Fights over emergency clauses have been much in the news lately, but it’s understandable if you tuned out. It’s OK if debating the minutiae of legislative policies and procedures isn’t your idea of a good time.
Oddly, though, the whys and hows of the “emergency” label lawmakers can tack on when ⅔ of their colleagues agree are suddenly crucial as school choice advocates and public school defenders wrangle over the future of education in Arkansas.
Angie Maxwell, an author, historian and the Diane D. Blair Professor of Southern Politics at the University of Arkansas, answered some of our questions about the roots of this current courtroom clash which, it turns out, were put down more than a century ago.
The current flap over the governor’s signature LEARNS school choice expansion law is not the first time Arkansans pushed back on lawmakers’ liberal use of that emergency label.
Do you know how our current system regarding emergency clauses originated? And why?
In the early 1900s, the Populist movement — the People’s Party, as it was called — championed constitutional reforms that made government more responsible to the people. In 1913, Populists would push for Amendment 17 to the Constitution for the direct election of U.S. senators by the people. Before then, senators were chosen by the general assemblies in each state.
The People’s Party, captained by three-time candidate for president and former Secretary of State William Jennings Bryan, also lobbied state legislatures to introduce state constitutional amendments granting initiative and referendum powers to the general public.
In 1907, Bryan sent a personal, yet ultimately ineffective, recommendation to the Arkansas legislature encouraging them to put an initiative and referendum amendment on the ballot. During the 1909 session, Bryan came to Arkansas and addressed the members directly, and that seemed to do the trick – along with the fact that the people of Arkansas had grown increasingly upset with how much these lengthy legislative sessions were costing taxpayers. By a vote of 78-4 in the House and 26-1 in the Senate, what would be known as Amendment 10 was placed on the 1910 general election ballot, and was approved by the people.
The amendment allowed the people of Arkansas to repeal any law passed by the legislature. To do so, 5% of voters had to sign a petition to refer a newly passed law to the people to approve or reject during the next general election. Any legislative act referred to the ballot would not go into effect until after the election, and then only if the voters approved. The only exception was if implementation of a new legislative act was necessary “for the immediate preservation of public peace, health, or safety.”
In the legislative sessions that followed, the Democratic Party-dominated state legislature began claiming that every act they passed was necessary “for the immediate preservation of public, peace, health, or safety.” This all-encompassing definition of “an emergency” saved any bill that was passed from being referred to the ballot and repealed by the people.
By 1920, enough Arkansans were fed up with the abuse of this loophole that they passed another initiative and referendum amendment to the state constitution to close it. The new amendment required both that the necessity of any such emergency be stated clearly in the measure and that 2/3 of the members of both the House and the Senate, in a separate roll call vote, vote in favor, specifically, of the measure going into immediate effect.
The amendment also offered a compromise: Laws without emergency clauses that were referred to the voters of Arkansas for their approval or rejection would be held at bay until their fates were decided at the ballot box. Laws that passed with emergency clauses attached would go into effect pending the vote.
In those days, 2/3 was a pretty high bar. Even though Democrats dominated both chambers, factions within the Democratic Party functioned as sub-parties of sorts, pitting Populist Democrats against conservative Democrats, rural Democrats against town and city Democrats, etc. So, the emergency clause as we know it now was originally put in place to protect the constitutional right of Arkansans to reject or approve legislative acts before they go into effect. After all, the effects of some laws are immediate. And some of those immediate effects, particularly on individuals or communities or even businesses, are irreversible, regardless of the outcome of a referendum vote.
So if these rules have been in place for a century, why are we just now paying any attention?
We know that others have questioned the validity of emergency clauses in the past. In 2019, the Arkansas Supreme Court struck down an emergency clause on a legislative act because they did not think the justification in the bill fell within a reasonable definition of an emergency.
In terms of recent questions about the process, the separate roll call vote, I don’t know why it hasn’t been raised in the courts until now. My understanding from media covering the case is that one of the parliamentarians testified in court that the issue has been raised in recent years. I do remember a lot of votes on emergency clauses and then expunging the vote on the emergency clause and re-voting during the special session dealing with private businesses and vaccine mandates.
In terms of LEARNS specifically, I suspect that public education reforms and vouchers made some Arkansans pay attention to the legislature more closely this spring. I remember hearing people talk about it in places I don’t normally hear people discussing the session: in line at the grocery store or at the gym.
The fact that the bill included so many changes rolled out over several years and that it moved so quickly through the legislative process probably raised a lot of questions about when each piece of it goes into effect, especially when folks are looking to implement some changes over summer break. Some folks may see pieces of the act as addressing “emergencies,” as they would define it, though other components are not.
I’m sure if someone had noticed during last session or the ones prior, they would have filed a suit, because there have been plenty of controversial bills in the last few cycles.
Does it really matter though? Whether LEARNS starts in May or in August, what’s the difference?
I don’t know if it matters in terms of LEARNS. If those leading the repeal efforts get enough signatures, it definitely matters. But that is a hard threshold to cross in such limited time.
I do think, irrespective of LEARNS, that it matters. An emergency clause forfeits the people’s right to keep a law from going into effect pending a referendum vote. To that end, an emergency clause vote is not a technicality. It is a trade-off that, in my opinion, should be rare, and is at least worthy of serious debate and thoughtful consideration by all members.
I think too often many of us get caught up in an issue in a bill, whether we like a policy or don’t like it. I wish we thought more about implementation, about the people who have to actually make changes happen, communicate those changes with a larger community, figure out the nuanced details or even the basic details that get left out of legislation.
I think leaving time and space to address unintended consequences or red tape or just unexpected obstacles is good for governing. Giving our House and Senate members time to help communicate changes to their constituents and hear their concerns that may be able to be addressed in future legislation is good for governing. Taking time to think through how we will assess what is working, measure its impact, and keep thorough records of whatever new policy we are implementing is also good for governing.
Emergency classifications should be rare. They shouldn’t be mixed in with other components of a bill that are not emergencies. We should have a real debate about the speed of implementation of any legislative act. Protecting the constitutional right of the people of Arkansas to refer a law to the public for rejection or approval before a law goes into effect should be taken to heart by those who represent us and sacrificed only when absolutely necessary.
