Friday, April 15, 2016

Arkansas Legislative Maneuvering Too Bizarre for House of Cards Script

In an effort to grab as much of the next generation's money as Obama is willing to give them, Arkansas Governor Asa Hutchinson and company resorted to convoluted legislative machinations that I think would be rejected as a "House of Cards" script for being too shady to be considered believable by the audience.

His problem? It takes a 3/4ths majority to pass appropriation bills. That means nine senators can stop an appropriation, if they are willing to take the hits. As of this week, ten were willing and voted down the appropriation for "Arkansas Works" the new name for the Private Option which was the old name for Medicaid Expansion in Arkansas. As an aside, have you ever noticed that honest folks marketing quality products don't have to change the name of what they are selling every few years?

The Governor came up with a plan to get around that obstacle. According to State Representative David Meeks and since confirmed by others, here was the Governor's plan:

1) It fails in the Senate today and gets sent back to Joint Budget.
2) Joint Budget adds special language that kills Arkansas Works.
3) Goes back to the Senate and passes.
4) Comes to the House and passes.
5) Goes to the Governor who then line-item vetoes the language killing Arkansas Works.
6) Veto is not overridden and Arkansas Works is implemented.

So they were going add in an amendment which says "never mind what we said earlier in the bill, Arkansas Works is not funded." That would peel off a couple of the holdouts, which is all he needs to get his 3/4ths majority. Then the plan was to line-item veto the amendment (which he can do on appropriations bills) leaving us with the original language the Senators objected to, but since the veto would not be over-ridden, Arkansas Works would wind up funded.

His complicated plan was hurriedly implemented with little notice to anyone, including the Democrats. That is why it hit a speed bump at step two. The Joint Budget committee failed to approve the amendment killing Arkansas Works. Some Democrats did not want to vote for an amendment to kill the program, even if it was part of a ruse to wind up with the program.

Many of us would consider Sen. Joyce Elliot an advocate for downright moral degeneracy. Well, she did not vote for the Governor's convoluted scheme yesterday basically because she was ethically troubled by how disingenuous it was. Joyce Elliot had too much integrity to be comfortable with Governor Asa Hutchinson's tricksy scheme. Think about that for a minute.

He is going to get another try next Tuesday and I believe he can get the votes to get it out of committee. I also think he will induce two of the ten to vote for the amended bill on the basis that it "kills Arkansas works" even though they know that language will be a dead letter.

Let me be clear: It reminds me of the battle over SB 96 last time. This bill "kills" Arkansas Works like SB 96 "killed" the "Private Option." That is going to be the likely practical effect even though this move might not even be constitutional. The key issue is whether one considers an amendment to cancel an appropriation of money as an appropriation of money. I don't think it is. Cancelling my subscription is not the same thing as subscribing. Here is the section of the state constitution in question:
Article six, section 17
“The Governor shall have power to disapprove any item or items of any bill making appropriation of money, embracing distinct items; and the part or parts of the bill approved shall be the law, and the item or items of appropriations disapproved shall be void, unless repassed according to the rules and limitations prescribed for the passage of other bills over the executive veto.”

So the question ought to be if the section allows the Governor to line item veto any item in a bill making appropriations, or only any appropriation line item in any bill making appropriations? I think its the latter. The Founders never imagined un-appropriation language being added to an appropriation bill and then being line item-vetoed so that the canceled appropriation is re-animated. If confirmed this will be a new Executive Power in Arkansas, never before wielded.

Look, if you read only the blue sentence fragment above and stop reading there, then the Governor's position makes sense. But if you keep reading the red part it indicates to me that the Governor is not granted power by this section to line-item veto a non-appropriation item from an appropriation bill, only the appropriation items. How do I know this? Read the part in red where it specifies that the items of appropriations disapproved shall be void. The part in blue allows for two possible meanings, but the part in red clarifies their intent. The Governor was meant to have line item veto power over the appropriations in appropriations bills. How can they write that amendment so that when it says "kill an appropriation" it is still an item that makes an appropriation? I ask that because that is the only kind of items that I see the Governor actually being authorized to line item veto in this section.


Blogger Mark Moore (Moderator) said...

Now Arktimes has a piece up linking to a couple of AG opinions on the issue of whether this is constitutional from Winston Bryant. The AG opinions say basically what I said here, with similar reasoning.

10:58 AM, April 15, 2016  

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