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 submitted a proposed initiated act titled “The Campaign Finance Act of 2016” for certification of its popular name and ballot title. The submitted title described reporting thresholds for electioneering communications and independent expenditures, public online reports, sponsor disclaimers, and a call for a federal constitutional amendment concerning campaign spending.

Attorney General Leslie Rutledge rejected the submission. She said the sponsor had not remedied two critical problems identified in an earlier submission, Opinion 2014-135. The first was the ballot title's unexplained use of “electioneering communication,” a technical campaign finance term. She quoted the earlier opinion's warning that the omission could confuse voters unfamiliar with the term and mislead voters who knew its usual meaning.

The second problem was in the proposed act itself. The proposal defined “electioneering communication” to exclude express advocacy, but the AG said the text still did not clarify whether it meant functional advocacy, speech that is not advocacy, or both. She explained that although she could ordinarily revise a ballot title, she could not supply an accurate definition while the measure's own meaning remained unclear. The sponsor needed to clarify that scope before she could certify a title reflecting the text.

The AG also identified other drafting problems for a possible resubmission: grammatical errors in the title, an empty Section 103(c), unexplained quotation marks around “households,” ambiguity over the “payee of the electioneering communication” and related disclosure duties in Section 103(b)(8), and inconsistent use of “disbursement” in Sections 103 and 104. She called this a partial list, not a comprehensive review of the proposal.

Certification review concerned whether the popular name and ballot title honestly and fairly summarized the proposed act. The AG expressly disclaimed any view on the measure's merits or whether it would achieve its aims.

Currency note

This opinion was issued in 2015 and concerns a proposed act and proposed ballot title, not enacted campaign finance law. Check current law and the measure's later history before relying on it.

Common questions

Why could the AG not fix the ballot title herself? She said the underlying text left the scope of “electioneering communication” unclear. A revised ballot title could not accurately define the term until the sponsor clarified whether it covered functional advocacy, non-advocacy speech, or both.

What clarification did the AG request?
The opinion asks the sponsor to clarify which of those three meanings was intended. It does not prescribe a replacement term or require adoption of another jurisdiction's definition.

Did the AG reject the proposal because she opposed campaign finance disclosure? No. She said her certification role did not involve the merits, philosophy, or ideology of a proposed measure. Her stated reasons concerned ambiguity and the ballot title's ability to explain the proposal accurately.

Were the other drafting issues an exhaustive list? No. The AG expressly said she listed them to help with any resubmission, without attempting a comprehensive review.

Background and statutory framework

A.C.A. § 7-9-107 required AG review of the popular name and ballot title before petitions circulated. The opinion says the AG could substitute more suitable language when practicable or reject misleading language. It also refers to A.C.A. § 7-9-107(b) when discussing brevity and to A.C.A. § 7-5-522's five minute voting booth limit.

The opinion cites its predecessor, Opinion 2014-135, for the earlier warning about “electioneering communication.” It quotes that opinion's discussion of the term's usual scope, but the decisive point here is that the sponsor's text did not specify which kinds of non-express advocacy it covered.

Citations

• A.C.A. § 7-9-107 (popular name and ballot title review)
• A.C.A. § 7-9-107(b) (brevity reference in the opinion)
• A.C.A. § 7-5-522 (voting booth time limit)
• Op. Att'y Gen. 2014-135 (earlier rejected submission)

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