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Arkansas senator says Special Language subcommittee actions violate state constitution 

On paper, S.L. is an afterthought; in practice, it's long been a powerful tool for experienced legislators to shape policy.

The Special Language subcommittee is an esoteric corner of the Arkansas legislature that handles amendments to budget bills. A subdivision of the Joint Budget Committee, Special Language is a notoriously opaque place — if the numbing description alone isn't enough to deter public interest, there's also the fact that it typically meets at 7:30 a.m. and that the proposed amendments it considers aren't generally available online to the public. Unlike standing committees such as Education, Public Health and Judiciary, its entire membership is directly appointed by the Speaker of the House and Senate President Pro Tem.

On paper, Special Language is an afterthought, a legislative backwater; in practice, it's long been a powerful tool for experienced legislators to shape policy. With the recent creation of fiscal sessions, though, it has assumed a central role in the legislative process that committee member Sen. David Johnson (D-Little Rock) said oversteps constitutional bounds.

"It's a grave constitutional concern," he said. "I believe the legislature is slowly littering the code with things that may be perfectly good policies but nonetheless are unconstitutional perfectly good policies."

Before 2010, the General Assembly convened only on odd-numbered years. A voter-approved referendum in 2008 amended the state Constitution to also require sessions on even-numbered years, but only for the purpose of crafting a budget and for an abridged span of time. The legislature's other major function, lawmaking, is explicitly disallowed during fiscal sessions except only in the most urgent of circumstances.

The constitutional amendment authorizing fiscal sessions places handcuffs on the legislative process. Even introducing a non-appropriations bill first requires securing two-thirds approval of both chambers, after which a second vote is held on the bill itself. The only legislation to pass this muster in 2014 was an uncontroversial measure that allowed the lieutenant governor's office to sit vacant for a limited time rather than call a special election. Numerous other bills (most of which were forwarded by hardline conservatives in the legislature) were not even allowed out of committee for consideration.

Yet several policy changes have emerged from the just-concluded fiscal session: a tax break on the sand used by gas companies to frack new wells; creation of an anti-fraud program under the new Medicaid Inspector General, and most significantly, a non-statutory prohibition on public outreach money for the ACA-created health insurance exchange or the private option. With a little dexterity, lawmakers can accomplish quite a bit inside a pair of handcuffs, and that's why Johnson is worried.

"We've got a number of instances during this session where we've done things other than strictly appropriations matters in appropriations bills that have not gotten a two-thirds vote," he said. "It's unconstitutional because the amendment to the state constitution ... limits the fiscal session to appropriations measures strictly, unless there's a two-thirds vote."

"At some point," said Johnson, "there's going to be a lawsuit over something."

Sen. Jonathan Dismang (R-Searcy), co-chair of Special Language, used a special language amendment to insert a tax break for fracking sand in the recent fiscal session. He sees the process as routine.

"Special Language has existed for quite awhile. What's happened this session is really not any different than prior action taken in previous sessions," he said.

"I think it probably does have more significance because of the fiscal session," he acknowledged, "but it does serve a purpose. I think you saw that several times over the session."

Because the division between appropriations and policy isn't black and white, the special language process exists to insert additional instructions into a budget bill. Like a suspicious parent doling out conditions along with allowance money, the legislature attaches various specifications, restrictions and caveats to the funds it dispenses to state agencies. Most such amendments are boilerplate clauses that perform routine functions such as authorizing transfers between line items or allowing funds to carry forward to the next fiscal year. Some are more specific, such as the language perennially attached to the Department of Health budget that prohibits state funds from being used for abortions. Some revise statutory law.

This is the fiscal session workaround for savvy lawmakers who know a two-thirds approval vote for introducing non-appropriations bills is a non-starter. The tax exemption on fracking sand, for example, was attached by Dismang to a general operations appropriation for the state's revenue agency. Officials from the agency loudly protested Dismang's amendment and said it was an unconstitutional circumvention of the fiscal session's restrictions.

Dismang argued that the committee has acted within its bounds on this and other issues in 2014.

"I'm not sure what the outcome would be on the judicial side. But at this point, I think that the committee does have the authority to do that, and I think there is a proper process. You saw some items that did not make it out of committee and some that did. And it's just another tool, another part of the legislative process."

Even constitutional issues aside, questions persist about the process. Sen. Joyce Elliott (D-Little Rock), a critic of the special language process as it currently exists, agrees that the committee is necessary but said she believes it has been misused.

"Whether you're in a regular session or a fiscal session, there are going to be some things that have discrete, little nuanced changes or exceptions that needed to be made, but in small ways that have to be reconsidered every year. Temporary things, not something that's going to set in place a profound, sustained policy going forward.

"It was never meant to make substantive changes to policy, in my estimation — otherwise, that would just be a bill that would go through any other committee hearing."

Elliott also questioned the appointment process for the committee, noting its lack of diversity. "From the Senate side, it's eight white males on Special Language. On the House side, there is one woman. ... We are considering things that maybe don't fit into any particular category, which screams for having a more diverse group of opinions and folks on that committee. And these decisions about who's on S.L. is strictly up to the President Pro Tem and the Speaker."

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