It’s a good time to be a lawyer or to be a legal observer or to be engaged in political-legal battles. I tend to lean to the legal observer position.
Over the past two weeks, we have seen a number of cases and rulings affecting state laws ranging from nitrogen gas executions to posting the Ten Commandments in schools to regulating the pharmacy industry. All of the action was created by state laws from the Arkansas Legislature.
I can tell you that having observed legislative activity over the last 30 years, one of the biggest changes I’ve witnessed is in the General Assembly’s willingness to pass laws that it knows will be challenged on constitutional grounds. Constitutionally suspect bills used to have to run through a gauntlet of exhaustive questioning from some serious inquisitors.
When I first started at the state Capitol, there were dozens of attorneys who were also citizen-legislators. Just to name a few: Mike Beebe, Morril Harriman, Vic Snyder, Bill Lewellen, Mark Pryor, Jodie Mahony, Wayne Dowd, Doyle Webb, Mike Wilson, Nick Wilson, Steve Bell, Bill Walters, Mike Bearden, Mike Todd, Mike Everett, and David Malone all come to mind. I’ve got stories watching or dealing with all of them when I was cutting my teeth in politics.
I used to marvel at the Senate Judiciary Committee, which was made up of Beebe, Harriman, Dowd, Snyder, Walters, Bearden and Bell at one time. They were all attorneys on that committee and, still, there were attorneys in the Senate who weren’t on the committee.
Their debates often centered around minute and crucial examinations of how a law might impact another area of the law or whether or not a law would have constitutional challenges. Often, a bill might not advance over concerns regarding legal precedent or constitutionality.
Fast forward to today when there are far fewer attorneys in the state Legislature. Some will argue that is a good thing, while others will tell you it’s a bad development. I merely point out that having fewer lawyers involved in the process of, well, making laws, can be a handicap. Not that there aren’t enough lawyers lobbying in the hallways, serving committees, or providing testimony.
I’ve just seen a declining attitude of respecting the warnings that have come from those who are learned in the law. Some lawmakers are prone to say, “We’ll let the courts decide if it’s constitutional or not,” which is a cop-out at times because when a legislator doesn’t agree with a judicial ruling, they then chide the judge for being too liberal or out of touch.
The real problem for me is that it has become increasingly easier for the legislative branch to rely on the judicial branch to clean up laws that should have been vetted or defined or better written before consideration and final votes.
In his ruling on the pharmacy benefits manager law passed in the recent session, U.S. District Judge Brian Miller said something succinctly that captures my mood towards some — not all — of the legislative discussions I’ve witnessed in recent years.
“I disfavor reviewing legislative history when interpreting the meaning of statutes because elected officials, whether federal or state, can junk up the record with meaningless drivel,” he wrote.
I guess I prefer laws to be written clearly and cleanly and on point to the topic they’ve chosen to address. It is more common to see laws stuffed with flowery rhetoric that sounds like a public relations firm wrote the bill instead of, you know, a lawyer.
The old-timers I mentioned earlier, especially the ones on that Senate Judiciary committee, would never have tolerated some of the laws that are navigating their way to the appellate level. I’d like to see one or two of them leap to the modern age and offer some of the quizzical and insightful questions to today’s lawmakers.
It would be a good exercise for the rule of law, and it would certainly be entertaining to watch.
Editor’s note: Roby Brock is the Editor-in-Chief of Talk Business & Politics. He hosts Talk Business & Politics and Capitol View and a radio program three times a week on KASU.