How To Identify Whether A Legislative Task Force Has Been Created To Stack The Deck
By David Ferguson
Conduit For Action has written several articles criticizing two legislative task forces sponsored by Senator Jim Hendren at the behest of his uncle, Governor Asa Hutchinson. CFA looked at the guidelines placed on the two task forces and the membership of each and saw they were both established to justify a particular outcome — one was established to continue Obamacare Medicaid Expansion and the other to delay legislation to reduce taxes and instead focus primarily on tax shifting from one taxpayer to another and broadening the tax base (more taxes).
Reading the legislation setting up the two legislative task forces and looking at the membership of each, shows CFA is correct in its assessment. But the issue is broader than just the two legislative task forces.
Having worked for the legislature for several decades and having helped many legislators (and the lobbyists they bring) to write task force legislation, I will give you a simple process so you too can quickly determine whether a task force has been created to stack the deck in favor of a particular point of view.
Simple Identification Process–To determine whether a legislative task force was created to achieve a particular result use the following procedure: STEP 1: Ask the following question– “Is it a legislative task force?” If the answer is “Yes” then it was created to steer the result in favor of a particular outcome. That’s it in a nutshell – a simple one step process.
In other words – all legislative task forces are created to achieve a particular outcome. Some are created to achieve a very specific result (such as recommending the continuation of Obamacare Medicaid Expansion). Other legislative task forces on lower profile issues have the goal of raising awareness of an issue and building support for a legislative solution, even if the exact solution has not been decided yet (such as raising support for victims of certain diseases or victims of acts of abuse).
The legislative task forces that should be of concern to the public are those created on high profile issues or on issues to help one segment of business or a profession.
Here are a few things to keep in mind:
- The creation of a legislative task force is intended to impress the uninformed public. “Task Force” sounds important and may bring to mind the origins of the term – the power of a naval task force. Yet, despite the fancy name there is absolutely no difference between a legislative task force and a legislative committee. (No difference other than the deck is stacked in a task force.)
- There is never a need to establish a legislative task force in order to conduct a thorough study of an issue. The legislature already has a committee system that covers every subject the legislature may want or need to study.
- Anytime a legislative task force is created it takes away important issues from the established subject matter committee.
The legislature can create any study group it wants and can give the group any name it wants. The question is whether legislators will continue to rubber stamp the use of the biased task force strategy, or will they have the guts to say, “No. Take the issue to the subject matter committee that already has jurisdiction.”
I don’t expect to see any legislator expend energy on stopping the bias of task forces, but that doesn’t mean you have to believe their hype over new task forces. Let legislators know you don’t buy the distractions and that you know the deck is stacked.
Pushing an outcome
The saying goes, “Laws are like sausages. Better not to see them being made.”
For over three decades I helped legislators write their sausages… er … laws. During that time, I helped write legislation to create many legislative task forces. In every instance, the sausage making was always about stacking the deck to ensure the legislator (or, as usually the case, a lobbyist) would have a friendly forum to get a favorable report and recommendations.
The goals/ limitations written into the task force legislation is one way of controlling the outcome. The goals/ limitations keep legislators from coloring outside the lines and keeps the membership focused on areas that will bring about a favorable recommendation.
The other way of controlling the outcome is to control who gets to make appointments to the task force. A primary goal of a task force is to create a friendlier membership than if the issue had been presented in the committee that would normally have jurisdiction.
On one of the task forces I was assigned to write, the legislator sent a lobbyist to my office to work on the details. I asked how the membership would be appointed. The lobbyist hadn’t thought of that and asked to look at committee membership lists. He went through the lists saying, “This chairman is friendly, we want him on the task force and we want him to make an appointment from his committee” and “We can’t have this chairman involved at all because he opposes us.” Ultimately the size of the task force was decided by how many “friends” were needed to get favorable recommendations out of the task force. Stacking the deck is a normal part of setting up a task force. The saying goes, “Never give a sucker an even break.”
A legislative task force is never needed, so beware
There is never a need to create a legislative task force so be skeptical about why it is being created. The legislature has permanent subject matter committees and together they have jurisdiction over every subject. If a legislator wants a specific subject studied, it is easy to get the appropriate committee to approve a study. Even if a legislator is not a member of the correct subject matter committee he or she can file a study proposal with the Legislative Council and the Council will refer the issue to the appropriate committee. It is very rare for a study proposal to be rejected.
A study done by a committee can be just as in depth and detailed as one done by a task force and can utilize just as many witnesses and experts as a task force, without the inherent bias of a task force.
In addition to the subject matter committees there are two permanent legislative committees with the power to conduct studies in any area – the Legislative Council and the Joint Performance Review Committee.
Robbing a committee of its authority
The act of creating a legislative task force always robs the established subject matter committee of authority by shifting important issues to the task force. In 2015-2016 the most important issue for the Public Health Welfare and Labor Committees of the House and Senate should have been whether Obamacare Medicaid Expansion should be continued. Instead the subject was taken away by a task force stacked to say “Yes” to continuation of the program. In 2017 – 2018 the most important issue for the Revenue and Tax Committees of the House and Senate should have been a comprehensive review of the Arkansas tax laws. Instead, a task force was created to focus on the shifting of tax burdens among taxpayers.
Sometimes the main goal of a task force is to take away a subject from a committee to avoid legislators who oppose the sponsor’s desired outcome and give the subject to a “friendly” group.
Committee chairs have not always been silent about having their committee’s authority robbed. So many task forces were created in the decade of the 2000’s that several committee chairs began to complain that their subjects were being taken away, that they were having difficulty scheduling committee meetings because they were competing for meeting dates with task forces, and that their assigned staff were distracted by also having to staff task forces.
To deal with the complaints, one solution tried by the House of Representatives was to try to impose meeting schedules that would assign days when committees could meet and when task forces could meet.
Robbie Wills who was Speaker of the House in 2009 and 2010 went a step further and asked House members to avoid creating task forces, if at all possible. Because of Speaker Wills’ efforts the number of legislative task forces dropped during his service as Speaker but rose again after his service.
Excuses – the committee is too busy
A legislator who wants to create a favorable task force will sometimes try to justify their ploy by saying, “I need to have a task force study the issue because the subject matter committee is too busy.” This is a smoke screen.
Whether the issues are handled by the appropriate subject matter committee or sent to a task force, legislators attend just as many meetings. The task force will invariably have members who are also on the appropriate subject matter committee and these members have no problem participating in both meetings of their regular committee assignments and the task force. In addition, legislators have time (and get paid) to attend many meetings of committees to which they are not members. This further invalidates this excuse for creating a task force.
The employees who staff a committee also staff task forces. They are just as busy whether the issues are all in a committee or spread out between a committee and a task force.
Even if a subject matter committee were to be too busy to study important issues, the reasonable response would be to come back in the next legislative session and change the scope of the committee so that its load is more manageable. This has not happened. Why? Because it has not been that big of a problem.
Excuses – we need broader representation
Another excuse for creating a legislative task force is, “We need broader representation than just members of the particular subject matter committee.” This doesn’t hold up either.
First most legislative task forces have fewer members, not more, than the appropriate committee. House and Senate committees on the same subject usually meet together other than when the legislature is in session. House standing committees have 20 members and Senate standing committees have 8 members. This means there will be 28 legislators considering an issue. On the other hand, the Health Reform Legislative Task Force and the Tax Reform and Relief Legislative Task Force each only had 16 members. It is easier to control the outcome when you have a smaller membership and can guarantee enough friends to have a solid majority.
If having members of more than one committee hear the discussion was desirable, in the past the committee responsible for the study would invite the members of another committee to participate in its meetings on the subject. Even without a formal invitation, it is common for non-committee members to participate in the meetings of other committees – nearly all legislators are eligible to get paid for attending legislative meetings, whether they are a member or not.
New wrinkle on legislative task forces
In the past, creation of task forces was primarily pushed by lobbyists and interest groups wanting a favorable outcome. But there is a new wrinkle. Governor Asa Hutchinson has gotten in the act. The tax task force and the task force to continue Obamacare Medicaid Expansion were both created at the insistence of the Governor and both were written by the Governor’s staff in state agencies.
When Bill Clinton was governor he created many task forces, but his task forces were Executive Branch bodies not Legislative Branch bodies.
The fact that Governor Hutchison can get the legislature to create a task force designed by him is yet another sign that governors have increased their control over every aspect of the legislative process.
Obsolete reason for creating a task force
To give a bit of the history of legislative task forces, I need to acknowledge that there used to be another reason cited for creating a task force. “We need a task force, so we can have doctors or other non-legislator experts participate in the study as members.”
When I was helping a legislator and a lobbyist create yet another task force, I asked, “Why are you making non-legislators members instead of just asking them to come and testify and participate as witnesses?” In this instance the non-legislators were doctors. The lobbyist replied, “We need the expertise of the doctors and doctors won’t come and participate unless you make it sound like an honor by naming them as task force members.”
I knew from experience – doctors, just like any other person who is busy, came to testify before committees if they thought the issue was important.
I already knew the real answer but just wanted to hear what excuse they would use. The real answer was the lobbyist wanted the doctors on the committee as another way to stack the deck. He had doctors in mind who would support his position and the legislator responsible for the appointments would be willing to appoint the lobbyist’s doctor friends.
The funny thing is — once the IRS issued a new regulation saying legislative mileage and per diem for attending a legislative committee meeting could only be treated as non-taxable if all the members of the body were legislators. With money for legislative mileage and per diem at stake, suddenly there was no longer a need for non-legislator experts to be members of a task.
THE NEXT TIME – 2019
If the legislature wants to continue to undermine its committee system and instead use task forces stacked to get a result, then so be it. But you don’t have to be a dupe in their plans. Tell legislators, “You are not fooling us anymore.”
If you are feeling particularly cantankerous, you might ask your legislator, ‘Is going along to get along, so important to you that you need to vote for these biased study groups?” But expect him or her to tell you, “These task forces are very important.” And they are – if you are wanting the results the task force was designed to bring.
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.