Session dynamics: Legislators meet for Gov. Asa Hutchinson’s final session

Editor’s note: The author of this article is a regular columnist for the Arkansas Democrat-Gazette.

Arkansas has barreled so far to the political right that Gov. Asa Hutchinson, who qualified as a right-wing insurgent in the 1980s, will command the left flank in the 93rd Arkansas General Assembly.

Without enough Democrats in the Legislature to block a three-fourths appropriation vote, even if they were bold enough, the competition in this session will pit pragmatic conservatives against unrelentingly ideological conservatives.

Hutchinson — confirmed leader of the pragmatists, or “traditional Republicans” as he puts it — will be protecting his emergency executive powers during the pandemic against legislative pushback based on conservative resentment of masks and behavioral restriction.

He’ll be advancing a hate-crimes bill to modernize the state in the face of a seemingly solid roadblock in the state Senate from members intending, at the least, to remove sexual orientation and gender identity from the groups against whom criminal acts of hate could produce supplemental sentencing.

And he’ll be girding himself for what he, in a recent interview, called “unknown factors” and “unpredictable pieces of legislation.” He has never cared for bills that impose extreme philosophy absent any imperative and distract from the essential governing responsibility.

Hutchinson has succeeded over the years in talking down a few zealous legislators intending to file such measures — a transgender bathroom bill, for example, which would seek to regulate bathrooms and about which, Hutchinson believed, no problem existed needing fixing. But peril loomed from such legislation because of the modern business emphasis on diversity and inclusion.

Talking folks down may be harder now, considering that more ideologically extreme conservatism carried the day in rural Arkansas in November. Beyond that, Hutchinson is a lame-duck governor losing leverage.

He is still saying he hopes to remain in politics but acknowledging that he doesn’t quite know how or where when term limited after 2022. Hutchinson joked that he ought to get an extra year considering the essential virus focus of 2020 that took him away from other agenda interests.

There is the matter of his legacy, which he professes to have no time or inclination to think about amid the essential focus on doing the job during a pandemic. But it’s clear the developing legacy has mostly been about trying to reorganize state government, cut income taxes as much as he thinks he can afford and modernize and grow the state’s economy. And hard-right legislation striking the nation and world as backward conceivably could get in the way of that modernizing.

Hardline conservatives picked up a half-dozen or more legislative seats in the recent election. Meantime, the state Senate has gotten its back up about having obeisantly submitted in recent years to Hutchinson through the president-pro-tempore leadership of the governor’s nephew, Sen. Jim Hendren, R-Gravette.

Hendren once occupied what Republican Gov. Mike Huckabee considered his impractical right flank. Now, Hendren joins his uncle on the left flank. It’s partly the striking shift of Arkansas politics since 2010. But it’s also in part a matter of facing the responsibility to govern.

Hendren will be replaced as Senate leader by Sen. Jimmy Hickey, R-Texarkana, a hard-to-read mixture of personal independence, rough-edged conservatism, budgetary scrutiny and institutional advocacy for the role of the Senate to dispose as it sees fit of what the governor proposes.

Hutchinson basically confirmed these new realities in a recent interview, albeit euphemistically. He said we’d see more in this session from the conservatives “who tend to listen more to the tea party than the broad base of more traditional Republican thought.” He meant “tea party” both specifically in terms of still-vibrant chapters in some parts of the state and generically to refer to hard-right and Trumpian conservatives.

Hutchinson described Hickey as “very independent, very expressive.” He said he has met with the new Senate leader regularly and productively.

“It’s important to him just as it’s important to us to have a successful session. … We know where we can agree and we know where those lines will be drawn,” Hutchinson said.

Hickey said in an interview that Hutchinson “is my governor, too,” and that his working relationship with him is good. But he said he ran for the leader’s position “because I want the Senate to be a more deliberative body, a more detail-type body.” He said the Senate-governor relationship would be “tweaked” more than changed wholesale and there would be “more scrutiny not just of governor’s bills, but agency bills and members’ bills.”

And it’s less a personal matter, he said, than that the Senate membership “is becoming more mature.” Many Republican senators have now been around long enough to understand the role of their institution, he said. For his part, Hickey said, he “had to use GPS to find the state Capitol” when he first got elected in 2012 amid the Republican surge.

Hickey, a farm-raised businessman, rental property owner, and former banker, said the legislative attitude toward the governor’s emergency powers was a good example of the “tweaking” to which he referred. He said senators will want to consider closer ongoing monitoring of the specified powers, perhaps restricting authorizations to a shorter term. He said they’ll consider involving more senators during interim periods than a small committee of leaders.

Hutchinson said he’s amenable to that conversation.

“There are two issues,” he said. “One is my constitutional authority,” vested in the executive powers article of the state Constitution. “The other is the specific legislative grant of authority.” He said he’d welcome a discussion about refining any discretionary legislative delegations of authority.

“But if they want to try to run the Health Department during a pandemic — that’s going to be different,” the governor said.

HATE CRIMES DEBATE
On a bill to make Arkansas the 48th state to pass a hate-crimes law imposing supplemental sentencing on crimes a prosecutor could demonstrate were motivated by hate against groups for being different, the Senate’s most hardened conservatives have stacked themselves on the Judiciary Committee either to block the bill outright or take homosexuality and gender identification out of it. National groups have called for boycotts of states for less than that. Hickey may be aligned with those hard-right senators on that issue.

“I just don’t understand where that came from,” he said of the hate-crime push. “I thought minorities had been fighting all their lives trying to be equal and not be discriminated against, not trying to place any certain type of people above others.”

The bill “has a very, very steep climb” in the Senate, Hickey said.

Hutchinson and Hendren seem determined to charge up that hill with the state’s leading businesses, which share the governor’s interest in a more modern, diversity-supporting state.

“You don’t decline to do something you think you should do out of fear of national embarrassment if you fail,” said Hutchinson, who likened the fight to his eventually successful effort to recognize Dr. Martin Luther King Jr.’s birthday as a stand-alone holiday, disconnected from Robert E. Lee’s.

Perhaps predictably, there is at least one issue on which there appears to be agreement between Hutchinson and his ideological right. That is abortion.

Sen. Jason Rapert, R-Conway, and others will seek in this session to pass Senate Bill 6 to contradict altogether the 1973 Roe v. Wade precedent set by the U.S. Supreme Court of a woman’s right to choose abortion. Rather than trim around the edges of the issue with restrictive and procedural language, the bill simply presumes to remove in Arkansas a federally declared right to abortion, prohibiting it entirely save the lone exception of saving the mother’s life.

The idea is to take advantage of the new 6-3 Republican-nominated majority on the U.S Supreme Court and enact an outright abortion ban in Arkansas that pro-choice groups would contest, surely winning injunctions until the matter would rise to the high court and give it an opportunity to undo Roe v. Wade.

Hutchinson’s standard pro-life view has been strong and consistent for decades. Asked if he, as a lawyer, had any concern about the propriety of a state law openly defying the case law of an in-effect Supreme Court ruling, Hutchinson said his short answer was no.

He likened the repeal of Roe v. Wade to the civil rights struggle. He said any study of the career of Thurgood Marshall, a civil rights lawyer and then Supreme Court justice, would reveal his strategy to repeal discriminatory laws and make different federal case law by fashioning the right cases for consideration by the Supreme Court.

It seems a cinch that the abortion ban bill will pass this General Assembly and get signed promptly by this governor. Just as certainly, it would get sued and enjoined at the federal district court level. In years, it might be the case by which the U.S. Supreme Court would undo one of its three or four most famous rulings.

That surely would make this legislative body and this governor proud. And it would provide a major element of the legacy that Hutchinson says he doesn’t think about.

He was asked about a social media post by a liberal Arkansas historian who predicted that history will record him either as a well-intended man who was overmatched by the pandemic or a governor who allowed too many Arkansas lives to be lost to the virus by miscalculating his priority among business and health interests.

“I’m not going to be frozen in my actions based upon what I’m worried about somebody’s going to say or critique five or 10 years from now,” he said. “I’m focused on trying to save lives now and trying to manage through this crisis. And everybody’s going to have a different judgment.”

He said the middle of a crisis is no time to focus on historic accounts of it.

For the moment, it’s history-making enough that this governor is on the political left of anything.

Editor’s note: This story is the first in our “State of the State” series, a two-week look at politics and business heading into 2021. You can watch an interview with the author, John Brummett, columnist with the Arkansas Democrat-Gazette, in the video below.