Category Archives: Politics

GOP shows Obama its cards, helps Hillary Clinton

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

Generals don’t tell the enemy where they are going to attack. Boxers don’t tell their opponents where they are going to punch. But Republicans told President Obama and the Democrats exactly what they were going to do about the U.S. Supreme Court vacancy, and because of that, they may have increased the chances Hillary Clinton will be the next president.

After Justice Antonin Scalia passed away, Republicans quickly declared that Obama might as well not nominate a successor because the Senate won’t confirm him or her anyway. Senate Majority Leader Mitch McConnell, R-Ken., said the seat “should not be filled” until the next president takes office. Most of the party’s presidential candidates made similar statements.

That was a political mistake. Now, Obama has the high ground. He can make this a contest between himself and McConnell, who’s not exactly an electrifying figure. The “executive order president” can paint himself as the defender of the Constitution. He’ll do his constitutional duty in nominating a successor; now will Republican senators do theirs and give a fair hearing to the nominee?

Moreover, now he knows the Republicans’ strategy, but they don’t know his, so he can plan his next move accordingly.

For example, he can nominate a female with a long list of accomplishments, maybe even a military record. If Republican senators refuse to give her a fair shot, or even treat her poorly, then Clinton can spend the rest of this election talking about those obstructionist Republicans keeping glass ceilings above women’s heads. That message will resonate in an electorate where Obama won women by 12 points in 2012, according to Gallup. In that same election, Republicans won men by only eight points, and more women vote than men.

In addition to the vacancy, three justices – Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer – are at least 80 years old or getting close. So the irony is that to keep Obama from nominating one justice, Republicans likely have given Clinton an issue she can use to win and have the chance to nominate four.

What Republicans should do is praise Scalia as a strict constructionist who believed the Constitution means what it says it means, and that they will honor him by insisting that Obama’s nominee follows his example. If Obama nominates someone too liberal, they can expose that person’s record and make voters more uncomfortable with Clinton’s potential nominees. By then it will be late spring, and then Republicans can plausibly make the case that, at that point, we might as well wait for the next president.

On the other hand, Obama wants to appoint a Supreme Court justice at least as much as he wants Clinton to win, so maybe he will nominate someone Republicans can live with. Some senators might decide they’d rather confirm his nominee in his last year, rather than take their chances on Clinton winning and nominating someone in her first. Republicans, after all, control the Senate now. Next year, they might not.

I can think of three reasons Republicans tipped their hand so clumsily. One, many of them viscerally, emotionally dislike Obama, and people in that state of mind make mistakes. Two, it’s a presidential year, so the party’s focus naturally turns to candidates trying to get elected by appealing to the party base, and away from those trying to run a government. And three, they did it because they had no choice. A beast has been created these past eight years that must be fed anti-Obama red meat at all times. Had Republican leaders played their cards a little closer to their vests, that beast would have been angry.

Let’s not overstate this. Republicans made a bad move, but not a fatal one. It’s a long way until November, when the election will be decided mostly by the actual nominees. Since Obama was elected, Republicans have gained or solidified control of both houses of Congress, a majority of state Legislatures, and a large majority of governor’s mansions. They must be doing something right, politically.

But now, for the first time in a long time, they do not have control of the Supreme Court. It’s now 4-4, which means we’re looking at a lot of deadlocked votes. Let’s hope Republicans walk back their previous statements. The president should fulfill his constitutional duty, and they should fulfill theirs.

Presidential and private option politics

Hand with ballot and boxBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Primary elections were moved this year from May to March 1 to give Arkansans a voice in the presidential election and to help former Gov. Mike Huckabee win an early state. The more important result will be that state lawmakers will make a lot of decisions about Arkansas’ future with an election in their rearview mirrors instead of in their windshields.

Legislators wanted Arkansas’ primary to occur earlier in the election calendar, on the same day as votes in other states in the South, to create an “SEC primary.” With contests in 11 states across the country, Republicans will award 595 delegates – a fourth of the total. The big prize is Texas, with 155 delegates, while Arkansas will award 40. Democrats will award 957 delegates – again, Texas leads with 252 votes, while Arkansas has one of the smallest totals with 37.

The move appears to have achieved its goals. Arkansas is relevant, or is at least among a relevant group of states, so it’s warranted a few visits from candidates, if that means anything. It won’t help Huckabee, who has suspended his campaign, but, among the Democrats, it does help the state’s former first lady, Hillary Clinton. At least Arkansas is in the game, though mostly watching from the bench.

More important is what’s happening in state politics. During even-numbered election years, the Arkansas Legislature typically holds a fiscal session early in the year to vote on budget-related issues. Because of the early primary, that session was moved to April, after the primary. Meanwhile, Gov. Asa Hutchinson has announced plans to call two special sessions, one to vote on health care reform that will occur shortly before the fiscal session, and one to vote on his highway funding proposals.

The highway session will be big but not huge. Hutchinson has proposed a plan to increase highway money using a variety of means, including shifting some dollars from the state’s general revenue budget, but without raising taxes. There will be shouts of anguish from those who might be affected, but the average Republican primary voter won’t be mad.

The health care special session, however, will be a doozy. Legislators will vote on a package that will include Arkansas Works, which is Hutchinson’s version of the private option with important but not earth-shattering changes.

The program, whatever it’s called, uses federal dollars to purchase private health insurance for Arkansans with incomes up to 138 percent of the poverty level. It’s been hugely controversial since it was created in 2013 because it’s an extension of Obamacare passed by legislators who decided Arkansas might as well get its share. Unlike some states that turned down the money, Arkansas’ uninsured adult population has been more than cut in half, 200,000 people have health insurance, and its hospitals are providing a lot less unpaid care.

Republicans either don’t like it or, often, don’t like saying they’re for it. Its roots are in Obamacare, which is enough for many voters to oppose it. Opponents say it’s unsustainable. Sometimes, candidates sincerely oppose it on the campaign trail, but then they come to the Capitol and, seeing the numbers, decide they have to support at least something.

The health care special session is occurring in early April-ish because of the federal government’s timelines. Then we’ll have the fiscal session starting April 13, where legislators will vote to spend the money. Had the primaries not been moved, candidates would have had to vote for the private option in the special session, and then fund it in the fiscal session, and then campaign in a Republican primary. Naturally, their opponents would have accused them of selling out to President Obama.

Now, they can finesse the issue on the campaign trail and then come to Little Rock to vote on Arkansas Works – either as newly re-elected incumbents or as defeated lame ducks with nine months left to serve and nothing left to lose.

Presidential politics is what drove this decision to move the primaries, but at least some legislators were also thinking about private option politics.

Of course, if several legislators who support Arkansas Works lose March 1 to private option opponents, it will affect others currently on the fence. They won’t want to be losers next time.

So politics would have been involved no matter when the primary would have occurred. Oh, well. It’s a democracy, after all.

Steve Brawner is an independent journalist in Arkansas. Email him at brawnersteve@mac.com. Follow him on Twitter at @stevebrawner.

For hire: one president, inexperience necessary

Elections aheadBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.
The most noteworthy finding from Arkansas’ first presidential poll wasn’t who was at the top of the standings, but who was at the bottom.

In a poll conducted Feb. 4 by Talk Business & Politics and Hendrix College, Sen. Ted Cruz was leading the Republican field with 27 percent, while Donald Trump and Sen. Marco Rubio each had 23 percent.

No surprises there. Cruz was a big winner not long ago in a straw poll among Republican Party insiders. Rubio, as of Feb. 4, was the rising establishment choice. The day before, he’d been endorsed by two of Arkansas’ congressmen, Reps. Rick Crawford and Steve Womack, and by Lt. Governor Tim Griffin. And Trump is, well, Trump, the darling of a sizable percentage of the electorate who want somebody, anybody, other than a politician. (And the only one who could fill up much of Barton Coliseum, as he did Feb. 3.) Ben Carson, also not a politician, was fourth at 11 percent, while Carly Fiorina – again, not a politician – had 4 percent.

At the bottom of the standings were Ohio Gov. John Kasich, who also had 4 percent support, former Florida Gov. Jeb Bush at 1 percent and New Jersey Gov. Chris Christie at 1 percent.

That’s 6 percent total for the three governors who have actually led state governments in large diverse states, tried to balance budgets, worked with legislators from both parties, responded to disasters, made court appointments, spoken on behalf of all their citizens – in other words, sort of what presidents do.

Meanwhile, 88 percent are supporting the candidates whose political resumes are, well, a little thinner. Like President Obama before them, Cruz (age 45) and Rubio (age 44) are young, first-term senators. Trump, Carson and Fiorina have almost no political experience between them, though they have achieved much elsewhere.

Elections are about hiring a person to do a job. But if that were their only purpose, the three governors would have been doing better than 6 percent between them.

Elections also are about giving voters the chance to express their values, and this year, “proven political leadership” is not one of them. They’re angry, and, as is usually the case in a democracy, angry about different things. A lot of voters aren’t looking for someone who can make the trains run on time. They want someone who says they’ll tear up the tracks and replace them with something else.

That’s how you get a Trump or a Cruz or, on the Democratic side, Sen. Bernie Sanders. As with Trump, know-it-alls like me have said all along that he can’t win, and he probably still can’t. The race now moves South, where the advantage goes to Clinton. The Talk Business poll has the state’s former first lady leading 57-25 here – again, before the New Hampshire primary. Meanwhile, the Democratic Party has stacked the deck against Sanders. Despite his big win in New Hampshire, Clinton leads in the delegate count, 394-44, thanks to all the party’s superdelegates who have pledged their loyalty to her.

But Sanders, who raised $5.2 million in the 18 hours after his New Hampshire victory speech, isn’t going away – especially not this year, with this electorate.

Arkansans don’t vote until March 1, and a lot can change between now and then. Since the poll was conducted Feb. 4, Rubio’s balloon was deflated by a poor debate performance and then a disappointing fifth place finish in New Hampshire. Kasich finished second in that state but will have a tough time following that up. Christie and Fiorina have since dropped out of the race. Clinton – she’s damaged.

One other thing that might affect the vote count: Mike Huckabee may have suspended his campaign, but he’s still on the ballot, as are Christie and Fiorina and Rand Paul and all the other candidates who once formed that l-o-o-ng line on the debate stage. So Arkansans still will choose from 13 candidates, one of them a favorite son.

Still, it’s hard to see how the race’s overall dynamic will change in Arkansas. Among the Republicans, it’s Cruz and Trump and Rubio, probably in that order, with the governors trailing well behind.

The Democrats – superdelegates and others – will support the state’s former first lady, of course.

Related: Kasich, the anti-Trump

Why Supreme Court races matter: Lake View

golden balanceBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

How important are the two Arkansas Supreme Court races on your ballot March 1? Two words provide the answer: “Lake View.”

In a case that drug out over 15 years, the Lake View school district, which no longer exists, argued that the state’s school funding system didn’t meet standards set forth by the Arkansas Constitution. The Constitution requires that the state “shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education.” The Lake View district said the state wasn’t doing that because it didn’t fairly serve small, poorer districts like itself. The Supreme Court repeatedly agreed, demanding that the state revamp its system to provide an “adequate” and “equitable” education for all students.

The state complied. Education went from being a local responsibility to being a state one. Hundreds of millions of taxpayer dollars were spent improving school facilities. School districts were consolidated. The Legislature ensured that before anything else is funded, schools get their money. In the midst of the Great Recession, when other states were cutting education funding, Arkansas schools always got more, and it’s made a positive difference.

As in years past, members of the House and Senate Education Committees this year will prepare an adequacy report for the full Legislature. The guiding principle will be the same as it’s always been since the Lake View case: How much more must be spent on schools to keep the state out of court? Once the report is done, it likely will be accepted by the rest of the Legislature without a lot of serious debate.

In other words, about 42 percent of the state’s general revenue dollars will be directed largely in obedience to rulings made years ago by Supreme Court justices.

The Lake View case ultimately was about more than just education. Because so much money was dedicated to schools, some tax cuts weren’t even considered. Meanwhile, less remained for other state needs, including health care.

In fact, it’s possible that the Lake View case is one of the reasons why the state has the private option. That’s the program that uses federal Medicaid dollars to purchase private health insurance for lower-income Arkansans. It was created after the U.S. Supreme Court ruled that states could choose whether or not to use Obamacare dollars to expand their Medicaid populations. A lot of Republican-leaning states said no. Arkansas said yes by creating the private option in 2013.

It’s hugely controversial. Opponents say it’s Obamacare, which it is.

Why does it exist here? Lake View may be one of the reasons. Because so many state dollars were tied up in schools, perhaps Arkansas was a little more willing to accept federal dollars for health care.

The decisions made by Supreme Court justices in the Lake View case have colored every area of state government for much of two decades, and will do so moving forward. That why Supreme Court justice races are so important.

So let’s return to March 1, when voters will have four choices for two slots. In the chief justice’s race, current Associate Justice Courtney Goodson faces Circuit Judge Dan Kemp of Mountain View. Goodson has been an associate justice since she was elected in 2010 (and is now one of four female justices on the seven-person court). She previously served two years on the Arkansas Court of Appeals. Before that, she was a law clerk at the Arkansas Court of Appeals from 1997 to 2005. Kemp has served 29 years as a circuit judge and 12 years as a drug court judge. He also served nine years as a municipal court judge.

For associate justice position 5, Circuit Judge Shawn Womack of Mountain Home faces attorney Clark Mason of Little Rock. Womack was elected a circuit judge in 2008. Prior to that, he served 10 years in the Arkansas Legislature, including as chairman of the Joint Budget Committee. Clark Mason is an attorney and former president of the Arkansas Trial Lawyers Association.

By the way, after this election, there will be no justices left on the Court who ruled in the Lake View cases. The issue of school funding – again, 42 percent of the state’s general revenue budget – might come up again. Just saying.

Related: Still want to elect judges?

Still want to elect judges?

Hand with ballot and boxBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

There are times when the work of journalists doesn’t really change much, and there are times when it might help. This might be one of those times when it helps.

I’m referring to the Arkansas Democrat-Gazette’s recent series detailing how six class action law firms, all but one based out of state, have contributed $296,000 in campaign funds to current Arkansas Supreme Court justices, and then argued cases in front of those justices, winning more than they lose. A partner in the one Arkansas firm, John Goodson, is married to Associate Justice Courtney Goodson, who recuses from cases involving his firm.

Justices must raise money like any other candidate, and most probably don’t like it and do the best they can within an imperfect system. Still the series has called into question whether they are being unduly influenced by those donations. 

The larger question is whether judges should be elected at all.

Americans have come to accept that legislators and executive branch officials raise money from interest groups and then give them something in return. We don’t like it, but we apparently can live with it.

But the idea of the judicial branch potentially being for sale is a little harder to accept. Someday we might be the one sitting in a courtroom facing an opponent who gave that judge a big donation. And now, thanks to the U.S. Supreme Court, judges can receive even more of those helpful dollars, and from more sources that can remain as anonymous as they want to be.

Electing judicial candidates has always been awkward because it’s the branch that’s supposed to worry about the law rather than popular opinion. Traditionally, candidates have refrained from describing their specific views in order to maintain their impartiality when they hear a case. That practice made it hard for voters to make an informed choice, but at least it lessened the politicization of the courts.

But with more at stake and more dollars involved, the justice system is becoming more political. For example, a 2014 Supreme Court race involved an ugly and misleading ad funded by an outside group against the losing candidate who had once done his duty as a court-appointed attorney for a sex offender. Another example occurred last year, when the Supreme Court stalled in making a potentially unpopular ruling on the state’s gay marriage law until the U.S. Supreme Court bailed it out and made the decision for it.

The issue is especially timely because, in less than a month, Arkansas voters will elect two Supreme Court justices. For chief justice, Goodson faces Circuit Judge Dan Kemp of Mountain View. For associate justice position 5, Circuit Judge Shawn Womack of Mountain Home faces attorney Clark Mason of Little Rock.

These two races together are arguably as important to Arkansans as the 2014 governor’s race. But in that race, most voters probably had a pretty good idea who they were voting for. Enough dollars are flowing into judicial candidates’ races to call their impartiality into question, but not enough to really introduce the candidates to the voters.

What should be done about all this? The Arkansas Bar Association has appointed a task force to study the issue. A group of legal types, including two retired Supreme Court justices, has created a privately funded effort to try to correct misleading advertisements and to provide information about candidates through a website, www.arkansasjudges.org, that doesn’t offer much yet. Gov. Asa Hutchinson has questioned if appellate judges – the Arkansas Supreme Court and the Court of Appeals – should be appointed, as they are at the national level.

That’s an imperfect solution, too, because it could give the governor a lot of power. However, there are ways to make it less imperfect. In Missouri, the governor appoints from a list of three candidates provided by a judicial commission, and then, at the next election, the voters decide if the judge should be retained. If not, which has only happened twice, then the process begins anew.

State Rep. Matthew Shepherd, R-El Dorado, introduced a constitutional amendment in the 2015 legislative session to create a similar system in Arkansas, but it didn’t make it. Maybe 2017 will be different.

For now, we’ll still elect our Supreme Court justices the same way we do now – two of them, in fact, on March 1. Know which ones you want to vote for yet?