC and other centers around the Commonwealth build their programs on behalf of disabled persons.

The largest missed opportunity continues to be the Republicans’ refusal to embrace Medicaid expansion under the ACA. It is ironic that despite their negative rhetoric, our budget does expand some Medicaid services, but in the most inefficient way possible. Under present law, every dollar we appropriate for Medicaid is matched by the federal government with another dollar. Consequently, when we implement new Medicaid spending for substance abuse treatment or to provide new waiver slots for intellectual or developmental disabilities in this budget, we are saying that we trust the federal government to fund its 50 percent of these programs. Yet we still hear the argument that Virginia cannot trust the federal government to continue funding “Medicaid expansion” if it happens under the ACA, where the federal government would pay 90 percent of the costs. This rejection of readily-available Medicaid money has become an article of faith for our Republican counterparts; without a change in the General Assembly’s political composition, Medicaid expansion is unlikely for the next several years.

On Thursday, the General Assembly approved a new Supreme Court Justice after an extremely flawed process. I did not support the appointment and you can see my speech explaining why in the video below.

As the session concludes, I thank you again for all of your input and support over the last sixty days. I am happy to be returning to Charlottesville to be with my family and continue my law practice. I remain available to serve constituents’ needs, and will shortly organize a series of town halls and smaller meetings to discuss the successes and failures of this General Assembly session.

Good Choices and Missed Opportunities

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The House and the Senate acted on their respective budgets on Thursday, February 25, 2016. The Governor’s proposed budget includes many good items, such as substantial increases in K-12 and higher education, and for the most part the House budget embraced the Governor’s approach. Many of us have pushed to dramatically increase our investments in public education and the House budget increases K-12 funding by $897 million. For Charlottesville and Albemarle, this means hefty increases in the monies going to the localities, and some increased flexibility in how money gets spent. The House budget includes a 2 percent pay increase for teachers, something I have been pushing for years. Virginia has lagged behind other states in K-12 teacher salaries, and we are finally rectifying this situation.

There is also good news in this budget for higher education. Funding for our universities has lagged behind during the last decade, and the House has now recognized the importance of further investment by increasing funding by $290 million over the biennium. University faculty and personnel can also expect a raise if the House budget is approved. Beyond that, there is substantial money designed to spur research and to encourage the commercialization of creative ideas generated from our universities. This is a tremendous opportunity for the University of Virginia to further increase its impact, particularly in the area of bioscience. Many of you know that Charlottesville has become a mini-hub for bioscience research, both at the University and in the private sector. A number of biotech firms have emerged over the last several years here in Charlottesville. There are many provisions in this new budget that will further encourage collaboration between public and private entities. We have the opportunity to take the first step towards making the Commonwealth a prime location for creative minds from around the country who want to develop therapies and scientific breakthroughs to treat a variety of diseases, from pancreatic cancer to brain disorders.

While the House budget presents good progress in a number of areas, it also includes some significant deficiencies. The most apparent is the failure to embrace Medicaid expansion. Once the House Appropriations Committee rejected that approach, it created a $157 million deficit in the Governor’s introduced budget that had to be replaced with other monies. If we had taken Medicaid expansion, this $157 million could have been allocated to other important budgetary items, such as environmental protection, public safety, or pre-K education. My floor speech on these missed opportunities can be viewed below.

At this stage in the process, the House will consider the Senate budget and the Senate will consider the House budget. Those budgets will then be placed into a conference committee and various issues will be ironed out. We will continue to advocate for Medicaid expansion to address this essential missed opportunity. While this is perhaps the best House budget that I have seen in the last ten years, it is my hope we will continue to work towards creating an even better one that can be supported at the end of the Session.

Virginia Budget Prelude

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State of Play:
A Preliminary Look at the Virginia Budget

With the 2015 election over, legislators and commentators are now turning their attention to the upcoming General Assembly session and Governor McAuliffe’s first two-year budget.  Even though the Governor has been in office almost two years, this is his first budget: it is not widely understood that a governor does not have a chance to propose a budget that is totally his own until well into his second year in office. In Virginia, we have two-year budgets and this is Gov. McAuliffe’s chance to establish a legacy of budgetary priorities. His budget will be unveiled to the money committees in the House and Senate on Thursday, December 17, 2015.   Between now and then, you’ll begin to read about possible initiatives in the proposed budget and will undoubtedly hear criticisms from the Governor’s detractors of his various proposals.

Budget Priorities, Assumptions & Projections

Before your eyes begin to glaze over as you read and hear about budgetary lingo like “re-benchmarking for the standards of quality,” “budget drivers,” “our budget is structurally sound,” and “claw backs,” please take a moment and think about the significance of the budget.

State budgets reflect the priorities and intentions about where we want to go as a Commonwealth. Every decision in the budget process, no matter how small, reflects a priority and can affect thousands of Virginians. We spend money on state police to keep us safe, on clean water to protect our health, and on education to ensure our children have opportunities to learn. We invest in job creation for future growth, and provide funds to the disabled, elderly, and infirmed so they can have a better life.

Budgets are also based on assumptions and projections. We are not precisely sure how much money we have to appropriate until tax dollars are actually collected. So we project figures. We usually expend close to our projected revenues, leaving us some cushion for the possibility that the economy will not be as robust as we think it will be. That is prudent budgeting, but it is also where politics and economic philosophy intrude. If your projections are too conservative, you might not fund a critical program; if too liberal, you could create a shortfall, requiring cuts in future years.

Traditionally, the House and Senate have used different assumptions in building their budgets, with the House generally more conservative in projecting revenues. The House Appropriations Committee and staff are generally less bullish on the economy, projecting the growth in revenues at 3.2% in fiscal 2017, and 3.3% in fiscal 2018. In contrast, the Senate Finance Committee and staff are projecting 3.6% and 3.8% in the same years, respectively. This difference will mean millions of dollars over the next two years.

The Governor will also make projections when he releases his budget, and it will be interesting to see what they are. If he builds Medicaid expansion into the budget, the revenue growth is likely to be much higher than either the House or the Senate money committees have assumed, and his budget is likely to be more robust. This will set up a direct conflict between the spending the Governor wants and the constraints that the Senate and House Republicans will put on the budget because of their refusal to accept federal monies to expand Medicaid.

Our budgetary challenges in recent years have occurred because of two factors. First, the Virginia economy has not recovered from the 2008 recession as well as it has historically done.  Second, federal sequestration has decreased employment and brought less growth, especially in Northern Virginia. Virginia ranked 49th among the 50 states in growth for 2014 and we have been lagging behind places like Alabama and Maryland since 2010. Unemployment rates have declined somewhat, but wages have largely been flat since 2009. Part of this has to do with the effect of decreases in federal procurement, especially in Northern Virginia. There are some signs that Northern Virginia is slowly recovering, but we have a long way to go and we are not likely to return to the expansive growth rates of ten years ago without some structural changes in our economy.

Considerations To Be Made

The largest portion of state revenues is spent on education. The last two-year budget totaled $36.8 billion, almost half of which involved transfers to local governments. The largest section of those transfers to local governments is for public education, the number one priority of many of us in the General Assembly. This is where the Commonwealth’s spending comes to life – in the quality of our classrooms, the talents of our teachers, and the magic that occurs when students are being taught and learning at their full potential. And this is where much of the debate will occur in this budget cycle. We are under an obligation required by state law to “re-benchmark for the standards of quality” every two years. In everyday parlance, this means that we have to total up the costs of providing basic education services in the Commonwealth and then put enough money in our budget to fund it. In actuality, we do not totally fund all of the demands of public education; the state pays only a portion, and local governments need to find the rest. Consequently, every dollar not allocated by the Commonwealth for education creates more pressure on the localities and their taxpayers. In Charlottesville and Albemarle, we are very generous in spending local dollars on education; our community believes that educational investments are necessary to maintain our local school divisions. Other localities find this more difficult because their tax base is not as strong. Virginia’s per pupil spending state-wide is not much higher than it was in 2007, and many Democrats and some Republicans believe more investment is needed. Re-benchmarking is expected to cost the state an additional $450 million in the next two years, but I would expect the Governor’s budget will include more money for education than just for re-benchmarking.

With this background, here are some budget questions and issues we will debate in the upcoming next session:

  1. After we re-benchmark for the Standards of Quality, how much additional money will be allocated for other educational initiatives? We know the Governor is very supportive of pre-K education and observers predict that there will be more money in his budget for that. But historically, House Republicans have been skeptical about claims in support of pre-K and are likely to resist expanding the program. And what about higher education? Democrats have been focused on reducing the impact of tuition increases on rising student debt. In-state undergraduates pay 47% of the cost of education, up from 23% in 2001-02 and much more than the state targeted rate of 33%. Many on both sides of the aisle believe that we need to invest more in our research universities, such as U.Va., and provide greater incentives to commercialize research breakthroughs out of our universities to create new businesses and spur economic opportunity. We will likely see some new initiatives to spur university-business collaborations in bioscience, manufacturing, and cyber security, all designed to help build the new Virginia economy.
  2. What additional initiatives will we adopt to encourage the Governor’s New Virginia Economy Workforce Initiative? Agreement exists that we need more effective workforce development. We know two-thirds of all new jobs do not require college degrees, but a recent JLARC report indicated that our investment in workforce has not been as productive as it needs to be. Some change can occur without money, but other initiatives, especially in our community colleges, will require state investment to be effective.
  3. Will the legislature seriously attack the proliferation of tax preferences for industries – most notably coal – that no longer work for their intended purpose of creating jobs or economic opportunity? Eliminating credits for coal, for example, would create between $50 to $100 million in revenue, enough to fund a 2% statewide teacher raise.
  4. Will the legislature finally decide that it makes good economic sense to expand Medicaid and therefore provide healthcare coverage to over 300,000 Virginians while shoring up our budget, our rural hospitals, and creating jobs? Right now, we’re sending in excess of $4 million a day in our taxes to Washington, D.C., which could be brought back to Virginia if we expanded Medicaid. The Governor is likely to put a provision in this budget that will bring those dollars back to Virginia, but Republicans remain steadfast in their opposition. There is no doubt that state Medicaid spending is a huge driver of the additional demands on the budget. Virginia has adopted a number of reforms, which has had the effect of limiting the increases in Medicaid spending, but because so much of the additional costs are driven by increasing numbers of older people with special nursing home and other expensive needs, the program continues to expand. The good news is that the percentage increase in Medicaid spending is likely to decline.
  5. Will the budget include pay increases for faculty, teachers, and other state employees?   A 2% faculty COLA increase would cost $33 million to the state in the next two years. A 2% teacher increase amounts to $83.2 million per year.

In the next several months, you’ll read more about so-called “wedge” issues – guns, Syrian refugees, abortion – and I hope you engage in these conversations. But the major action always involves the budget, and I will continue to keep you informed as we go through the process.

We have a long way to go before we get to a biennial budget and I will continue to try to provide insights about the Governor’s proposals and the legislative responses to them.

The Francis Effect: Policy, Progress, and the Prospects for Common Ground

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While it may be too early to determine whether the Pope’s recent visit will have a lasting effect on how we conduct our civil lives, our politics, or even how we think about ourselves as a nation, he has certainly gotten our attention.  During his visit, every news outlet was focused, not only on his every word, but on the symbolic elements or where he went or who he met. From the White House to his powerful prison visit, Americans were transfixed by his presence and his words of peace and reconciliation.  Some have argued that the Pope even influenced John Boehner’s resignation as Speaker.  I personally think this had more to do, as Republican Representative Peter King says, with the “crazies” taking over the GOP and a solid conservative like Boehner just seeking a way out.

But ideas still matter, and the Pope’s statements will be used to support a wide variety of policy initiatives at both the state and federal levels. When the Pope said that “we were all, at one time or another, foreigners,” and we should look at immigrants as people rather than as statistics, he is not-so-subtly suggesting that our policy in this area is flawed and requires a much more compassionate approach. His thinking in this area is very different from those who are in the ascendency in the Republican presidential sweepstakes, as well as those who control legislative bodies throughout this country, and is more consistent with the view that while unlimited and uncontrolled immigration cannot be countenanced, there should be a path to citizenship for people who come here in search of a better life and in a desire to be assimilated into this country.

At the state level, the Pope’s pronouncements will undoubtedly be used as a further justification for Medicaid expansion. While we Democratic advocates of expansion have tried to convince our Republican colleagues of expansion’s economic benefits (30,000 new jobs, returning our tax monies from Washington, D.C. to Virginia, shoring up the economic viability of our hospitals, helping balance our strained state budget), at its heart, this debate has always been fundamentally about serving those in need by providing some form of medical insurance to 400,000 Virginians who do not presently have it. Republicans have consistently taken the position that expansion would create enormous fiscal challenges for our budget, even though the federal government would initially pay for 100 percent of its cost. Early in the debate in the General Assembly 2014 session, Republicans suggested that they would have a plan of their own. We waited and waited, believing that any proposal to insure those 400,000 could be a winner, but the plan never came. Since that time, we Virginians have sent almost $2.8 billion of taxpayer monies to D.C., we have less money in our state budget as a result, and we have lost an opportunity, at least for the moment, to insure more Virginians. Perhaps the Pontiff’s words will make a difference; time will tell.

As expected, Pope Francis took direct aim at the conservative elements of our nation in his discussion on climate change. There is a certain irony in watching the leader of a church who formerly viewed science skeptically embracing the scientific consensus that disruptions in our climate are being caused largely by human activity, and that different policies are necessary to combat it. Many of us hope that the Pope’s view on this issue will be a “game changer,” but this is not likely to occur until we change the Congress and many of the legislators in state houses across the country, whose antipathy to anything supported by President Obama is without bounds.

While the policy prescriptions embedded in the Pontiff’s pronouncements are, on balance, much more favorable to the Progressive view than to the Conservative, this Pope is concerned about more than just public policy; he is also challenging us to embrace a more civil political process by which we engage each other in attempting to create a climate of hope, opportunity, and justice.

Pope Francis exudes humility and civility, two characteristics not always found in our political sphere. His prescription that “a family is like a factory of hope” and that difficulties can be overcome by discussion and compromise, suggests that, while we should not abandon strongly-held views, we should seek understanding and common ground that improves the public good.   He is neither politician, nor prophet; he is a pastor, and his words and deeds during his visit have challenged us to discover better ways to develop policies in the service of others.

As always, it is a pleasure to serve the 57th District in Virginia’s House of Delegates. Please do not hesitate to contact me with any questions or comments on matters before the Commonwealth.

Sincerely,

David Toscano

Supreme Court Decisions and Virginia

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Last week was a week that will not be forgotten for many years – and I’m not just talking about the fantastic run of the UVA men’s baseball team to the NCAA Championship. On two separate days, and in two dramatic decisions, the U. S. Supreme Court took actions that will influence the United States for decades to come. They also set the stage for the next series of debates in the General Assembly about healthcare and discrimination.

Many of us who are lawyers felt that the court would have been on sound legal ground with their endorsement of same-sex marriage and their refusal to embrace the arguments of the critics of the Affordable Care Act (ACA) in King v. Burwell, a case attacking the ability of the federal government to provide subsidies to citizens seeking to purchase health insurance. But until the opinions were issued, many of us remained anxious that the conservative forces on the court would find a way to turn back the tide of history.

In King v. Burwell, a great deal was at stake. More than 7 million  Americans would have lost these subsidies. This included over 268,000 Virginians. The result would have been chaos. People would have lost their coverage, the health insurance markets would likely have gone into a tailspin, and the ACA would have been put at risk. Fortunately, we did not have to endure this, and the ACA emerged stronger than ever. Fight as they might, the options for the detractors of the Act are becoming increasingly limited. Even with a Republican president, undoing the Act will be very difficult, if not impossible, and there are very few fundamental legal attacks that now can be mounted in order to destroy the Act.

In the aftermath of King v. Burwell, the issue for Virginia remains largely the same, that is, will the General Assembly find a way to capture what is now almost $2 billion in Virginia taxpayer dollars that have been transferred to Washington and are being used to support Medicaid expansion in other states of the country? Many of us feel that it is fiscally irresponsible to use Virginia monies to help insure citizens in other states. It would be better used here to help 400,000 Virginians who would benefit by expansion and assist hospitals and healthcare providers who are facing financial challenges in the aftermath of the changes brought on by the ACA. Republicans in the House of Delegates have largely remained opposed to Medicaid expansion, arguing that the state cannot afford it, even though 100 percent of the expansion in the first three years would have been paid by the federal government. We are hoping that our colleagues will realize that expansion is not just about helping those in need, but also about being fiscally responsible in using Virginia taxpayer dollars to support its citizens and businesses.

The Supreme Court’s endorsement of same-sex marriage in Obergefell v. Hodges was something that many legal analysts had come to accept as a foregone conclusion. Most of the federal courts in this country had already accepted this view, and any Supreme Court’s rejection of the concept would have come to many as a shock. Nonetheless, as President Obama said, the decision arrived as a “thunderbolt.” When one thinks about how this country has changed in less than a decade, it provides great hope for the future.

But make no mistake about it – there are many things that remain to be done. As one pundit recently put it, the decision means that “you can be married on Saturday but still be fired on Monday.” Many states, including Virginia, do not extend the protection of anti-discrimination employment and housing laws to gay citizens. Consequently, you will see many of us advocating for those changes when we return to Richmond in January.   In addition, there are thousands of places in the Virginia Code that will require changes to conform to the Supreme Court’s decision. Many of these changes will be routine, but others may turn out to be controversial and provide the conservative element of the General Assembly an opportunity to resist a Supreme Court decision that they are having a hard time accepting. Many of these arguments will be couched in the language of religious freedom, which will make for very interesting and emotional debate, but I am hoping that religious freedom will not be used as rationale for discrimination and that our desires for inclusion will not compromise religious liberty.   Hopefully, the fact that the country is now in a very different place than it was a decade ago will allow us to embrace anti-discrimination measures and, therefore, continue to bend the arc of history a little closer to justice.

Not to be outdone, the final Supreme Court decision, which has implications for Virginia, was issued in a 5-4 decision on June 29, 2015. The case of Harris v. Arizona Independent Redistricting Commission gave constitutional backing to Arizona’s use of an independent commission to draw new election district maps for its members of Congress. In the case, the Supreme Court ruled that a state’s voters can delegate the task of fashioning congressional district boundaries to an independent commission. Although the situation in Arizona is not totally analogous to Virginia, as we could not enact an independent commission by a public referendum, it provides an argument to counter some of the opposition to these commissions.   Some have argued that creating independent commissions takes away the requirement under the Constitution that lawmakers create the election districts. This court case suggests otherwise.

More important to the Virginia situation, however, are two cases that are in various stages of court action, and which potentially have tremendous implications for the composition of the Virginia Congressional delegation as well as the House of Delegates. In Page v. Virginia State Board of Elections, the federal courts have already ruled that the General Assembly’s recent drawing of congressional districts is unconstitutional, and directed the legislature to return before September 1 to redraw the lines. The Republican-controlled House of Delegates has, to this point, refused to return by September 1 and argued that there will be additional appeals and a stay (delay) of the court’s order. The U. S. Supreme Court has already refused to consider the Page case so it is likely that we will be forced to redistrict congressionally in the next several months. The more significant case for the House of Delegates, however, is Bethune-Hill v. Virginia State Board of Elections. That case was filed by fourteen plaintiffs early in 2015 and has its first hearing set for this month. The same logic which prevailed in the Page case is being used to attack the House of Delegates’ redistricting in the Bethune-Hill case. If plaintiffs prevail in this case, the entire House of Delegates’ district map will be scrambled, perhaps as early as the 2016 election. This would have huge implications for the composition of the House of Delegates as ten to fifteen seats would likely become competitive overnight. It this happens, it will perhaps be the most significant political development to occur in Virginia in a decade and, therefore, merits close attention.

In my next reports, I’ll talk a bit about the work I’m doing as leader statewide, my optimism about the upcoming House races, and the continuing controversy over the heinous shootings in South Carolina and the Confederate flag.

If you need any assistance with or have questions/comments about matters before the Commonwealth, please do not hesitate to contact my office at 434-220-1660, or email me at david@davidtoscano.com. As always, it is a pleasure to serve you in Richmond.

Sincerely,

David Toscano

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Email: davidjtoscano@gmail.com
Phone: 434-960-7171

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