Would more uncertainty about whether the legislature will slay the private option for Obamacare bother anyone? Let's try anyway.
As every Arkansan knows, a knot of nine or 10 senators plan to vote against the appropriation for the fiscal year that starts July 1 and end Medicaid in Arkansas. The Constitution seems to allow a tiny minority to block an appropriation supported by huge legislative majorities.
Here's the added uncertainty: The legislature can pass the appropriation by a majority and not the three-fourths vote of each house that has been the story thread for the past year.
Mind you, that is only an opinion, and not one from an appellate court, but one that nevertheless has some standing in the law. The Constitution is confusing as are the few court decisions that have tried to make sense of it.
It is a view that some would rather not ponder publicly for it might take the heat off those who have vowed to block the private option, even if it ends Medicaid and throws thousands out of nursing homes and leaves hundreds of thousands of Arkansas children, pregnant women, blind and disabled people with no resources to pay for medical care.
The nine or ten can say, "Hey, Medicaid funding might be authorized by a majority vote, so I can vote 'no' without harming a fourth of the population of Arkansas."
But let's raise the question anyway.
It starts even before our hero, Gov. J. Marion Futrell, comes on the scene in 1933. The 1874 Constitution said the legislature could pass appropriations by a majority as long as the money paid for schools, just debts and the state's necessary expenses or repelled invasions and insurrections. Anything else took two-thirds. But there was no reliable definition of just debts or necessary expenses. There still isn't.
Futrell took office in 1933 and put Amendment 19, which he had written, to the voters. It said a majority could pass appropriations as long as they spent taxes that were levied to pay for education, highways, Confederate pensions or the state's just debts. Other spending would need three-fourths.
Well, all the taxes going into the general fund pay mostly for education, so you could argue logically that all appropriations from general revenues (like state Medicaid funds) need only a majority, but the Supreme Court has not extended it that far.
After Futrell got his amendment ratified in 1934, his philosophy changed overnight when President Roosevelt threatened to cut off all aid to Arkansas. From rabid foe of taxing and spending he became a pleader for more of them. The legislature obliged.
But a number of his spending bills couldn't get the three-fourths majority in one house or the other. On one day the Senate passed seven appropriations that were not for schools, highways or Confederate pensions but fell short of the three-fourths vote. Lt. Gov. Lee Cazort declared them passed anyway as just debts or necessary spending. His view was that Gov. Futrell wrote Amendment 19 and if he did not think the bills got enough votes he could not sign them. Futrell signed them.
A legal test came in 1989, when a handful of mavericks in the House called "the white lights" kept the appropriation for executive offices, the legislature and the courts from getting 75 votes. Under Amendment 19, the general appropriations must be signed into law before the legislature can pass any other appropriations. The speaker declared that it was a just debt and needed only a majority.
A lawsuit followed and 11 days before the new fiscal year began, a special Supreme Court appointed by Gov. Clinton (the seven elected justices recused because their salaries were paid under the challenged act) voted 6 to 1 that the bill had needed 75 votes and thus all 500 or so appropriations were invalid. Clinton called the legislature into a hasty session to pass the general appropriation and all the others again.
The special court tried to make sense of the muddle of opinions deciphering "just debts of the state" and "necessary expenses of the state" and made a worse muddle of them. Six of them posed the hopeless logic that even if the spending bill was for "just debts of the state" it somehow still took three-fourths despite Amendment 19. They misread the amendment to say all two-year appropriations over $2.5 million required three-fourths.
The seventh special judge, Lonnie Turner of Ozark, said they were plainly wrong. The bill took only a majority because it was for the "necessary expenses of government."
The court had always held that the legislature should be allowed to determine what was a "necessary expense of government." Would health care be deemed one? A huge majority of the legislature would say yes.
Arkansas has enacted laws obligating the state to subsidize the medical expenses of many categories of vulnerable citizens from the elderly poor to children. Should there be a lawsuit, it is hard to imagine that an Arkansas court would not hold it to be a just debt or a necessary expense.