Category Archives: Politics

British States of America

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

In 1776, the United States declared its independence from the British monarchy. In 2017, the United States government looks like the British Parliament.

In Britain’s parliamentary system, there aren’t really separate legislative and executive branches, and partisanship is designed into the system. Voters elect members of Parliament (MPs) based largely on the MP’s party affiliation. The party winning a majority (or leading a majority coalition, because there are more than two) forms a government. The party’s leading MP becomes prime minister – currently Theresa May, who represents the town of Maidenhead. Other leading MPs administer parts of the government, much like our Cabinet. The other ruling party members, known as “backbenchers,” go along with their leaders on important matters unless they feel compelled to engage in a “backbench rebellion” – enough of which can bring down the government. The minority party, meanwhile, functions as a loyal opposition with limited power as it awaits the next election.

That sounds a lot like how we do things here, now. Last Friday, Justice Neil Gorsuch became the Supreme Court’s latest member based on the wishes of the ruling party, the Republicans. They pushed his nomination through the Senate over the objections of the minority party, the Democrats, who never had any intention but to oppose him. Democrats tried to use one of the minority party’s last remaining tools, the filibuster, where debate continues indefinitely unless ended with a 60-vote majority. In response, Republicans changed the rules to end the filibuster for Supreme Court nominees, a move Democrats had done for lower courts and Cabinet officials in 2013. The changes are permanent.

A couple of weeks earlier in the House of Representatives, the majority party leaders, Speaker Paul Ryan and his lieutenants along with President Donald Trump, attempted to replace the Affordable Care Act (Obamacare) with their own concoction, the American Health Care Act. The AHCA was created with little involvement from many rank-and-file Republicans and with absolutely no input from the minority Democrats. It failed as a result of a backbench rebellion when various Republicans said no.

In the past, the next step in the American political system might have been for Republican leaders to work with Democrats to write a bill that could win majority support from the centers of both parties while the wings on the right and left were left out. But we’re a British system now. Such bipartisan cooperation happens less often these days because the centers of the two parties are now far apart and pitted against each other. If Republicans go back to the drawing board, it will be to create something to appease their own backbenchers.

This is happening because of evolving political norms and larger societal forces. The United States is no longer so united. The country whose motto once was the Latin phrase “E pluribus unum” – “out of many, one” – increasingly might be better described by “E unum pluribus.” As a result, American voters, once cussedly independent, increasingly are becoming straight-ticket voters who pull the lever based on the “R” or the “D” by the candidates’ names.

Acting like a parliamentary system would be acceptable if it matched the designs of the Constitution. Unfortunately, it doesn’t. The Constitution doesn’t even mention parties, and George Washington warned against them in his farewell address. The struggle for power is supposed to be between the three branches of government, not two political parties. Members of Congress are elected not to follow their party leadership but to serve their own constituents and states.

The United States government can at least function as a parliamentary system when one party controls both the presidency and Congress, as Republicans do now. However, American voters commonly elect one party to control one branch and the other party to control all or part of the other, which can’t happen in Britain. When that happens, as it did from 2011-16, the result is gridlock and, potentially, abuse of power by one of the branches, probably the executive.

In short, American democracy’s informal habits reflect a British system without that system’s formal structure. Either the structure needs to change, or the habits. I’m not sure which would be easier, or even if either would be possible.

What’s a legislative session like? Controlled chaos

Rep. Charlie Collins, R-Fayetteville, testifies before a House committee about his bill allowing guns on college campuses. Often, committee meetings are standing room only.

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.

How technology helps you avoid paying taxes

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?

Execution imagery

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

“Image,” tennis player Andre Agassi said in a commercial in his younger, long-haired days, “is everything.”

That’s not true, of course, and Agassi grew to deeply regret uttering the words. But for any state trying to compete in a global economy, while image isn’t everything, it’s certainly a lot.

Gov. Asa Hutchinson, who has crisscrossed the globe trying to sell Arkansas to potential investors, knows this. That’s why in this past legislative session he played defense against any potential bill that would impose state bathroom standards like North Carolina’s law, which cost the state 400 jobs from Paypal alone and was recently repealed. It also was a motivation for his spending a fistful of political capital moving the state’s commemoration of Gen. Robert E. Lee to a Saturday in October, far from its previous home on the same day as the Martin Luther King Holiday. Now only two former Confederate states, Mississippi and Alabama, celebrate the civil rights leader and the Civil War general on the same day.

Despite those efforts, Arkansas’ image has taken a bit of a hit the past couple of weeks in the eyes of some people. For a few days, the law allowed concealed carry permit holders to take their guns just about everywhere, including into Arkansas Razorbacks games. Fair or not, the idea of gun-toting fans made a lot of national headlines and was a step too far for the Southeastern Conference – not exactly a left-wing organization. After the SEC released a statement warning the law could affect the Hogs in a variety of ways, including, ominously, “scheduling,” the Legislature quickly passed another law restricting guns in those venues as well as other places.

That national story came and went. Another story will have a more lasting effect. As you probably know, Arkansas is set to execute eight convicted killers over 10 or 11 days, depending on how you do the math, from April 17-27.

Why so many so quickly? A U.S. Supreme Court decision in February set the stage for the eight to become the first in Arkansas to be executed since 2005 – the long delay caused by legal challenges and difficulties obtaining the three drugs used in the lethal injection. The makers of those drugs, which have other uses, do not like being associated with the death penalty for moral or public relations reasons. Many refuse to sell the drugs to Arkansas, while others will do so only anonymously, which Arkansas obliged with a state law now being challenged in court. The state’s supply of midazolam, used to render the condemned unconscious, expires April 30, so it’s a case of “use it or lose it” or try to find more.

Arkansas thus has become a center of attention in the international debate over the death penalty – illegal in all but one country in Europe, which Hutchinson has visited attempting to woo jobs to Arkansas. In a press conference Monday, he said other states have not suffered economically after carrying out the death penalty in the years since Arkansas last did, including Texas (187 since Arkansas’ last, according to the Death Penalty Information Center), Florida (33) and South Carolina (8). He said it would be unfair to punish Arkansas for taking longer than other states to carry out executions.

But those states did not perform eight executions in 10 or 11 days. In fact, no state has ever matched that pace in recent memory, which is why it’s being referred to in some quarters – and I’m just reporting this – as an “assembly line.” A state’s image is not based on fairness but on attention, and this is getting attention.

Image, as Agassi knew, is not everything. The state’s policies on the death penalty should not be controlled by the fear of being called uncivilized by a European continent that plunged the world into war twice in the 20th century.

At the same time, how Arkansas is seen does matter – even more so the way it sees itself. The second half of this month could be a sobering, reflective time to live in Arkansas.

At least, it ought to be, regardless of where we stand on the death penalty. Right or wrong, let this month not simply be a source of headlines. After all, we’re talking about killings here – the eight the state is preparing to administer to those men on Death Row, and the 10 that put them there.

Passion beats polling

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

Here’s how Arkansas state politics really works: a disconnected majority often matters far less than a passionate few.

Certainly, the majority matters – particularly on Election Day. That’s when 1.1 million out of 3 million Arkansans went to the polls in November and cared deeply about who won the presidential race but not always some of the other races, including state legislative ones.

Once the campaigning ends and governing begins, Arkansas state politics becomes more about very concerned groups – “stakeholders,” they are called – who know those legislators well and lobby them on their particular issues. Hang around the Capitol when the Legislature is in session, and you’ll see 135 legislators and a governor being influenced by a relatively small number of lobbyists attending committee meetings and really paying attention on behalf of their groups – those groups usually being composed of ordinary Arkansans with legitimate concerns, so there’s nothing inherently wrong with this. Their arguments often will carry the day.

And that leads us to guns at Razorback games.

It all started when Rep. Charlie Collins, R-Fayetteville, introduced a bill that would have allowed college faculty and staff with a concealed carry permit to carry guns on campus. His logic was that they could deter crazed killers from targeting the campuses and, if necessary, shoot those killers if the campus police took too long to arrive. The bill was strongly opposed by the colleges and universities and by a small band of red-shirt-wearing moms, but it passed the House easily and was amended in the Senate when Gov. Asa Hutchinson and some senators decided it needed a training requirement of 16 hours.

That’s when Arkansas’ most powerful group of passionate true believers, the National Rifle Association, stepped in. Arkansas is a pro-gun state anyway and so are all Republican legislators and many Democrats, but many NRA members believe Second Amendment rights are basically absolute, and they’ll base their votes entirely on that issue.

In other words, they’re passionate, which matters a lot. The political reality is that while each House member represents 30,000 constituents and each senator represents 86,000, what they’re most worried about are their party primary voters: 3,000-6,000 in the House and 10,000-14,000 in the Senate. Many legislators desperately want an A rating from the NRA because anything less might draw a primary opponent or cost them hundreds of votes – enough to make the difference.

As a result, the final bill, passed into law, went much farther than the original. In fact, it allowed anyone age 21 with a concealed carry permit and eight additional hours of training to carry a gun not just on college campuses but almost anywhere, including the State Capitol and Arkansas Razorbacks football games.

I haven’t seen a poll about that, but I suspect the majority of Arkansans are pro-gun but would be uncomfortable with that mixture of 70,000 people, youth, alcohol, frustration and firearms. But what the polls say about a particular issue often means little, anyway. What matters is not if a large majority of voters disinterestedly share an opinion. What matters are who cares, how much, and what they’ll do about it. Gun rights supporters care a lot, and they vote.

The story moved into the sports section and made national news. On Tuesday, the Southeastern Conference joined the conversation, saying the new law might negatively affect the Razorbacks with recruiting, officiating and, ominously, “scheduling.” When that happened, opinions across the state became less disinterested.

Legislators were then in a no-win situation between guns and the Hogs. A bill was written that would exempt sports stadiums along with the University of Arkansas for Medical Sciences and the Arkansas State Hospital, an inpatient psychiatric facility. That bill passed the Senate and then, on Thursday, the House despite the NRA’s objections, but legislators know their votes will be remembered.

Even a passionate few, or a passionate many in the NRA’s case, don’t get everything they want. Still, the general rule remains: On any particular issue, a passionate minority will have far greater influence than a disconnected majority, and legislators will continue to listen to those who are speaking.