The Legislative Review: 82 days at the Arkansas Capitol

Do you remember, not so long ago, when the private option was supposed to be the legislative session’s most controversial issue? That was before anyone had heard of “re-homing” or thought much about what a state Religious Freedom Restoration Act would look like.

A lot can change in 82 days – a short session by recent historical standards. And a lot can change when legislators consider 2,200 bills, pass 1,288 of them into law, and vote to spend $5.18 billion for fiscal year 2016, an increase of $133 million over the year before.

When the session began, it was unclear what Gov. Asa Hutchinson would do with the private option – the program that uses federal Medicaid dollars through the Affordable Care Act to purchase private health insurance for lower-income Arkansans. The program had barely mustered enough votes to be created in 2013 and had barely survived the fiscal session in 2014, and it didn’t seem to have the votes this time. But it also brings in a billion federal dollars to the state’s economy, which Hutchinson needed if he hoped to pass the middle class tax cut he’d promised Arkansans during the 2014 campaign.

So he bought time.

During a speech at UAMS on Jan. 27, Hutchinson asked the Legislature to fund the private option for two years while it studied the issue in the context of overall healthcare reform. The idea passed easily in both the House and Senate. Hutchinson’s nephew, state Sen. Jim Hendren, R-Sulphur Springs, a private option opponent whose stance has become more conciliatory, sponsored Act 46 creating the task force and is co-chair along with state Rep. Charlie Collins, R-Fayetteville.

TASK FORCES
Appointing task forces and study commissions became one of the most effective tools in Hutchinson’s toolbox. He diffused another controversial issue – the Common Core – by appointing a 16-member review panel chaired by Lt. Gov. Tim Griffin to make recommendations on how Arkansas should proceed with the education standards. The standards have become a lightning rod for some conservatives who believe they are an example of federal overreach.

Originally there were 24 states in the Partnership for Assessment of Readiness for College and Careers, a testing consortium meant to compare students across state lines. That number has dwindled to nine, and a bill was advanced by state Rep. Mark Lowery, R-Maumelle, to require Arkansas to exit the consortium as well. Instead, the bill was amended so that it limits Arkansas to maximum one-year contracts.

Hutchinson also promised to appoint a task force to study highway funding after a bill he didn’t support advanced out of the House Committee on Public Transportation that would have transferred some general revenues to highways. Under Hutchinson’s gentle persuasion, the sponsor, state Rep. Dan Douglas, R-Bentonville, agreed to kill the bill, but Hutchinson said he would appoint the task force and hinted that a special session on highway funding could be in the state’s future.

TWO TUMULTUOUS ISSUES
There was no way to buy time on the two issues that drew the most attention this session. The first came about when the Arkansas Times broke the story about state Rep. Justin Harris, R-West Fork, informally transferring guardianship of his two young adopted daughters to a former employee of his day care who then sexually abused one of them. Harris continued receiving state payments as an adoptive parent, though he said he forwarded that money to the girls’ new family.

The practice of “re-homing” an adopted child was perfectly legal, but rare. Many called for Harris to resign, which he did not do. Instead, he leveled charges that the state Department of Human Services had failed to provide his family needed support and had threatened him with abandonment charges if he returned the children.

Though Harris did not resign, the Legislature quickly passed a law making re-homing without court approval a felony under Act 1092 by state Rep. David Meeks, R-Conway. Harris voted for the bill. The law does not apply in certain circumstances, such as placing the child with a relative. The bill also clarified that “abandonment” does not apply when a child has disrupted the adoption and parents have exhausted their available resources. Act 1018 by state Rep. Greg Leding, D-Fayetteville, directs DHS to create rules for post-adoptive services.

Just as the furor over re-homing was dying down, one regarding the Religious Freedom Restoration Act exploded. House Bill 1228 by state Rep. Bob Ballinger, R-Hindsville, said state government could not substantially burden a person’s exercise of religion without a compelling state interest. Opponents saw it as granting licensure to discriminate against gays and lesbians.

LOOKING FOR A WAY OUT
Arkansas found itself at the center of a national controversy along with Indiana, which earlier had passed its version into law. Walmart and Acxiom, both Arkansas-based companies, publicly opposed the bill. The Human Rights Campaign bought a full-page ad in the San Jose Mercury News, which serves Silicon Valley, declaring Arkansas was “closed for business due to discrimination.” Activists shouted “shame on you” at Ballinger and other legislators as they left a House committee room March 30 and then lined the steps leading to the House chamber with signs as legislators prepared for the afternoon session.

With the bill sitting on his desk, Hutchinson, who earlier had supported it, called on legislators to recall it and send him a different one that mirrored the federal Religious Freedom Restoration Act signed by President Bill Clinton in 1993. During a press conference April 1, Hutchinson said that his own son, Seth, was opposed to the legislation. Looking for a way out of the controversy, the Legislature quickly passed Act 975 by Hutchinson’s nephew, state Sen. Jeremy Hutchinson, R-Benton, which is similar to the federal bill. However, the debate over gay rights, discrimination, and religious freedom isn’t going away.

This was a historic session. For the first time since shortly after the Civil War, a Republican governor worked with a Legislature composed of Republican majorities – 64-36 in the House, 23-11 in the Senate, with one vacant.

Republicans were determined to demonstrate that they could govern, and as part of doing that, they followed the governor’s lead on issue after issue – the private option, Common Core, the highway funding bill, the Religious Freedom Restoration Act. Meanwhile, Hutchinson had no trouble passing his signature campaign proposals – a 1% income tax cut for Arkansans earning between $21,000 and $75,000, and a requirement that high schools teach computer science courses.

PROPOSED AMENDMENTS
For a while, it appeared that legislators might not refer any proposed constitutional amendments to voters, until Hutchinson made it clear he supported one that would allow him to keep his powers when leaving the state, rather than them being transferred to the lieutenant governor, and another that would increase the fund that Arkansas uses to attract economic superprojects, such as auto plants.

Those proposals now will be on the ballot, along with a third that would increase county officials’ terms from two to four years.

Asked about his run of success this session, Hutchinson said April 9, “The strength of the governor is from the respect of the office and the recognition that we need to have a leader, and also the desire to have the governor succeed. And so that’s impressed me, and that’s not a Republican thing. That’s a Republican and a Democrat thing. Democrats who opposed me, they not only said it, but they showed it in actions that it is important for Arkansas that the governor succeed.”

This also was the first session where legislators operated under Amendment 94, the so-called “ethics amendment” passed by the voters in 2014, which among other provisions was supposed to limit gifts by lobbyists to legislators. Instead, lobbyists took advantage of a provision in the amendment allowing them to provide legislators gifts such as meals as long as they were planned events serving official government bodies.

The amendment also extended term limits for legislators from three two-year terms in the House and two four-year terms in the Senate to 16 years overall – up to 18, in fact, for some. Speaker of the House Jeremy Gillam, R-Judsonia, who before the amendment would have been term-limited, recently announced he is running for re-election to that post. His fellow Beebe High School alum, Senate Majority Leader Jonathan Dismang, R-Searcy, has not yet announced if he also will seek re-election to his position.

The ethics amendment also led to a pay raise for legislators. The Independent Citizens Commission created by the amendment increased legislative salaries from $15,869 to $39,400 and also increased the salaries for all statewide elected officials except the lieutenant governor. The governor’s salary, for example, will increase from $87,759 to $141,000. Legislators did agree to do away with a $14,400 office expense account used by many as a supplemental salary. They still will receive daily per diem expenses as well as mileage reimbursements.

WORKFORCE LEGISLATION
The Legislature also passed what Hutchinson described as “foundational” changes to the state’s workforce education efforts. Among those was Act 892 by state Sen. Jane English, R-North Little Rock, who in 2014 switched her vote on the private option from a “no” to a “yes” in exchange for a promise from then-Gov. Mike Beebe to focus on the workforce issue.

English – along with others such as the Arkansas State Chamber of Commerce – argue that the state’s education system must better prepare students for jobs that exist in the workforce. Act 892 creates the Office of Skills Development within the Department of Career Education to award workforce training grants to public and private organizations.

It also establishes a Career Education and Workforce Development Board composed of representatives from various industrial sectors, along with nonvoting members from various state agencies. The board will create a comprehensive program for career education and workforce development and will supervise all vocational, technical and occupational education programs. It and the State Board of Education together will administer state and federal adult education funds.

Hutchinson also sought to make foundational changes to the state’s prison and parole system. With 2,500 state prisoners housed in county jails because of prison overcrowding, the Legislature passed reforms that, among others, will transfer prisoners to a county facility in Texas, require eligible prisoners to enroll in Medicaid for drug and mental-health treatment, fund re-entry programs for prisoners leaving prisons, and create alternative courts for certain types of offenders. Funding was increased to add parole and probation officers. Meanwhile, Act 1096 by state Rep. Douglas House, R-North Little Rock, sets lethal injection protocols that may pave the way for the state to execute inmates for the first time since 2005.

EDUCATION LEGISLATION
Public education received a small funding increase, to $2.12 billion. The financially troubled Arkansas Scholarship Lottery will now be administered by the Department of Finance and Administration rather than the Lottery Commission as a result of Act 218 by state Sen. Jimmy Hickey, R-Texarkana. To save costs, Act 1105 by Hickey directs freshman lottery scholarship winners’ awards to be cut in half, to $1,000, while sophomore awards will be increased from $2,000 to $3,000.

Another noteworthy education law passed this session was Act 377 by state Rep. Bruce Cozart, R-Hot Springs, which lets the Department of Education grant waivers allowing schools that fall below the 350-student minimum to avoid consolidation. Also, Act 525 by Sen. Alan Clark, R-Lonsdale, removed the requirements for the state’s education commissioner to be a 10-year educator, paving the way for Hutchinson’s handpicked choice, former state Sen. Johnny Key, to occupy the post.

As always, social issues attracted a lot of attention this session. Act 1231 by state Sen. Jason Rapert, R-Conway, requires the state to use private funds to build a Ten Commandments monument on the Capitol grounds. Arkansas passed six laws restricting abortion, including Act 139 by state Sen. Missy Irvin, R-Mountain View, which prevents doctors from performing abortions via telemedicine.

State Rep. Nate Bell, R-Mena, and state Rep. Fred Love, D-Little Rock, made several efforts to separate the state’s current same-day commemorations of Dr. Martin Luther King and Gen. Robert E. Lee. When the session began, Arkansas was one of three states that celebrate the civil rights leader and Confederate general on the same day. It still is.

Finally, Act 137 by state Sen. Bart Hester, R-Cave Springs, and Ballinger prevents local governments from creating their own anti-discrimination laws protecting gays and others. It passed easily early in the session, though Hutchinson let the bill become law without his signature because he was concerned it usurped local control. At the time, few had heard of the Religious Freedom Restoration Act, but a lot changed during that 82-day session.