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Monday, May 22, 2017, 2:44 p.m.


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JOHN BRUMMETT: The Bar stepping up

By John Brummett

This article was published May 16, 2017 at 4:30 a.m.

The Arkansas Bar Association's current leadership is bouncing around an idea to get behind an uncommonly far-reaching constitutional reform proposal for the general election ballot in November 2018.

Amid much more, it would compete directly with SJR8, the tort-reform proposal to cap jury awards on non-economic damages. That proposal was referred by the Legislature in the recent session at the behest of the nursing-home industry and the state business establishment.

But the Bar Association's percolating idea is to transcend that single dispute. It is to offer voters five major proposed changes, scattered among various sections of the state Constitution, in one ballot proposal.

All the changes fall under the categories of campaign-finance reform, judicial reform or the separation of powers among the executive, legislative and judicial branches. Bar officials are thinking the five proposed changes could lend themselves to a single ballot title that would be short enough, clear enough and accurate enough to withstand a court challenge.

The state Bar Association convention will be held in mid-June. State Bar president Denise Hoggard has this week circulated a draft proposal for this proposed amendment to the members of the Bar's House of Delegates, who will meet the last day of that convention. Rules require 30-day notice for a proposal to be considered.

Much of the research and drafting of the proposal has been done pro bono by Scott Trotter, a veteran public-interest lawyer with a record of success in both championing and successfully challenging ballot initiatives.

Here are those five proposals:

• Independent groups that raise and spend money to advance the elections of candidates for state office would be required to disclose their contributions and expenditures, and those promoting candidates in judicial elections would be forced to live within existing contribution limits applied to direct campaign donors.

(The Citizens United ruling by the U.S. Supreme Court, which allowed what's come to be known as unlimited and unaccountable "dark money," did not prohibit requiring disclosures of spending sources and amounts, nor did it prohibit capping contributions outright in judicial races.)

• The Legislature would have the authority to "review" state agency rules and regulations rather than "approve" them as provided in a constitutional amendment the voters approved a few years ago.

• Legislators would be prohibited from voting to appropriate money to agencies or for purposes in a way that gives them subsequent direct control of the money, which is more properly an executive-branch function.

The point is to stop by clear constitutional language the General Improvement Fund (GIF) practice, by which legislators appropriate money to agencies but control the disbursements to local projects of their dictates. The practice is embroiled in federal indictments in Northwest Arkansas owing to legislators' steering money to a small local religious college and, allegedly, getting kicked back to themselves a portion of the money. The proposal would establish any violation of the amendment as an illegal exaction.

• The two chambers of the state Legislature, to override a governor's veto, would be required to achieve two-thirds majorities. The Legislature may now override a governor's veto by the same simple majority by which it passed the bill.

• To compete directly with the tort-reform proposal, the setting of damage caps in jury awards would be forbidden. Most of the judicial branch's rulemaking authority would be retained for the Arkansas Supreme Court rather than effectively transferred in great part to the Legislature, as provided in SJR8, the tort-reform proposal. Presumably, if both conflicting measures passed, the one getting the most votes would prevail.

The Bar Association's adoption of the proposal and agreement to champion it would set the stage for a battle royal at the general election in 2018. It would pit the state's business and medical communities on one side and the legal community on the other, but with the legal community offering a broader array of conceivably popular good-government reforms.

The Bar's most controversial proposal might be that to disclose so-called dark money. Owing to the complications of defining terms and providing exceptions in regard to those who would have to report their expenditures for seeking to influence state campaigns, the Bar proposal would defer those particulars.

It would simply authorize the Ethics Commission to invite public comment and then define those terms and grant those exceptions in a way the Legislature would be required by the proposed amendment to accept for enactment into law by January 2019.

Trying to address all those particulars in this omnibus proposal would require a ballot title so long the courts surely would throw it out as too much for voters to reasonably digest in the voting booth.

Lawyers who are members of the Bar's House of Delegates are just now getting a look at the proposal. They have a month to decide whether the Bar should accept this major undertaking.


John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers' Hall of Fame in 2014. Email him at Read his @johnbrummett Twitter feed.

Editorial on 05/16/2017

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KnuckleBall says... May 16, 2017 at 9:53 a.m.

Good Article John, this makes way to much sense..... not sure folks in Arkansas would vote for these... It seems in recent years people have forgotten how to think for themselves....!!!!

What most people don't know that today in the Great State of Arkansas if a State Employee doing his/her job makes a Legislator mad, he or she will go to the committee and have the funds stopped for that State Agency until the Agency backs down or the Governor's Office gets involved (which will not happen with the current governor). To many Appointed State Agency Dept. Heads cow down to the Lunacy Crew in the State House.

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TimberTopper says... May 16, 2017 at 2:16 p.m.

Good one, John. Much of this is needed, however probably to many areas covered for it to pass muster.

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Delta2 says... May 16, 2017 at 10:02 p.m.

The Bar ought to drop the damage cap provision, because that will be the thing that gets opposed the most, and therefore get this package defeated. Like Timber noted, it's too much for one amendment, but the Bar may be hoping that people will like most of it enough to vote for all of it. I doubt it. For the most part, the proposal is good government.

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