Columns » Max Brantley

Pork barrel III

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Mike Wilson, the Jacksonville lawyer and former state representative, for the third time last week won a victory for the Arkansas Constitution and taxpayers and set back pork barreling. The Arkansas Supreme Court, in a 5-2 decision, ruled unconstitutional a legislative money laundering scheme to get around past Wilson victories against legislative use of state surpluses in the millions.

Before Wilson and his lawsuits came along, the legislature spent up a surplus fund with specific appropriations — say, street lights for Bigelow (really). Such expenditures were, in many cases, to be unconstitutional local legislation. The legislature can spend money on projects of statewide benefit (colleges are a good example) but not for strictly local things like the Boys Club or garden club. Why should an Ashley County taxpayer foot the bill for the Little Rock Boys and Girls Club?

But legislative hunger for pork could not be denied. They developed a new scheme, appropriating millions for "grants" to the state's regional planning and development districts, which ostensibly exist to help economic development. This was just a ruse. Each legislator got an equal amount of money and could tell the regional district in which he or she resided how to spend it. Some of it, arguably, had a legitimate state purpose. Some of it — a fireworks show, football team warmups, a "gala" for a local institution, Boys and Girls Club grants — clearly amounted to an indirect way to deliver unconstitutional local pork. Most legislators refuse to understand this because they love being photographed in local papers holding oversized checks symbolizing their gifts of taxpayer money.

Wilson (who works pro bono on these cases) sued again. This time, he suffered a loss before Circuit Judge Chris Piazza. The state law didn't say how the money was to be spent — beyond "grants" — but Piazza bought the argument that you could read that appropriation in concert with other laws establishing the planning and development districts and their ostensible purpose to spur the economy. Wilson appealed. The Supreme Court majority agreed on one key point: A Supreme Court decision in an earlier Wilson challenge said the legislature must specify "how" money is to be spent. Authorizing grants to planning districts wasn't enough.

But, significantly, the court said its decision on faulty appropriation language meant it did not have to reach another important question raised by Wilson. Was the spending unconstitutional local legislation? Ominously, two dissenters, Justices Rhonda Wood and Shawn Womack, went out of their way to declare this post-laundering pork barreling was NOT local legislation. We don't know how the five-person majority feels on this question. If two of them agree that money laundering (with sufficient verbiage in the appropriation bill about a system of planning district allocations) cures the "local legislation" objection, the legislature could someday be back in business.

Legislators are already talking about developing a new pork work-around. What would be wrong, they say, with projects funded from a rainy day fund given entire legislative approval?

For one, this would only reinstate the old process — street lights for Bigelow. For another, a legislative declaration that a Benton fireworks show is state, not local, spending doesn't make it so. Or at least not under existing court precedent. But Wood and Womack, both Republicans at heart and ever obedient to the legislature, have already signaled that they're willing to go along. Wilson's victory — big as it was — might prove fleeting if there are two more of like mind in the majority that decided this case.

If pork barreling resumes it will at least be good news for reporters. Egregious waste and corruption will soon follow. See the pending federal trial of two former legislators for taking kickbacks from hundreds of thousands in tax money they and other Republican legislators guided to a Bible college in Springdale. Christians need an education, said one obtuse legislator in defense of this spending, an outrage even without the kickbacks. Legislators, too, I'd add.

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