Columns » Jay Barth

Legislative power grab

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While most of the headlines about the recently concluded Arkansas General Assembly have focused on expansion of access to health care, new limits on abortion and a flurry of tax cuts, perhaps the most dominant theme of the recently recessed legislative session was the legislature's efforts to limit the power of the executive and judicial branches of government in Arkansas and to expand its own power. If all the changes proposed are ultimately adopted, it would signal a troubling erosion of that grandest of constitutional principles — separation of powers.

Across the weeks of the legislative session, proposed legislation threatened the state's executive and judicial powers as well as the voters' ability to use the initiative process (a practice that ratchets up the checks and balances of the federal model by giving voters this paramount power). The forces pushing these changes were complex — with interest groups in the lead on the most important ones. No matter, if ultimately successful, these forces threaten to fundamentally alter Arkansas's state government by shifting power to the legislative branch.

Most troubling was the effort to usurp rulemaking authority of the state Supreme Court in the name of "tort reform." SJR5, which surprisingly failed on a tie vote in committee, would have granted the General Assembly the ongoing power to supersede judicial rules regarding the operation of all courts in the state, a fundamental power of the judicial branch under the concept of separation of powers. Despite its failure in committee, the pro-tort reform advocates appear primed for another push to weaken the courts' self-regulation in favor of the legislature through an initiated constitutional amendment.

Several efforts were made to limit one of the governor's most important formal powers — to appoint members of state boards and commissions. While these efforts also failed, the legislature did accept as one its three proposed constitutional amendments a measure that would require the approval of any executive branch regulation by a legislative committee. While the legislature currently has de facto power over such rules through pre-implementation review and has the ultimate power to trump rules through legislation, this amendment would intrude into the "execution" of the laws by the branch given that responsibility by the Arkansas Constitution.

The legislature successfully limited the power of the people to create laws through the passage of SB821 that will complicate the petition process by sharply heightened scrutiny of signature gathering at all stages of the process. But this legislation is less of a threat to direct Arkansas democracy than a proposed constitutional amendment making it harder for citizens to secure sufficient time to gather signatures, a tool that has been essential to most recent initiative efforts.

As the General Assembly worked to limit the powers of other branches of government and the people, it was taking steps to expand its own relative power through extending term limits to 16 years and through a pay increase plan (in a constitutional amendment including this and other power-enhancing reforms under the umbrella of "ethics"). While the term limits and pay measures are justified as a means of professionalizing the General Assembly, they appear less healthy to state governance in the context of a general effort to shift the governmental balance of power.

In the late 1700s, advocates for the ratification of the U.S. Constitution emphatically promoted separation of powers as a unique, stabilizing force in the American experiment of governance. "If angels were to govern men, neither external nor internal controls on government would be necessary," James Madison wrote in Federalist No. 51. But "[i]n framing a government which is to be administered by men over men," Madison wrote, "the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

The General Assembly got only partway in its efforts to tilt the balance of power toward itself and away from the executive and judicial branches and the people themselves. But the Arkansas electorate could still accomplish much of what the legislature did not if it passes an array of constitutional amendments before them in the fall of 2014. We have yet to see how far Arkansas may wander from the core principles of separation of powers passed down by the country's founders, and how much it may limit the power left to the people themselves.

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