What exactly emergency clauses are, why they're used, and how often we saw them this year

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Let’s talk about emergency clauses. If you’ve been paying attention to Arkansas politics lately, you’ve heard a lot about them. Why? They’re playing a key role in the legal arguments about the legislature’s recent sweeping changes to the state’s education system (the LEARNS Act). But let’s take a step back and take a broader look at emergency clauses in general.

Basics 1.0: What’s an emergency clause?

An emergency clause is a section added to a bill that basically makes that law go into effect immediately. Without an emergency clause, new laws have to wait 91 days after the legislative session ends to become law. That’s usually around the middle of the summer. But with an emergency clause, they go into effect as soon as the governor signs them. That happens within a few days of being passed, and it’s usually in January through April.

Basics 2.0: Why do we have emergency clauses?

There’s a waiting period on the time between a new law being passed and it going into effect because Arkansas citizens fought for the right to repeal new laws. That happens through a process called referendum. If politicians pass a law that the people don’t like, we have 90 days after the end of that session to put that law on the ballot for the voters to decide whether we want to keep it or not.

However, politicians may want to circumvent that waiting period and have the law implemented immediately. In that case, they can add an emergency clause to the bill, stating that it goes into effect immediately upon signing by the governor. But to do this, 2/3 of their peers (both in the Senate and the House) have to vote for the emergency clause. Historically, that has seemed like a high threshold, but with a one-party dominated legislature (Republicans make up 82% of the legislature right now), it’s not unachievable.

2023 Numbers

• 1/3 of the bills passed had emergency clauses

• 84% of those were budget, public retirement, technical corrections, or state board related (not very impactful to most Arkansans)

• Just 16% of bills with emergency clauses were more substantive / widely impactful (represents around 5% of total bills passed)

In the 2023 legislative session, almost 900 bills were signed into law. A little over ⅓ of them (34%) had emergency clauses attached to them.

But 66% of the bills with emergency clauses were budget bills. It’s pretty standard to push those through immediately so that departments can set their budgets.

Other popular reasons for emergency clauses were those dealing with state boards and commissions, public retirement, and technical corrections to bills. None of these are super substantive or impact everyday Arkansans very much. All together, these categories make up 84% of all laws with emergency clauses this session.

That means that 16% of laws with emergency clauses were potentially impactful to our everyday lives. Overall, this reflects just 5% of all the new laws passed last session, but it’s worth looking at what they were. And that’s where we will pick up later.

Relevance check: What’s the conversation about anyway?

The state legislature almost always holds one vote on a bill, and that vote is for both the bill and the emergency clause. If the bill has an emergency clause attached to it AND it gets the required 2/3 vote, then the bill and emergency clause are both considered passed - meaning the law goes into effect as soon as the governor signs it.

For example, we have 35 state senators. That means that most bills need 18 votes to pass (majority) and 24 votes for an emergency clause to be approved (2/3). Senators vote once and if a bill with an emergency clause gets 24 votes, it’s considered passed with the emergency clause. If it gets 19 votes, enough to pass but not enough for the emergency clause, the law passes but it has to wait the required 91 days after the end of the session to go into effect. Both the House and Senate must approve the emergency clause for it to be adopted.

Bonus knowledge: Expunging the vote

Oftentimes, if a bill passes but the emergency clause fails, legislators will “expunge” the vote on just the emergency clause portion and try to re-vote the emergency clause another day when they think they can get 24 votes. “Expunge” basically means they’re requesting a do-over.

Where’s the rub?

The issue at hand is the process. The Arkansas Constitution says this:

“…if upon a yea and nay vote two-thirds of all the members elected to each house…shall vote upon separate roll call in favor of the measure going into immediate operation, such emergency measure shall become effective without delay.”

It’s the words “separate roll call” that is the sticking point here. There is almost always just one vote held, and the clerks in the Senate and the House generally record the outcome of that one vote separately for the bill and for the emergency clause - making it appear as two votes. So there’s a record of two votes from the one vote that was held. Make sense?

You’ll even hear the Speaker of the House often (but not always) advise House members before their vote: “Your one vote is for the bill and the emergency clause.” That language wasn’t as common in the Senate this session, with members potentially being unaware a bill had an emergency clause unless they had actually read it (less common than we might hope) or they looked at the bill title on the electronic board in the Senate chamber.

There has been a lawsuit filed on the discrepancy between the Constitutional requirement for a “separate roll call” vote and the historical practice of one vote as it pertains to the LEARNS Act. If you want to learn more about that, the Arkansas Democrat Gazette has a great article with the background here. I won’t rehash what is already excellent reporting on that.

Bottom line: Emergency clauses should be rare

Emergency clauses by their nature are a direct response to the people’s power of referendum and functionally pull back power from the people and give it to the legislature. They should be rare and used solely in true emergencies.

There’s clearly a gray area in how they’re being implemented right now. A ruling from the Supreme Court will be welcome in shedding light on this process.

More info to come on the substantive bills passed with emergency clauses this session. Disclaimer: One impacts my own son’s ability to get a driver’s license.