We can’t do anything. Oh yeah?

We can’t do anything. Oh yeah?

By David Ferguson

The transfer of $1 million by the Arkansas Department of Transportation to the University of Arkansas to help fund a building for the UA’s civil engineering program has drawn heat.  The transfer comes at a time when motorists are complaining about potholes.  It also comes at a time when the department and the Highway Commission are claiming more tax money is needed in order to do their job.  As Conduit For Action said. that’s incredibly bad timing.

Looking at Facebook posts about the transfer two things are evident: First, a lot of people are hot under the collar about their highway funds being spent for a college building. Second, some people assume the legislature has no power to rein in the department because it is independent since it is under the Highway Commission created by Amendment 42 to the Arkansas Constitution.

I worked for the legislature too long to let that statement go by unchallenged. The legislature has a greater ability to curb the Transportation Department than some believe.

  1. The legislature can, by a Joint Resolution, submit to the vote of the people a change in Amendment 42. For example, the legislature could propose repeal of the commission and put the Arkansas Department of Transportation under the supervision of the Governor. Such a change in the constitution could not be made until November 2021, but do you think the department might be better behaved in the meantime.
  2. Although the Highway Commission is created in the Arkansas constitution, its independence is not as broad as the Game and Fish Commission or colleges. Its duties are those set by the LEGISLATURE by LAW. That means the legislature CAN change the duties of the commission and the department by LAW. See the underlined portion of Amendment 42, § 1.

    1. Commission created — Members — Powers.There is hereby created a State Highway Commission which shall be vested with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department.

  1. The taxes supporting the department are set by LAW. The legislature by LAW can impose restrictions on the use of those taxpayer funds.
  2. The Department wants the legislature to authorize more taxes on you and me in order to get tens of millions more in additional revenue. The legislature could say “No.”
  3. The Department of Transportation gets it authority to spend money by an appropriation law passed by the legislature each year. The legislature sometimes put special language into appropriation bills restricting the use of funds. AND,  the appropriation bill cannot pass without receiving a 3/4ths vote of both the Senate and House to pass the department’s spending authorization.

I bet some creative legislators could come up with even more ways to rein in the department, if that was the will of the legislature.

It is not just the legislature that has power to rein in the Arkansas Department of Transportation.  The Governor has appointed several of the members of the Highway Commission.  In addition, the Governor has transferred millions of dollars to the department from his discretionary funds.  Before the Governor agrees to make future transfers, he could make it contingent on the department agreeing not to transfer the money or any taxpayer money to any other state institution or agency.

The issue is not whether the legislature or Governor are powerless to rein in the Department of Transportation.  The issue is whether they want to restrict the department.

You would think that before transferring $1 million to the U of A, the department would have solicited input from legislative leaders and the Governor.  If the department failed to do so, then it is one more reason to change the highway laws and constitution.


David Ferguson is a former Director of Arkansas’ Bureau of Legislative Research, having a thirty-two-year career as an attorney for the Arkansas legislature.  After retirement from state service his primary focus has been beef cattle farming. He is also a former officer of Conduit for Action.