By Steve Brawner
© 2014 by Steve Brawner Communications, Inc.

Should legislators be entrusted with more power at the expense of the governor and state agencies? You’ll decide by voting yes or no on Issue 1.

The proposal would amend the Arkansas Constitution so that all state agency administrative rules would require approval by a legislative committee before they could go into effect. The committee could make those approvals during legislative sessions or during the interim between sessions. According to the text of the amendment, the Legislature would define how that process occurs.

If I were arguing in support of Issue 1, I’d say this: The Legislature is state government’s most democratic institution. It’s the most transparent and the closest to the people. For average Arkansans, administrative rules hatched by state agencies often are no different than laws: It’s still the government telling us what we can and cannot do. Any new such potential restriction of our liberty should be approved by elected representatives reflecting the will of the people.

Why vote against Issue 1? There are practical and constitutional concerns.

The obvious practical concern is that it will lead to too much legislative meddling and too much politics in day-to-day administrative activities.

Might legislators hold hearings, for example, about when hunting season begins? Certainly – not just about the day, but about the hour. Maybe even the minute.

Legislators generally serve the state pretty well, but sometimes they involve themselves in areas that really aren’t their business and where they aren’t experts. Even though it’s a part-time job, they already gather for regular sessions, fiscal sessions, special sessions, and committee meetings. How could these busy, part-time public servants possibly consider every state agency rule with any sort of competence? Sometimes the details should be left to the full-timers.

The constitutional concern is that Issue 1 fundamentally changes state government’s power structure.

First, it alters the separation of powers between the Legislature and the governor by involving legislators in day-to-day decisions that traditionally have been handled by the executive branch.

Moreover, it potentially gives a lot of power to a few people. In the Legislature, committees are very important, but not all-important. Bills must pass a committee in order to advance, but ultimately both the House and Senate must vote yes or no, followed by the governor’s signature. If Issue 1 passes, the buck stops with “a legislative committee.” What committee, and who will serve on it? The amendment says only vaguely that the Legislature “may provide by law” for one.

This amendment isn’t necessary. If its purpose is to ensure state agencies function democratically, those mechanisms already exist in most cases. Most agencies are under the authority of the state’s governor, elected statewide by voters from Crossett to Bentonville. Agencies hold public hearings where regular Arkansans can comment on proposed rules. Finally, the Legislature already exercises power over state agency rule-making. It funds the agencies. It can write laws that prohibit bad rules from being enacted in the first place. If it doesn’t like an agency’s rule, it can pass a law overturning it.

I started this column by asking if legislators should be entrusted with more power at the expense of the governor and state agencies. Actually, none of them are supposed to be fully trusted in a democracy.

The current system of checks and balances allows that distrust to be exercised in a healthier way than this proposal would. The way it is now, state agencies do their job under the leadership of the governor, while the Legislature has the first say and the last say through the laws it writes. Issue 1 moves that needle too far toward the Legislature and will cause more problems than it will solve.

I’m voting no. You?