Category Archives: Legislature

Can we trust the Constitution to fix itself?

Legislature, Politics, State government

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

Sometimes, Americans these days can be so distrustful that systemic change can occur – even if they would like that change – that they won’t take advantage of a mechanism that would make it possible to at least try.

I’m referring to a vote Monday by the Arkansas Senate against a resolution calling for a Convention of States. That’s a national movement to gather delegates to consider constitutional amendments that would limit the federal government, impose budget restraints and enact term limits.

Those are the kinds of things Republicans often say they support, particularly the limiting government part. Several states have already signed on. In Arkansas, it failed Monday, 13-17, with eight Republicans voting no and four senators not voting. The vote was expunged, which means it can be reconsidered later, but it probably won’t be.

The Constitution’s Article V contains two mechanisms for amending the Constitution – one initiated by Congress, which is how all 27 amendments have been ratified, and one initiated by the states, which has never been used successfully.

In presenting the resolution, the sponsor, Sen. Gary Stubblefield, R-Branch, imagined a conversation he might have with Founding Father James Madison about the government’s current size and scope and about the $20 trillion national debt. Stubblefield wondered if Madison would even know what a trillion is – as if any of us do.

But the whole idea stalled amongst questions from both Republicans and Democrats about how the process would work, which Stubblefield couldn’t answer with specificity. Of course he couldn’t – it’s never been used before. The process would work like everything is supposed to work in this country: The Constitution lays out a broad framework, and then we have to figure out the details as we go along.

This is one of those issues that hasn’t gotten a lot of attention from the press but has gotten a lot of attention from a small number of activists from both sides. Many of the opponents are conservatives who fear a “runaway convention” where delegates suddenly start radically changing America and stripping us of our rights.

But any amendment must negotiate a gauntlet of constitutional roadblocks. Thirty-four states must approve a resolution, which would lead Congress to call a convention, which would require each state to select a delegation, who then would gather to vote on proposed amendments, which then would have to be approved by 38 state legislatures.

Thirty-eight states couldn’t agree on what kind of pizza to order, so it’s highly unlikely that anything crazy would get through.

The Article V provision, in fact, is consistent with the rest of the Constitution, which purposely makes it hard to get anything done. It was placed in the Constitution deliberately because the Founders knew that, sometimes, problems created by elected officials in Washington would have to be solved from the outside and then forced upon them. As examples, Sen. Jason Rapert, R-Conway, a supporter, pointed out that Article V had been used to pass the Bill of Rights, end slavery, and give women the right to vote. The only difference was that the process had started with Congress each time, and this time, the states would do it.

Clearly, 21 senators didn’t feel that way. If it’s because they didn’t agree with the Convention of States’ goals, then that’s understandable, even laudable, because if you don’t want to reduce government or pass a balanced budget amendment or enact term limits, you shouldn’t vote for a convention that would consider those things.

However, some of those no voters want those things to happen, and a constitutional amendment may be the only way. After 200-plus years of doing otherwise, lawmakers in Washington are not going to suddenly limit their power or balance the budget consistently, regardless of whether the president is named “Obama” or “Trump.”

The Founding Fathers created a mechanism in the Constitution to address problems that aren’t being solved through the other mechanisms we’re accustomed to using. A states-led convention to accomplish what you say you want to accomplish isn’t messing with the Constitution. It’s using it as it was intended.

What some of the senators who voted no were saying is that they don’t trust the Constitution’s own mechanisms for fixing itself, which means that, to balance the federal budget, for example, we’re going to have to use its other mechanisms that haven’t worked in the past.

Fine. The national debt is $20 trillion, and rising. Which one should we give another try?

When lawmakers gather, expect the unexpected

Legislature, State government

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

The elections have mercifully ended, so now is when the actual governing begins. On Monday, 135 legislators will descend on the State Capitol and become very busy very quickly.

How busy? In the space of three months in 2015, lawmakers considered 2,063 bills and passed 1,289 of them into law.

Considering that the makeup of the Legislature isn’t that different than it was in 2015, expect similar numbers this year. Many of those laws will be technical and/or targeted and won’t affect you or me much. But some will be important and far-reaching.

What else can be expected?

– Expect medical marijuana to take up a lot of time and energy. When 53 percent of the voters passed the Arkansas Medical Marijuana Amendment in November, it was only the first step in making the drug legal. Now legislators must flesh out the amendment with additional laws, each of which requires a two-thirds majority because they would amend a constitutional amendment. Rep. Doug House, R-North Little Rock, said legislators are considering “about 135 issues, and that’s a real number” that must be clarified or modified through legislation.

– Expect that legislators will cut taxes, but with less enthusiasm than they did in 2015. Two years ago, Gov. Asa Hutchinson easily passed a $100 million middle class income tax cut after making it the signature issue of his 2014 campaign. This year, he’s promising a smaller tax cut – $50.5 million targeted toward lower-income Arkansans, plus a tax exemption for military retiree benefits. That second tax cut would cost the state treasury $13 million, but it would be offset by the ending of various exemptions, including for manufactured homes. Other legislators might propose their own tax cuts, but expect Hutchinson to mostly get what he wants.

Regardless, he’s being cautious about cutting taxes too much, and so are many legislators. Revenues have not been meeting forecasts this year. Meanwhile, the state must for the first time pay 5 percent of the cost of the Arkansas Works program that provides health insurance for more than 300,000 Arkansans. Policymakers have been looking for savings to offset that new expense. Lawmakers also must produce a budget surplus so the state has money available to match $200 million in federal highway funds. They can’t cut spending for education without risking a lawsuit, and they must increase funding for the foster care system, which is in a crisis. And unlike Washington, D.C., Arkansas has a mechanism, the Revenue Stabilization Act, that discourages deficit spending.

– Expect the Democrats to act like a minority party and Republicans to behave like a party with an overwhelming majority. After the election and three post-election party-switchers, Republicans control 102 of the 135 seats in the Legislature – the same number controlled by Democrats in 2008. Democrats know they’ll be the minority for a long time, so with nothing much left to lose, they’ll more aggressively contrast themselves with the Republicans. Republicans, meanwhile, don’t even need Democrats in the House of Representatives, where they control 76 of the 100 seats, enough to pass anything with a three-fourths majority. The numbers are so lopsided that many of the meaningful conflicts will be not between Republicans and Democrats, but between Republicans and other Republicans.

– Expect some heat. It’s a safe bet that legislators will debate controversial social issues that grab a lot of attention and attract sign-carriers to the Capitol steps in a way that tax cuts never do. Bills already have been filed to restrict abortion, and Hutchinson says one of his 19 priorities is ending Arkansas’ practice of honoring civil rights leader Dr. Martin Luther King and Civil War General Robert E. Lee on the same day. Only two other states do that. Hutchinson would move Lee’s day from January to the fall. An effort to separate the commemorations failed in 2015.

– Finally, expect the unexpected. As Hutchinson said in a December press conference, “With my vast experience in legislative sessions – one – I can feel confident that there will be some surprises. There will be some unanticipated legislation. There will be some unanticipated controversies, and you just deal with those a step at a time.”

That’s a pretty safe expectation when 135 legislators and a governor gather in Little Rock to debate 2,000 bills and pass 1,300 laws in three months.

2016 wasn’t so bad

Elections, Inspirational, Legislature, Politics, State government

By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

More than a few people are expressing their hopes for a happy new year by saying good riddance to the old – the basis being that they aren’t happy with the presidential election, along with the fact that a lot of famous people died in 2016, especially lately.

The truth is that famous people die every year, and it’s not the year’s fault. Also, whatever you think about the election, the good news is that we had one.

Consider that on March 1, almost 632,000 Arkansans went to the polls to help select the two major party candidates. Then in November, about 1.13 million Arkansans voted in the general election for one of those two candidates or for one of six others. In January, the current president will peacefully hand the Oval Office’s keys to his successor and become a private citizen, while the new president takes the reins of power only temporarily.

This process is fairly common around the world these days but rare throughout history, when power has often been transferred through war or intrigue or birthright. George Washington came along and just gave power up. As flawed as it was, the 2016 presidential election was a blessing, not a curse, when you consider many of the possible alternatives. As Winston Churchill once said, “Indeed it has been said that democracy is the worst form of government except for all those other forms that have been tried from time to time.”

In fact, the 2016 campaign in some ways was remarkably open and democratic. The Republicans offered 17 candidates for president, each of whom had ample opportunities to make their case to the voters. Donald Trump won in part because he inspired first-time or infrequent voters to go to the polls. The Democrats offered the first female major party nominee, and her gender was not the defining issue. Third party candidates were treated, at least for a time, as candidates, not asterisks.

The campaign gave a shot of adrenaline to a political process that has grown predictable and stale. This time, the usual left-versus-right narrative simply didn’t apply. Both Trump and Bernie Sanders gave voice to legitimate concerns about global trade and the unevenness of the economic recovery. Moreover, they made their cases largely through oratory and direct communication rather than formulaic 30-second television advertising, which has been the norm. In November, the candidate who raised a lot less money and ran far fewer ads won by using tools that are at least theoretically available to others: a message that drew crowds and media attention, and social media.

Here’s where some of you say, “But Trump …”

I know, and I share many of your concerns. I voted for John Kasich in the Republican primary and the independent Evan McMullin in November – two candidates I believed offered positive, unifying visions. But, for one column, let’s look on the bright side, or at least all sides. It’s wrong to look at the world through rose-colored glasses, but it’s also a mistake to reach for the gray ones instead. In fact, it’s worse.

It wasn’t just in national politics where 2016 wasn’t so bad. In Arkansas, the Legislature met three times and along with Gov. Hutchinson produced tangible results in health care and highway funding. The unemployment rate in Arkansas is about 4 percent, which is far below the national average. Granted, that’s partly a result of the high number of former workers who have dropped out of the labor force, but clearly things are better than they were.

The Charles Dickens novel, “A Tale of Two Cities” begins with the words, “It was the best of times, it was the worst of times.” Based on the way so many people talk these days – and have been for the past decade or two – you’d think these are just the worst of times. Let’s be realists, not cynics. By many measurements, Americans live better than 99 percent of all people who have ever lived.

So may we each have a happy new year while keeping the right perspective on the old one. Maybe it wasn’t the best of times, but the times certainly weren’t the worst.

Bathrooms at the Capitol

Legislature, Politics, State government

CapitolBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

When the Legislature meets in regular session starting in mid-January, Gov. Asa Hutchinson wants to cut taxes, increase funding for the state’s foster care system, and change the way colleges and universities are funded.

What he does not want is a bathroom bill.

Hutchinson does not want Arkansas to have the same experience as North Carolina. There, the city of Charlotte passed a broad gay rights ordinance which included a provision allowing individuals to use bathrooms based on their gender identity. The state Legislature then passed a bill repealing it and prohibiting all other cities from enacting their own local gay rights ordinances. Attracting the most attention was a provision whereby the state became the first to require individuals to use bathrooms corresponding to the gender listed on their birth certificate, a listing the legislation allowed those individuals to change.

That law made North Carolina ground zero for this latest culture war battle. Entertainers and, more importantly, big businesses expressed their disapproval. The NCAA pulled championship tournaments, the NBA cancelled an All-Star Game, and the company Paypal scuttled a plan to expand there. The Republican governor in November lost to his Democratic challenger – which didn’t happen in many places. A deal was made with the city of Charlotte where both the local ordinance and the state law would be repealed, but the Legislature voted Dec. 21 to keep the law in place.

While all of this was going on, the Obama administration released a heavy-handed “guidance” to every public school in the nation strongly encouraging them – underline “strongly” – to allow students to use restrooms and locker rooms conforming to their gender identity.

When that guidance was released, Hutchinson reacted by telling schools they should ignore it and make their own decisions. But he does not want Arkansas to become embroiled in a North Carolina-like controversy while he’s trying to court businesses from elsewhere.

He said in a press conference Dec. 20 that he has had “a lot of discussion” with legislators in hopes of keeping the focus on other areas. His view is that the issue is now being considered by the court system, that the Trump administration should be less intrusive than President Obama’s, that Arkansas doesn’t seem to have a big problem with bathroom controversies at the moment, and that, when it comes to schools, local administrators and school boards can handle this kind of thing without any edicts from above.

If anyone were to sponsor a bathroom bill, it would seem to be Rep. Bob Ballinger, R-Hindsville. The legislator sponsored the controversial Religious Freedom Restoration Act in 2015. Supporters said it was meant to protect business owners from having to violate their consciences by requiring them, for example, to participate in a gay wedding. Opponents said it allowed more discrimination.

Ballinger said recently that he does not intend to file a general bathroom bill and does not know of anyone who does, but he can’t speak for 134 other legislators. Instead, he’s looking at more specific bills – for example, one that targets acts of indecent exposure in bathrooms, and one that increases the penalties for taking photographs of victims in stalls.

“There’s some things like that, that I expect that we’ll probably address simply because we have a change in culture, and with a change in culture you’ve got to have laws that are consistent with it in order to protect the public,” he said.

That’s a better way to handle it, at least for now, than some far-reaching bill. Address harms on which most of us should agree. Anyone want to defend indecent exposure and unwanted picture-taking in the bathroom? Meanwhile, avoid a humongous controversy until one might be necessary.

The whole bathroom debate took an ugly turn in 2016 and played a bigger role in the elections than it’s being given credit for. Maybe 2017 will offer more clarity through the new presidential administration or a court decision. Maybe society will come to a reasonable consensus that respects everyone’s vulnerabilities without the federal government telling every establishment in the land what their bathrooms have to look like – and without any level of government adding “patrol bathrooms” to the list of police officers’ duties. Maybe it will become more commonplace for establishments to have only single-toilet, gender-neutral restrooms with locking doors. We’ll have to stand in line longer sometimes, but we’ll have more privacy.

Whatever happens, may we all just go to the bathroom in peace. Happy 2017.