Abolishing the fiscal session and other possible constitutional amendments

Editor’s note: Justin Allen is a partner with the Little Rock-based law firm of Wright Lindsey Jennings. He leads the firm’s governmental relations group. Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of Talk Business & Politics.
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It has become quite common for states to amend their constitutions at the ballot box, and Arkansas is no exception.

Over the past several general elections, we have been provided the opportunity to amend our governing document in dramatic ways. Such measures appear on the ballot in one of two ways: 1) the General Assembly refers it to the ballot; or, 2) citizens of the state prepare measures and obtain the signatures necessary to place them on the ballot. This piece will discuss the process for the legislative referral, recent measures proposed by the General Assembly and what we might expect in this regard in the 2017 regular session.

Article 19, section 22 of the Arkansas Constitution allows either branch of the General Assembly to propose a measure to amend our Constitution. If a majority of the House and Senate agree, the measure is put on the next general election ballot to be voted on by the people. The General Assembly may not propose any more than 3 such measures during any regular session.

In the 2011 regular session, the General Assembly referred two measures to the 2012 ballot.  The first established a temporary sales tax dedicated to highway infrastructure. That measure passed.  The second was a measure that would have levied a local sales and use tax to support economic development projects. That measure failed.

The 2013 General Assembly referred 3 measures to the 2014 ballot, all of them being fairly significant and all of them passing. The first measure amended the Constitution to require that all administrative rules be reviewed and approved by the General Assembly. The second one adopted requirements for initiative and referendums, the most significant being the 75% requirement regarding signature gathering for initiatives.

Finally, the General Assembly referred the infamous Issue 3, which modified term limits, set new rules for lobbyist gifts and spending and created the Independent Citizens Commission which established new pay for elected officials in Arkansas.

The three measures proposed by the 2015 General Assembly received majority support this past November, as well. Issue 1 extended terms for county officials from 2 to 4 years. Issue 2 amends the Constitution to allow the Governor to retain his power even when he is out of state. Finally, Issue 3 removes the debt cap on Amendment 82 super projects.

In the recent past, bills proposing constitutional amendments have been assigned to the State Agencies and Governmental Affairs committee for either the House or the Senate. In the waning stages of the session, the House and Senate committees would meet jointly to debate the proposals and determine which of them would be sent to the full membership for a vote. As a general matter, the Senate would pick one measure, the House would pick one and if a third one was referred, it was the result of a compromise between the chambers.

For the 91st General Assembly, it appears that the process may change. The procedure that is likely to emerge will forego a joint session of the Senate and House committees. Instead, each chamber will get to send one measure to the floor and then the other end of the Capitol for a vote.  In short, each chamber will get one referral. As for a third measure, that will require an approval of 2/3 of each chamber. This change is based on a belief that the number of constitutional amendments proposed needs to be reined in, including the number proposed by the General Assembly.

So, what can we expect the legislature to refer in the 2017 session?  One measure has already been filed that would abolish the fiscal session. It was filed by Senators Hendren, Bledsoe and Ingram.

Other possibilities include a “tort reform” measure, such as a damages cap, and an appointment process for our Supreme Court Justices, rather than an election. In 2015, almost 40 bills were filed that contained constitutional proposals. As a result, we can expect our legislators to have plenty to discuss again in 2017 when it comes to our Constitution.