Told you so: Here comes the legislature after 'independent' agencies | Arkansas Blog

Saturday, April 9, 2016

Told you so: Here comes the legislature after 'independent' agencies

Posted By on Sat, Apr 9, 2016 at 10:10 AM

click to enlarge REP. ANDY DAVIS: Proposes more legislative power over Highway Commission.
  • REP. ANDY DAVIS: Proposes more legislative power over Highway Commission.
The Arkansas Democrat-Gazette's Michael Wickline reports this morning on draft legislation by Rep. Andy Davis of Little Rock to assert legislative control over the state Highway Commission.

This power grab is styled — as is customary — as merely an effort to increase legislative "oversight." Several legislators have objected that it runs afoul of the constitutional independence of the Highway Commission and the freeway builders have many friends in the legislature. Davis says he has some legal authority on his side for asserting 1) that the commission is independent — but 2), in a stark contradiction — it must follow whatever the legislature puts into statute in how it conducts business.

My comment: Told you so.

The article does not mention an additional complicating factor in this debate — the amendment put on the ballot by the legislature in 2014 and, sadly, approved by voters. It gives the legislature  approval over agency rules. The Arkansas Wildlife Federation, among others, opposed the amendment because it predicted it would give the legislature leeway to butt into the affairs of the independent Game and Fish Commission — not to mention the Highway Department and higher education, to name two other nominally independently operating sections of government. Assurances were offered that this wasn't the legislature's intent, but the amendment carves out no specific exceptions.

It was a breathtaking power grab by the legislature. And it worked. With it, the legislature can override environmental rules (not that the current ADEQ is likely to propose any of any substance). It allows the legislature to practice medicine in overruling the state Medical Board. It essentially makes nearly meaningless the executive-appointed boards, as a member of the state Medical Board pointed out last week when that body was forced to adopt religion as state law in defining abortion.

click to enlarge REP. MARY BENTLEY: She already thinks she controls funding of the nominally independent Game and Fish Commission.
  • REP. MARY BENTLEY: She already thinks she controls funding of the nominally independent Game and Fish Commission.
The legislature hardly needed further constitutional encouragement to bully independent agencies. Take Rep. Mary Bentley, for example. When federal law officers caught her husband baiting for game and riding an ATV in the Ouachita National Forest, she told a state Game and Fish officer who accompanied a Forest Service officer on the call:

 "...we (officer Davis and I) need to be real careful, that times were tough and money was tight and that they (House) are looking for places to get money for funding and the Game and Fish Commission would be a good place to look."
In theory, the legislature CANNOT take Game and Fish money. In practice, it can assert so much pressure in various ways that the agency, if it knows what's good for it, must comply.

Arkansas already suffered from a weak executive (simple majority override of vetoes; 75 percent vote requirements on executive budget bills). The 2014  amendment made the balance of power far worse.

Those who thought the legislature wasn't coming for them — the colleges, Game and Fish and highway people who fell silent when the legislature rode this Trojan horse of an amendment onto the ballot — now have solid evidence from Andy Davis that the bell tolls for them, too.

If the legislature pushes — and why would it not? — eventually some strong-minded outfit (maybe an institution of higher learning) will be in court testing whether the new amendment put EVERYBODY under the House and Senate's total control. There's a legal argument that independence of various agencies can't be repealed by implication. But the rest of this ominous story is that the final decision on that will fall to an Arkansas Supreme Court, which — thanks to the last election — is even more inclined than ever before to bow to the legislature.

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