Whenever I talk to out-of-staters about private option politics, I have to remind them how unique the situation is in Arkansas. The state’s quirky constitution demands 75-percent supermajorities in both houses of the legislature for certain appropriations, creating an incredibly steep annual hurdle for the private option. Because the fights over the PO have been so contentious and dramatic, it’s easy to forget that mammoth majorities have backed the policy from the get-go, every single year. The issue, unique to Arkansas, is that a rump group of 26 in the House or 9 in the Senate can hold up the train. Under the circumstances, it’s frankly remarkable that the private option passed and keeps getting re-authorized even as the General Assembly welcomes more and more virulently anti-Obamacare members, many of whom campaigned specifically against the PO. 

The constitution’s supermajority requirement isn’t new, but the aggressive use of it by the PO aginners is incredibly rare. Historically, legislators have routinely voted for appropriations even if they may have voted against legislation contained within those appropriations. And there was never a political litmus test demanding that legislators block entire appropriations, potentially shutting down large swaths of state government, in order to establish where they stand on every single item in an appropriation. Nobody ever said that John Walker, say, supports Voter ID just because he voted for the Secretary of State appropriation. 

The reason for this norm is that it would be an utter disaster for state government if 26-percent minorities start holding up appropriations every year if they don’t get their way. Getting anything done would become nearly impossible and you’d have the constant threat of shutdowns. Not just threats: play enough games of chicken and you’ll eventually drive over the cliff. This is the dangerous precedent being set by the private option aginners. 

When I spoke with Sen. Jim Hendren a few weeks ago about the coming battle over the private option he mentioned that Republicans might come to regret using this political tool in this way. After all, it appears that Republicans are likely to have a majority in the General Assembly for a generation. The behavior of the PO aginners, establishing a new norm that empowers minorities to block appropriations if the majority doesn’t give in to their demands, could eventually curtail the ability of the GOP to enact their agenda just as they’ve come to dominance. Here’s Hendren: 


I’ve told a few folks, the Republican majority may some day look back on the time that we began to block appropriations as a pretty fundamental mistake as we became the majority. Philosophically, blocking policy using the appropriation process is a recipe for gridlock. And potentially government shutdowns. 

Hendren himself tried to use the supermajority requirement to stop the PO from being enacted in the first place. He said that it “was legitimate at the onset” to take the unusual step of using this constitutional tool, given that the coverage expansion was a new program demanding billions of dollars in appropriation (most of those federal dollars). 

“I think that is a legitimate time for the constitutional requirement of a three fourths majority,” he said. “But to say that moving forward — as I’ve told some of our folks, there are probably things that happened that we don’t like in the education department, health department, or other state agencies. Traditionally we’ve tried to change the policy, but we don’t shut down the agency.”

It was not lost on Hendren that the Democrats, likely now in a permanent minority, are going to be tempted to use this tool in the future. Most of the Dems remaining are in seats that are just as safe as the Tea Party Republicans now threatening to shut down the Medicaid program over the PO. How long before Democrats use a similar maneuver to try to block the GOP majority’s agenda? There are any number of laws passed by the GOP majority that the Dems find repellent; will they shut down the relevant appropriations as a de facto veto? (And of course a rump group of 26 Democrats could threaten a shutdown unless the PO continues). 

To be clear, Hendren said that for better or for worse, the supermajority threshold remains in place in order to keep the private option. The governor’s office has given every indication that if they cannot make the threshold, they will end the coverage expansion. Hendren, in other words, isn’t denying that aginners have a constitutional prerogative to play this game of chicken. The question is whether, over the long haul, this game of chicken is a good idea.

Regardless of what it means for the interests of Republicans, the new supermajority norm almost certainly makes for worse policy. With margins so tight, individual lawmakers have massive leverage. Once upon a time, the GOP architects of the private option argued that an annual supermajority requirement would keep state officials honest and push the policy in a conservative direction. My argument at the time was that it was much more likely to empower special interests and encourage shady dealmaking. You might recall that Sen. Jane English was nabbed as the deciding vote in 2014 even though she readily admitted she still didn’t like the PO. Her motivation wasn’t making the PO incrementally more conservative. She just used her leverage to get some funding for unrelated job training programs. English had a pretty good argument for those programs on the merits, but how long before a swing vote is bought off with bad policy? How long before a lobbyist tries to get a special deal or a policy tweak in the PO’s implementation with the help of just one senator? That’s all it takes under the current dynamic, since there will never be any margin for error in the annual battle royale for 75 percent. And of course it also allows a group like Conduit for Action to target a handful of senate races and potentially stop the flow of billions of federal dollars into the state’s health care system. Conduit only has to buy off nine seats and that’s that. How long before other outside groups, with their own agendas, start demanding that senators use shutdown tactics to get their way?

The state government probably couldn’t function if most legislation stalled without a supermajority. The constitutional tool that allows a minority to block certain appropriations has been used so sparingly that the state hasn’t really faced a crisis of governance over this quirky rule. But that could be changing. 


If a tiny minority of nine votes in the Senate or 26 votes in the House stops the private option, the precedent set could have unpredictable results. It will almost certainly empower Democrats to pull similar stunts against Republican-backed legislation in the future; it could lead to gridlock, standstills, and potential shutdowns that make the smooth operation of state government impossible; the more common it becomes, the more leverage individual lawmakers will have to demand special favors; and with margins tight to get anything done, the more power special interests, lobbyists, and outside groups will have to make specific policy demands.   

Support for special health care reporting made possible by the Arkansas Public Policy Panel.