An alarming concentration of power is flowing into the state Legislature. The idea of letting lawmakers write courtroom rules is only the latest surge.
The proposed constitutional amendment in Senate Joint Resolution 8 is breathtakingly awful. Yet a majority of House members are co-sponsors. A near-majority of senators are.
After reading it, I called people I trust who are no friends of trial lawyers. Was I reading this correctly? If the voters approve this proposal and then three-fifths of lawmakers decide that judges must wear clown hats and big, red rubber noses while presiding in court, that would be the rules? To my horror, I was assured that was a correct reading.
Here is the passage, on Page 5 of a a seven-page resolution:
"A rule of pleading, practice, or procedure prescribed by the Supreme Court shall not become effective until approved by the General Assembly at a regular session, fiscal session, or special session.
"By a three-fifths vote of each house, the General Assembly may enact laws: Approving, amending, or repealing a rule of pleading, practice, or procedure prescribed by the Supreme Court and adopting on its own initiative a rule of pleading, practice, or procedure.
"A rule of pleading, practice, or procedure enacted by law by the General Assembly shall supersede a conflicting rule of pleading, practice, or procedure prescribed by the Supreme Court."
If a powerful lobby faced a lawsuit it knew it was going to lose, why would it not attempt to get court rules changed in its favor in the Legislature before the case got to trial? That is just one example of the abuse this change could allow. The separation of powers between the legislative branch and the judiciary would turn to dust. The violation of that principle would be constitutional because the violation would be imposed through the state Constitution. This would be alarming enough on its own, but consider recent history.
In 2014, voters approved a measure -- placed on the ballot by the Legislature -- that requires lawmaker approval of executive department regulations. Its says administrative rules by any state agency "shall not become effective until reviewed and approved by the legislative committee charged by law with the rule under (a subdivision) of this section." So, in effect, the Legislature became the state review committee for everything the executive branch does.
That same year, another amendment authored by the Legislature greatly extended their term limits and endowed them with the power to set their own salaries.
In 2016, another legislative referral on the ballot greatly increased the bonded indebtedness the Legislature could issue and commit us to pay back.
All these things won voter approval. I could make a good argument for each. But in succession and added together, we now have a vastly more powerful Legislature than we did in 2013.
Now consider this year. The House already changed its rules and made its speaker much more powerful. Starting next session, the speaker assigns members to committees -- and can remove them. As I've argued before, the House just took a huge step away from being a representative body of members with diverse interests. They moved toward being some sort of Electoral College whose only real responsibility is to pick a speaker.
So far, the governor seems to be getting his way on most things. The branches do not appear all that imbalanced yet. This is because Gov. Asa Hutchinson knows how a budget works. That's part of it. The other part is that he is still respected as the man who carried the Republican standard when this was a Democratic state. But that hard-won reputation wanes with each passing day.
Without prestige, our governor's powers are feeble. A simple majority, for instance, can override his veto. Passing a budget requires the approval of three of every four lawmakers in each chamber, and so on.
There are no Asa Hutchinsons today -- lonely warriors fighting for a party that will become the new majority. Even if a new Hutchinson does emerge after this one is gone, any succeeding governor will face a new, powerful and deeply entrenched Legislature with oversight over every decision the administration makes.
Names like Max Howell and Nick Wilson are fading echoes. The power these lawmakers once wielded seemed impossible to attain even a year or two ago. But Howell, at the peak of his power, never wrote the rules for the courts.
Commentary on 02/11/2017