It was naive, if not just plain dumb, of state Sen. Bart Hester (R-Cave Springs) to proclaim after the recent fiscal session that for the first time “in known history” the Arkansas Legislature failed to appropriate money to operate a state agency for the next year.
The Legislature’s 30-day fiscal session ended without an approved budget for the state Game and Fish Commission, which meant that unless Gov. Sarah Sanders called a special session and persuaded her worshipful followers in the legislative branch to pass a roughly $177 million appropriation for the agency for fiscal 2025, Game and Fish would have ceased to exist on July 1 and its 640 employees around the state would have needed to find other work. (Sanders called the session this week, and the state Capitol will once again fill up with legislators on Monday.)
Hester should know better. The last episode of this nature occurred under the auspices of his hero, Gov. Mike Huckabee, daddy of the current governor, and resulted in one of Mike’s last great achievements — a big package of tax increases, notably on tobacco products and your income, that cemented Huckabee’s place as the taxingest governor in Arkansas history, surpassing Bill Clinton, Dale Bumpers, Winthrop Rockefeller, Orval Faubus and Harvey Parnell. That happened in the spring of 2003, when Hester was a grown and educated man of 23 and a fan of the Republican preacher and politician, who was one of history’s most progressive governors (insofar as achievements—not political rhetoric).
The dilemma that poor Hester faced as the leader of one of the legislative houses obviously is not a new one, but rather only the latest proof of the naïveté and perhaps outright ignorance of one the great buffoons of Arkansas history, Gov. J. Marion Futrell, the Great Depression governor and author of the constitutional amendment that brought about Hester’s, Sanders’, Mike Huckabee’s and their predecessors’ absurd dilemma: spending taxpayers’ money needlessly on a special session for the 135 lawmakers and their staff to fix what should never have been broken.
(Of course, the upcoming special makes for a convenient excuse to go ahead and slash taxes mostly for the wealthy for the third time in Sanders’ tenure. Go figure.)
So, a few short lessons on the history of the costly and embarrassing failure of lawmakers and governors to approve state budgets.
It was in 1932 that voters, mired in the deepest depression in history, elected as governor J. M. Futrell, a circuit and chancery judge and former state senator who 20 years earlier, in the spring of 1913, had been for a few weeks the unelected governor of Arkansas. The newly elected governor in 1913, Joe T. Robinson, resigned almost instantly after taking office so that he could replace U.S. Sen. Jeff Davis, who had died suddenly after his reelection. Robinson’s resignation left the governor’s office for a few weeks in the hands of the president pro tempore of the Senate, who, the Arkansas Supreme Court finally ruled, in Futrell v. Oldham, was Futrell rather than his immediate predecessor as the pro tem, Bill Oldham.
Confusion seemed to follow Futrell throughout his long career in politics and government service until he was defeated in a race for a state Supreme Court seat in 1940. He left a trail of disorder that included last month’s brouhaha over whether Arkansas would abandon one of its most popular government services, fish and wildlife control and preservation, or spend some $100,000 of your money to come back to Little Rock for a week to fix it.
When Futrell was elected governor in 1932, the nation’s economic collapse aided by an unkind nature — historic floods and droughts that destroyed levees, fields, roads, homes and businesses — left Arkansas the most beggarly place in the land. Judge Futrell’s idea was that the best way to restore prosperity, such as it had been, was to cut taxes and government spending, especially on education. Many years later, in the 1980s, that would become the mantra of the Republican Party. Futrell thought high schools were a needless waste of money and brains and that the few high schools should be closed. So he wrote two amendments to the constitution, one to make it hard for the state to go into debt again and the other to make it hard to levy taxes and to actually spend tax money. State lawmakers rubber-stamped his proposals and the voters ratified them in 1934. They became Amendments 19 and 20, the so-called Futrell Amendments.
By the beginning of Futrell’s second term, in January 1935, Arkansas had far-away the largest per-capita debt in all the states and wasn’t able to redeem the bonds. Arkansas, alone among the states, was bankrupt. Schools didn’t have money to pay teachers, so many schools cut academic years short and also gave teachers and other school workers what could be called IOUs. The federal government under President Franklin Roosevelt came to the state’s rescue with commodities and federal aid until the spring of 1935 when the Roosevelt administration finally said enough was enough. If Arkansas did not raise money to help pay teachers and other government services and if it did not help the federal government provide food and other assistance to the state’s desperate population like all the other states, the federal government was going to shut off aid. It set a deadline of mid-March. Fearing riots at the Capitol if that aid was shut off, the tax-hating Futrell begged the Legislature to pass the state’s first sales tax and to legalize and tax liquor and pari-mutuel gambling.
Futrell and the Legislature, however, had to deal with his new constitutional laws, which said that an increase in any tax that existed in 1934 would require a statewide vote of the people or else a three-fourths majority of both houses of the Legislature. So he and lawmakers had to propose new kinds of taxes that could be adopted by a simple majority under the basic theory of democracy, majority rule. The Legislature passed them.
The Roosevelt administration backed off and continued to fund relief in Arkansas. They even redeemed Arkansas’s worthless bonds. No state ever has had a greater debt to the national government than Arkansas.
But this is about the other part of Amendment 19 that Futrell had devised to prevent profligate spending by the state government. It said that the state could spend no more than $2.5 million over two years unless the appropriation bills got at least three-fourths of the votes in both houses. No other state has ever had such a requirement, which effectively gives power on any spending bill to a small minority of legislators rather than the majority. The provision has never actually saved the taxpayers a dime.
Futrell’s amendment, of course, provided exceptions to the supermajority. The Legislature could approve an appropriation bill by a simple majority—51 in the House, 18 in the Senate when all the seats were filled—if the money was for “educational purposes, highway purposes, to pay Confederate pensions [Futrell’s daddy had been one of the pensioners] and the just debts of the state.”
So what are “just debts of the state” besides Confederate pensions, education and highways? Prisons? Hospitals? Law enforcement? Game and Fish?
That has been what the Legislature and the courts have had to wrestle with over the years, including last month, although there is no sign that the legislators or the governor have a sense of their dilemma. Is the operation of a wildlife conservation agency a “just debt” of the state? If so, the appropriations passed in both houses were legitimate since a substantial majority in both houses voted for them.
That dilemma quickly confronted the Legislature and Gov. Futrell, at the end of the legislative session in 1935 that had passed the new taxes and the first appropriations under Futrell’s law.
When the Legislature had pretty much concluded their business, legislators started packing up and going back to the farm before the session adjourned, leaving not enough men to reach the 75% threshold. So appropriation bills came to the floors of the Senate and House and couldn’t get the 75 in the House and 27 in the Senate. Lt. Gov. Lee Cazort, who presided in the Senate, had to decide whether to declare the bills passed or defeated if they had only a simple majority. Cazort concluded that only Gov. Futrell could know what a “just debt of the state” was since he wrote the words. Cazort declared the bills passed and sent them to the governor. If Futrell thought they were just debts of the state he could sign them, if not he could signal it by vetoing them. Futrell signed them all without comment.
But that has not been the subsequent history. Since there is no definition of “just debts of the state,” Legislatures and governors decided to play it safe and keep voting on chancy bills until they got the three-fourths. In fact, opposition to appropriation bills has been extremely rare.
The history is that the Futrell formula hands extraordinary power to special interests and special pleaders in the Legislature.
When the state Board of Pharmacy in the 1960s suspended the license of a pharmacist in northeast Arkansas for violating the state law on prescriptions, the state senator who was the pharmacist’s friend or customer corralled enough pals in the Senate—nine—to block the appropriation. When the Pharmacy Board agreed to restore the druggist’s license, the senator let its appropriation bill sail on to Gov. Faubus’s desk.
State Sen. Guy H. “Mutt” Jones, the diminutive (5 feet, 1 inch) giant from Conway, used Futrell’s crazy law to his and his community’s benefit. A friend or supporter of Mutt, the Legislature’s finest orator, operated a ferry that took motorists across the Arkansas River from Conway into Perry County at the community of Toad Suck. He wanted to get rid of his ferry and Sen. Jones told the state Highway Department to buy it. The director of the Highway Department said they didn’t want to operate a ferry. They built and maintained highways. As the legislative session of 1957 was coming to an end and both houses were passing appropriation bills by the scores every day, Jones checked out the two-year appropriation for the Highway Department, stuck it in his coat pocket and took it home so the Senate could not vote on it. He refused to return it and the Legislature adjourned on its 60th day, having effectively abolished the Highway Department effective July 1. The highway director relented and said the department would take the damned ferry. Faubus called a special session and they enacted the appropriation. Since now a state-operated ferry connected the federally supported highway from Conway to Perryville, Congressman Wilbur D. Mills arranged for the federal Bureau of Public Roads to build the current bridge at Toad Suck and abandon the ferry. Mutt’s bridge now takes you to some beautiful scenery in Perry County. The Senate expelled him in 1974 after his conviction for defrauding the Internal Revenue Service on his tax return. The judge who presided over his trial suggested that Jones was the victim of political revenge. The federal charges were brought by the Republican administration in Washington.
Another phrase in Futrell’s amendment said the Legislature could never pass any appropriation bill until it had first passed the “general appropriations bill,” which provides money for the Legislature, the seven elected constitutional offices, the state financial department and the courts. At the regular session of the Legislature in 1989, the general appropriations bill did not get the supermajority in both houses. But the presiding officers declared it passed, Gov. Bill Clinton signed it into law and they then enacted the rest of the appropriations to operate the government for two years.
A lawsuit followed, alleging that the general appropriations bill had not been legally enacted as the first appropriation of the session because it was not a just debt of the state, so the hundreds of appropriations for the entire state government were also invalid because they had been passed before the general appropriations bill had legally passed. A circuit judge agreed and the case was appealed to the Supreme Court. All seven justices recused because their salaries were involved in the case. Gov. Clinton appointed seven special justices. In a short opinion that reflected little coherent analysis, the majority shrugged and, like a previous court, said the Futrell law might not be wise or logical but that the voters had rubber-stamped it in 1934 and it just wasn’t the court’s say as to whether the legislative, executive and judicial departments of government were just debts of the state. In a short but equally confusing dissenting opinion, special justice Lonnie Turner of Ozark relied on common sense. The basic functions of government—the executive, legislative and judicial departments—must be considered just debts of the state if anything is a just debt and thus needed only a simple majority. Nevertheless, the Legislature reassembled in special session and reenacted the entire budget of government for 1990-91. The short session was expensive although legislators then, unlike today, received paltry pay.
In April 2003, when the Legislature, fighting over how to address court orders to provide a suitable and equal education for all children, as the constitution requires, could not pass all the state appropriations by the conclusion of the session and couldn’t get the two-thirds majority needed to extend the session, Gov. Huckabee summoned them back for a special session to enact all the appropriations before the fiscal year began on July 1. Altogether, the regular and special sessions that spring enacted a huge program, including major hikes in public school spending and new taxes for the public schools, including an income surtax. That was the session when Gov. Huckabee famously addressed a joint session of Democratic legislators and begged them to enact taxes — any taxes, including income taxes — and he would sign them into law to meet the demands of public schools, to match federal funds for Medicaid, and to expand the prisons.
Things do change. Now we have the daughter, Sarah Sanders.