TO FRESHMAN MEMBERS OF THE ARKANSAS GENERAL ASSEMBLY:
This is the first in a series of articles meant for freshmen members of the Arkansas General Assembly but others may benefit too. This article is primarily directed to House freshmen but includes information Senate freshmen will want to know.
I was asked what information a freshman legislator needs to know that may not be covered by other sources. My answer was, “They need to know about what happens between the election and their first session, especially about decisions that are being made without their input.”
One of the decisions House freshmen have had no input on is the Powers of the Speaker of the House.
Under voter approved Term-Limits a third or more of the members of the House of Representatives are freshmen. (This year in the Senate the freshman class is small but some years term-limits produces a substantial freshman class in the Senate.) With so many legislators being freshmen you might expect the House and Senate to work harder to bring freshmen into the organizational decisions. But the opposite has been the case, especially in the House.
In 2012, the House scheduled its organizational meeting just three days after the election. The meeting normally includes drawing for seniority, selecting a seat, and the selection of committee assignments. (2012 was unusual in that the Speaker Designate (chosen by the previous legislature) was rejected because of a change in majority party in the House.. A new Speaker Designate was chosen a few days later in a second meeting.)
Drawing for seniority and picking a seat is not a big deal. Where freshmen get left out is in not having input on the House Rules, such as:
- What method should be used in determining committee assignments?
- How committee chairs should be selected?
- Who should be the next speaker?
When the House meets on organizational issues, the process moves forward quickly and decisions are locked in without freshmen or any other members having a reasonable opportunity to question the ground rules. The new House membership has the right to determine their own rules and cannot be bound by the rules of the previous House, however, it is impossible to set your own rules when you get locked into old rules by not having an opportunity to change them before important decisions are made.
If you have ever glanced at the House Rules you will see that over the years they have become confusing and disorganized. Two days is not enough time to switch from campaign mode to understanding House Rules and what is being imposed on you.
In the Senate, it is not uncommon for the Senators to discuss possible rules changes before moving on with the selection of committee chairs and committee assignments.
Talking about the powers of the Speaker of the House seems almost taboo, but it is information of which both House and Senate freshmen need to be aware. At a minimum House and Senate freshman need to know how to navigate the system. In addition, House freshmen need to understand the rules before they go into the House organizational meeting.
The greatest difficulty in writing about the powers of the Speaker of the House is how to make freshmen aware of a system stacked against them, without the discussion being construed as a criticism of anyone seeking to be Speaker. And, that is the dilemma – the freshman class and returning House members have conflicting interests. Perhaps some of the returning House members will remember that not long ago as freshmen they had been left out of a lot of decision-making.
I am not concerned with whether the House of Representatives keeps or changes organizational rules or who becomes Speaker. My concern is with how the system has been operated in the past. It puts blinders on freshmen, both Republican and Democrat, and excludes them from decisions that will have a direct effect on their success. Again, with large freshmen classes you would think the freshmen would be included more.
COMPARISON OF THE HOUSE AND SENATE
The Speaker of the House is the leader in the House of Representatives. The President Pro Tempore is the leader in the Senate. Their powers are very different. The powers of the President Pro Tempore are more that of persuasion, while the powers of the Speaker resemble Washington D.C. style powers to maintain loyalty. The Speaker of the House has extensive appointment powers, presides over the House, and assigns bills. The appointment power of the President Pro Tempore in no way compares with that of the Speaker and primarily concerns appointing citizens to boards and commissions. The duties of presiding over the Senate and assigning bills is normally handled by the Lieutenant Governor.
A SPEAKER FLEXES HIS MUSCLES
Recently, I asked a Democrat member of the House of Representatives about the time he stood up to a Democrat Speaker of the House by not ruling on committee procedure in the way the Speaker wanted. The Speaker was clearly wrong on the issue and this committee chair was right. Because the chair did not blindly follow the Speaker, he was bombarded with phone calls with people screaming at him before he could even get home. “They were screaming, not talking”, he said. Later he was summoned to the Speaker’s office, where he claims he was threatened with the loss of his committee chairmanship and the loss of other House privileges. He said after being chewed out, he basically told the Speaker and others gathered, “I’ll be a good little boy.” (His words not mine.) The lesson this Democrat took away was not forgotten by him even in following years, and I expect other House members paid attention to the lesson as well. (Although some people will recognize this story, I did not mention his name because he is currently a candidate elected office.)
BROAD APPOINTMENT POWER OF THE SPEAKER
The appointment power of the Speaker is so extensive that the Speaker potentially could appoint every House member to some position and others to more than one. This appointment power makes the Speaker of the House a force to be reckoned with.
- Select Committees and various other appointments. For decades the Speaker has had appointments on Select Committees, Joint Select Committees and various other appointments. The most significant of the appointments is to the powerful House Rules Committee. The Speaker appoints all the members of the committee and names the chair. In addition to addressing issues about House rules, a number of significant issues are included in its jurisdiction and they increase the Speaker’s influence. Bills assigned to the House Rules Committee, include those on the following subjects: alcohol, cigarettes, movies, pornography, tobacco, tobacco products, coin operated amusement devices, vending machines, lobbying, code of ethics, bingo, lotteries, raffles, racing, race tracks, pari-mutuel betting and similar legislation. The Senate does not have an equivalent committee and divides the subject up among the standing committees.
- Standing Committee Chairs and Vice Chairs. The House has 10 Standing committees that are divided up by subject matter. These committees handle the bulk of legislation in the House other than budget bills. In1995, the House of Representatives gave sweeping new appointment powers to the Speaker. The rule change allows the Speaker to select the chair and vice chairs of the 10 Standing Committees. That is 20 important appointments by the Speaker. The Speaker’s power is also enhanced in that these chairs serve at the pleasure of the Speaker. Previously the committee positions were determined by seniority. It was argued that the Speaker of the House should make the appointments because: (1) voter approved Term Limits made seniority less important; and (2) by making the Speaker more powerful it should give the House more clout against the Executive Branch. Whether this new appointment power tends to help the House against the Governor is debatable. Often a Speaker’s power has been used to support a Governor’s position or the Speaker’s personal agenda.
- Subcommittee Chairs and Vice Chairs. Later the House added a new rule to create 3 standing Subcommittees for each of the 10 Standing Committees. At the time of their creation it appeared to me that the creation of Standing Subcommittees was primarily about helping more House members become eligible for increased legislative reimbursement by being a chair or vice-chair. The rule also added to the Speaker’s influence. The chairs and vice chairs of these 30 subcommittees are appointed by the Speaker along with the chair of the committee (who serves at the pleasure of the Speaker). Sometimes the subcommittees can become important but usually they meet infrequently. Even if a subcommittee does not meet, the chairmanship or vice-chairmanship serves to enhance the résumé of the person appointed.
Just looking at the appointments to Standing Committees and their subcommittees, the Speaker has the power to appoint 80 members to leadership positions. Merely add in the 15 members of the House Rules Committee and that is 95 appointments by the speaker. But it doesn’t end there. The Speaker has more appointments to other important committees, such as Joint Budget Committee, Joint Auditing Committee, Arkansas Legislative Council and House Management. The Speaker appoints some House members to serve in the role of assistant Speaker to help preside over the House. Additional select committees have not been mentioned. Plus the Speaker has citizen appointments to various boards and commissions.
SPEAKER’S INFLUENCE ON OTHER LEADERSHIP POSITIONS
The House rules say the House co-chair and co-vice chair of the Joint Budget Committee, the Joint Auditing Committee and the Legislative Council are to be selected by the membership of the committee. In reality leaders have been selected by House Speakers.
I recall one year in which a Speaker’s choice for chair for one of the 3 committees didn’t manage to get on the committee through the district caucus selection process. The Speaker had to use one of his appointments to the committee to put his choice on the committee so that the House member could then be “elected” chair.
The law says the House Co-Chair of the Legislative Council is to appoint the House membership of Legislative Council subcommittees, but as a practical matter at least some past Speakers have named the subcommittee chairs too. When I was an employee of the legislature, I once received the list of subcommittee chairs from the Speaker before the chair of the committee was aware of the appointments.
INFLUENCE OVER ISSUES
Davy Carter, a Republican, defeated a more conservative Republican, Terry Rice, for election as Speaker of the House. The vote in Carter’s favor was 54 to 45. Greg Leding, the Democrat leader in the House, said he thought all 48 Democrats had voted for Carter and declared Carter’s election a major Democrat coup.[i] If Leding was correct then Carter may have received less than a handful of Republican votes. With Carter receiving almost no votes from his own party, you might expect that to spell disaster for his term as Speaker, but that is not the case. He has had a very sucessful term. Carter was able to quickly put together a Republican coalition to go along with his Democrat support. Perhaps he pulled it off with a combination of Republican loyalty, personal charisma and the power of the office of Speaker.
When Obamacare Medicaid expansion (Private Option) initially passed the House of Representatives in 2013, it received only 13 Republican votes. The Speaker and the Republican Sponsor of the bill voted for it and the remaining 11 Republican votes were all a part of Davy Carter’s leadership team as either chairs or vice-chairs. Although that is interesting, all of the Republican “yes” votes may have been “true believers” in the bill. However, it is clear from comparing Carter and Rice that the selection of Carter as Speaker paved the way for the Obamacare Private Option to pass. Carter favored the legislation but Terry Rice opposed it. Had Rice been elected, the influence of the Speaker’s office would have gone to the other side. The fact that Carter was for the bill gave other Republicans cover to vote for the bill despite Republicans usually being against bigger government. With Rice there would have been no such cover.
A clearer example of the power of the Speaker of the House being used to determine the outcome of an issue can been seen in Davy Carter’s relentless effort to pass funding for the Obamacare Private Option in the 2014 Fiscal Session. Speaker Carter declared that the funding for the Obamacare Private Option would pass and continued to schedule votes for days until he was eventually successful on the 5th try.
No matter who is Speaker, the powers that keep being given to the Speaker make him or her a powerful ally or dangerous foe.
IS IT TOO MUCH POWER?
The House power structure is nothing like that of the Senate. In the Senate, instead of concentrating power in one person, power is spread around, since committee chairmanships are still decided based on seniority.
Does the Speaker have too much power? The answer probably depends on whether you are on the winning or losing side. To an outsider seeing House members submit to a Washington D.C. style system may seem odd. Yet, the question of how much power the Speaker should have can only be answered by the members of the House. Unfortunately for the large number of House freshmen, it isn’t a question they are asked.
If a freshmen wanted to change the House system for selecting committee chairs, he or she faces several hurdles:
- The Previous House (including a third of the members who won’t be back) chose a Speaker Designee for you, and he is the presumed next Speaker. The Speaker Designee has had months to work on his leadership team, and a number of members will have leadership expectations based on the Speaker’s power.
- The House herds freshmen though the organization meeting like cattle. As mentioned previously, in 2012 the organizational meeting was held only 3 days after the election.
- In 2012, there was not even an agenda item to discuss rules changes or leadership changes before selecting committee memberships. Freshmen have just been expected to go along. Although there is not an agenda item, the issue can be raised by a simple motion.
WHAT IF A FRESHMAN WANTS TO CHANGE THE RULES
New rules are adopted by the House of Representatives at the beginning of each Regular Session. However, waiting until the legislative session to discuss organizational rules doesn’t work. By that time the organizational process has already relied on rules of the previous House. To change the organizational rules after the House has made committee selections and chairs have been appointed would be chaos.
The last real opportunity is the House organizational meeting before organizational decisions have been made. The proposed rule would be in the form of a motion to adopt a Temporary Rule. If adopted the Temporary Rule would also be added to the proposed rules voted on in January. You are not bound by the previous House rules so the Temporary Rule would be a new rule, not an amendment to the previous House Rules. Therefore, under general parliamentary procedures and Mason’s Manual, used by the House, only a majority vote is required to adopt a Temporary Rule.
Sometimes a proposed rule change will be met by a call of, “let’s not make it apply until after our term.” This has no real benefit to the person wanting the change. There are two problems with this “compromise”:
- Your House body cannot bind a future House to the rule, just as the past House of Representatives can’t bind you. So a rule change for a future legislature is meaningless as anything other than a suggestion.
- Even if you could bind the next legislature, a two-year delay in making it effective means that 1/3 of your House service will be bound to a system you are trying to change and a system which is likely to hinder your own legislative agenda.
I hope this article will help the freshman better understand the legislative power structure. I offer no advice on whether your particular situation would be better with or without a strong Speaker.
As a freshman, you may not like the extensive power of the Speaker of the House. You can change the rules by majority vote, if you wish. Otherwise you need to learn to operate within them, which means working through the Speaker. If you are in agreement with the Speaker on an issue, his influence can be a tremendous benefit. If you are not in agreement, you will need to work all the harder.
One final note: One of the first tests you will have as a new legislator is whether you will chose to compromise your principles on some votes in order to play ball within the legislative power structure and get other bills passed, or to sacrifice your effectiveness in order to follow your principles. Either choice is not an easy path. And, the folks back home can see every vote you cast and every time you duck a vote.
For your convenience a copy of the SENATE RULES and HOUSE RULES have been copied to the Conduit for Action website. These rules are current at the time of this posting.
[i] Republican Carter wins speaker’s job, Arkansas Democrat Gazette, Front Section, Page 1 on 11/16/2012