What happened to representative democracy in Arkansas?
By David Ferguson
Speaker of the House, Jeremy Gillam and President Pro Tempore of the Senate Jonathan Dismang wrote identical letters to Governor Asa Hutchinson requesting the Governor call a special session. But that was not the primary purpose of the letter. Legislators were the primary audience. Gilliam and Dismang announced new restrictions limiting the rights of legislators to file legislation.
Gilliam and Dismang used the word “requesting” (as in they were requesting legislators to comply) but as written it is much more than a mere request. If a legislator fails to comply, I expect their de facto rules to be used as a reason to prevent the legislators’ proposal from being considered.
The letters announced restrictions on the ability of legislators to file legislation in the Fiscal Session and in an upcoming special session to be called by the Governor. The restrictions have the effect of shifting power away from individual legislators and to the Governor.
These new rules/edicts protect politicians who do not want to go on record voting for or against conservative legislation. The primary election is just around the corner in May.
I assume Gilliam and Dismang will be successful in this power grab. The environment in the Arkansas General Assembly has changed drastically over the past several years. Gone are legislators like Representative Jodie Mahony who was quick to pull out his rule book when he saw things not being done right.
I’m not certain which issues Gillam and Dismang are trying to stop, and that is not my concern. What matters to me is my Senator and my Representative are being treated like second class citizens instead of equals among peers. Your legislators are being treated like second class citizens unless they are in the clique.
MISREPRESENTING THE ARKANSAS CONSTITUTION
Gillam and Dismang wrote:
… it is our desire to maintain the integrity and voter intent of this fiscal session by focusing strictly on appropriation bills and the budgetary matters of the state.
Their assertion about the intent of Fiscal Sessions is FALSE. It seems inconceivable that a Speaker of the House and the President Pro Tempore would not know what the people said through the Arkansas Constitution.
The constitution never intended to limit the Fiscal Session to only appropriation bills and budgetary matters. Instead the constitution explicitly provides a method to consider non-budgetary issues during a Fiscal Session. Under the constitution it is harder to get non-budgetary items considered, but it specifically allowed.
Arkansas Constitution, Article 5, § 5(c)(2) says:
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.
It is my recollection that when the Amendment to add Fiscal Sessions was written, the sponsors included the option to introduce nonbudget bills so that the legislature could deal with some important nonbudget issues in the Fiscal Session. They wanted the legislature to have this power so they would not have to beg the Governor to include an issue in a special session. Gillam and Dismang’s position is just the opposite of what was intended – they are handing the legislature’s power back to the Governor.
Instead of protecting the “integrity and voter intent” of the fiscal session they are destroying the integrity and intent. In effect they are suspending the constitution.
ABSURD AND UNAUTHORIZED RESTRICTIONS
The letters of Gillam and Dismang continue by putting a huge stumbling block in front of legislators who want to exercise their right to submit legislation in a special session called by the governor. They each say:
In order to expedite a potential extraordinary session, we are requesting that members seeking to introduce a bill in an extraordinary session provide a final bill draft for review by Monday, February 26, 2018. We are also requesting that bill drafts be accompanied by the signatures of two-thirds of the members of each chamber demonstrating support for these policy changes prior to the issue being placed on the call of an extraordinary session.
1. Bill draft deadline. First, there is no House or Senate rule requiring prefiling of draft bills in an extraordinary session. The letter is setting a de facto rule without getting the necessary two-thirds vote to change the legislative rules.
Second, even if the legislature had adopted such a deadline, the February 26, 2018 deadline is absurd.
Extraordinary sessions (commonly referred to as “Special Sessions”) are called by the Governor and he sets the agenda. The Governor issues a proclamation defining each issue that may be considered in the Special Session. (His proclamation is called the “Call” and the issues to be considered are called “Call Items.”)
Although the Governor limits the subjects to be considered, the Constitution and legislative rules allow a legislator (without approval from anyone) to file his own bill if the bill is germane to one of the Call Items.
A Governor’s “Call” typically is issued within a few days of the Special Session beginning and the final “Call” may not come out until the day the session begins. But, Gillam and Dismang want draft bills to be filed by February 26, 2018, which could be before the final call comes out. How can a legislator respond and propose an alternate bill when the legislator doesn’t know which issues will be on the Call? They can’t. Plus, it takes time to prepare legislation after finding out what will be on the Call.
Not only is the request/edict contrary to legislative rules and unworkable, it also represents a double standard. Gillam and Dismang in their leadership capacity have allowed the filing of countless “shell bills.” Shell bills are near meaningless bills that only have a title and intent sentence repeating the title. Often you won’t know what a shell bill is about until the details are filled in later by amendment. Yet in an upcoming Special Session, they want a preview of the details of legislation before it can be filed.
2. Requiring two-thirds support. Even worse than requiring legislators to prefile drafts of bills is the request/edict insisting that a draft bill be accompanied by signatures of two-thirds of the members of each chamber to demonstrate support. Ridiculous!
- First, there is no rule to require this.
- Second, they are requiring more support for a draft bill than is required to pass most legislation.
- Third, bills rarely have enough support to pass until after a bill is filed, debated, and perhaps amended.
- Fourth, it is important that legislators be able to file bills even if they do not pass because the legislation puts legislators on record as being for or against certain legislation and this gives the voters information on whether their legislator agrees or disagrees with them. (Remember the primary election is just around the corner.)
3. Need to expedite a potential extraordinary session. Gilliam and Dismang say their de facto rules are needed “to expedite a potential extraordinary session.” Sorry, but this is a red herring. Under the Constitution a legislative session can be no shorter than three days. The longest Special Session in the past decade was only five days and that tally counts Saturday and Sunday. There have been a few longer extraordinary sessions in decades past, but that was because Governors sometimes include controversial items in their CALL.
4. The right of the legislature to address its own issues. The arbitrary and restrictive edict limiting the filing of legislation in a Special Session is also contrary to the legislature’s rights under the Constitution. The constitution specifically gives the legislature the authority in a Special Session to consider their own legislative issues after finishing the Governor’s issues.
Article 6 § 19. Extraordinary sessions of General Assembly — Calling — Purposes.
The Governor may, by proclamation, on extraordinary occasions, convene the General Assembly at the seat of government, or at a different place, if that shall have become, since their last adjournment, dangerous from an enemy or contagious disease; and he shall specify in his proclamation the purpose for which they are convened; and no other business than that set forth therein shall be transacted until the same shall have been disposed of; after which they may, by a vote of two-thirds of all the members elected to both houses, entered upon their journals, remain in session not exceeding fifteen days.
SAD TIMES FOR ARKANSAS
Our legislators have lost their status as equals among peers. This is especially so in the House of Representatives where the members gave up their right to choose committee chairmanships by seniority and gave up their right to even select their own committee assignments. Representatives are now all beholden to the Speaker for all committee appointments and chairmanships.
Legislative officers in the House and Senate now wield considerable control over the members of their chamber. The letters by Gillam and Dismang are just one example.
You may view Gillam and Dismang’s actions as favorable or unfavorable based on how you view the current Governor and the issues of today. This is a mistake. You will eventually find yourself on the other side someday and your Senator and Representative will have no voice because the leadership has already decided for them.
This move is bad regardless of whether you are liberal or conservative or somewhere in between.
I worked for the Arkansas General Assembly for almost thirty-two years. As an employee we were given the charge to serve each legislator equally, even the legislators with the least clout. Respecting the rights of all legislators became second nature to me. That is one reason it is so sad to see legislators disenfranchised today.
If former Representative Jodie Mahony was still alive today I would laugh with him about how much trouble he was for legislative staff, and then tell him, “I appreciate your being willing to stand up for the rule book and the Constitution. They need someone like you now!”
Here is a link to Gillam’s letter – Gillam
David Ferguson is a former Director of Arkansas’ Bureau of Legislative Research, having a thirty-two-year career as an attorney for the Arkansas legislature. After retirement from state service his primary focus has been beef cattle farming. He is also a former officer of Conduit for Action.