CAN SECTIONS REPEALING OR MODIFYING THE PRIVATE OPTION BE ADDED TO AN APPROPRIATION BILL DURING A FISCAL YEAR?
By David Ferguson
ISSUE I: There is a notion going around that during a Fiscal Session an appropriation bill cannot include non-appropriation sections. A recent blog post even insinuated that special language concerning the Private Option might be challenged because the Fiscal Session is supposed to be about budgets only. The notion is clearly wrong.
I want to clear up this issue before Private Option proponents start using this mistaken notion as a reason not to consider one of several proposals being circulated by opponents to the Private Option.
1. The Arkansas Constitution does not say the Fiscal Session is supposed to be strictly about budgets. Article 5, Sec 5 of the Arkansas Constitution refers to “appropriation bills”. (It also allows bills that do not deal with appropriating money if you go through more hoops.) 2. The words “appropriation bills” in Article 5, Sec. 5 do not prohibit the inclusion of substantive law in the bill. When the section was added to the Arkansas Constitution there was a long history of substantive law being included in appropriation bills. The General Assembly wrote those words knowing this practice. 3. The Arkansas Supreme Court has recognized the practice of including substantive law in appropriation acts. A 1989 appropriation act abolished an agency and transferred its duties to the Arkansas Highway and Transportation Department. In Arkansas Motor Carriers Ass’n, Inc. v. Pritchett, 798 S.W.2d 918, 303 Ark. 620 (Ark., 1990), the Arkansas Supreme Court said, “The Constitution does not prohibit the addition of substantive provisions establishing powers and duties for AHC and AHTD together with appropriations, since all relate to but one subject, the operations of AHC and AHTD.” 4. There are many examples of appropriation bills and acts that include sections to add new substantive law or to significantly amend existing law. It is worth noting that a version of the Health Care Independence Act of 2013, was put into the appropriation for DHS – Medical Services and was passed. Strategy changed during the 2013 session and two other bills were used to pass the Private Option. The two bills were not identical to the sections in the appropriation act, and therefore each included a section saying that the version in the appropriation bill should be disregarded. 5. Fiscal Session bills and acts include substantive law. The Special Language Subcommittee for the Joint Budget Committee would not have much to do if that was not true. Below are some Fiscal Session examples of appropriation bills from all three Fiscal Session that specifically amend the Arkansas Code: A. Act 293 of Fiscal Session 2010 includes Sec 32, concerning isolated school district funding. B. Act 283 of Fiscal Session 2012 includes Sec 10, concerning fees. C. HB1149 of Fiscal Session 2014 includes Sec 81 concerning state employee salaries.
SUMMARY: It does not violate the Arkansas Constitution to include substantive law in “appropriation bills.” It is permissible to include substantive law in appropriation bills in Fiscal Sessions, since the Article 5, Sec 5 of the Arkansas Constitution allows introduction of “appropriation bills”, and does not include any provisions restricting substantive law in appropriation bills.
ISSUE II: There is another notion going around that special language in an appropriation bill is only good for one (1) year. A review of the discussion above clearly shows this notion to also be wrong.
SUMMARY: Some special language sections are drafted to be effective for a year, and some sections are drafted as a permanent change to law. Both are consistent with Arkansas law.
About the Author: David Ferguson currently serves as the Director for Governmental Affairs for Conduit for Action, an Arkansas non-profit organization. As an attorney, David spent thirty-two years of his career with the Bureau of Legislative Research (BLR), drafting bills and laws for Arkansas legislators. During his last six years with BLR, he served as BLR director. David retired from BLR in July 2012 and has been with CFA since December 2013.