By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Arkansas’ attempt to execute eight inmates in 11 days has led to a lot of discussion about whether the death penalty should continue to exist, and that discussion should continue. But given that polls show a strong majority of Arkansans support it and the governor is ready to enforce it, the more immediate discussion should be about how to administer it far better than it is has this month.

As you and a lot of people in the United States and the world know, Arkansas’ plan would have set a recent record for most executions in the least amount of time. This was done because the inmates had reached an end point in the appeals process at the same time the state’s supply of one of its three death penalty drugs, midazolam, was about to expire at the end of April. The drugs are hard to obtain because the manufacturers didn’t make them to be used in executions and don’t want to sell them for that purpose, in part because it gets them in trouble with the European Union, a much more important client than Arkansas.

Gov. Asa Hutchinson, a lawyer by training, knew the schedule would result in a flurry of lawsuits and disruptions and that probably not all eight executions would be carried out. (Three have happened and a fourth looks likely, but the rest probably won’t occur before the end of April.) He knew this would be a difficult time for everyone concerned, including his own administration, whose attention this has dominated. But the need to complete the process before April 30 apparently overshadowed how it would affect the state’s brand, which is surprising, because his concern for that brand was the main reason legislators never even seriously considered a transgender bathroom bill during the past three months.

Worldwide, the story is not that Arkansas is executing eight people. The story is the rapid pace, and reason for it. At the moment, many outsiders would fill in the blank in the following sentence “Arkansas is _____,” with “the state that planned to execute eight people in 11 days because one of its drugs was about to go bad.” Regardless of what you believe about the death penalty, if that’s the first thing that pops into an outsider’s head, it’s not good for business.

Also not good for business are the unprofessional methods Arkansas has used to obtain its three-drug cocktail: the sedative midazolam; vecuronium bromide, which stops a person’s breathing; and the heart-stopping potassium chloride. As reported by the Associated Press, the Department of Correction director obtained potassium chloride against the wishes of the manufacturer by meeting in an undisclosed location with a distributor who “donated” it rather than sell it. Moreover, the manufacturer of vecuronium bromide sued the state saying it had been misled about how the drug would be used, though a Department of Correction deputy director said he did give that information to a company salesman.

The lack of straightforwardness by one party in these transactions – Arkansas – is possible because a state law keeps anonymous the identities of drug manufacturers and suppliers, which is looking more and more like a bad idea. The rule of thumb should be, open government is better than a secretive one, lest agency directors sneak around the corner to obtain drugs from undisclosed suppliers.

Governments have been executing people for eons using a variety of methods, from hangings to guillotines to feeding them to lions. Despite there being thousands of ways to kill a person, Arkansas state law very specifically requires using either a barbiturate or that three-drug cocktail, all of which are difficult to obtain, or if lethal injection is invalidated by a court, the electric chair.

Legislators met for three months this year, but the state’s execution processes where hardly discussed despite the gathering storm. They will meet three more days in a special session May 1-3, but there’s no talk about changing the processes then, either.

Regardless of what one believes about the death penalty, we can all agree that this has been a roller coaster ride for everyone, and not a fun one. Much of that is because of an American legal system that Arkansas can’t change, but it can change its own laws and administrative processes. It should do what it can as soon as it can. There are still 30 inmates on Death Row, with more to be added later.

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Now that the regular session lacks only a planned one-day return May 1 before adjournment, 12 legislators have written letters to their chambers asking the record to reflect they didn’t mean to vote a certain way on a particular bill, as reported in Monday’s Arkansas Democrat-Gazette.

That’s not a big deal. Over three months, the state’s 135 legislators filed 2,069 bills, 1,074 of which have become law. They recorded, between them, hundreds of thousands of votes, so a few fumbles are to be expected. None of the 12 mistakes affected the outcome of legislation.

The news does present an opportunity to describe what a legislative session looks like, which is, in two words, controlled chaos.

Legislators meet in a biennial (every two years) regular session for about three months starting in January of each odd-numbered year and then meet for about a month in a budget-focused fiscal session in even-numbered years. In between, they meet in special sessions called by the governor as needed.

Days at the Capitol start in the morning with committee meetings, where some bills are discussed at length while others pass or fail quickly.

When the full chambers meet in the afternoon, both the House and Senate have rules of order and decorum, but if it were a kindergarten class, everyone would be placed in time out, especially in the Senate. It’s civil, but legislators mill about engaging in private discussions with each other, or they shuffle in and out of the chamber to meet with lobbyists and hometown folks. Some bills have everyone’s attention, while others involve noncontroversial corrections to the law that legislators trust were hashed out in committee and vote yes, or have a fellow legislator vote yes for them while they are out of their seats. The chairperson – Speaker Jeremy Gillam, R-Judsonia, in the House and Lt. Gov. Tim Griffin in the Senate, or legislators taking their places – occasionally has to bang the gavel and fuss at the kids when they become too disruptive.

Legislators are doing an enormous amount of lawmaking in a very short period of time, which is how, 12 times, they accidentally voted the wrong way. Meanwhile, they are voting on bills they may not have had much time to study while hearing from competing constituents – and, occasionally, taking a break to talk to reporters. At the same time, they are trying to maintain relationships with each other. It can be a delicate balancing act voting against a fellow legislator’s pet project and then asking him or her to vote for your pet project five minutes later. As a result, many bills successfully navigate the chamber, House or Senate, where they originate but then die on the other side. There are less hurt feelings that way.

The process could be better and more deliberative so that lawmakers are not racing through 2,000 bills and passing 1,000 at such breakneck speed. Perhaps legislators could spend more time in session and earn the pay raises they recently received, but on the other hand, the more time human beings are given to make laws, the more opportunities they have to make bad ones. State Rep. Andy Davis, R-Little Rock, proposed a constitutional amendment that would have limited legislative sessions to 60 days but have them occur every year rather than the current setup of a 90-day session one year and a 30-day fiscal session the next – the idea being that legislators might let bills simmer rather than rush them to a boil knowing they would have more than one legislative session between elections. It didn’t advance. Another possibility would be fewer, longer bills that incorporate more technical changes all at once, the downside being the longer the bill, the more things to find wrong with it. I’ve wondered if the 135 legislators should each be limited to 10 bills to create more time to carefully consider each one. Surely Arkansas law doesn’t need more than 1,350 possible changes in a given session.

Democracy is messy, and it’s supposed to be, but Arkansas government works OK. The budget is balanced, though the state has some debt and is relying on the federal government too much. The worst bills usually die, while those creating big change usually get softened along the way. For the most part, things happen cautiously and incrementally.

Anyway, this is the 91st biennial regular session, which means we’re still around after 90 of them.

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

If you’re reading this, there’s a good chance you’ve cut your own taxes in recent years by evading them, probably unwittingly, thanks to the internet.

That would apply to you if you are buying products online these days from an out-of-state seller who doesn’t collect sales taxes, even though state law says they’re just as due as if you bought the goods from your local merchant. The local merchants certainly don’t like that, because it means the prices they charge are 8-9 percent higher through no fault of their own.

This is happening because while the state government requires the merchants to collect the tax, the federal government, by virtue of a Supreme Court decision, forbids state governments from requiring the same of out-of-state sellers. Buyers are supposed to pay the taxes on their own, but few taxpayers comply, either because they don’t know, or they don’t know how, or it’s just too inconvenient. There’s a form to fill out, and buyers would have to keep up with a year’s worth of purchases and determine which sellers with a presence in Arkansas collected the tax, and which sellers from elsewhere didn’t.

The current state of affairs obviously is unfair to local merchants, which is why big ones like Walmart and small ones alike want to change it. There’s also the numerical reality that the state has collected $102 million less in revenues this fiscal year than it expected to collect, and $51 million of that is because of lower than expected sales taxes. How much of that is because people are buying more online from out-of-state sellers? Some.

But changing the law is hard because of that Supreme Court ruling and because making people pay a tax they currently can avoid certainly feels like a tax increase. Lawmakers prefer cutting taxes, which they did this legislative session for lower-income Arkansans, for veterans, for manufacturers, and for soda pop.

Still, there were efforts. During the legislative session, which recessed Monday, one proposal would have required larger online retailers to charge the tax while watching to see what happens in a South Dakota court case that would challenge the existing federal prohibition. Senate Bill 140 by Sen. Jake Files, R-Fort Smith, failed in the last day of the session in the House, though it may or may not have helped inspire Amazon, the biggest online seller, to begin collecting sales taxes in Arkansas voluntarily March 1. Another bill would have required those retailers to tell Arkansas consumers how much sales tax they owed. That one by Rep. Dan Douglas, R-Bentonville, passed the House but never even got a vote in the Senate. Meanwhile, U.S. Rep. Steve Womack has tried for years without success to address the issue at the national level in Congress, which is where it should be addressed. That effort hasn’t gotten very far.

This isn’t the only tax cut Arkansans have received in recent years thanks to technology. The primary means for funding roads is the motor fuels tax, which is paid on a per gallon basis. Its advantage is that it’s a user fee – those who uses the government service pay for it, and those who use more, pay more. But as cars have become more fuel efficient, they require fewer gallons to travel the same distance, which means drivers are paying less in taxes to drive on roads that cost more to build and maintain. Meanwhile, the motor fuels tax hasn’t increased at the federal or state level in decades.

Douglas tried to address this issue with a 6.5-cent wholesale fuel tax to fund a bond issue referred to voters in 2018, but it never even passed the House.

No one wants to pay higher taxes. What’s more likely is significant tax reform changing which taxes we pay, at least at the state level. To generate ideas, state legislators this past session created an Arkansas Tax Reform and Relief Legislative Task Force that will start meeting soon.

I don’t know how it gets past the constitutional issues on the online sales tax, but clearly something needs to be done about highways. The cleanest solution would be to increase a user fee for highways while decreasing taxes that pay for other things.

That would mean spending less on those other things, which sometimes can be almost as hard politically as raising taxes. Maybe another task force?