Emergency powers raise some concern

Editor’s note: The Northwest Arkansas DemocratGazette sent a questionnaire to the 26 legislative candidates in our region in contested races. A questionnaire was chosen because of the ongoing covid-19 pandemic. Restrictions on gatherings curtail the usual sources of information to voters such as debates, forums and “meet the candidate” events.

This is the third of six stories on their answers.

FAYETTEVILLE — Gov. Asa Hutchinson gets high marks across party lines for many of his decisions under the emergency powers act, but some local legislative candidates on either side of the partisan divide expressed concern about the breadth of those powers.

The candidates gave their opinions in response to a questionnaire from the Northwest Arkansas Democrat-Gazette. The candidates are all on the Nov. 3 general

election ballot and seek to represent districts that include at least some part of Benton or Washington counties. All but three of the 26 candidates participated. The question about the governor and the continuing covid-19 emergency was: “What do you think about the governor’s exercise of his executive powers during the pandemic? Would you propose any changes to the state’s emergency powers act?”

The Arkansas Emergency Services Act of 1973 permits whoever is governor to declare an emergency and “issue executive orders, proclamations and regulations and amend or rescind them” to address the situations. It also says those “executive orders, proclamations and regulations have the force and effect of law.”

The governor first declared an emergency because of the covid-19 pandemic in March and has extended the emergency since. He extended the emergency declaration most recently on Aug. 14, for another 60 days.

Eighteen members of the 135-member Legislature joined a lawsuit earlier this month suing to end the state of the emergency. None of the region’s legislators who were sent the questionnaire are plaintiffs in the lawsuit against the governor. None of the other candidates sent the questionnaire are plaintiffs either.

“The governor did a good job early in the pandemic when decisions had to be made quickly,” said incumbent Rep. Clint Penzo, R-Springdale.

“Now that more information is available, I would like to see more legislative oversight. If any situation meets the severity to declare an emergency, it should also meet the threshold to call a special session of the Legislature.”

Hawley Woods, Penzo’s Democratic challenger in the House District 88 race, holds much the same view, although she was more critical of the governor’s early decisions.

“I agree with several of the actions he took because sometimes you do need a strong leader to step forward and act,” Woods said. “I think some of them could have been made sooner, such as the mask mandate. I do think he needed to close down access to crowded places that could become hotbeds to spread the virus. I do not understand, however, why the governor is not letting the Legislature perform its function of appropriating money. Representatives should decide how to appropriate money to best help their constituents.”

CARES MONEY

Arkansas received about $1.25 billion in federal taxpayer dollars through the federal Coronavirus Aid, Relief and Economic Security Act, commonly known as the CARES Act.

The money is to fight the covid-19 pandemic in the state and mitigate its economic effects. The governor set a steering committee to decide where the money should be spent. The Legislative Council,

a committee of the Legislature that oversees state operations when the Legislature is not in session, has the power to reject decisions of the governor and his steering committee.

However, legislators have complained the Legislative Council process is designed for fine-tuning and overseeing state policy and spending, not allocating more than a $1 billion of public money. Allocating public money is the constitutional role of the Legislature — its chief power under the constitution.

In all, four Democrats and seven Republicans of the 23 candidates said they would at least consider changes to the state’s Emergency Powers Act, although most did not have a specific change they proposed.

One candidate with a specific proposal was Josh Bryant of Rogers, Republican nominee is the House District 96 race.

“I would support the change of a special legislative session being mandatory if the governor declares an emergency,” Bryant said. “This would allow the Legislature to form independent committees to monitor the various state agencies being tasked with critical changes into how business is conducted.”

Democrat Jon Comstock, Bryant’s Democratic opponent, praised Hutchinson’s actions overall but would also consider limiting emergency powers in the future.

“On balance, I believe that the governor has acted properly and with restraint,” Comstock said. “It does seem that the Legislature should play a greater role when it comes to allocating federal dollars for the pandemic response. I don’t know enough of the details to know what that would look like exactly, but I do believe it should be reviewed.”

PROS AND CONS

Eighteen members of the 135-member Legislature joined a lawsuit earlier this month suing to end the state of the emergency.

Others had a more mixed view of Hutchinson’s use of emergency powers.

“Like most people, there

are actions the governor has taken in an emergency situation that I agree with and things I disagree with,” said Rep. Jim Dotson, R-Bentonville. “The current emergency powers act is from 1973, before the days of digital communication, so the covid-19 pandemic has created an opportunity to improve upon our emergency powers act and bring more accountability to it.”

Dotson drew an opponent in his District 93 House race. Democrat Daisy Bonilla said she would not make any changes to the state law.

“It’s in our state’s best interest that we implement consistent

prevention guidelines for everyone to follow across the state in order to protect one another to the best of our ability,” Bonilla said of the governor’s mask mandate.

“However, I do not agree with the governor’s executive order that protects businesses from lawsuits related to covid-19 and makes it harder for workers to receive worker’s compensation if they contract covid-19,” she said. She referred to the governor’s June 15 executive order granting immunity from civil liability to businesses and their employees resulting from exposure to covid-19. The immunity does not apply in cases of willful, reckless or intentional misconduct.

Sen. Jim Hendren, R-Sulphur Springs, praised the overall actions of Hutchinson, who is his uncle. In principle Hendren also supported the governor — any governor

— being “able to make decisions quickly during times of emergencies. The legislative process is simply too slow to allow for timely decisions during a crisis.

“I do think there should be some discussion about emergencies that extend over many months and how the Legislature might be called in to session to affirm or remove executive orders that do not represent the will of the people of Arkansas as represented in the General Assembly,” Hendren said.

Hendren’s Democratic opponent in Senate District 2 did not respond to the survey.

Rep. Robin Lundstrum, R-Elm Springs of House District 87, praised the governor’s early actions, but now worries about the precedent being set.

“Even during a pandemic, we have three equal branches of government,” she said. “As Gov. Hutchinson continues to extend the emergency powers, when we are no longer in an emergency, we are setting new precedence in governing that is stretching constitutional boundaries,” Lundstrum said.

Lundstrum’s Democratic opponent is Michael Bennett-Spears. He was not as pleased with this governor’s decisions, but would not propose any changes to the emergency powers act, he said.

“I don’t approve of his use of executive power to protect businesses from being sued for putting employees in harm’s way during this pandemic, which would include the harder hit communities that work in the poultry plants, “Bennett-Spears said.

“I understand that we are facing unprecedented times and some degree of risk is unavoidable, but shifting the burden to the labor force in an already uncertain time only adds to the degree of distrust and fear while setting a dangerous precedent.”