Why did the Arkansas AG reject the Campaign Finance Act of 2016 ballot title?

Plain-English summary

Paul Spencer of the Regnat Populus Ballot Question Committee submitted a proposed initiated act called "The Campaign Finance Act of 2016." It would have required disclosure of large electioneering-communication spending, tightened independent-expenditure disclosure rules, added disclaimer requirements for political ads, and called for a U.S. constitutional amendment limiting election-related spending.

AG Dustin McDaniel rejected the submission. The opinion identified three main deficiencies in the ballot title, plus several ambiguities in the text of the measure that made it impossible to substitute a more suitable ballot title.

Ballot title deficiencies.

1. Undefined "electioneering communication." The term is jargon from federal campaign-finance law. Most voters do not know what it means, and even those familiar with the federal version would be misled, because the proposal used the term in a way that contradicted standard usage. The opinion describes standard usage as a communication mentioning a candidate within a specified period before an election and targeted to that candidate's electorate, without excluding express advocacy. The proposal's definition excluded express advocacy.

2. Wholesale failure to summarize. Half the ballot title summarized only a few sentences of the eight-page proposed measure. Entire sections (notably the independent-expenditure disclosure changes) went unmentioned. The AG noted that he is legally authorized to craft a more suitable ballot title but not to draft one from scratch.

3. Partisan language. The resolution summary used "equality" and "integrity" as appeals. The Arkansas Supreme Court has held that proposed measures cannot contain "catch phrases or slogans that tend to mislead or give partisan coloring" (Kurrus v. Priest; Arkansas Women's Political Caucus v. Riviere). Few voters would vote against "equality" or "integrity," which is precisely why those words are partisan.

Additional minor problems: typographical errors (running-together text from missing spaces) that recurred from prior submissions.

Ambiguities in the text.

The AG cataloged ambiguities section by section:

• Section 101 puts the act inside a heading about "campaign contributions" but does not actually address contributions. The "DISCLOSE Act" short title is in unusual all-caps, suggesting an acronym, but the acronym is not spelled out.
• Section 102 uses the nonstandard "electioneering communication" definition described above. Even more confusingly, the proposal sweeps in non-advocacy communications, which is broader than what standard usage captures, while also excluding express advocacy. The AG could not tell whether either or both of those moves was intended.
• Section 103 refers to "Title 6, Chapter 6, Subtitle 2," but the Arkansas Code uses "subchapters," not "subtitles." It also requires reports "online or electronically," which the AG flagged as redundant or ambiguous.
• Section 104 layers electioneering-communication-style reporting on top of independent-expenditure reporting; whether double reporting is required (under both schemes) is unclear.
• Section 105 references "[insert Internet Web site address of the disclosure Internet Web site]" without specifying which website.
• Section 2 (resolution) says Congress and the State "shall have the power to limit" election-related spending, which misleadingly suggests they currently lack any such power. They have it for many categories already.

The AG said he could not advise Spencer on the substance of the measure and invited him to resubmit it after addressing the identified problems. The opinion was procedural and did not address the merits of campaign-finance reform.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does "electioneering communication" mean in standard usage? A federal term from the Bipartisan Campaign Reform Act of 2002 (BCRA) for certain broadcast, cable, or satellite communications that mention a candidate within a defined window before an election and are targeted to that candidate's electorate. Standard usage covers both express advocacy ("vote for X") and certain functional equivalents. The Spencer proposal used the term to mean the opposite (excluding express advocacy), which the AG flagged as inherently misleading.

Why is "equality" a partisan word?
The AG reasoned that few voters would vote against words such as "equality" and "integrity." He found their use in the resolution summary partisan.

Can the AG substitute a better ballot title?
Yes, under A.C.A. § 7-9-107(b), if practicable. But the AG said he could not draft a ballot title "out of whole cloth." Here, several sections went unmentioned, half the title summarized only a few sentences, and ambiguities in the measure also prevented certification.

What is the link between this opinion and Citizens United? The proposed text attached to the opinion says Citizens United opened the gate to undisclosed special-interest spending in Arkansas elections. Its resolution called for a constitutional amendment allowing Congress and the states to limit election-related spending. The AG did not opine on the merits of that amendment; the rejection was procedural.

Did Spencer submit a revised version?
The opinion does not say. It invited Spencer to resubmit after addressing the identified problems.

Background and statutory framework

Arkansas's initiative process is anchored in Article 5, Section 1 of the state constitution. Before a petition can circulate for signatures, A.C.A. § 7-9-107 requires AG certification of the popular name and ballot title. Subsection (b) allows the AG to substitute a more suitable title; subsection (c) allows outright rejection where the original is sufficiently misleading.

The Arkansas Supreme Court has built a substantial body of doctrine on ballot title sufficiency. Distilled requirements include: honesty and impartiality (Becker v. McCuen); fair understanding of the issues (Becker v. Riviere); disclosure of essential facts that would give voters "serious ground for reflection" (Bailey v. McCuen); brevity (A.C.A. § 7-9-107(b)); freedom from misleading tendency by amplification, omission, or fallacy (Bailey v. McCuen); freedom from partisan coloring (Kurrus v. Priest; Arkansas Women's Political Caucus v. Riviere); intelligible communication of the scope and significance of the change (Christian Civic Action Committee v. McCuen); and no internal inconsistencies that make summary impossible (Roberts v. Priest).

The "electioneering communication" concept is a federal innovation. Buckley v. Valeo limited regulation of independent expenditures to express advocacy ("vote for X"). The Bipartisan Campaign Reform Act of 2002 introduced "electioneering communication" to capture a broader category, designed to reach functional equivalents of express advocacy. FEC v. Wisconsin Right to Life narrowed federal enforcement to communications "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" in the context of bans on corporate spending. Citizens United v. FEC later struck down corporate and union spending bans but left disclosure regimes intact.

The opinion cites Illinois, North Carolina, Massachusetts, and Ohio provisions as examples of electioneering-communication definitions. It faulted Spencer's proposal for expressly excluding advocacy while using a term that ordinarily covers it.

Citations

• A.C.A. § 7-9-107 (popular name and ballot title certification)
• A.C.A. § 7-9-107(b) (substitution authority and brevity)
• A.C.A. § 7-9-107(c) (rejection for misleading title)
• A.C.A. § 7-5-522 (five-minute voting booth limit)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistency standard)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential facts standard)
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000) (partisan coloring prohibition)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984) (partisan terms)
• 52 U.S.C. § 30104(f)(3) (federal definition of "electioneering communication")
• Buckley v. Valeo, 424 U.S. 1 (1976) (express advocacy doctrine)
• FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (functional equivalence)
• Citizens United v. FEC, 558 U.S. 310 (2010) (corporate spending and disclosure)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Official summary

Request for certification of the popular name and ballot title of an initiated act proposed to amend Arkansas law regarding campaign finance and other purposes.

RESPONSE: Rejected due to deficiencies in the ballot title and ambiguities in the text.

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DusTIN McDANIEL
Opinion No. 2014-135
December 15, 2014
Paul J. Spencer, Chair
Regnat Populus Ballot Question Committee
Post Office Box 1087
Little Rock, Arkansas 72203-1087
Dear Mr. Spencer:
This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2013), of the popular name and ballot title for a proposed initiated measure, as follows: Popular Name THE CAMPAIGN FINANCE ACT OF 2016 Ballot Title An actamending [sic] Arkansas law to require that any person making a payment or a promise of payment aggregating two thousand dollars or more in any calendar year for an electioneering communication or any person or independent expenditure committeee [sic] which makes independent expenditures in aggregate amount or value in excess of five hundred dollars disclose their campaign spending through the secretary of state or county clerk; requiring the disclosure of sponsors of independent expenditure advertisements, electioneering communications, or advertisements for or against ballot questions or legislative questions;and [sic] calling upon the Congressional Delegation of Arkansas to support, and the Arkansas General Assembly to ratify, an amendment to the United States Constitution establishing that, in 323 CENTER STREET, SUITE 200 • LITTLE RocK, ARl<ANsAs 72201 TELEPHONE (501) 682-2007 •FAX (501) 682-8084 INTERNET WEBSITE• http://www.ag.state.ar.us/ Paul J. Spencer, Chair Regnat Populus Ballot Question Committee Opinion No. 2014-135 Page 2 order to advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes, Congress and the states shall have the power to limit the raising and spending of money intended to influence the outcome of elections, and to prohibit corporations and other artificial entities from making campaign contributions or expenditures. The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition. Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal. This Office has been given no authority to consider the merits of any measure. In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to law,"1 this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents. Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment. The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.2 1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 ( 1992). 2 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984). Paul J. Spencer, Chair Regnat Populus Ballot Question Committee Opinion No. 2014-135 Page 3 The popular name is primarily a useful legislative device. 3 It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. 4 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.5 The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. 6 According to the court, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed."7 At the same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9- l 07(b)); otherwise voters could run afoul of A.C.A. § 7-5-522's five minute limit in voting booths when other voters are waiting in line.8 The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might .evoke.9 The title, however, must be free from any misleading tendency, whether b6' amplification, omission, or fallacy; it must not be tinged with partisan coloring.1 The ballot title must be honest and impartial, 11 and it must convey an intelligible idea of the scope and significance of a proposed change in the law. 12 3 Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). 4 E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). 5 May v. Daniels, 359 Ark. 100, 105, 194 S.WJd 771, 776 (2004). 6 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980). 7 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). 8 Id. at 288, 884 S.W.2d at 944. 9 Id. 293, 884 S.W.2d at 946-47. 10 Id. at 284, 884 S.W.2d at 942. 11 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W .2d 7 I, 74 (I 990). 12 Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted). Paul J. Spencer, Chair Regnat Populus Ballot Question Committee Opinion No. 2014-135 Page 4 Furthermore, the Court has confirmed that a proposed amendment cannot be approved if "[t]he text of the proposed amendment itself contribute[s] to the confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure."13 The Court concluded that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself."14 Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without clarification of the ambiguities. Your proposal contains four parts. First, it adds a new category of regulated election-related spending called an "electioneering communication." Second, it sets the reporting/disclosure requirements for electioneering communications, and it alters the existing requirements for independent expenditures. Third, it establishes detailed disclaimer requirements for several different kinds of media. Fourth, it proposes a resolution calling for an amendment to the U.S. Constitution. Having analyzed your proposed measure, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that (a) deficiencies in the ballot title, and ( b) ambiguities in the text of your measure prevent me from certifying your proposed ballot title, or substituting and certifying a more suitable ballot title pursuant to A.C.A. § 7-9-107(b). Deficiencies in the Ballot Title Your proposed ballot title contains three main deficiencies. First, you use the term "electioneering communication" without defining it. As this is a term-of-art in the context of campaign-finance regulation, and most people are unfamiliar with campaign-finance jargon, the undefined use of this term in the ballot title does not meet the legal requirements for initiated measures. The need for a definition is especially pressing because, without it, even those who are familiar with this jargon will be misled into thinking that this term is being used in its standard sense. But, as explained more fully below, your use of the term not only deviates 13 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000). 14 id. Paul J. Spencer, Chair Regnat Populus Ballot Question Committee Opinion No. 2014-135 Page 5 from the term's standard usage, your usage actually contradicts the standard
. 15 meanmg.
Second, you have made no attempt to summarize several sections of your proposal. For example, there is no summary of the proposed changes to the disclosure rules for independent expenditures. This explains why half your ballot title summarizes only a few sentences of your eight-page proposed measure. The total failure to summarize entire sections of your proposal renders the ballot title wholly deficient. Though I am legally authorized to craft a more suitable ballot title, I am not authorized to craft one out of whole cloth. Third, your summary of the resolution is partisan. The Arkansas Supreme Court has made clear that a proposed measure cannot contain "catch phrases or slogans that tend to mislead or give partisan coloring to a proposal."16 Words like "equality" and "integrity" are partisan because few would vote against them. 17 Therefore, this summary of your resolution is deficient. 15 Your definition excludes express advocacy, whereas most definitions include it and go beyond it to include functional advocacy. As explained further below, the term "electioneering communication" is typically defined in such a way that it captures certain communications that advocate for (or against) a candidate (or issue). The advocacy can be either express (e.g. "Vote for Candidate X") or the functional equivalent of express advocacy. An example of the latter can be found in an alternative definition of "electioneering communications" in federal law: "[T]he term "electioneering communication" means any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.") (emphases added). 52 U.S.C. § 30104(f)(3)(A). Illinois provides an example of a state statute that is designed to include both express and functional advocacy: '"Electioneering communication' means ... [certain communications that are] susceptible to no reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate for nomination for election, election, or retention, a political party, or a question of public policy." (Emphasis added.) 10 ILCS 5/9-1.14. See generally Richard Briffault, Updating Disclosure for the New Era of Independent Spending, 27 J .L. & Pol. 683, 699 (2012) ("Once federal, state, or local regulators decide to require the disclosure of all donors who provide funds for independent spending, it becomes critical to determine what activities by non- candidate, non-political-pa11 organizations are to be treated as election-related and, thus, subject to election law disclosure. One of the oldest and most difficult questions in campaign finance law has been just this question of the definition of election-related communications."). 16 See Kurrus v. Priest, 342 Ark. 434, 441, 29 S.W.3d 669 (2000). 17 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 468, 677 S.W.2d 846, 849 (1984). Paul J. Spencer, Chair Regnat Populus Ballot Question Committee Opinion No. 2014-135 Page 6 You should also note that, as in some of your previous submissions, your ballot title contains several typographical errors, usually consisting of words running together due to a lack of proper spacing. Ambiguities in the Text In addition to the foregoing deficiencies, several ambiguities in the text of your proposal also prevent me from certifying your proposed ballot title. I will address the ambiguities by reference to the section headings. Section 101 There are several ambiguities in this section:

• "SECTION 10 I" is contained under the following heading: "Section I: Disclosure of Campaign Contributions." But nothing in the subsequent sections address "campaign contributions." This creates an ambiguity: either you intended the subsequent sections to address contributions or the heading is misleading.
• This section states that the entire chapter-i.e. A.C.A. § 7-6-201 et seq.- "shall be known and cited as "The Arkansas DISCLOSE Act." The unusual capitalization suggests that you intend the act to be an acronym, perhaps "Democracy Is Strengthened by Casting Light on Spending in Elections," after the federal bill on which you seem to have loosely modeled your proposal. 18 The failure to state the full acronym leaves it unclear whether the term "DISCLOSE" is intended to refer to a known statement (such as the foregoing federal example) or whether the all-caps is intended as an emphasis. Section 102
• The primary ambiguity in this section is in the definition of "electioneering communication," which is highly unusual. The term "electioneering communication" arose from federal law, 19 and at least one state has 18 There are several iterations of the bill. An example is S. 2219, I 12th Cong.§ 324 (2012). 19 See generally Sean McMahon, Deregulate But Still Disclose?: Disclosure Requirements for Ballot Question Advocacy After Citizens United v. FEC and Doe v. Reed, 113 Columbia L. Rev. 734, 738 (2013) ("The [U.S. Supreme] Court also narrowed [the Federal Election Campaign Act's] coverage of independent expenditures by persons or groups other than political committees to require disclosure only of spending on express advocacy for the election or defeat of a specific candidate. In response the [Bipartisan Campaign Reform Act of 2002, also known as the McCain-Paul J. Spencer, Chair Regnat Populus Ballot Question Committee Opinion No. 2014-135 Page 7 incorporated both the term and the concept into its campaign-finance regulations. 20 Typically, the term is defined as (1) mentioning a candidate for public office, (2) within a certain number of days before the election, (3) in a communication, (4) targeted to that candidate's electorate.21 What is missing from this standard definition is any reference to whether the communication advocates-whether expressly or not-for or against the candidate who was mentioned. This was so that the category of "electioneering communication" could capture both express advocacy and certain speech beyond express advocacy. 22 Yet your definition affirmatively addresses express advocacy, excluding it from the category of electioneering communications: "any communication that clearly identifies a candidate for state or local elective office, but does not expressly advocate the election or defeat of the candidate .... " (Emphasis added.). Thus, you have taken a standard term and defined it in a way that actually contradicts its normal usage. It is not clear to me whether you intended to do this. But the divergence from the standard usage of the term "electioneering communications" goes a step further. Sometimes definitions of the term do take into account whether the communication advocates for or against the candidate. The definition typically will require that the communication either contain express advocacy (e.g. "Vote for Candidate X"23) or its functional equivalent.24 Your definition encompasses communications that Feingold Act] defined a new term, 'electioneering communication,' to cover a broader range of political communication and adve11ising beyond express advocacy.") (emphases added). 20 See, supra, note 15. 21 Id. 22 E.g. 52 U.S.C. 30104(f)(3); Several state statutes also define the term without reference to advocacy: North Carolina (N.C.G.S.A. § 163-278.6); Massachusetts (M.G.L.A. 55 § 1); Ohio (Oh. R.C. § 3517.1011); see also McMahon, supra note 19 (noting that the term "electioneering communication" was originally designed, not to exclude express advocacy, but to "cover a broader range of political communication"). 23 Buckley v. Valeo, 424 U.S. 1, 80 (1976). See also Briffault, supra note 15, at 699-707 (explaining the post-Buckley developments regarding how to define election-related speech). 24 See FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (WRTL) (holding that a federal prohibition on corporate and union electioneering communications could only be applied to Paul J. Spencer, Chair Regnat Populus Ballot Question Committee Opinion No. 2014-135 Page 8 contain implied (or functional) advocacy as well as communications that contain no advocacy at all. An example of the latter would be a circular that graphs where candidates stand on certain issues but that does not (either functionally or expressly) support a particular candidate. It is not clear whether you intend to include non-advocacy (and even non issue- advocacy) communications in your proposal, or whether you are simply trying to capture communications that contain either express or functional advocacy. This is an important ambiguity that must be resolved before I can ensure that the ballot title meets the legal requirements.
• You should also note that this section contains typos when it defines what is meant by "targets the candidate's relevant electorate." Section 103
• This section states that it will be adding "[a] new A.C.A. § 7-6-221" to "Title 6, Chapter, 6, Subtitle 2." But the Arkansas Code contains "subchapters," not "subtitles."
• This section requires "[a]ny person who makes a payment.. .[of at least]
  $2,000 .. .in any calendar year for an electioneering communication" to "file [a report] online or electronically with the Secretary of State or County Clerk .... " I am not sure whether you intend the phrase "online or electronically" to be stating two means of reporting or just one. Section 104
• Like the previous section, this section also mandates that certain persons file a report "online or electronically.'' What is the difference?
• This section takes the electioneering-communication (EC) reporting triggers ($2,000 and within 60 days before the election) and timelines (report within 48 hours of the payment) and places them on top of the existing reporting and disclosure requirements for persons who make communications that were the "functional equivalent of express advocacy" which occurs "only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."). Cf Citizens United v. FEC, 558 U.S. 310, 368-370 (2010) (noting that WRTL's distinction between issue and express advocacy does not apply in the context of disclosure regulations). See also Richard Briffault, Two Challenges for Campaign Finance Disclosure after Citizens United and Doe v. Reed, 19 Wm. & Mary Bill of Rights Journal 983 (2011). Paul J. Spencer, Chair Regnat Populus Ballot Question Committee Opinion No. 2014-135 Page 9 independent expenditures (IE). It is not clear to me whether, if an IE gets reported according to the EC-style requirements, the same IE payment must also be reported in the standard monthly and quarterly reports. Section 105 Subsection ( c )( 4) states that, when a person pays for a print version of an IE, EC, or other advertisement for or against a baJlot question, the "mass mailing or print advertisement" must include certain disclaimers. One of the items in the disclaimer includes the following: "Funding Details At [insert Internet Web site address of the disclosure Internet Web site]." It is not clear what website is being referred to. Is it the the website created and maintained by the Secretary of State? "Section 2. Constitutional Amendment" This section of your proposal contains two paragraphs jointly setting out the resolution that would call for an amendment to the U.S. Constitution. The first paragraph states: "The voters of Arkansas [call for] ... an amendment to the United States Constitution establishing that: ... Congress and the State shall have the power to limit the raising and spending of money and in kind equivalents intended to influence the outcome of the elections .... " This misleadingly suggests that Congress and the State currently lack any such power. Therefore, it cannot be properly summarized in the ballot title. As you know, "the raising and spending of money" that is "intended to influence elections" falls into many different categories, ranging from contributions, to coordinated expenditures, to independent expenditures, etc. As I have explained in previous responses to earlier iterations of your proposed resolution, Congress and the States currently have the authority to limit the raising and spending of certain categories of election-related giving and spending. So this iteration of your resolution is simply overinclusive, which renders the proposal misleading. I am unable to certify a ballot title for your proposed amendment in the face of the ambiguities noted above. They must be remedied before I can perform my statutory duty. My office, in the certification of ballot titles and popular names, does not concern itself with the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in A.C.A. § 7-9-107 and my duty is to the electorate. I Paul J. Spencer, Chair Regnat Populus Ballot Question Committee Opinion No. 2014-135 Page 10 am not your counsel in this matter and cannot advise you as to the substance of your proposal. My statutory duty, under these circumstances, is to reject your proposed ballot title (for the foregoing reasons) and instruct you to "redesign" the proposed measure and ballot title. You may, after addressing the matters discussed above, resubmit your proposed amendment, along with a proposed popular name and ballot title, at your convenience. I anticipate, as noted above, that some changes or additions to your submitted popular name and ballot title may be necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission. Sincerely, DUSTIN MCDANIEL Attorney General DM/cyh Enclosure Regnat Populus Ballot Question Committee P.O. Box 1087 Little Rock Arkansas 72203-1087 The Honorable Dustin McDaniel, Attorney General of the State of Arkansas Dear Sir,
  ~01t-f35
  DEC 01 2014
  ATTORNEY GENERAL OF ARKANSAS
  I respectfully submit the following ballot question title for your approval for the November 2016 general election: Popular Name The Campaign Finance Act of2016 Ballot Title AN ACTAMENDING ARKANSAS LAW TO REQUIRE THAT ANY PERSON MAKING A PAYMENT OR A PROMISE OF PAYMENT AGGREGATING TWO THOUSAND DOLLARS OR MORE IN ANY CALENDAR YEAR FOR AN ELECTIONEERING COMMUNICATION OR ANY PERSON OR INDEPENDENT EXPENDITURE COMMITTEEE WHICH MAKES INDEPENDENT EXPENDITURES IN AGGREGATE AMOUNT ORV ALUE IN EXCESS OF FIVE HUNDRED DOLLARS DISCLOSE THEIR CAMPAIGN SPENDING THROUGH THE SECRETARY OF STA TE OR COUNTY CLERK; REQUIRING THE DISCLOSURE OF SPONSORS OF INDEPENDENT EXPENDITURE ADVERTISEMENTS, ELECTIONEERING COMMUNICATIONS, OR ADVERTISEMENTS FOR OR AGAINST BALLOT QUESTIONS OR LEGISLATIVE QUESTIONS;AND CALLING UPON THE CONGRESSIONAL DELEGATION OF ARKANSAS TO SUPPORT, AND THE ARKANSAS GENERAL ASSEMBLY TO RATIFY, AN AMENDMENT TO THE UNITED STATES CONSTITUTION ESTABLISHING THAT, IN ORDER TO ADVANCE THE FUNDAMENTAL PRINCIPLE OF POLITICAL EQUALITY FOR ALL, AND TO PROTECT THE INTEGRITY OF THE LEGISLATIVE AND ELECTORAL PROCESSES, CONGRESS AND THE STATES SHALL HA VE THE POWER TO LIMIT THE RAISING AND SPENDING OF MONEY INTENDED TO INFLUENCE THE OUTCOME OF ELECTIONS, AND TO PROHIBIT CORPORATIONS AND OTHER ARTIFICIAL ENTITIES FROM MAKING CAMPAIGN CONTRIBUTIONS OR EXPENDITURES. Thank you in advance for your cooperation in this matter. Paul J. Spencer Chairman Regnat Populus Ballot Question Committee INITIATIVE PETITION To the Honorable Mark Martin, Secretary of the State of Arkansas: We, the undersigned legal voters of the State of Arkansas, respectfully propose the following Initiated Act, to wit: Popular Name THECAMPAIGN FINANCE ACTOF 2016 Ballot Title AN ACT AMENDING ARKANSAS LAW TO REQUIRE THAT ANY PERSON MAKING A PAYMENT OR A PROMISE OF PAYMENT AGGREGATING TWO THOUSAND DOLLARS OR MORE IN ANY CALENDAR YEAR FOR AN ELECTIONEERING COMMUNICATION OR ANY PERSON OR INDEPENDENT EXPENDITURE COMMITTEEE WHICH MAKES INDEPENDENT EXPENDITURES IN AGGREGATE AMOUNT ORV ALUE IN EXCESS OF FIVE HUNDRED DOLLARS DISCLOSE THEIR CAMPAIGN SPENDING THROUGH THE SECRETARY OF STATE OR COUNTY CLERK; REQUIRING THE DISCLOSURE OF SPONSORS OF INDEPENDENT EXPENDITURE ADVERTISEMENTS, ELECTIONEERING COMMUNICATIONS, OR ADVERTISEMENTS FOR OR AGAINST BALLOT QUESTIONS OR LEGISLATIVE QUESTIONS;AND CALLING UPON THE CONGRESSIONAL DELEGATION OF ARKANSAS TO SUPPORT, AND THE ARKANSAS GENERAL ASSEMBLY TO RATIFY, AN AMENDMENT TO THE UNITED STATES CONSTITUTION ESTABLISHING THAT, IN ORDER TO ADVANCE THE FUNDAMENTAL PRINCIPLE OF POLITICAL EQUALITY FOR ALL, AND TO PROTECT THE INTEGRITY OF THE LEGISLATIVE AND ELECTORAL PROCESSES, CONGRESS AND THE STA TES SHALL HA VE THE POWER TO LIMIT THE RAISING AND SPENDING OF MONEY INTENDED TO INFLUENCE THE OUTCOME OF ELECTIONS, AND TO PROHIBIT CORPORATIONS AND OTHER ARTIFICIAL ENTITIES FROM MAKING CAMPAIGN CONTRIBUTIONS OR EXPENDITURES. Findings and Purposes WHEREAS, the People of the State of Arkansas seek to create a democracy that is truly of, by and for the People and not bought and paid for by corporations, unions and the wealthy; and WHEREAS, the People of the State of Arkansas recognize that the U.S. Supreme Court ruling inCitizens United v. Federal Election Commission has opened the gate for a flood of new special interest money into Arkansas state elections, much of which is undisclosed and hidden from public view; and 2 WHEREAS, the People of the State of Arkansas recognize that a democracy of, by and for the people is founded upon an informed electorate, that the public interest is served when the interests of campaign donors and funders of political advertising are disclosed, and that transparency in political spending is critical for preventing corruption; and WHEREAS, the People of the State of Arkansas believe that Congress and the states should have the authority to limit campaign spending; THEREFORE, THE PEOPLE OF THE STATE OF ARKANSAS do enact as follows: Section 1: Disclosure of Campaign Contributions Amending Title 7, Chapter 6, Subchapter 2, as follows: SECTION 101. Short title. This chapter shall be known and cited as "The Arkansas DISCLOSE Act." SECTION 102. Definitions. A. CA. §7-6-201 is amended to renumber existing paragraphs (8) through (J 8) accordingly and insert new paragraph (8) as follows: (8) (A) "Electioneering communication" means any communication that clearly identifies a candjdate for state or locaJ elective office, but does,not expressly advocate the election or defeat of the canrudate, and that is disseminated, broadcalt:'.or otherwise published within 60 days of the eJection ought by that candidate, and that targets the candidate' relevant electorate. (B) "Electioneering communication" does not include-- Ci) a communication appearing in a news story, commentary, or editorial rustributed through the facilities of any broadcasting station, unles uch facilities are owned or controlled by any political party, political committee, or candidate: (ii) a communication which constitutes an expenditure or an independent expenditure under this Act: (iii) a communication which constitutes a candidate debate or forum conducted pursuant to regulations adopted bv the Arkansas Ethics Commission, or which solely promotes such a debate or forum and is made by or on behalf of the person sponsoring the debate or forum: Ci ) a communication on the Intern t or through email that is not a paid adve1tisement on another person's web site or internet communications service: and (v) anv other communication exempted under such regulations as the Arkansas Ethics Commission may promulgate consistent with this Act. CC) For purposes of this paragraph, a communication that refers to a clearly identified candidate for state or local elective office "targets the candidate's relevant electorate" if it can be received 3 (i) for broadca t, cable or satellite communications, 15,000 or more individuals for statewide office.or 5 percent of the jurisdiction's population or 3,000 or more individuals, whichever is less, for other offices; or (ii) for mass mailing, print or telephone bank: 2.500 or more "households' for statewide office.or 5 percent of the jurisdiction's 'households or 500 or more "households." whichever is less, for other offices. SECTION 103. Reporting of electioneering communications A new A.CA. §7-6-221 is added to Title 7, Chapter 6, Subtitle 2, as follows:
  § 7-6-221. Reporting of electioneering communications.
  (a) Any person who makes a payment or a promise of payment aggregating two thousand dollars ($2,000) or more in any calendar year for an electioneering communication shall file online or electronically with the Secretary of State or County Clerk. whichever is appropriate. a report di closing the name of the person. address, occupation, and employer, and amount of the payment. The report shall be filed within 48 hours of making the payment or the promise to make the payment. (b) Such reports shall include: (1) The total amount of contributions received with loans stated separately, the total amount of expenditures made during the filing periods, and the cumulative amount of those totals for the entire election cycle; (2) The identification of the person making the disbursement, of any per on sharing or exercising direction or control over the activities of such person, and of the custodian of the books and accounts of the perso11 makiug the disbursement: (3) The principal place of business of the per on making the disbursement. if not an individual; ( 4) The amount of each disbursement of more than two hundred dollars {$200) during the period covered by the statement and the identification of the person to whom the disbursement was made; (5) he elections to which the electioneering communications pertain and the names (if known) of the candidates identified or to be identified; (6) If the disbursements were paid out of a segregated bank account which consists of funds contributed directly to this account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of fifty dollars ($50) or more to that account during the period beginning on the first day of the preceding calendar year and ending on the disclosure date. Nothing in this subparagraph is to be construed as a prohibition on the use of funds in such a segregated account for a purpose other than electioneering communications; and (7) 1f the disbursements were paid out of funds not described in subparagraph (6). the name and addresses of all contributors who contributed an aggregate amount of fifty dollars ($50) or more to the person making the disbursement during the period begiJming on the first day of the preceding calendar year and ending on the disclo ure date. 4 ( c) Other than for county. school district, township or municipal elections, the Arkansas Secretary of the State shall make such reports a ailable to the public in a searchable, sortable and downloadable format on its web site. SECTION 104. Reporting of independent expenditures. A.CA. §7-6-220 of Title 7, Chapter 6, Subchapter 2, is amended as follows:
  §7-6-220. Reporting of independent expenditures.
  (a) A person who or an independent expenditure committee which makes independent expenditures in an aggregate amount or value in excess of five hundred dollars ($500) in a calendar year shall file reports with the Secretary of State or County Clerk, whichever is appropriate, following the same quarterly and monthly reporting schedule applicable to candidates set forth in §7-6-207(a)(l)(A) and CB) after meeting the reporting threshold of five hundred dollars ($500) or more: except that within 60 days of the relevant election, a person or committee making independent expenditures shall file online or electronically with the ecretary of State or County Clerk, whichever is appropriate, a report of each additional independent expenditure of two thousand dollars ($2.000) or more within 48 hours of such expenditure. (1) No later than thirty (30) days prior to preferential primary eleetions, general eleetions, and speeial eleetions eo¥ering the period ending thirty fi¥e (35) days prior to sueh eleetions; (2) No later than se¥en (7) da-ys prior to preferential primary eleetions, runoff eleetions, genera-I eleetions, and speeial eleetions eo¥ering the period ending ten (10) days prior to sueh eleetions; and (3) A,s for a final report, no later than thirty (30) days after the end of the month in ·.vhieh the last eleetion is held at vrhieh the eandidate seeks nomination or eleetion. (b) Such reports shall include: ( 1) In the ease of an indi¥idual making sueh an expenditure, the name, address, telephone number, prineipa-l plaee of business, employer, and oeeHpation of the individual; The total amount of contributions received, with loans stated separately, the total amount of expenditures made during the filing periods, and the cumulative amount of those totals for the entire election cycle; (2) In the ease of a eorn:mittee, the name, address, employer, and oeeHpation of its offieers; he identification of the person making the independent expenditure. of any person sharing or exercising direction or control over the activities of such person. and of the custodian of the books and accounts of the person making the independent expenditure: (3) In the ease of a person who is not an individual, the prineipal name of the entity, the address, and the name, address, employer, and oeeupation of its offieers; andThe principal place of business of the person making the independent expenditure, if not an individual; 5 ( 4) The same information required of candidates for offiee other than sehool distriet, tovmship, munieipal, or eounty office as set forth in§ 7 6 207(b)(l). The amount of each disbursement of more than two hundred dollars ($200) during the period covered by the statement and the identification of the person to whom the disbursement was made. (5) The election to which the independent expenditures pertain and the names (if known) of the candidates identified or to be identified; and ( c) The information required in § 7 6 207(b)( 1) may be provided in the form of a schedule or schedules attached to the report. ( d) The report shall be verified by an affidavit of an officer of the committee stating that to the best of his or her knowledge and belief the information disclosed is a complete, true, and accurate financial statement of the committee's contributions received and made. ( e) ( 1) A quarterly or monthly report is timely filed if it is either delivered by hand or mailed to the Secretary of State or County Clerk, properly addressed, postage prepaid, bearing a postmark indicating that it was received by the post office or common carrier on the date that the report is due. (2) The Secretary of State or County Clerk shall accept via facsimile any report if the original is received by the Secretary of State within ten (10) days of the date of transmission. (3) The Secretary of State or County Clerkffiay-shall receive reports in a readable electronic format that is acceptable to the Secretary of State or County Clerk and approved by the Arkansas Ethics Commission. SECTION 105. Disclosure of sponsors of political advertisements. A new A.CA. §7-6-228 is added to Title 7, Chapter 6, Subtitle 2, as follows:
  § 7-6-228. Disclosure of sponsors of independent expenditure advertisements, electioneering communications, or advertisements for or against ballot questions or legislative questions. (a) An independent expenditure advertisement, electioneering communication, or advertisement for or against a ballot question or legislative question that is a radio advertisement or prerecorded telephonic message shall include a disclosure at the end of the advertisement read in a clearly spoken manner and in a pitch and tone substantially similar to the rest of the advertisement that reads as follows: "Top funders of this ad are [state names in descending order of identifiable contributors who have made the three largest cumulative contributions]. Paid for by [name of the committee that paid for the advertisement]." (1) If there are fewer than three identifiable contributors, the disclosure required by subdivision (a) shall be adjusted accordingly to disclose the qualifying identifiable contributors, if any. (2) If there is only one identifiable contributor or the advertisement lasts 15 seconds or less, the disclosure required by subdivision (a) shall be adjusted to read as follows: "Top funder of this ad is [state name of identifiable contributor who made the largest cumulative contributions]. Paid for by [name of the committee that paid for the advertisement]." 6 (3) If there are no identifiable contributors or the committee that paid for the advertisement is the only identifiable contributor, it may replace the disclosure required by subdivision (a) with the following: "Paid for by [name of the committee that paid for the advertisement]." (b) An independent expenditure advertisement, electioneering communication, or advertisement for or against a ballot question or legislative question that is a television or video advertisement shall include a disclosure area with a solid black background on the entire bottom one-third of the television or video display screen at the beginning of the advertisement for a minimum of five seconds in the case of an advertisement that lasts 30 seconds or less or a minimum of 10 seconds in the case of an advertisement that lasts longer than 30 seconds. The disclosure area shall include all of the following: (1) The text "Top Funders of This Ad." The text shall be located at the top of the disclosure area and centered horizontally, shall be yellow in color in Arial equivalent type and the type size shall be at least 4 percent of the height of the television or video display screen; (2) Immediately below the text described in paragraph (1), the names of the identifiable contributors who have made the three largest cumulative contributions. The identifiable contributors shall each be disclosed on a separate horizontal line, in descending order, beginning with the identifiable contributor who made the largest cumulative contributions on the first line. The name of each of the identifiable contributors shall be centered horizontally. The text shall be white in color in Arial Narrow equivalent type and the type size shall be at least 4 percent of the height of the television or video display screen; (3) The text "Paid for by [name of the committee that paid for the advertisement]." The text shall be yellow in color in Arial Narrow equivalent type and the type size shall be equivalent to 2.5 percent of the height of the television or video display screen. The text shall be right-aligned and located in a position that is vertically 2.5 percent of the height of the television or video display screen away from the bottom right of the television or video display screen; and ( 4) If there are fewer than three identifiable contributors, the disclosure required by this subdivision shall be adjusted accordingly to disclose only those that qualify as identifiable contributors, if any. If the committee does not have any identifiable contributors, the disclosure shall be adjusted to include the name of the committee in place of the names of identifiable contributors. ( c) An independent expenditure advertisement, electioneering communication, or advertisement for or against a ballot question or legislative question that is a mass mailing or a print advertisement and that is 12 square inches or more in size shall include a disclosure area on the largest page of the mass mailing or print advertisement that satisfies all of the following: (1) The disclosure area shall have a solid white background so as to be easily legible, and shall be in a printed or drawn box on the bottom of the page that is set apart from any other printed matter. All text in the disclosure area shall be black in color; (2) The text "Top Funders of This Ad" shall be located at the top of the disclosure area and centered horizontally in the disclosure area. The text shall be in an Arial equivalent type with a type size of at least 12-point for advertisements smaller than 93 square inches and at least 14-point for advertisements that are equal to, or larger than, 93 square inches; (3) Immediately below the text described in paragraph (2) shall be the names of the identifiable contributors who have made the three largest cumulative contributions. The identifiable contributors shall each be disclosed on a separate horizontal line, in descending order, beginning with the identifiable contributor who made the largest cumulative contributions on the first line. The name of each of the identifiable contributors shall be centered horizontally in the disclosure area. The text shall identify each identifiable contributor in an Arial Narrow equivalent type with a type size of at least 10-point for advertisements smaller than 93 square inches and at least 12-point for advertisements that are equal to, or larger than, 93 square inches. (A) If the advertisement is 4 inches tall or less, it need only show the names of the identifiable contributors who have made the two largest cumulative contributions. 7 (B) If the advertisement is 3 inches tall or less, it need only show the name of the identifiable contributor who made the largest cumulative contribution, and the text required by paragraph (2) may say "Top Funder of This Ad"; (4) Immediately below the text described in paragraph (3), the text "Funding Details At
  [insert Internet Web site address of the disclosure Internet Web site]." The text shall be in an Arial Narrow equivalent type with at least 10-point type size for advertisements smaller than 93 square inches and at least 12-point type size for advertisements that are equal to, or larger than, 93 square inches. This text shall not be required if the advertisement is 5 inches tall or less; (5) The text "Paid for by [name of the committee that paid for the advertisement]." The text shall be located at the bottom of the disclosure area and shall be in an Arial Narrow equivalent type with at least 8-point type size for pages smaller than 8.5 inches and at least 10-point type size for pages that are equal to, or larger than, 8.5 inches by 11 inches; and 8 (6) If there are fewer than three identifiable contributors, the disclosure shall be adjusted accordingly to disclose the qualifying identifiable contributors, if any. If the committee does not have any identifiable contributors, the disclosure shall be adjusted to include the name of the committee in place of the names of identifiable contributors. ( d) The Arkansas Ethics Commission may promulgate regulations to require disclosures on all forms of political advertisements not covered by this article, including, but not limited to, electronic media advertisements and billboards. If feasible, the regulations shall require the listing of the name of the committee and as many of the three identifiable contributors that made the largest cumulative contributions as possible in a conspicuous manner. Section 2. Constitutional Amendment The voters of Arkansas call upon the Arkansas congressional delegation to propose and support, and the Arkansas General Assembly to ratify, an amendment to the United States Constitution establishing that: ( 1) To advance the fundamental principle of political equality for all, and to protect the integrity of the legislative and electoral processes,Congress and the States shall have the power to limit the raising and spending of money and in kind equivalents intended to influence the outcome of elections; and (2) Congress and the States shall have power to implement and enforce this Amendment by appropriate legislation, and nothing in this Constitution shall be construed to prevent Congress or the States, in enacting legislation authorized by this Amendment, from distinguishing between natural persons and corporations or other artificial entities created by the laws of any State, the United States, or any foreign state, including by forbidding such entities from making election contributions or expenditures. SECTION 3. Severability. If any provision or section of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other provision of the Act which can be given effect without the invalid provisions or applications, and to this end the provisions of the Act are declared severable.