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How the 2017 Arkansas legislature made life worse for you 

But it wasn't as bad as it could've been at the Capitol.

click to enlarge BIG GUN: Chris Cox, chief lobbyist for the NRA, celebrates the signing of Act 562 while Governor Hutchinson (center) and bill sponsor Rep. Charlie Collins (right) look on. - BRIAN CHILSON
  • Brian Chilson
  • BIG GUN: Chris Cox, chief lobbyist for the NRA, celebrates the signing of Act 562 while Governor Hutchinson (center) and bill sponsor Rep. Charlie Collins (right) look on.

Arkansas's legislators were locked and loaded when they arrived for the 91st General Assembly this year, determined to get more guns into public places and take away voting and abortion rights, their evergreen attacks.

Thanks to the legislature, concealed weapons soon may be carried just about everywhere except Razorback games and the University of Arkansas for Medical Sciences. Unemployment benefits were cut, whistleblowers were silenced and charter schools were given advantages over regular public schools. Other legislation was symbolic but ugly, such as an act authored by Rep. Brandt Smith (R-Jonesboro) that aims to stop Sharia, or Islamic ecclesiastical law, from taking over Arkansas's court system.

Some of the silliest bills went nowhere, such as efforts by Sen. Jason Rapert (R-Conway) to wipe Bill and Hillary Clinton's names off the Little Rock airport, to indefinitely delay implementing the voter-approved medical marijuana program and to call a convention of the states to amend the U.S. Constitution to ban same-sex marriage. Anti-immigrant legislation that would have penalized colleges and cities with so-called "sanctuary" policies withered in committee. Rep. Smith, the sponsor of the bill targeting universities, warned that rogue professors might hide undocumented immigrants in their offices and then dump their human waste on campus in the dark of night; surprisingly, this argument did not persuade his colleagues. Rep. Kim Hendren (R-Gravette) proposed banning cell phones from public schools; later, he filed a bill prohibiting teachers from using books authored by leftist historian Howard Zinn. Neither gained traction.

What was good? A little. Conservatives tried to circumscribe the medical marijuana amendment with bans on smoking and edible products, among other roadblocks, but the worst of the anti-pot legislation stalled. Evidently reassured by Governor Hutchinson's promises to make the private option more conservative (read: stingier) down the line, the annual appropriation for Medicaid passed without a major fight — a relief for the 300,000-plus Arkansans receiving health insurance through Obamacare. Pushed by Hutchinson, the ledge directed some of Arkansas's tobacco settlement proceeds to expand a waiver program for the developmentally disabled, opening the door to services for some 500 to 900 desperate families stranded for years on a waitlist. At long last, the state will stop its reprehensible practice of celebrating Robert E. Lee's birthday simultaneously with Martin Luther King Jr. Day, a symbolic but important step forward that was championed by the governor.

Here's our survey of the damage:

GUNS
In Glock we trust

The biggest gun-related news this session was the passage and signing of House Bill 1249, now Act 562, which creates a new "enhanced carry" permit that will allow gun owners who have undergone eight hours of additional training — including active shooter training, with a curriculum still to be worked out by the Arkansas State Police — to carry a concealed handgun in many places previously forbidden under the state's concealed carry law, including the state Capitol, public colleges and universities, bars, churches and courthouses. Concealed carry in prisons, courtrooms and K-12 schools is still forbidden, and private property owners, including bars, churches and private colleges, can still prohibit firearms if they choose.

Sponsored by Rep. Charlie Collins (R-Fayetteville), the bill was a far piece from where it started by the time it was signed. Originally, Collins' bill would have solely mandated that public universities and colleges allow faculty and staff to carry concealed handguns. It was an attempt to push back against the state's public colleges and universities, which have steadfastly rejected Collins' and his colleagues' attempts to institute "campus carry" in the past. Amendments to HB 1249 soon pushed it several clicks further toward the broad "guns everywhere" approach favored by the National Rifle Association, and far beyond a potential shooting iron in a well-trained professor's briefcase. Now, anyone with the enhanced permit will be able to carry on a college campus, including into sometimes-contentious student and faculty disciplinary hearings and raucous college dorms.

The passage of the bill spawned some last minute scrambling when the Southeastern Conference expressed concerns about fans coming to college football games carrying heat, resulting in Act 859, a cleanup effort that prohibits concealed carry in college athletic venues. Also exempted by Act 859 were daycares, UAMS and the Arkansas State Hospital, an inpatient facility for the mentally ill. The bill also allows private businesses and organizations to ban concealed carry without posting a sign to that effect. If a private business decides to ban concealed carry without posting a sign, anyone caught carrying a concealed weapon on the premises can be ejected or told to remove their gun if they want to come back. If the concealed carrier repeats the infraction, they can be charged with a crime. Even after the purported cleanup, that still leaves a lot of places open to concealed carry unless those places set a policy forbidding the practice, including most hospitals, mental health facilities and off-campus high school and middle school sporting events. At the signing ceremony for HB 1249, Chris Cox, executive director of the NRA's Institute for Legislative Action, said, "We believe that if you have a legal right to be somewhere, and you're a law-abiding person, you ought to have a legal right to defend yourself." For the NRA, that means the right to be armed everywhere, any time, as long as you don't have a criminal record. Notice Cox didn't say anything about pesky permits or training.

Speaking of law-abiding persons, also of concern when it comes to concealed carry is Act 486. Under the law, the Arkansas State Police is now prohibited from establishing or amending any administrative rule that would revoke or suspend a concealed carry permit unless the holder of the permit was found to be in violation of a criminal offense. While not penalizing a person if they haven't committed a crime sounds like a good idea, the problem is that people can and do go off the rails for a multitude of reasons, many of which have nothing to do with a violation of the criminal code. Before the passage of Act 486, the State Police had broad latitude to revoke or suspend concealed carry permits for a number of reasons, including serious alcohol and drug abuse, dangerous mental illness, or a mental health professional's determination that a permit holder might be a threat to himself, his family or the public. With the passage of Act 486, though, a concealed carry holder who suffers a complete mental breakdown to the point of visual hallucinations can keep on packing right until the moment he or she is admitted at the State Hospital (thanks Act 859!), even if the person's family or a doctor asks the State Police to pull their permit. Ditto with people suffering from substance abuse issues, elderly dementia patients and those who hint they might be capable of suicide or homicide. Under the law, a permit can still be revoked or suspended if the person is caught carrying into a prohibited place like a courtroom or jail, but as seen above, the list of places where handguns are prohibited is dwindling by the year. Otherwise, thanks to Act 486, we just have to wait until that person commits a crime. By then, it's too late.

In the What Could Have Been column, we have HB 1630, by Rep. Clarke Tucker (D-Little Rock), which would have created the misdemeanor offense of "negligently allowing access to a firearm by a child" if an owner failed to secure a loaded gun or left it in a place a child could easily access. Though the bill had exemptions for hunting, sport shooting and use of firearms on a farm and had a sliding scale of penalties, with incidents involving the death or serious injury of a child at the top of the list, it went nowhere.

click to enlarge HASHING IT OUT: The House Education Committee at work. - BRIAN CHILSON
  • Brian Chilson
  • HASHING IT OUT: The House Education Committee at work.

EDUCATION

Traditional schools took licks, but the worst was kept at bay.

The single worst education bill passed in 2017 was probably Act 542, sponsored by Alan Clark (R-Lonsdale), which requires school districts to sell or lease "unused or underutilized" facilities to competitor charter schools. Charters already had right of first refusal in the event a district decides to sell a building — but after Act 542 goes into effect this summer, a charter can force a district to sell or lease a building, even if the district doesn't want to do so. If a different entity — a nonprofit, say, or a clinic or a business — wants to buy an unoccupied school building instead, that's too bad. Act 542 requires a district to hold on to unused buildings for two years, just in case a charter comes along and wants the facility for itself.

Clark pointed to a situation a few years ago in which the Helena-West Helena School District refused to sell a vacant elementary to KIPP Delta, a charter. But there are good reasons why a district wouldn't want to hand over an asset to a direct competitor: Charter networks tend to weaken districts by bleeding away higher-performing students and public money, and they often enjoy advantages their traditional public school counterparts do not. As some opponents of the bill pointed out, the new law is tantamount to forcing Walmart to sell a store to Target. That's why school superintendents across the state fought the bill and convinced no small number of Republicans to join Democrats in opposing it. In the end, though, it passed the House on a 53-32 vote. Republican legislators also rejected proposals by Democrats Sen. Joyce Elliott and Rep. Clarke Tucker — both from Little Rock, which is seeing unchecked charter growth at the expense of traditional public schools — to impose fairer rules on charters.

Thankfully, the legislature turned down an even worse proposal. HB 1222 by Rep. Jim Dotson (R-Bentonville) proposed a convoluted scheme to divert millions of dollars away from the public coffers (by means of a tax credit to wealthy donors) and toward private schools in the guise of "education savings accounts" to be used for student tuition. A school voucher plan in all but name, the bill would have been devastating to public education. Dotson eventually scaled back the legislation to a pilot program with a four-year sunset, allowing a Senate version of the bill to win passage in that chamber — but many Republicans remain fond of their local school districts, and it narrowly failed in the House.

Meanwhile, legislators expanded an existing voucher program, the Succeed Scholarship. Created in the 2015 session, it uses public tax dollars to pay private school tuition for a limited number of K-12 students with special needs. Parents are required to waive their child's civil rights protections under the federal Individuals with Disabilities Education Act. In the past, the scholarship was open only to kids with an Individualized Education Program, or IEP; now, foster children living in group homes will also be eligible, thanks to Act 894 by Rep. Kim Hammer (R-Benton). Act 327 by Rep. Carlton Wing (R-North Little Rock) will allow a nonaccredited private school to participate, as long as the school has applied for accreditation. And, the appropriation for the Succeed Scholarship rose from $800,000 to $1.3 million — an increase of 63 percent — potentially allowing as many as 200 students statewide to participate.

That bump is especially notable alongside the meager 1 percent increase in the state's overall K-12 education budget for the next two years — far less than the 2.5 percent boost recommended by legislative staff tasked with determining what constitutes "adequate" school funding. A bit more money will be directed to teacher pay and special education, and pre-kindergarten will see an overdue $3 million increase, so the money situation could be worse. Still, with state revenue squeezed hard by tax cuts, and private and charter schools knocking at the door, traditional public schools are clearly not the General Assembly's top priority.

On other fronts, school legislation was a mixed bag. Elliott's Act 1059, will limit the use of out-of-school suspensions and expulsions for students in grades K-5 — a much-needed reform — but her bid to end corporal punishment failed in committee. (Rural Arkansas still loves the paddle.) One of the better education bills to pass this session was Elliott's Act 1039 which gives teeth to a 2013 law (also by Elliott) requiring dyslexia screening and intervention. Its reporting requirements and enforcement mechanism hopefully will force districts to deliver better reading interventions to dyslexic students. A major accountability bill developed by the state Education Department, Act 930, will overhaul how schools are monitored by the state, though it's too soon to say how the changes will play out. Act 478 by Rep. Bruce Cozart (R-Hot Springs), will require high school students to pass a civics test before graduating; an attempt by Rep. John Walker (D-Little Rock) to impose the same requirement on legislators and state agency heads received a cold reception. A bill by Rep. Mark Lowery (R-Maumelle), now Act 910, will end September school elections and require them to be held concurrent with the November general or spring primary election date. That could spell trouble for future millage votes.

Finally, there's higher education: "Campus carry" dominated the news, but a major change in funding may be just as consequential. Act 148, which originated with the governor's office, creates a funding formula for colleges and universities that ties state money to metrics like graduation rate. HB 1518, now Act 563, a worthy bill by Rep. James Sturch (R-Batesville) requires the Arkansas Higher Education Coordinating Board to create an action plan for addressing sexual assault on college campuses.

Benjamin Hardy

click to enlarge IN THE WILDERNESS: Democrats such as Reps. Clarke Tucker (left) and Charles Blake, both of Little Rock, found their efforts frustrated by the GOP majority at every turn. - BRIAN CHILSON
  • Brian Chilson
  • IN THE WILDERNESS: Democrats such as Reps. Clarke Tucker (left) and Charles Blake, both of Little Rock, found their efforts frustrated by the GOP majority at every turn.

TAXES

Some help for the working poor and lots of punting.

Give modest credit to Governor Hutchinson. In the 2013 and 2015 legislative sessions, Republican legislators pushed a massive cut on taxes on capital gains and reduced the income tax burden on all but the working poor. This session, Hutchinson provided some relief at the lower end of the tax bracket. Hutchinson pushed through a $50 million tax cut, directed at households with a taxable income of less than $21,000. The cut is misleading, though, as it targets taxable income, which is often far less than salary or adjusted gross income. In fact, Arkansas Advocates for Children & Families pointed out that 48 percent of the overall $50 million cut will go to taxpayers in the top 40 percent of earners, while only 5 percent will go to those making less than $18,000 per year.

Establishing a refundable state Earned Income Tax Credit, tied to the federal EITC, would have been considerably more beneficial to the lower 40 percent of Arkansas earners, who often have no income tax liability, but pay a large share of their income in sales tax. An EITC would have provided a more substantial boost to the working poor at less cost than Hutchinson's cut. Rep. Warwick Sabin (D-Little Rock) and Sen. Jake Files (R-Fort Smith) were behind the EITC proposal, which historically has bipartisan appeal, but they couldn't get support from Hutchinson or enough other legislators.

Hutchinson also supported legislation that exempted all military retirement pay and survivor benefits from state income taxes. The first $6,000 of military retirement pay had been exempt previously. Since most veterans aren't career soldiers and eligible for a pension, the exemption will leave out many veterans (again, an EITC would have been a better avenue). But few politicians on either side of the aisle were going to stand in the way of helping veterans — even though Hutchinson unconscionably larded the measure with unrelated tax hikes. The legislation offset the eventual $13.4 million cost of the exemption by raising the sales tax on candy and soda. Completely unrelated to veterans' retirement income, the bill provided a $6 million tax cut on soft drink syrup, which it paid for by taxing unemployment benefits and digital downloads. So, veterans with pensions got a bump and corporate interests got significant help, while folks downloading books and movies, as well as people in between jobs, got screwed.

In the "could have been worse" column, more credit for Hutchinson: He held at bay lawmakers from his party such as Sen. Bart Hester (R-Cave Springs) who wanted to cut $100 million or more in taxes — threatening essential state services in the process — by creating a commission to consider the future of tax policies in the state.

The commission will have to consider two issues the General Assembly punted on. A bill that would have required out-of-state online retailers to collect sales tax on purchases made by Arkansans stalled in the House, with several Republicans decrying the proposal as a tax increase even though Arkansans already are required to pay the tax by law (few do because it requires self-reporting.) Still, Amazon said it would voluntarily begin collecting sales tax on Arkansas customers beginning in March. Another bill that merely would have referred to voters a proposal to increase the tax on gas to pay for bonds for highway construction failed on similar anti-tax grounds.

Lindsey Millar

click to enlarge STILL FIGHTING: Democrats Rep. John Walker (left), of Little Rock, and Greg Leding, of Fayetteville, in committee. - BRIAN CHILSON
  • Brian Chilson
  • STILL FIGHTING: Democrats Rep. John Walker (left), of Little Rock, and Greg Leding, of Fayetteville, in committee.

CRIMINAL JUSTICE

Actual reform

Act 423, "The Criminal Justice Efficiency and Safety Act," might be the most consequential piece of good legislation the General Assembly passed. It's a sprawling, omnibus law, with three primary components.

Most consequentially, it introduces swift and certain sanctioning, which means parolees and probationers who commit minor violations of the terms of their supervision will be sent for 45 to 90 days to Arkansas Community Correction facilities, where they will receive rehabilitative programming, instead of being sent to prison for significantly longer stints. Arkansas in recent years has had the fastest growing prison population in the country, fueled largely by parole violators returning to prison. Swift and certain sanctioning is expected to free up as many as 1,600 prison beds and save the state as much as $30-$40 million.

The law also seeks to divert people who commit nuisance offenses because they are high on drugs or having a mental health crisis in public from jail or prison. It establishes Crisis Stabilization Units, regional facilities where people in crisis could go to receive treatment for several days. The law mandates the creation of three such units, but $5 million earmarked in the state budget for the operation of the facilities, paired with significant additional federal money the state expects to draw from Medicaid, could allow for several more CSUs to open. The locations of the CSUs have not yet been selected, but Craighead, Pulaski and Sebastian counties are thought to be leading candidates. Finally, Act 423 also requires law enforcement officers to receive crisis intervention training to help them de-escalate interactions with people amid behavioral health episodes.

The law is the product of 18 months of study and presentations by the nonprofit Council of State Governments, which reported to a Legislative Criminal Justice Oversight Task Force that bill sponsor Sen. Jeremy Hutchinson (R-Little Rock) co-chaired. Hutchinson, co-sponsor Rep. Clarke Tucker (D-Little Rock) and CSG say the new law will save the state money, which can be reinvested in effective criminal justice policies. CSG's justice reinvestment program has successfully been implemented in states across the country.

Of course, whether it's successful here will depend on policymakers seeing the reforms through. One potential stumbling block: CSG recommended that the state hire 100 new parole and probation officers to better supervise the nearly 56,000 people on parole and probation. Current supervision officers handle on average 125 cases. Governor Hutchinson's budget didn't provide for funding to hire 100 new officers, though it did make temporary funding to Arkansas Community Correction permanent, which will at least allow the department to retain the 60 officers it had hired since 2015. That's not enough, Sen. Hutchinson (who is the governor's nephew) said. He hopes a future General Assembly will approve additional funding for more officers using some of the savings generated by Act 423.

A perennial stumbling block for any criminal justice reform is the inevitable violator who commits a serious crime. A significant portion of Arkansas's recent prison growth spike came because of punitive parole policies enacted in the wake of the 2013 murder of a teenager in Little Rock by a serial parole violator. It's natural to think that locking up people who commit crimes for long stretches reduces crime, but research shows it's just the opposite, Sen. Hutchinson said.

"I've had the luxury of studying this for years now. It's hard to wrap your brain around sometimes," Hutchinson said. "Longer sentences do not, in fact, result in lower crime rates. The longer [people are] incarcerated, the greater chance of recidivism they have."

Hutchinson chaired the Senate Judiciary Committee, and many of its members, chief among them Sen. Bryan King (R-Green Forest), were hostile to the idea of moving away from incarceration in certain situations. King introduced the tough-on-crime Senate Bill 177, which would have required anyone with three stints in prison to serve at least 80 percent of any subsequent sentence. Arkansas already has a two-strikes law: After someone commits a second serious violent or sexual crime, he's required to serve 100 percent of his sentence. So King's measure would have mostly targeted low-level property and drug crimes and at huge cost. According to an impact statement, it would have added 5,499 inmates at a cost of $121 million in 2026. The total 10-year cost to the state would have been $692 million, and that's not including the significant cost of building new prison housing. King let the bill die in the House Judiciary Committee after Governor Hutchinson forcefully spoke out against it.

click to enlarge WARRIOR: Democratic Sen. Joyce Elliott of Little Rock eked out a win on some positive education bills, though many others were shot down. - BRIAN CHILSON
  • Brian Chilson
  • WARRIOR: Democratic Sen. Joyce Elliott of Little Rock eked out a win on some positive education bills, though many others were shot down.

Three other positive new laws: Act 566, sponsored by the odd couple Rep. John Walker (D-Little Rock) and Rep. Bob Ballinger (R-Berryville), has Arkansas opt out of a section in President Clinton's sweeping 1996 welfare reform law that prevents anyone who has been convicted of a felony drug offense from receiving Temporary Assistance for Needy Families benefits. Act 1012, from legislation sponsored by Tucker and Hutchinson, allows someone on probation or parole for an offense that did not involve the operation of a motor vehicle who has a suspended drivers license because of unpaid fines or fees to continue to drive to work or school. Act 539, sponsored by Sen. Missy Irvin (R-Mountain Home) and Rep. Rebecca Petty (R-Springdale), prevents minors from being sentenced to life without parole. Before they become eligible for parole, the new law requires minors sentenced to life terms to serve 20 years for nonhomicide offenses, 25 years for first-degree murder and 30 years for capital murder. Of course, the Parole Board could repeatedly deny parole requests and force someone sentenced to a life term as a minor to spend his life in prison.

The heartbreaker of the session in criminal justice was the failure of Democratic Sen. Joyce Elliott's proposal to require racial impact statements for new criminal justice legislation. The impact statements would have provided research on whether proposed legislation would have a disparate impact on minority groups. Similar bills failed in 2013 and 2015, and this one was substantially amended to merely provide the impact statements as an option, but it died on the House floor. It was another reminder that for many white people, there is no greater insult than suggesting that they or something they do might be racist, even if the bias was unintended. One opponent, Rep. Ballinger, said he did not believe in systemic racism.

Lindsey Millar

ABORTION

Risking women's health

Women and their bodies were subjected to serious new insults this year by Arkansas legislators practicing medicine without a license.

Among the most egregious laws was the so-called "dismemberment abortion" bill, now Act 45, whose chief sponsors were Rep. Andy Mayberry (R-Hensley) and Sen. David Sanders (R-Little Rock). The bill prohibits doctors from performing what doctors believe is the safest method of second trimester abortion: dilation and evacuation. The alternatives would be something akin to a Caesarean section, in which the belly is cut open to remove the fetus, or an induced abortion, which requires the woman to go into labor to expel a fetus killed by an injection of salt water, urea or potassium chloride into the amniotic sac. Those procedures are what doctors call "high morbidity" — meaning they have a high risk of making patients sick.

Dilation and evacuation is recommended by the World Health Organization, the American College of Obstetrics and Gynecology and the American Medical Association. The difference between those organizations and the Arkansas legislature is that one group does not believe women should receive the best health care possible.

But Mayberry and Sanders and their co-sponsors think D&E, which uses a vacuum, is tantamount to butchery. But hysterectomy and induction abortions accomplish the same end as a D&E and are far less safe.

There is no exception for incest or rape in the law. And, like previous laws passed by legislators who think their particular religious beliefs give them the right to control women, the law particularly harms women who can't afford to travel to a more broad-minded jurisdiction to exercise a legal right.

Another evil of the law is that it allows a spouse, parent or guardian to bring a civil suit against the abortion provider if the woman has "received or attempted to receive" dilation and evacuation. That means, according to abortion rights activists and Mayberry himself, a husband can stop an abortion. He may have committed rape. A parent may have committed incest. Doesn't matter.

Rep. Charlie Collins (R-Fayetteville) and Sen. Missy Irvin (R-Mountain View) brought us the bill that became Act 733, the so-called "sex-selection abortion ban." Despite the fact that there is zero evidence that Arkansas women are dashing into abortion clinics because they've determined the sex of their fetus and don't like it, the bill has the potential to create an huge burden on the doctor provider.

Say a woman has had prenatal tests to see if her fetus has a genetic disorder. She learns there is a disorder and, by the way, the sex of the fetus. Her doctor must ask if she knows the gender of the fetus. If she answers that she does, the abortion must be delayed, because this new state law requires the doctor to "request the medical records of the pregnant woman relating directly to the entire pregnancy history of the woman." No abortion may be performed until every chart for every pregnancy generated by the woman's ob-gyn (or ob-gyns) and staffs and hospitals, every record generated during every trip to the ER she may have had to make, is supplied and reviewed by the abortion provider. Not only could that take a lot of time and generate a mountain of paperwork — what if the woman already had five children? — but it would also notify, perhaps against the woman's will, her doctors and their staffs that she is seeking to obtain an abortion.

The bill does not state what information in those records would suggest that the woman was hell-bent on not having another boy or girl.

"Why are physicians and the clinic made to be an investigative party into a woman's motives to have an abortion?" asked a spokesman for Little Rock Family Planning, the state's only clinic that offers abortion up to 21 weeks.

Rep. Robin Lundstrum (R-Elm Springs) and Sen. Scott Flippo (R-Bull Shoals), like Mayberry and Sanders, introduced what's called a model TRAP law (targeted regulation of abortion providers) meant to end abortion by imposing stricter inspection regulations on clinics. The bill allows the state Department of Health to make yearly trips to inspect clinic records and "a representative sample of procedures"; to regulate all aspects of the clinic "without limitation," and to collect an annual fee of $500.

While purporting to be a bill to protect women's health, the new law, Act 383, is designed to let the state shut down a clinic for facilities violations not spelled out in the legislation. It's not clear what violation would close the clinic. Towel on the floor? Out of paper towels? Scoop left in the break room freezer's icemaker?

As it happens, Little Rock Family Planning is inspected frequently, more than the once every year that the law already called for. The health department inspected the clinic four times in 2016, citing such things as discolored ceiling tiles and a chair with rips. The clinic's spokesman said some inspections are instigated by complaints from the anti-abortion protesters that picket outside.

The vague language of Act 383 "has potential for abuse. We don't know if we would be singled out and treated differently, if our license could be suspended for even minor paperwork violations," the spokesman said.

— Leslie Newell Peacock

click to enlarge SHINING A LIGHT: A bill by Republican Rep. Jana Della Rosa of Rogers will make campaign funding more transparent.
  • SHINING A LIGHT: A bill by Republican Rep. Jana Della Rosa of Rogers will make campaign funding more transparent.

TRANSPARENCY

The public's right to know took one step forward, two steps back.

Arkansas's robust Freedom of Information Act came under assault in 2017 as never before, with legislators proposing at least a dozen new exemptions to the open records law. Thanks to SB 131, now Act 474, by Sen. Gary Stubblefield (R-Branch), security plans of the State Capitol Police are no longer disclosable to the public; Stubblefield's reasoning was that someone seeking to do violence at the Capitol might request such plans, but the law is written so broadly that virtually any record of the Capitol police could fall under the new exemption. Stubblefield's SB 12 (Act 541) created a similar exemption for schools, including colleges and universities. HB 1236, now Act 531, by Rep. Jimmy Gazaway (R-Paragould), prevents the disclosure of a body-cam or dash-cam recording of the death of a law enforcement officer.

Thankfully, though, many anti-FOIA bills failed. The most significant was SB 373, by Sen. Bart Hester (R-Cave Springs), which proposed exempting attorney-client communications and work product from the FOIA if the client is a public entity. The force behind the bill was the University of Arkansas. The problem with this idea — aside from the fact that attorney-client communications can already be shielded on a case-by-case basis, by order of a judge — is that a public entity could declare almost any record exempt simply by emailing that record to its attorney. Had it passed, this loophole could have swallowed the entire FOIA.

click to enlarge CONSERVATIVE DARLING: Republican Sen. Bart Hester (left), of Cave Springs, championed a number of bad bills this session, including a failed effort to undermine the FOIA - BRIAN CHILSON
  • Brian Chilson
  • CONSERVATIVE DARLING: Republican Sen. Bart Hester (left), of Cave Springs, championed a number of bad bills this session, including a failed effort to undermine the FOIA

On the bright side, Rep. Jana Della Rosa (R-Rogers) managed to pass HB 1427, now Act 318, to require candidates to file their monthly finance reports electronically, rather than on paper. HB 1010, now Act 616, by Rep. Warwick Sabin (D-Little Rock) extends the same requirement to political action committees and other groups. This matters because a searchable electronic database will make it much easier for the public to track contributions made to candidates and PACs, as well as their expenditures.

However, the legislature quashed an effort to shine a light on the darkest regions of campaign finance when it rejected HB 1005, by Rep. Clarke Tucker (D-Little Rock). The bill would have required disclosure of "electioneering" spending, meaning advertisements by independent organizations, nominally unaffiliated with any candidate, that dodge ethics laws by scrupulously avoiding the use of phrasings like "vote for" or "vote against." A growing number of states recognize that such ads — which have proliferated tremendously in recent years and comprise hundreds of millions of dollars in spending nationwide — are de facto campaign commercials and require them to be reported as such. Not Arkansas.

Benjamin Hardy

ANTI-LGBT

Threats stalled.

The legislature still shows animus toward people who don't fit its definition of normal, but Arkansans lucked out when three anti-LGBT bills failed. Two so-called "bathroom bills" that targeted transgender children and adults and another that would have let doctors refuse to perform a procedure if it offended their "deeply held beliefs" did not make it into law.

click to enlarge INTRAPARTY DIVIDE: Republican Sen. Jeremy Hutchinson emerged as a voice of moderation and reason within the GOP, while Sen. Linda Collins-Smith (R-Pocahontas) hails from the party's rightward fringe.
  • INTRAPARTY DIVIDE: Republican Sen. Jeremy Hutchinson emerged as a voice of moderation and reason within the GOP, while Sen. Linda Collins-Smith (R-Pocahontas) hails from the party's rightward fringe.

But the legislature also blocked a bill that would have corrected an injustice. SB 580, by Sen. Joyce Elliott (D-Little Rock), would have provided for the automatic listing of both parents' names on the birth certificates of children of married same-sex couples, an important factor in establishing inheritance and other matters. In a marriage between a man and a woman, the names of both parents are listed on a child's birth certificate, even in cases of surrogacy or artificial insemination. Arkansas is the only state that treats children of same-sex parents differently in this regard, seemingly in violation of the U.S. Supreme Court's 2015 ruling that struck down bans on gay marriage nationwide. Elliott's bill would have fixed the problem, but when SB 580 came before the Senate Judiciary Committee, vice-chair Sen. Linda Collins-Smith (R-Pocahontas) said same-sex parents could make a will if they wanted to ensure their kids get an inheritance.

Besides the children of same-sex couples, Collins-Smith doesn't much like transgender people, either. She introduced SB 774 to require that people had to use public bathroom or changing facilities that corresponded with the sex as listed on their birth certificates, and that the governing body of the public entity had to make sure the law was enforced. Little Rock Convention and Visitors Bureau director Gretchen Hall and Verizon Arena General Manager Michael Marion told Collins-Smith in a hearing on the bill said they could not see how it would be possible to know what was on the birth certificate on the thousands of people who might answer the call of nature at an event. "It's your job to find a way," Collins-Smith snarled. Collins-Smith pulled down the bill when she realized it was not going to pass.

The House passed a bill introduced by Rep. Bob Ballinger (R-Berryville), who also had his mind on bathroom use, to expand the state's indecent exposure law. State law already says it is a crime to expose one's genitalia with intent to gratify sexual desire; Ballinger's bill would have made it a crime simply to expose genitalia in front of a person of the opposite sex. (Maybe it's common practice to inspect genitalia in bathrooms up in Berryville.) Though the House vote for the bill was 65 to 3, the bill went down the Senate Judiciary Committee drain, as Collins-Smith's did.

Governor Hutchinson, who did not want Arkansas to suffer economically as North Carolina did when it passed its "bathroom bill" (since partially repealed), was relieved.

Another ugly bill was introduced by Rep. Brandt Smith (R-Jonesboro): the Health Care Freedom of Conscience Act, which would have allowed doctors to refuse to administer health care services that offended their "deeply held beliefs." Smith had in mind both reproductive rights and transgender reassignment surgery. There was no support for the bill from medical professionals, and state Surgeon General Dr. Gregory Bledsoe spoke against it, saying, "If you're a member of any sort of minority group ... these sorts of bills send a message that threatens you."

Leslie Newell Peacock

click to enlarge BAD APPLES: (from left) Rep. Brandt Smith, sponsored bills that were prime contenders for 2017's most obnoxious legislation. - BRIAN CHILSON
  • Brian Chilson
  • BAD APPLES: (from left) Rep. Brandt Smith, sponsored bills that were prime contenders for 2017's most obnoxious legislation.

AVERAGE ARKANSANS 

Workers, consumers and other enemies of the state got a raw deal.

Governor Hutchinson deserves some recognition for passing a modest income tax cut for working people this session, even if it wasn't quite the boost for the poor that he claimed (see Taxes, page 15). But in almost every other way, the average Arkansan got screwed by the 2017 session.

Start with Act 986, by Rep. Laurie Rushing (R-Hot Springs), which will outlaw private class-action lawsuits under the Deceptive Trade Practices Act — a cornerstone of consumer protection law. Such suits are a powerful deterrent against businesses that intentionally scam customers in various small ways, such as false advertising or misleading promotional offers. Preventing consumers from bringing claims as a class gives the unscrupulous a freer hand to prey on the unsuspecting.

Act 606, by Rep. DeAnn Vaught (R-Horatio), provides a boon to corporations by allowing an employer to sue a worker who records a video or takes photos in the workplace "and uses the recording in a manner that damages the employer." In other words, it will stop whistleblowers from documenting unethical or illegal practices, such as animal abuse at factory farms. Animal rights organizations refer to it as an "ag-gag" bill.

Maybe the biggest prize for big business, though, was the "tort reform" measure that was referred to the 2018 ballot, Senate Joint Resolution 8. Sponsored by Sen. Missy Irvin (R-Mountain Home), it proposes a new amendment to the state constitution that would place ceilings on the noneconomic and punitive damages that may be awarded to a claimant in a civil suit. Attorney contingency fees would also be capped, at one-third of the net recovery. In short, this would sharply limit the ability of someone who was grievously harmed by an act of medical malpractice to seek compensation in court. SJR 8 sparked a bruising fight in the legislature, with a few Republicans breaking ranks to speak forcefully against abridging the right to a trial by jury. But business interests — especially nursing homes — have been pushing tort reform for years, and the measure proved unstoppable. Unless Arkansas voters reject it in 2018, that is.

Speaking of abridged rights, the legislature also referred a proposed amendment that would enshrine a voter ID requirement in the Arkansas Constitution. The hard truth is that House Joint Resolution 1016, by Rep. Robin Lundstrum (R-Elm Springs), will likely pass in 2018 given the state's electoral trends. Never mind that proponents of voter ID can't cite any documented instances of voter impersonation in Arkansas, and never mind the evidence that such measures elsewhere have resulted in voters being disenfranchised — voter ID has become gospel to Republicans, aided by President Trump's falsehoods about rampant fraud in the 2016 election. Redundantly enough, the legislature also passed a voter ID bill in addition to the referred amendment, Act 633 by Rep. Mark Lowery (R-Maumelle).

Arkansas's status as the worst state in the nation for renters went unchallenged. A bill by Sen. Blake Johnson (R-Corning), now Act 159, softened but preserved the state's unconscionable, one-of-a-kind criminal eviction statute, which courts in several counties have deemed unconstitutional. Thanks to the lobbying efforts of the Arkansas Realtors Association, Arkansas also remains the only state in which there is no minimum habitability standard for rental property. HB 1166, by Hot Springs Republican Rushing, purported to address that deficiency, but the bill's proposed standards were pitifully weak — limited to electricity, water, sewer and a roof — and it may have limited renters' meager rights in other ways, so it's best it failed.

Legislators' sympathy for landlords didn't translate to protecting small property owners railroaded by the oil industry. House Bill 2086, an effort by Rep. Warwick Sabin (D-Little Rock) to more carefully examine the use of eminent domain by pipeline companies, was drafted in response to the construction of the Diamond Pipeline, which will carry crude oil across the length of Arkansas from Oklahoma to Memphis. It failed to get out of committee.

Currently, unemployment benefits in Arkansas cover workers for a maximum of 20 weeks, which is a shorter span than any surrounding state except Missouri (also 20 weeks). Act 734 from Rep. Lundstrum will soon reduce that coverage time to 16 weeks ... and reduce weekly benefits checks paid to laid-off workers. This is despite the state's unemployment trust fund having amply recovered from the recession (it now contains around $500 million) and unemployment levels at record lows. So why trim benefits now? Simple: Employers want more money for themselves.

There was at least one good piece of consumer legislation, though, sponsored by none other than Sen. Jason Rapert (R-Conway). Act 944 aims to close a loophole exploited by payday lenders, which were driven out of Arkansas some years ago by a ban on high-interest loans but recently have been creeping back into the state by charging astronomical "fees" in place of interest.

And some bad measures failed, the most obnoxious probably being HB 1035 by Rep. Mary Bentley (R-Perryville). The bill would have prohibited SNAP recipients from using food stamps to purchase items the state Health Department deems unhealthy, such as soda; it stalled in the face of opposition from grocery stores and others. House Bill 1825 by Rep. John Payton (R-Wilburn), which went nowhere, would have seized lottery winnings from citizens who have received public assistance from the Arkansas Department of Human Services. And, efforts to chip away at workers compensation failed this time around. Got to leave something for 2019.

Benjamin Hardy


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