Did the Arkansas AG certify the Campaign Finance Act of 2016 ballot title, requiring disclosure of campaign spending and donors above certain thresholds?

Plain-English summary

Paul Spencer, on behalf of the Regnat Populus Ballot Question Committee, submitted a proposed initiated act called the Campaign Finance Act of 2016 for AG certification under A.C.A. § 7-9-107. The act was meant to require disclosure of campaign spending and donors above certain thresholds, mandate sponsor disclaimers in political ads, and call on Congress and the Arkansas General Assembly to support a federal constitutional amendment overturning Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

This was at least the sponsor's second submission. The immediately prior version had been rejected in Op. Att'y Gen. 2014-135 over three main deficiencies. The most important of those was the use of the term "electioneering communication" without definition in the ballot title, combined with a definition in the underlying measure that ran counter to the term's standard meaning.

AG Leslie Rutledge rejected the new submission too. She concluded the sponsor had not addressed the two critical problems flagged in 2014-135, and added a list of additional deficiencies that needed cleanup before any future resubmission could be certified.

The "electioneering communication" problem turns on a term-of-art mismatch. In federal campaign-finance law and in many state schemes, "electioneering communication" is a broad category that captures (1) communications mentioning a candidate, (2) within a defined window before an election, (3) targeted to the candidate's electorate. The category was designed to capture both express advocacy ("vote for X") and certain communications that fall short of express advocacy but still influence the electorate. The defining feature of the federal term is that it does not depend on the express-advocacy/non-express-advocacy distinction; that distinction operates as a separate disclosure category called "independent expenditures."

The proposed Arkansas measure used "electioneering communication" differently. Section 102 of the measure defined the term as "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." That is the opposite of the federal usage. Whatever the sponsor intended ("electioneering communication" excluding express advocacy, "independent expenditure" capturing express advocacy), the ballot title gave no warning to voters that the term was being used in a non-standard way. A voter familiar with the federal term would assume the standard meaning and be misled.

The AG's substitute-and-certify power under A.C.A. § 7-9-107(b) requires the AG to write a ballot title that accurately summarizes the underlying measure. Because the underlying text defined the term in a way that contradicted its standard meaning, the AG could not write a single ballot title that would not mislead some readers (either those familiar with the term, who would assume the standard meaning, or those who could not parse the term at all). The defect had to be cured by the sponsor before any title could be certified.

Beyond that core problem, the AG flagged five additional deficiencies:

1. Grammatical errors in the ballot title itself (the AG had flagged them in the submitted draft).
2. An empty subsection (c) in Section 103 with no text.
3. Unexplained quotation marks around "households" in Section 102.
4. Section 103(b)(8) refers to a "payee of the electioneering communication" without defining who that person is. The text could mean the person making the disbursement, the person receiving the disbursement, the contributor of $5,000 or more, or someone else.
5. Inconsistent use of "disbursement," sometimes meaning a payment for an electioneering communication (as in Section 103), sometimes meaning an independent expenditure (as in Section 104).

The AG explicitly framed those five points as "not in an attempt to provide a comprehensive review of your proposal, but to facilitate any resubmission efforts." She instructed the sponsor to redraft.

Currency note

This opinion was issued in 2015. 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.

Background and statutory framework

The proposed Campaign Finance Act of 2016 sat at the intersection of two distinct legal regimes. The first was Arkansas's existing campaign-finance disclosure law in A.C.A. § 7-6-201 et seq., which the proposed act would have amended substantially. The second was the federal constitutional law of campaign finance, particularly Citizens United v. FEC (2010) and the body of doctrine on express and functional advocacy.

The federal usage of "electioneering communication" comes from the Bipartisan Campaign Reform Act of 2002 (BCRA) and the case law interpreting it. BCRA defined "electioneering communication" as a broadcast, cable, or satellite communication that clearly identifies a candidate, is made within 60 days of a general election (or 30 days of a primary), and is targeted to the candidate's electorate. The category was specifically designed to capture communications that fall short of express advocacy but still influence elections. The Supreme Court has discussed the category in McConnell v. FEC (2003), FEC v. Wisconsin Right to Life (2007), and Citizens United (2010), all of which use the term in roughly the same broad sense.

The proposed Arkansas measure's definition narrowed the term in a way that the federal definition does not: it required the communication NOT to expressly advocate election or defeat. That gave the term a meaning closer to "functional advocacy" or "issue advocacy" than to the broad federal "electioneering communication." The AG concluded that the deviation, combined with the ballot title's failure to flag the deviation, made the ballot title misleading.

A.C.A. § 7-9-107 sets the AG's certification authority, and the standard line of Arkansas Supreme Court ballot-title cases (Bailey v. McCuen, Roberts v. Priest, Becker v. McCuen, Christian Civic Action Committee v. McCuen) confirms that an ambiguous or term-of-art-defying definition in the underlying measure prevents the AG from writing a defensible ballot title.

Op. Att'y Gen. 2014-135 was the predecessor opinion that flagged these problems and rejected the prior version of the proposal.

Common questions

What is the difference between "express advocacy" and "electioneering communication"?

"Express advocacy" is a narrower category: communications that, by explicit words, urge the election or defeat of a clearly identified candidate (think "vote for X" or "defeat Y"). "Electioneering communication" is broader: any communication mentioning a candidate within a defined pre-election window, targeted to the candidate's electorate, regardless of whether it contains express advocacy. The federal scheme treats the two as overlapping (one communication can be both at once) and uses each label for different regulatory purposes. The proposed Arkansas measure split them apart in a way that does not track the federal usage.

Why does it matter if the proposal uses a term differently?

Because a ballot title has to convey the proposal's substance to a voter. If a term has a standard meaning in the field and the proposal uses it in a non-standard way, voters familiar with the field will misunderstand the proposal. Bailey v. McCuen requires the ballot title to disclose essential facts that would give the voter "serious ground for reflection." A non-standard definition of a key regulatory term is one of those essential facts.

Could the AG have written a clean ballot title herself?

A.C.A. § 7-9-107(b) gives the AG substitute-and-certify authority. But the substitute has to accurately summarize the underlying measure. When the underlying measure defines a key term in a way that contradicts the term's standard meaning, the AG faces an unsolvable problem: defining the term in the ballot title as the proposal defines it confuses voters who know the term's standard meaning; defining it in the ballot title in the standard way misrepresents the measure. The only fix is for the sponsor to use a clearer term or a clearer definition.

What was Citizens United v. FEC?

A 2010 U.S. Supreme Court decision that held the First Amendment forbids the federal government from restricting independent campaign expenditures by corporations, labor unions, and other associations. The decision overturned earlier precedent (Austin v. Michigan Chamber of Commerce) and parts of McConnell v. FEC. The decision is the legal trigger for the explosion of independent-expenditure spending in federal elections after 2010. The proposed Campaign Finance Act of 2016 was, in part, a reaction to Citizens United; the Section 2 portion of the measure called on Congress and the Arkansas General Assembly to support a constitutional amendment overturning the decision.

What did the sponsor need to do to fix the proposal?

At minimum, fix the definition of "electioneering communication" so it either (a) tracks the federal meaning, or (b) uses a different term that more accurately captures the measure's scope (e.g., "functional advocacy communication" or "non-express advocacy communication"). Beyond that, fix the five additional deficiencies the AG identified: grammatical errors in the title, the empty Section 103(c), the unexplained "households" quotation marks, the ambiguous reference to "payee of the electioneering communication" in Section 103(b)(8), and the inconsistent use of "disbursement" between Sections 103 and 104.

Did the proposal ever get certified?

The proposal had been rejected multiple times by 2015. Verify the historical record for whether the sponsor cured these defects and resubmitted successfully. Constitutional campaign-finance proposals are notoriously hard to draft because the underlying legal categories are technical, and the AG's review correctly applies pressure on sponsors to use the categories accurately.

Citations

Statutes: A.C.A. § 7-9-107 (AG certification); A.C.A. § 7-9-107(b) (substitution); A.C.A. § 7-9-107(c) (rejection); A.C.A. § 7-5-522 (booth time limit); A.C.A. § 7-6-201 (existing campaign-finance definitions to be amended); A.C.A. § 7-6-220 (existing independent expenditure reporting to be amended); A.C.A. § 7-6-207(a)(1)(A) and (B) (reporting schedule).

Cases: Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (federal independent-expenditure doctrine); Kurrus v. Priest (2000); Donovan v. Priest (1996); Plugge v. McCuen (1992); Arkansas Women's Political Caucus v. Riviere (1984); Pafford v. Hall (1950); Chaney v. Bryant (1976); Moore v. Hall (1958); May v. Daniels (2004); Becker v. Riviere (1980); Bailey v. McCuen (1994); Becker v. McCuen (1990); Christian Civic Action Committee v. McCuen (1994); Roberts v. Priest (2000).

Prior AG opinion: 2014-135 (predecessor opinion identifying the three main deficiencies).

Source

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

Original opinion text

Opinion No. 2015-001
January 21, 2015
Paul J. Spencer, Chair
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Regnat Populus Ballot Question Committee
14010 Highway 161 South
Scott, Arkansas 72142
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 act. You
have previously submitted several measures, the most recent of which my
predecessor rejected in Opinion No. 2014-135. Having altered your proposal's
ballot title and text, you have now submitted the following proposed popular name
and ballot title for my certification:

Popular Name
THE CAMPAIGN FINANCE ACT OF 2016

Ballot Title
An act amending Arkansas law to require that any person spending
an aggregate of two thousand dollars or more in any calendar year
for electioneering communications, or an aggregate of five hundred
dollars or more for independent expenditures, must disclose their
campaign spending and donors through an electronic system to the
secretary of state of county clerk; requires [sic] persons making
independent expenditures any time during an election to report
expenditures and donors on regular committee reports, and
electioneering communications made within 60 days of an election
are to be reported within 48 hours; requires [sic] that the Arkansas
Ethics Commission make these reports publicly available on-line;
requires [sic] disclaimers in broadcast and print ads of top sponsors
of independent expenditure advertisements, electioneering
communications, or advertisements for or against ballot questions or
legislative questions; and calls [sic] upon the congressional
delegation of Arkansas to support, and the Arkansas General
Assembly to ratify, an amendment to the United States Constitution
clarifying the power of congress and the states to regulate and set
reasonable limits on the raising and spending of money by
candidates and others to influence elections, and in so doing, to
distinguish between natural persons and corporations or other
artificial entities created by law, including by prohibiting such
entities from spending money to influence elections

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, if practicable, substitute and certify a more suitable and
correct popular name and ballot title. Or, if the proposed popular name and ballot
title are sufficiently misleading, the Attorney General 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.

In Opinion No. 2014-135, the foregoing principles were applied and "three main
deficiencies" in your proposed ballot title were identified. The first of these related
to the use of the term "electioneering communication." The Opinion noted that the
failure to define this term in the ballot title meant both that the ballot title failed to
adequately summarize the measure and that it was misleading:

As ["electioneering communication"] 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.

You have made no attempt to address this deficiency. This is a sufficient basis to
reject your proposal.

While I am authorized to modify a proposed ballot title to ensure that it meets the
legal standards, I cannot do so when the text itself is unclear. While I am
authorized to provide a definition of electioneering communication in the ballot
title, I cannot do so here because the text is unclear. As the previous opinion noted,
your proposal defines "electioneering communication" in a highly unusual
manner:

The term "electioneering communication" 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 of "electioneering communication" excludes express
advocacy: "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.) As noted above, the term "electioneering
communication" is typically designed to include express advocacy while also
going beyond it to capture functional advocacy. It is still unclear whether you
intend the term to refer to (a) speech that qualifies as advocacy, just not express
advocacy (i.e. "functional advocacy"); (b) speech that does not amount to any
form of advocacy; or (c) both. This ambiguity must be clarified before I can
ensure that your proposal's ballot title properly reflects its text.

There has been no attempt to address this critical ambiguity, which amounts to an
additional basis to reject your proposal. Accordingly, instead of providing a
detailed analysis of additional deficiencies in the proposal, I will simply note other
deficiencies:

• Your ballot title contains grammatical errors that render it confusing. These
  errors are flagged on pages one and two, above.
• Section 103 closes with a subsection labeled "(c)," but it contains no text.
• It is not clear why the term "households" in Section 102 is in quotations.
• Section 103(b)(8) is among the sections you have added to your proposal
  since your last submission. This section is very confusing:

If the person who makes the electioneering communication
receives a contribution of five thousand ($5,000) or more
from another entity, other than an individual or a single
corporation or labor union, the person making the
electioneering communication shall receive and disclose the
names and addresses of all contributors who contributed an
aggregate of fifty dollars ($50) or more to that other entity
that provided the source of funds for the major contribution to
the payee of the electioneering communication.

It is not clear who is being referred to by the phrase "payee of the
electioneering communication." This might be the person making the
electioneering-communication disbursement, the one who receives the
disbursement, or the person who makes the $5,000 contribution, or the
persons who make at least $50 aggregate contribution to the latter.
Further, the text states that "the person making the electioneering
communication shall receive and disclose" certain information. But the text
does not clearly state to whom the disclosures should be made. I also note
that it is not clear whether the phrase "shall receive" places the duty on the
giver or the recipient.

• The term "disbursement" is used inconsistently, which generates confusion.
  Sometimes the term refers to a payment that qualifies as an electioneering
  communication (as in Section 103). Other times it refers to an independent
  expenditure (as in Section 104). "Disbursement" is the term generally used
  in other jurisdictions to refer to a payment that qualifies as an
  electioneering communication.

In summary, I am unable to certify a ballot title for your proposal because you
have failed to remedy two critical problems noted in your previous submission. I
mention the additional deficiencies, not in an attempt to provide a comprehensive
review of your proposal, but to facilitate any resubmission efforts.

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, which is embodied only in A.C.A. § 7-9-107, indicates that my duty is
to the electorate and that I am neither your counsel in this matter, nor can I advise
you as to the substance of your proposal.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/cyh