Why did the Arkansas AG reject the Regnat Populus 2014 campaign finance and lobbying initiated act?

Plain-English summary

This was the eleventh submission from the Regnat Populus Ballot Question Committee on campaign finance and lobbying reform. Three earlier versions had been certified (Op. Att'y Gen. Nos. 2012-148, 2012-049, 2012-040); seven had been rejected (2014-015, 2013-128, 2013-113, 2012-142, 2012-129, 2012-124, 2012-028). This eleventh version proposed three substantive things: (1) limit campaign contributions to candidates to individuals, political parties, and approved PACs only (corporations, unions, and other entities could still give to PACs but not directly to candidates); (2) extend the existing one-year revolving-door ban on former legislators registering as lobbyists to two years; (3) make it a Class A misdemeanor for the governor, constitutional officers, and legislators to accept gifts from lobbyists. The measure also included a non-binding "call upon" provision (Section 4) asking Arkansas's congressional delegation to support, and the General Assembly to ratify, a federal constitutional amendment about content-neutral limitations on campaign contributions and corporate independent expenditures.

AG Dustin McDaniel rejected this version because Section 4(A)'s language ("Nothing in the Constitution shall be construed to forbid Congress or the States from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures") was ambiguous and could be read two incompatible ways: (a) as a restatement of current First Amendment doctrine (because content-neutral laws already get intermediate scrutiny, not categorical prohibition), or (b) as a sweeping rewrite that would eliminate the constitutional-decision rules courts use to protect First Amendment rights from content-neutral but disproportionate restrictions.

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.

What the AG concluded

The AG identified Section 4(A) as the ambiguous provision and rejected the ballot title because:

1. Reading 1 (innocuous restatement). Congress and the states are not "forbidden" from enacting content-neutral campaign-finance laws today. Such laws get intermediate scrutiny under Phelps-Roper v. Koster, 713 F.3d 942 (8th Cir. 2013): they must be (a) narrowly tailored to serve (b) a significant government interest, and (c) leave open ample alternative means of communication. Section 4(A) read literally and in isolation could be merely a restatement of that status quo.

2. Reading 2 (sweeping change). Alternatively, Section 4(A) could be read to declare that the U.S. Constitution should be amended so that no constitutional decision rule may strike down any content-neutral law. Because intermediate scrutiny sometimes strikes down content-neutral laws, the proposed amendment would, under Reading 2, eliminate that protection. That is a much bigger deal and would give a voter "serious grounds for reflection."

The AG could not draft a ballot title that fairly summarized two incompatible meanings. So the submission was rejected.

The AG also took the unusual step of warning the sponsor about its drafting pattern: instead of clarifying ambiguous provisions in response to prior opinions, Regnat Populus tended to delete provisions or substitute entirely new language, requiring the AG to "essentially begin anew" on each cycle.

Common questions

Q: What is "content-neutral" and why does it matter?
A content-neutral law restricts speech without regard to subject matter, viewpoint, or message. Courts treat content-neutral restrictions less skeptically than content-based ones, but they still apply intermediate scrutiny: the law must serve a significant interest, be narrowly tailored, and leave alternative channels of expression open. Without that scrutiny, governments could pass broad content-neutral rules that effectively silence political speech.

Q: What did the measure actually require Arkansas voters to approve?
Three concrete state-law changes (the Sections 1, 2, and 3 substantive provisions on contribution limits, lobbying revolving door, and gift ban) plus a non-binding "call upon" in Section 4. The Section 4 provision is the kind that has no operative effect on Arkansas law but signals the voters' position to Congress and the General Assembly.

Q: Could a non-binding "call upon" provision really make a ballot title impossible to draft?
Yes, according to the AG. Even though Section 4 had no operative effect on Arkansas law, the ballot title has to summarize the measure honestly, and "a federal constitutional amendment that does X" reads very differently depending on whether X is current law or a major change. The voter needs to know which.

Q: How does this opinion connect to Citizens United?
The whereas clauses of the proposed act explicitly cited Citizens United as the trigger for the reform: the sponsor argued that Citizens United "has opened the floodgates" of corporate political spending. The proposed federal amendment in Section 4 was Regnat Populus's attempt to call for a constitutional response.

Q: Why are revolving-door rules and gift bans so often packaged together?
Both target the same kind of indirect compensation. The revolving-door rule prevents former lawmakers from cashing in on their connections immediately after leaving office. The gift ban prevents lobbyists from cultivating sitting officials with anything of value. Together, they shrink two of the more conspicuous channels for influence outside of disclosed campaign contributions.

Background and statutory framework

The opinion sat against a backdrop of one of the most persistent ballot-question committees in Arkansas history. Regnat Populus had been trying since 2012 to get a comprehensive campaign-finance and lobbying-reform measure certified, with mixed success. The pattern of rejections often turned on small drafting issues that, once fixed, would generate new issues in the next version.

The legal core of the rejected provision (Section 4(A)) tied into a long-running U.S. constitutional dialogue about whether and how content-neutral restrictions on speech can pass First Amendment muster. The AG cited recent Eighth Circuit guidance (Phelps-Roper v. Koster) and the academic literature on "constitutional decision rules" (Berman, "Constitutional Decision Rules," 90 Va. L. Rev. 1 (2004); Keller & Tseytlin).

Citations

Statutes

• A.C.A. § 7-9-107 (popular name and ballot title certification)
• A.C.A. § 7-5-522 (voting booth time limit)
• Proposed Sections 1-4 of the Campaign Finance and Lobbying Act of 2014 (amending A.C.A. § 7-6-203 (contributions), A.C.A. § 21-8-402 (lobbyist revolving door), and adding a new A.C.A. § 21-8-305 (gift ban))

Cases

• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (Arkansas Supreme Court)
• Phelps-Roper v. Koster, 713 F.3d 942 (8th Cir. 2013) (Eighth Circuit)

Prior AG opinions referenced

• Certified: Op. Att'y Gen. Nos. 2012-148, 2012-049, 2012-040
• Rejected: Op. Att'y Gen. Nos. 2014-015, 2013-128, 2013-113, 2012-142, 2012-129, 2012-124, 2012-028

Source

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

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2014-029

April 1, 2014

Paul J. Spencer, Co-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 following popular name and ballot title for a proposed initiated act. Regnat Populus Ballot Question Committee has previously submitted ten similar measures — of which seven were rejected, three were certified. You have since made changes to your proposal and now submit the following popular name and ballot title for my review:

Popular Name

THE CAMPAIGN FINANCE AND LOBBYING ACT OF 2014

Ballot Title

An act amending Arkansas law — which currently allows individuals, corporations, proprietorships, firms, partnerships, joint ventures, syndicates, labor unions, business trusts, companies, associations, political parties, and committees to make campaign contributions to candidates and to authorized political action committees — to provide that, while the foregoing may continue to make campaign contributions to authorized political action committees, only individuals, political parties, county political party committees, legislative caucus committees, and authorized political action committees may make campaign contributions directly to candidates for public office; amending current Arkansas law — which prohibits members of the General Assembly from acting as registered lobbyists for one year after the expiration of their term in office and applicable only to members elected on or after July 27, 2011 — to expand the prohibition to two years and make the prohibition applicable to all members elected or re-elected on or after November 4, 2014; and amending Arkansas law to make it a Class A misdemeanor for the Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, Commissioner of State Lands and members of the General Assembly from soliciting or accepting gifts from a lobbyist (or anyone acting on behalf of a lobbyists, or anyone employing a lobbyist) with gift defined as any payment, entertainment, advance, services, or anything of value, unless consideration of equal or greater value has been given therefor, but defined not to include: (1) informational material such as books, reports, pamphlets, calendars, or periodicals informing the Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, Commissioner of State Lands or member of the General Assembly regarding his or her official duties (but such informational material shall not include payments for travel reimbursement for any expenses) (2) gifts which are not used and which, within thirty (30) days after receipt, are returned; (3) gifts from the Governor's, Lieutenant Governor's, Secretary of State's, Treasurer of State's, Auditor of State's, Attorney General's Commissioner of State Lands' or member of the General Assembly's own family; (4) lawful campaign contributions; and (5) any devise or inheritance; 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 nothing in the constitution prohibits Congress and the states from imposing content-neutral limits on campaign contributions and independent expenditures, nor from prohibiting the use of corporate funds for campaign contributions or independent expenditures.

Applying the above precepts, I conclude that I must reject your ballot title due to ambiguities in newly added language in the text of your measure. Specifically, Section 4(A) of your proposal states:

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...[n]othing in the Constitution shall be construed to forbid Congress or the States from imposing content-neutral limitations on private campaign contributions or independent political campaign expenditures.... (Emphasis added.)

This provision — which was not contained in any of your prior submissions — can be read in two, incompatible ways. On the one hand, the provision may simply be an attempt to restate current law, for Congress and the States are currently not "forbidden" to "impose content-neutral limitations" in the area of campaign finance. Instead, content-neutral laws are subjected to a heightened form of judicial review.

[Footnote: This form of review, which is labeled "intermediate scrutiny," requires that the government show that its regulation (1) is narrowly tailored to serve a (2) significant government interest and (3) ample alternative means of communication are left open. E.g. Phelps-Roper v. Koster, 713 F.3d 942, 950 (8th Cir. 2013).]

On the other hand, the provision could be read as effecting a significant change in First Amendment law that would give a voter serious grounds for reflection. As a component part of the Bill of Rights, the First Amendment is designed to protect individual rights from government intrusion upon those rights. Over time, the U.S. Supreme Court has developed what some call "constitutional-decision rules," which are employed to determine whether a governmental action, in fact, violates an individual right. The notion of "content-neutrality" is part of a constitutional-decision rule that is used to determine (1) the standard of review courts apply when assessing a challenge to government action and (2) what types of interests courts may consider when weighing the public interests against private interests. Sometimes a court will strike down a content-neutral law for failing to pass what is called "intermediate scrutiny." When this happens, one could characterize the court's ruling as stating that, under the circumstances, the First Amendment "forbids" the sort of government action that the court struck down.

In other words, the reason courts make the threshold determination about whether the statute at issue is "content-neutral" is to determine which set of constitutional-decision rules to apply. Many content-neutral laws pass muster under those decision rules, some do not. So those decision rules — i.e. the test and levels of scrutiny that courts must apply — sometimes "forbid" certain action. Thus, when Section 4(A) says that no "content-neutral limitation" is forbidden, it could be read to remove all constitutional-decision rules that are in place to protect people's individual rights under the First Amendment.

In sum, Section 4(A) could be read in two ways: (1) it simply restates current law because it is currently the case that governments are not "forbidden" from enacting content-neutral laws; or (2) it goes much further to state that the constitution should be read in such a way that all content-neutral laws are permissible, regardless of the effect on formerly protected individual rights. Given this ambiguity, I am unable to substitute ballot title language to ensure that the ballot title complies with the foregoing legal standards.

I should also note that over the course of your many submissions, I have (where practicable) tried to identify the different ways that an ambiguous provision could be read. Yet in your follow-up submissions, instead of clearly adopting one of the alternative readings of an ambiguous provision, you often either simply delete the provision or introduce entirely new language. You should be aware that when the latter occurs, my subsequent review is not advanced but instead must essentially begin anew.

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.

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM/cyh