The Times They Are A Changin’

Editor’s note: The author of this article, John Brummett, is a regular columnist for the Arkansas Democrat-Gazette. This analysis appears in the latest magazine edition of Talk Business & Politics, which you can read here.

At first it sounded like an arbitrary idea – this one coming from the publisher.

Why would we compare and contrast data from the Arkansas General Assembly of 1985 with data from the legislative body that will assemble post-tidal wave this month? Other than the nicely rounded figure of a 30-year interval, what was the supposed context?

That was before the data spoke for itself and loudly.

And what it shouted was that the Arkansas General Assembly was a certain species in 1985 and is an entirely different species in 2015.

Evolution has met revolution. The result is that this is not your father’s state legislature.

QUITE A CHANGE
First thing first, to put on the table something we already know but which is startling to behold just the same: The 75th General Assembly of 1985, meeting in the heyday of Bill Clinton’s governorship and one-party Democratic rule, contained 126 Democrats and nine Republicans. The Legislature gathering this month will be composed of 47 Democrats and 87 Republicans.

Let’s put that another way: There will be 79 fewer Democrats than in 1985 and 78 more Republicans (and 79 as soon as Pope County voters get around to the special election to replace Asa Hutchinson’s chief of staff, former state Sen. Michael Lamoureux.)

The second thing, also already known but as startling to behold: The 1985 General Assembly met seven years before Arkansas passed the most restrictive term limits amendment in the country, one relaxed in the recent election. So it happens that the 75th General Assembly of 1985 reveled not only in the heyday of one-party Democratic rule, but also in the latter days of old-timer rule.

The average service of a legislator in 1985 was 9.27 years. The average service arising from term limits as blended with the tidal wave of Nov. 4 is 2.8 years.

Committee chairmanships in 1985 represented self-perpetuating legacies of veterans – Sens. Max Howell with 38 years of experience and Clarence Bell and Knox Nelson with 28 and Ben Allen and Bud Canada with 26 and Doug Brandon with 22; and Reps. Charles Stewart and Jim Shaver with 30 and Ode Maddox with 28 and John Miller and Nap Murphy with 26 and Bill Foster with 24 and Lacy Landers and Lloyd George and John Paul Capps and B.G. Hendrix with 22.

Senior Republican members, not simply the senior members, generally fill Senate chairmanships now. House chairmanships are the unilateral purview of the House speaker – Republican Jeremy Gillam of Judsonia, a mild-mannered farmer possessed himself of four whole years of experience.

The speaker now builds and installs his own team and functions with infinitely more autocratic authority than did the mostly ceremonial speaker of 1985 – Lacy Landers, memorable as speaker mostly for saying hundreds of times: “Prepare the machines, Mr. Clerk; let’s everone (sic) vote.”

MORE SMALL BUSINESS OWNERS
The most obvious occupational/professional shift in legislative membership from the term-unlimited Democratic days of 1985 to the term-limited Republican ones of 2015 is interesting and significant. It’s from lawyers to persons running their own small businesses.

There were 21 attorneys in the 1985 legislative body. There are 13 now.

There were 37 small business owners in 1985. There are 52 now.

In fact, a majority of the state Senate – 18 of the 35 – held law degrees in 1991. That’s compared to four now.

Why has that changed so starkly?

As it happens, a good person to ask would be Morrill Harriman. He was, in 1985, a 33-year-old freshman Democratic state senator from Van Buren. Now he departs state government this month after serving as chief of staff to his best friend, the outgoing governor, Mike Beebe. The latter role required him to work closely with this revolutionized modern Republican legislature. For good measure, he is a lawyer.

The explanation, Harriman said, is that both legislating and lawyering have changed.

Harriman paused, searching for a better way to put what he eventually went ahead and expressed as it first occurred to him: The practice of law is now more consumed, he said, with “CYA,” meaning covering your posterior, which requires lawyers to ride herd more personally on matters rather than delegate as generously to executive assistants as they once did. At the same time, Harriman said, the changing culture of legislating has made legislative service more time-consuming. So lawyers are eschewing legislative service in droves.

Self-employed persons or small business owners are replacing them. They seem better able to arrange their own schedules, delegate to others and manage from a distance.

In ’85, Harriman said, the Senate adjourned at noon most Thursdays. Now it often works beyond that. In ’85, he said, interim committees – those meeting at the Capitol when the Legislature was not actually in session – were dominated by a few old-timers. Today, the interim committee culture is more active and dramatically more inclusive.

Interim committees meet with greater frequency nowadays on the logical assertion that the inexperienced legislators of the term limits era need more time to get educated on state government. Expenses now get reimbursed to non-members of interim committees who show up essentially to audit these meetings and presumably educate themselves. It is a system that is more costly in the payout of legislative expenses, and, as such, it stands vulnerable to abuse. But it also makes conceptual sense that term-limited legislators need to be encouraged to engage more deeply to learn more and faster.

For that matter, a byproduct of restrictive term limits is that legislators have reached for a greater government role, producing an irony: Their purpose seems to be protecting the legislative branch from the natural weakening of inexperienced membership – or compensating for that weakness. But the effect has been for the inexperienced legislature to wrest power questionably and ominously from the other conceptually co-equal branches.

LEGISLATIVE CONTROL
By a new amendment voters approved on Nov. 4, this new legislature will take charge of approving – not merely reviewing – all state agency rules and regulations. That is a rather dramatic legislative usurpation of traditional executive discretion.

Meanwhile, efforts are ongoing to effect some kind of so-called tort reform by which the judicial article of the state Constitution might be rewritten in a way that would lessen the judiciary’s independence from the legislature.

But what is the day-to-day effect on a legislative session of reduced engagement by lawyers?

A good person to ask is David Matthews. He was a rising 33-year-old second-term Democratic state representative from Benton County in 1985. In those days, David Pryor extolled Matthews – engaging and smart and gifted in oratory in a Baptist pulpit kind of way – as the future of the Democratic Party. After a fashion, that’s what Matthews turned out to be. Along the way he abandoned electoral politics to practice law and occasionally lobby for the Southwestern Electric Power Company. And along the way, Arkansas voters abandoned Democrats.

Matthews, who spent eight years in the House in the 1980s, said there was one thing that was true in his day and remains true now: The key to legislative success is to have more knowledge than the next guy on the intricacies of the state budget and the esoterica of parliamentary and other rules of the legislative process. He said lawyers have the advantage of more relevant professional training, at least for mastering the rules and esoteric procedure.

By 1985 in his second term, Matthews was already applauded for his legislative skills. By 1987, in his second term, Harriman was shepherding legislation to pass a complete rewriting of the state’s corporate code of laws.

Clearly, influence and expertise can be achieved quickly, even within strict term limits, if, that is, one is talented and ambitious and well connected . . . and perhaps a lawyer, though not necessarily. State Sen. Jonathan Dismang, the incoming Senate president pro tempore, and state Sen. David Sanders, key architects in the term limits era of the private option form of Medicaid expansion, are not lawyers. Nor was former state Rep. John Burris, prominently in league with them.

MORE MINORITIES, MORE WOMEN
There are two clearly positive developments since 1985: The Legislature then had 10 women and five African-Americans while the Legislature convening this month contains 27 women and 15 African-Americans.

The gain in female membership seems to be a mix of factors. Term limits have opened more opportunities more regularly. The women’s political movement has made advances. And the heightened investment of time needed for legislating in the term limits era has deterred a few male professionals from interrupting their career work for a short exercise in public service. That has opened doors in a few cases for politically active women who had more time to devote more readily to running and serving.

As for heightened African-American representation since 1985, that mostly has to do with a lawsuit resulting in a federal court ruling in 1989 that the state was arbitrarily diluting black voting strength. The court ordered the creation of new legislative districts, called “majority minority districts,” that consolidated black voting strength.

PLAYING CHARADES
What does all this change mean and portend on substance and policy?

Maybe less than meets the eye. Maybe exactly as much as meets the eye.

“No one could say that any Arkansas legislative body in our time was anything other than extremely conservative,” Harriman said.

The difference, he said, is that the extreme conservatives of 1985 were nominally Democratic and inclined to go along with their Democratic governor on compromised solutions – and able in the comfort of one-party dominance to act on occasion to put the general interests of the state above personal political worry.

Conversely, the extreme conservatives of 2015 are Republicans tending to fret for their re-elections less about Democratic opponents than about challengers from their right flanks in Republican primaries.

In 1985, the most contentious issue was an increase in motor fuel taxes for a rural road program. Clinton felt a political need to veto the bill to keep a promise not to raise taxes. But he essentially acquiesced to a pre-ordained legislative override of his veto. It was a bit of a charade.

Some things don’t change much. In 2015, Gov. Asa Hutchinson needs to pass reauthorization of the private option form of Medicaid expansion. But he will have to re-brand the proposal somehow if he is to have any hope of support from legislators of his own party who vowed to vote against it. It likely will present a bit of a charade as well.

What will certainly change, Harriman said, is that the last vestiges of institutional memory are now at last retiring from active roles in state government. He means himself, Beebe and veteran bureaucrats at the state Department of Finance and Administration like Richard Weiss, who served governors named Clinton, Frank White, Jim Guy Tucker, Mike Huckabee and Beebe.

“So the full effect of term limits, whatever that full effect is going to be . . . we’re now going to see it,” Harriman said.

More than that, we’re now going to see a powerful seeming dichotomy: We’ll have an uncommonly inexperienced Legislature, which would seem to enhance the reliance on, and power of, veteran special interest lobbyists. But voters approved a constitutional amendment in November outlawing the traditional practice of lobbyists spending to entertain legislators with food and dink and favors.

And what might be the effect of that combined dynamic?

Matthews – occasionally a registered utility lobbyist– takes this stab at an answer: He said people don’t begin to understand how busy a legislator’s day can get during sessions. He said the oft-demonized practice by which registered business lobbyists took legislators to dinner in the evenings to explain the complexities of business-related legislation – which could indeed be abused by some, he admits – was, more often than not, valuable toward an orderly and informed legislative process.

In that vacuum, Matthews said, we should fear the rise of a general influence of superficial and ideological groups like the Tea Party.

Harriman, who did a stint as the state’s leading poultry lobbyist . . . well, he agreed with Matthews, though he seemed to think lobbyists would come to rely on providing dinners not for one or two legislators at a time, which would be unconstitutional, but through invitations to entire committee memberships, thus legitimate government bodies. Those would be permissible – and, on the House side, rather expensive. Those are large committees, big enough to mount a run on Sonny Williams’s sirloin-strip supply.

The thing about vacuums is that power abhors them, or so they say.

There was no vacuum in 1985. Power was vested in old-time legislators and a wily young Democratic governor.

But, in 2015, we have a rookie governor served by rookie bureaucrats working with rookie legislators who will be lobbied by the only veterans in the state Capitol’s cast of characters. But those veterans won’t be able to take the rookie legislators to dinner per usual.

All of that is to say that a veteran state Capitol observer from the press can more easily remember 1985 than he can imagine 2015.