Who needs debate? It's just the Arkansas legislature | Arkansas Blog

Tuesday, March 13, 2018

Who needs debate? It's just the Arkansas legislature

Posted By on Tue, Mar 13, 2018 at 9:11 AM

Bill Kopsky of the Arkansas Public Policy Panel writes this morning to object to the fast-track legislative session, which calls for bills to be filed by 9 a.m. this morning for instant approval in committee today and final action in both houses completed by Thursday.

This includes complicated measures on a backdoor school voucher bill that provides tax subsidies for K-12 private schools; regulation of hog waste, and a bill to enhance the ability for contracts to waive jury trials that may or may not be simply a fix of a small problem with foreclosure cases.

Writes Kopsky:

This of course is by design and gives the public no time to find out what the specifics of the bills are, raise any questions or express any concerns, or in most cases even contact their “representatives “ or come to the Capitol to testify.  Open, accountable, representative government? Sham

Who needs debate when special interest lobbyists have already told the legislators what to do.

* SCHOOL VOUCHERS: Here's the bill. It provides a tax deduction of $10,000 per couple for money put in 529 savings accounts. The money can be withdrawn tax free (including on earnings) for K-12 private schools. It amounts to a direct public subsidy of private schoolsand thus a backdoor school voucher for the wealthy particularly. It provides a richer benefit than the 529 provides for federal taxpayers, which the bill has been dishonestly described as mimicking.

It comes without a revenue impact, though the finance agency put it previously at $5.2 million a year, similar to what Iowa experienced with similar legislation. That is money that otherwise would go to public schools (about half) and the rest to other public purposes.

* HOG WASTE: Here's the hog waste protection act, filed by Rep. Jeff Wardlaw. He insists it has nothing to do with C and H Hog Farm, a potential major polluter in the Buffalo River watershed.

An environmental lawyer active in the fight against the hog farm is not sanguine (what's the emergency that prompts this bill otherwise besides the loss of C and H's waste permit?) He wrote this before the bill was filed. I'll update when I can.

The original Vaught bill was for C&H and C&H only. The one that Wardlaw is shopping around most likely does not help C&H, but it does contain undefined language in paragraph (o)(2)(A) stating that "an existing state permit for a liquid animal waste management system that is in good standing is not be subject to review for siting or location issues." If that means what everyone (ADEQ and legislators) says it does- a Reg. 5 state program permit only, then it does not affect C&H because it never obtained a Reg. 5 permit. Instead it had coverage under an NPDES (Clean Water Act) general permit that the state/ADEQ issued under its delegated federal authority.

However, based on what we've seen so far, C&H may try to argue that it has a "state permit" for a liquid animal waste management system since it was authorized to construct and operate its waste management system under a state issued general NPDES (Clean Water Act) permit.

And then there is the fact that as of last night, no bill had been filed and thus we don't know what the final product will be.

In summary, assuming the Wardlaw bill I have seen is enacted into law without change, I believe that a reasonable court should and will view it as not applying to C&H. But I won't bet my life on it. It could be made more clear, but for some reason, there is no appetite for doing that, which again makes me wonder.

UPDATE: More opinions arriving of suspicions about this bill. Backers continue to insist it doesn't apply to C and H. Opponents of the hog farm remain skeptical. Simple question: If it is NOT about C and H, what's the hurry?

* TRIAL BY JURY: Sen. Jeremy Hutchinson has introduced a little ol' cleanup bill to protect contracts that allow foreclosure proceedings without jury trials. Watch out when they say it is a little ol' cleanup. The genesis was an Arkansas Supreme Court decision that allowed a jury trial on a rare case of a matter of law raised in a foreclosure proceeding. Foreclosures themselves are matters of equity and not subject to jury trials, but legal disputes arising out of them can go to a jury the court said in upholding precedent. Problem: Some contracts that waive the right. The law supposedly would just make that general practice. But does the bill only fix foreclosure contracts? Or is it written so broadly to protect all manner of contracts — think nursing home care — and thus waive jury trials for unsuspecting people in all sorts of ways? That's backdoor tort reform and not a little ol' thing. Trial lawyers wanted Hutchinson to specify that the bill is about debt issues, that is foreclosures, only. No such language has developed as yet. The bill is retroactive. It specifies that ignorance of hidden contract landmines is not protection against enforcement. As written, this one stinks. And it is likely to be law by sundown Thursday.

UPDATE: The stuff is passing through committee like corn through a hog in some cases, though the backdoor tort reform bill failed in committee on a voice vote, which was expunged and will be revoted with an amendment offerd by Sen. Hutchinson to limit its applications to contracts to borrow or lend money.

Two hours from filing to committee approval for school vouchers. Not a peep in committee against the main reason for the session, the pharmacy benefits manager bill.

The governor has endorsed the 529 school voucher bill. He thinks state law should mirror federal law. But he does note the significant distinction of a tax break for Arkansas taxpayers not given federal taxpayers. He says that drain on the treasury could grow. He urged the legislature to treat this bill as a "pilot," to monitor its impact and consider adjustments in the future if need be.

Of course it's a pilot. It's also, pick your cliche, a) slippery slope b) camel's nose in the tent c) Trojan horse d) all of the above. This is a baby step toward school vouchers. Make no mistake about it.



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