House Health CommitteeWe have written before about Issue 3, which voters passed last November. Among other things, Issue 3 extended term limits for Arkansas’ legislators and put new ethics guidelines in the Arkansas Constitution.

One ballot proposal that did not garner very much attention, however, was Issue 1, which voters also passed last November.

Issue 1 made rules and regulations promulgated by state agencies subject to legislative review and approval.

On the surface, Issue 1 and Issue 3 seem to have very little to do with each other. One prescribes new ethics laws and extends term limits for legislators; the other increases accountability between the Arkansas Legislature and the state agencies operating under the Executive Branch of government.

Before leaving office this week, however, Attorney General Dustin McDaniel issued an opinion that connected Issue 1 and Issue 3: Together, Issue 1 and Issue 3 give the Arkansas Legislature a lot of authority over the ethics guidelines Issue 3 put in the Arkansas Constitution.

In a Nutshell

In a nutshell, here is what has happened:

  1. Besides extending term limits, Issue 3 outlined ethics guidelines for things like gifts to lawmakers from lobbyists.
  2. Issue 3 directed the Arkansas Ethics Commission to make rules implementing those ethics guidelines.
  3. Issue 1 gave the Arkansas Legislature authority over rules and regulations implemented by state agencies like the Arkansas Ethics Commission.
  4. This means the legislature controls the new ethics rules put out by the Arkansas Ethics Commission under Issue 3.
  5. Issue 3 also gives the Arkansas Legislature the power to change the ethics guidelines in the Arkansas Constitution with a 2/3 vote of the Arkansas House and Senate; no approval from voters is required.

In other words, Issue 3 directs the Arkansas Ethics Commission to implement new ethics guidelines, but Issue 1 gives the Arkansas Legislature authority over anything the Ethics Commission tries to implement.

Unpacking Issue 3

Issue 3 was a constitutional amendment passed by the People of Arkansas last fall. We have written before about how the measure extended term limits for lawmakers. It also affects things like gifts to lawmakers by registered lobbyists and meals purchased for state legislators.

It’s a constitutional amendment, so how could the Arkansas Legislature have any authority over Issue 3? After all, the Arkansas Constitution controls the legislature; the legislature does not control the constitution.

The key seems to lie with the following language that pops up throughout the amendment:

“[T]he General Assembly shall provide by law for this section to be under the jurisdiction of the Arkansas Ethics Commission, including without limitation authorization of the following actions by the Arkansas Ethics Commission:
(A) Promulgating reasonable rules to implement and administer this section as necessary;…”

In other words, Issue 3 outlines new ethics regulations, but it’s up to the Arkansas Ethics Commission to establish practical rules and regulations implementing those ethics regulations.

That alone gives the legislature some authority over the ethics rules, but that’s not all.

Issue 3 Also Lets the Arkansas Legislature Amend the Constitution

Something the Attorney General’s office notes is that Issue 3 also gives the Arkansas Legislature the power to change the ethics guidelines in the Arkansas Constitution with a 2/3 vote. That’s huge, because up until this point all changes to the Arkansas Constitution had to be approved by voters.

In Arkansas, voters have almost always had the final say on what goes into the Arkansas Constitution. Issue 3 contained language that, according to Attorney General McDaniel, gives the Arkansas Legislature the power to change the ethics provisions in the Arkansas Constitution with a 2/3 vote.

Letting the Arkansas Legislature unilaterally amend portions of the Arkansas Constitution a significant change.

Unpacking Issue 1

So Issue 3 makes the Arkansas Ethics Commission responsible for implementing ethics rules, but Issue 1 gives the Arkansas Legislature authority over rules and regulations established by agencies and commissions like the Ethics Commission.

That means that the new ethics rules adopted by the Ethics Commission as part of Issue 3 are subject to legislative approval.

In his opinion on Issue 1 and Issue 3, Attorney General McDaniel writes,

“[T]he people, whether wisely or not, have invested the General Assembly with significant potential control over the Ethics Commission’s rulemaking authority. Should it elect to exercise such control in this instance, the General Assembly of course will remain constrained by an obligation disinterestedly to promote implementation of the Amendment 94 [Issue 3] ethical strictures. As noted above, however, the General Assembly remains free to amend the substance of those strictures by supermajority vote.”

In other words, the people may have passed Issue 3 to put new ethics regulations in place, but the Arkansas Legislature has the final say on what those ethics regulations will look like.

So to Recap: 

  1. Issue 3 outlined ethics guidelines for things like gifts to lawmakers from lobbyists.
  2. Issue 3 directed the Arkansas Ethics Commission to make rules implementing those ethics guidelines.
  3. Issue 1 gave the Arkansas Legislature authority over any rules established by the Arkansas Ethics Commission–meaning the legislators control how the ethics rules are implemented.
  4. And Issue 3 gives the Arkansas Legislature the power to change the ethics guidelines in the Arkansas Constitution with a 2/3 vote of the Arkansas House and Senate; no approval from voters is required.

The purpose of ethics laws like Issue 3 is to hold our lawmakers accountable. Giving lawmakers so much authority over the ethics laws would seem to undermine Issue 3’s intended purpose.

Read Attorney General McDaniel’s entire opinion on Issue 3 here.