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. Standard federal usage (52 U.S.C. § 30104(f)(3)) defines "electioneering communication" as a broadcast within 30/60 days of an election mentioning a candidate, regardless of whether it expressly advocates for or against the candidate. The proposal's definition flipped that on its head: it excluded express advocacy. So a voter familiar with the federal term would assume the proposal covers express advocacy when in fact it does not.

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 urged Spencer to consult counsel and resubmit a cleaner draft. 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?
Because, as the Arkansas Supreme Court has explained, it is the kind of word that few voters would oppose if asked. A title that says a measure protects "equality" gives the measure partisan coloring (positive valence) without conveying anything specific about what the measure actually does. Same for "integrity."

Can the AG substitute a better ballot title?
Yes, under A.C.A. § 7-9-107(b), if practicable. But the AG cannot draft a ballot title "out of whole cloth" where the original makes no good-faith attempt to summarize the measure. Here, half the title was a non-summary, several sections went unmentioned, and the text contained ambiguities that no ballot title could resolve.

What is the link between this opinion and Citizens United?
The proposal's "findings" recited that the Supreme Court's Citizens United decision opened the gate to undisclosed special-interest money in Arkansas elections, and the resolution asked Congress to overrule that effect. The AG did not opine on the merits of Citizens United or the constitutional amendment; the rejection was procedural.

Did Spencer submit a revised version?
The opinion does not say. Sponsors regularly resubmit ballot measures after rejection.

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.

Several states (Illinois, North Carolina, Massachusetts, Ohio) have adopted the "electioneering communication" framework and definitions for state campaign-finance regulation. The Spencer proposal's idiosyncratic definition diverged from all of those.

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

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

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 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 committee 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 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 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," 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.

The popular name is primarily a useful legislative device. 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. The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.

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. 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." At the same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9-107(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. 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. The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring. The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.

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." 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." 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 from the term's standard usage, your usage actually contradicts the standard meaning.

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." Words like "equality" and "integrity" are partisan because few would vote against them. Therefore, this summary of your resolution is deficient.

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: This section is contained under the heading "Section 1: Disclosure of Campaign Contributions." But nothing in the subsequent sections addresses "campaign contributions." This creates an ambiguity: either you intended the subsequent sections to address contributions or the heading is misleading. This section also states that the entire chapter "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. The failure to state the full acronym leaves it unclear whether the term "DISCLOSE" is intended to refer to a known statement 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 arose from federal law and at least one state has incorporated both the term and the concept into its campaign-finance regulations. 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. 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. 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 ...." 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 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") or its functional equivalent. Your definition encompasses communications that 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 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 ballot 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 website created and maintained by the Secretary of State?

Section 2 (Constitutional Amendment): This section 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 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