CONSTITUTIONAL CRISIS OR LEGISLATIVE INACTION?
The problem of general law in Arkansas’ Fiscal Sessions
Guest Article by: David Ferguson
A BREWING CONSTITUTIONAL DILEMMA?
Some state legislators have complained about the kinds of provisions being added to appropriation bills (budget bills) during Fiscal Sessions of the Arkansas General Assembly and wonder if a court will step in to fix the problem.
State Senator Jeremy Hutchinson proposed an amendment to abolish the Capital Zoning Commission and transfer its powers and duties to the Arkansas Department of Heritage. He was attempting to add the provision to an appropriation bill (a budget bill) in the 2016 Fiscal Session of the General Assembly.
Duncan Baird, who is Governor Asa Hutchinson’s Budget Chief, argued adding the provision was inappropriate (or perhaps unconstitutional) because the Fiscal Session is for appropriations of money not for general law; unless introduction of a non-appropriation bill is approved by 2/3rds of the Senate and House of Representatives.
Senator Joyce Elliott, who opposed the amendment, thought it might take a court case in the future to determine whether it is allowable to insert general law into an appropriation bill during a Fiscal Session.
Eventually, Senator Hutchinson proposed a compromise amendment providing for an appeal to the Department of Heritage from rulings of the Capitol Zoning Commission. His compromise passed, but the compromise language still raises the same issue of general law being inserted into an appropriation bill during the fiscal session.
SOMETIMES NECESSARY BUT COMMONLY ABUSED
Senator Elliot’s concern about special language in Fiscal Sessions is nothing new. The issue has been a concern for some legislators since the very first Fiscal Session in 2010.
Some “special language” or general law provisions are necessary to regulate the use of the money in appropriation bills. General law may be needed to set limitations or allow exceptions on how money is to be spent, to specify funding sources, or to provide for the transfer of funds.
But that is not the type of general law addition, that was being complained about. The Fiscal Session complaints concerning general law changes added it appropriation bills have little or nothing to do with the regulation of appropriations. While almost every general law change will have some positive or negative effect on state expenditures, many special language amendments (such as the one on the Capital Zoning Commission) have nothing to do with regulating the appropriation of money.
The complaints are about general law being added to appropriation bills as a tactic to avoid the hurdle of the 2/3rds vote requirement for filing non-appropriation bills in a Fiscal Session. Yet, the tactic is very common and Duncan Baird forgot that is the very tactic Governor Asa Hutchinson used to save his Obamacare “Arkansas Works” program during the Fiscal Session.
COURT CHALLENGE WOULD BE UNSUCCESSFUL
In my opinion, seeking a court ruling to try to curb the process would fail. There is nothing in the Fiscal Session provision of the constitution that would give the term “appropriation bills” a special or more restrictive definition in Fiscal Sessions than in a Regular or Special session.[i] A court interpreting the term “appropriation bill” in Article 5, Sec 5(c) should examine what the term meant when it was proposed as an amendment by the legislature in 2007. It is clear that the General Assembly’s practice, going back at least for many decades, has been to allow general permanent law to be included in appropriation bills. Despite this having been a normal practice, the General Assembly proposed the constitutional amendment to add Fiscal Sessions without adding anything to restrict in any way what items of general law can be included in an appropriation bill.
Although the practice is allowable under the Arkansas Constitution, if the General Assembly actually wanted to reform the practice it could do so easily without court interference.
A SIMPLE SOLUTION
If the General Assembly wanted to resolve the issue, it could do so by adopting a Joint Rule of the Senate and House of Representatives. They could have done it in 2010. They could do it today.
The General Assembly already has rules on what may be included in a bill. For example, the Arkansas Constitution restricts an appropriation bill to one subject but does not have a similar rule for non-appropriation bills. Yet, the legislature adopted its own germaneness rule which applies to both appropriation and non-appropriation bills.
A Joint Rule could limit the types of general law allowed in an appropriation bill to those necessary to regulate the appropriation of money. Yes, the legislature could suspend such a rule by a 2/3rds vote, but a 2/3rds vote is the same vote required in a Fiscal Session to introduce a non-appropriation bill.
Adopting a Joint Rule would leave enforcement totally in the hands of the legislature because outsiders cannot challenge the failure of the legislature to follow one of its own rules. Yet, just having a rule could be enough to stop much of the over use of special language.
To adopt such a Joint Rule today would require a 2/3rds vote of the Senate and 2/3rds of the House since it would be amending the rules of the current General Assembly. If the same rule were to be included in the rules adopted by the next legislature, only a majority vote would be required. In other words, a majority is all that is needed to add a rule before the next Fiscal Session.
Why I don’t expect the General Assembly to adopt such a rule for the Fiscal Session.
- First, the rule would diminish the power of the members of the Joint Budget Committee and its Special Language Subcommittee. I doubt the 9 Senators and 9 House members on the Special Language Subcommittee of JBC would want to limit their own power. I also doubt the 28 members of the Senate and 28 members of the House who serve on the full Joint Budget Committee would want to give up the power they now enjoy. Note that 28 of the 35 members of the Senate are listed on Joint Budget Committee, which might make a rule very difficult to pass in the Senate.
- Second, if the General Assembly restricted the practice in Fiscal Sessions, it would highlight the fact that the same issues apply in Regular and Special sessions. Use of special language to change the law is even more problematic during Regular Sessions when most of the public attention is on the subject matter committees and less attention is on the day to day operations of the Joint Budget Committee.
You could say the legislature has already spoken on the issue. Its silence over many decades means the current rule is – anything goes. Still, that doesn’t mean the practice will never be changed.
WHY THE PRACTICE IS A PROBLEM IN ANY LEGISLATIVE SESSION
While some Special Language is needed to regulate expenditures of money, often the practice has more to do with tactics and power. The use of special language as a tactic is certainly ripe for shenanigans.
Tactical reasons for adding general law as special language in appropriation bills include:
- To circumvent the subject matter committee system. If your change to general law will be unpopular in the committee to which it would normally be assigned (for example the State Agencies Committee) you can go around those committee members by taking your language to Joint Budget which may be a friendlier forum.
- Minimize the opportunity for opposition. First and foremost, a bill going through the Joint Budget Committee gets only one public hearing because it is a joint committee of the House and Senate, but if the same language had been filed as a bill and assigned to a subject matter committee, the bill would have to go through two public hearings, one in the House and one in the Senate. Even if a bill slips past public attention in committee in one house, the public is likely to be alerted by the time the bill appears in the committee in the other house. Using an appropriation bill, the committee hearing stage is quick and can be over before the public even knows an amendment is being offered. (An amendment offered in the Special Language Subcommittee may not even be seen by those in the audience since there may not be enough copies to go around. A few minutes after the subcommittee adjourns the full Joint Budget Committee can act on the amendment and many in the audience may or may not see a copy of the amendment until after the amendment is approved and on its way to the House or Senate floor. In addition, the Joint Budget Committee may bypass the Special Language Subcommittee altogether.)Second, the Special Language Subcommittee and the Joint Budget committee frequently meet early in the morning before other committees meet. The timing of meetings reduces participation by the public. In addition, the public is less familiar with Joint Budget Committee than other committees.Third, while most committees of the House of Representative are video recorded and live streamed to the public, the Senate Committees and the Joint Committees are not. This means general law added to appropriation bills get even less public scrutiny.
The use of special language in appropriation bills to hide changes in general law is a prime reason the proceedings of the Joint Budget Committee and its Special Language Subcommittee should have been the first committees to be video recorded and live streamed to the public and it is also why those committees are likely to be the last to see sunshine.
Will the General Assembly restrict what provisions of general law may be added to appropriation bills? Probably not, but some legislators continue to be frustrated, so who knows.
You would think the subject matter committees would complain about the process, but they have not been active in protecting their turf, even when task forces have been created to go around the subject matter committee.
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David Ferguson is a former director of the Bureau of Legislative Research which serves the Arkansas General Assembly and is a former board member of Conduit for Action.
[i] Arkansas Constitution Article 5 Sec 5(c) says:
(c)(1) Beginning in 2010, the General Assembly shall meet in fiscal session on the second Monday in February of each even-numbered year to consider only appropriation bills. The General Assembly may alter the time at which the fiscal session begins.
(2) A bill other than an appropriation bill may be considered in a fiscal session if two-thirds (2/3) of the members of each house of the General Assembly approve consideration of the bill.