OPINION
Why majority rule is legal
W
ould more uncertainty about whether the legislature will slay the private option for Obamacare bother anyone? Let’s try anyway. As every Arkansan knows, a knot of nine or 10 senators plan to vote against the appropriation for the fiscal year that starts July 1 and end Medicaid in Arkansas. The Constitution seems to allow a tiny minority to block an appropriation supported by huge legislative majorities. Here’s the added uncertainty: The legislature can pass the appropriation by a majority and not the three-fourths vote of each house that has been the story thread for the past year. Mind you, that is only an opinion, and not one from an appellate court, but one that nevertheless has some standing in the law. The Constitution is confusing as are the few court decisions that have tried to make sense of it. It is a view that some would rather not ponder publicly for it might take the heat off those who have vowed to block the private option, even if it ends Medicaid and throws thousands out of nursing homes and leaves hundreds of thousands of Arkansas children, pregnant women, blind and disabled people with no resources to pay for medical care. The nine or ten can say, “Hey, Med-
icaid funding might be authorized by a majority vote, so I can vote ‘no’ without harming a fourth of the popuERNEST lation of Arkansas.” DUMAS But let’s raise the question anyway. It starts even before our hero, Gov. J. Marion Futrell, comes on the scene in 1933. The 1874 Constitution said the legislature could pass appropriations by a majority as long as the money paid for schools, just debts and the state’s necessary expenses or repelled invasions and insurrections. Anything else took twothirds. But there was no reliable definition of just debts or necessary expenses. There still isn’t. Futrell took office in 1933 and put Amendment 19, which he had written, to the voters. It said a majority could pass appropriations as long as they spent taxes that were levied to pay for education, highways, Confederate pensions or the state’s just debts. Other spending would need three-fourths. Well, all the taxes going into the general fund pay mostly for education, so you could argue logically that all appropriations from general revenues (like state Medicaid funds) need only a majority,
It’s camera time, state Senate
S
ome key moments in my early education about Arkansas politics came from sitting in the gallery of the state Senate. During my college years, I’d come to Little Rock to watch an afternoon session of the Senate and see the leaders of that body — Max Howell and Knox Nelson — masterfully marionette their colleagues using a combination of procedural expertise and personal cajolery. While the personalities and theatrics of the state Senate today are perhaps not as colorful as in that era, watching the Senate’s action live remains fascinating, particularly on days when there are close votes on important topics. As much as Arkansans should take the opportunity to come to the cramped galleries on the top floor of the state Capitol to watch their senators at work, it’s simply not feasible for hundreds of thousands of them significantly affected by some of the votes cast there. But because the presence of cameras in the Senate chamber and commit-
tee rooms has been fervently resisted, as this publication has noted across the years, Arkansans are unable to see their JAY elected officials at BARTH work. The Senate’s recalcitrance to basic transparency is particularly frustrating now because in the coming weeks, the body will be casting a close vote on one of the most important public policy decisions in the state during the past decade — reappropriation of funding for the public option. It’s an important moment for determining whether the pragmatic, bipartisan innovation will survive or be undermined in a system where a small minority has veto power. Moreover, the actions in Arkansas have ramifications beyond the state’s borders. Increasingly, the Arkansas experiment is seen as a path towards expansion of
but the Supreme Court has not extended the challenged act) voted 6 to 1 that the it that far. bill had needed 75 votes and thus all 500 After Futrell got his amendment rat- or so appropriations were invalid. Clinton ified in 1934, his philosophy changed called the legislature into a hasty session overnight when President Roosevelt to pass the general appropriation and all threatened to cut off all aid to Arkansas. the others again. The special court tried to make sense From rabid foe of taxing and spending he became a pleader for more of them. The of the muddle of opinions deciphering legislature obliged. “just debts of the state” and “necessary But a number of his spending bills expenses of the state” and made a worse couldn’t get the three-fourths majority muddle of them. Six of them posed the in one house or the other. On one day the hopeless logic that even if the spending Senate passed seven appropriations that bill was for “just debts of the state” it were not for schools, highways or Confed- somehow still took three-fourths despite erate pensions but fell short of the three- Amendment 19. They misread the amendfourths vote. Lt. Gov. Lee Cazort declared ment to say all two-year appropriations them passed anyway as just debts or nec- over $2.5 million required three-fourths. essary spending. His view was that Gov. The seventh special judge, Lonnie Futrell wrote Amendment 19 and if he did Turner of Ozark, said they were plainly not think the bills got enough votes he wrong. The bill took only a majorcould not sign them. Futrell signed them. ity because it was for the “necessary A legal test came in 1989, when a hand- expenses of government.” ful of mavericks in the House called “the The court had always held that the legwhite lights” kept the appropriation for islature should be allowed to determine executive offices, the legislature and what was a “necessary expense of govthe courts from getting 75 votes. Under ernment.” Would health care be deemed Amendment 19, the general appropria- one? A huge majority of the legislature tions must be signed into law before the would say yes. legislature can pass any other appropriaArkansas has enacted laws obligattions. The speaker declared that it was ing the state to subsidize the medical a just debt and needed only a majority. expenses of many categories of vulnerA lawsuit followed and 11 days before able citizens from the elderly poor to the new fiscal year began, a special children. Should there be a lawsuit, it is Supreme Court appointed by Gov. Clin- hard to imagine that an Arkansas court ton (the seven elected justices recused would not hold it to be a just debt or a because their salaries were paid under necessary expense.
access to health coverage in states that have resisted expansion so far, including the megastates of Texas and Florida. Now the decisions of a handful of Arkansas Republicans may help shape the future of health policy across the country. The debate and votes on this key measure, however, will not be broadcast. The absence of cameras in the Senate contrasts with the full embrace of video technology by the legislative chamber at the other end of the Capitol’s third floor. Indeed, the House of Representatives just made a major upgrade to that technology this week to allow the streaming of the work on the floor of the House and in committees on a variety of devices. Other state boards and commissions stream their proceedings and then archive the tapes for later viewing. One can also watch oral arguments in front of the Arkansas Supreme Court. Across the state, city council meetings are broadcast on community access channels, allowing constituents to watch what is often highly entertaining and insightful democracy at the grassroots level. Yet even as video technology becomes cheaper and more omnipresent, the Arkan-
sas state Senate continues to resist this basic measure of openness, with many members claiming that placement of cameras in the chambers would entice members to show off for the cameras rather than soberly doing the people’s business. Let’s not be naive — much of the deal-making that drives decisions in the state Senate will always take place in the hallways and conference rooms of the Capitol, or in the buzz of the Capital Hotel Bar and Grill. But, the state’s citizens should have the opportunity to watch live, via video, the debates and public actions of their state officials, and then the video should be preserved as a record of what happens in those sessions. If you want to have the opportunity to watch the state Senate make decisions on the crucial issue of public option and many smaller matters in the years ahead, I’d urge you to call or email Senate President Michael Lamoureux. I hear he has plenty of staff to answer the phones these days. Or call your state senator and let her or him know you want full access to the workings of this chamber from wherever you may find a good wireless connection. It’s simply time. www.arktimes.com
FEBRUARY 13, 2014
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