Did the AG certify the popular name and ballot title for an earlier version of the Campaign Finance Act of 2016 covering independent-expenditure disclosure?
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Plain-English summary
Paul J. Spencer, chair of the Regnat Populus Ballot Question Committee, submitted yet another version of the Campaign Finance Act of 2016 for AG certification, after the AG had rejected the previous version in Op. 2015-001. The AG rejected this version as well, identifying three specific defects. The proponents revised again and submitted a third version, which the AG rejected in Op. 2015-052 for different reasons. The fourth iteration was finally certified in Op. 2015-059.
The three defects in this version:
First, the ballot title hid a central substantive change. The title said the measure would amend Arkansas law "to require reporting of independent expenditures." On its face, that reads like a procedural change. But the underlying text actually redefined "independent expenditure" to merge two categories: independent expenditures (which Arkansas law already covered) and electioneering communications (a federal-law category that includes pre-election communications mentioning a candidate). The voter reading the title would think the measure was just adjusting reporting procedures, not creating a hybrid new category. The AG called this a "misleading tendency."
Second, the proposed measure was missing the entirety of Section 103. The text submitted to the AG went from Section 102 to Section 104. The AG could not tell if this was a typo or a substantive omission. Either way, the AG could not certify a ballot title for an incomplete proposal.
Third, the ballot title was insufficient. The proposed measure ran eight pages. The ballot title used 119 words. Eighty of those 119 words summarized less than one page of the text. The remaining 39 words tried to summarize seven pages, which the AG said was not enough to give voters fair notice of what the measure would do.
The AG could not rewrite the title because the underlying text contained ambiguities the AG could not resolve. The text's redefinition of "independent expenditure" used the phrase "or its functional equivalent" without defining it. Perhaps the proponents meant the federal-law concept of "electioneering communication" from 52 U.S.C. § 30104(f)(a)(ii), but the AG could not be sure. As Op. 2014-135 had previously told Spencer in a similar context, the AG cannot craft a ballot title "out of whole cloth."
The opinion is part of an extended sequence between the AG and the Regnat Populus committee. The committee submitted, the AG rejected, the committee revised, repeat. The substantive subject (post-Citizens United disclosure of campaign spending) was complex enough that getting the ballot title right was a real challenge.
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 AG's certification authority under § 7-9-107 has three options: certify as submitted, substitute and certify a corrected version, or reject and require the proponents to redesign. The choice depends on whether the defects can be cured by better title language (substitute) or whether the underlying text is itself ambiguous or incomplete (reject).
For this version of the Campaign Finance Act, the defects were both kinds. The ballot title was insufficient (a title problem the AG might have rewritten), but the text was also incomplete (a missing Section 103) and ambiguous (the undefined "functional equivalent" of express advocacy). The AG could not rewrite the title because the text gaps prevented any honest summary.
The "missing Section 103" detail is unusual. AG opinions on ballot-title rejections typically focus on title language or substantive ambiguity. A missing section in the bill text is a different kind of defect: the measure isn't fully written. The AG could not tell if it was a typo (an inadvertent omission) or a substantive choice (perhaps the committee intended to drop a section but didn't update the title).
The independent-expenditure framework Spencer was trying to amend is the post-Citizens United Arkansas regime under § 7-6-220 et seq. Federal campaign-finance law uses two related categories: "independent expenditures" (communications that expressly advocate election or defeat of a candidate) and "electioneering communications" (broadcast advertisements within 30 or 60 days of an election that refer to a candidate). The federal "electioneering communication" concept covers what Spencer's text called "functional equivalent" of express advocacy or communications mentioning a candidate within 60 days. Folding the two categories together would have been a significant change Arkansas voters needed to know about.
Common questions
Why did the AG reject instead of rewriting the title?
Because the underlying text was incomplete (missing Section 103) and ambiguous (undefined "functional equivalent"). A rewritten title cannot cure text defects.
Did the committee ever get certified?
Yes, in Op. 2015-059, after multiple revisions and rejections. The certified version used clearer language about the new disclosure regime and the categories of independent expenditures it covered.
What is "electioneering communication"?
A federal-law category from 52 U.S.C. § 30104(f)(a)(ii) covering broadcast advertisements that mention a candidate within 30 or 60 days of an election. The category captures ads that don't expressly advocate election or defeat but are timed and targeted to influence the election.
Why is hiding a redefinition in a procedural-sounding title problematic?
Because Arkansas Supreme Court precedent requires ballot titles to give voters fair notice of essential facts. Bailey v. McCuen (1994) made clear that "an essential fact which would give the voter serious ground for reflection ... must be disclosed." Redefining a key statutory term to cover new categories of speech is exactly that kind of essential fact.
Was the missing Section 103 a typo or a substantive omission?
The AG could not tell, and that was the point. The proposal was internally inconsistent in a way that prevented honest summary. Spencer would have to fix it (either by restoring the missing section or by renumbering and adjusting the title).
How is this opinion related to Op. 2015-052?
This opinion (April 30 rejection) was followed by a Spencer revision; the AG rejected that revision in Op. 2015-052 (May 26) for different reasons (undefined "sponsors" and ambiguous $2,000 threshold). The final certified version came in Op. 2015-059 (June 11).
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2015-042
May 4, 2015
Paul J. Spencer, Chairman
Regnat Populus Ballot Question Committee
Post Office Box 1087
Little Rock, Arkansas 72203-1087
Dear Mr. Spencer:
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.
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 I rejected in Opinion No. 2015-001. 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
[The proposed ballot title said the measure would amend Arkansas law to require reporting of independent expenditures through the Secretary of State or county clerk; to require disclosure of "sponsors" of independent expenditure advertisements; and to call upon the Arkansas congressional delegation and General Assembly to support and ratify a federal constitutional amendment on campaign spending.]
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.
Section 7-9-107 neither requires nor authorizes the Attorney General 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," the Attorney General 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.
[The remainder of the opinion sets out the standard ballot-title sufficiency principles from Arkansas Women's Political Caucus v. Riviere, Pafford v. Hall, Chaney v. Bryant, Moore v. Hall, May v. Daniels, Becker v. Riviere, Bailey v. McCuen, Becker v. McCuen, Christian Civic Action Committee v. McCuen, and Roberts v. Priest.]
Applied the above precepts to analyze your proposed measure and ballot title, I conclude that I must reject your proposed ballot title for three reasons: (1) the ballot title does not indicate to the voter a key proposed change in current law, and I am unable to summarize that change due to vagueness in the text of the measure; (2) an entire section is missing from the text; and (3) the ballot title does not attempt to completely summarize sections of the proposed measure's text. These deficiencies seem to stem from the fact that this proposal attempts to meld two separate categories of election-related speech (independent expenditures and electioneering communications) into a single category. At this time, I cannot fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).
I refer to the following ambiguities:
Change in law
The first issue that prevents me from certifying your proposed ballot title is that it does not inform the voter that the term "independent expenditure" would be redefined in the statute under your proposed measure. The proposed ballot title begins to summarize the measure as follows: "An act amending Arkansas law to require reporting of independent expenditures through the Secretary of State or county clerk." Read on its face, and with the exception of the phrase "or county clerk," that statement reflects the current law. The voter is not being told that the proposed measure would alter the meaning of "independent expenditure" to create a hybrid category of election-related speech that covers both independent expenditures and electioneering communications. Thus, the ballot title has a "misleading tendency" that renders it legally deficient.
Further, while I am authorized to revise a ballot title to ensure that it complies with the legal requirements, I cannot do that here because the proposed measure defines "independent expenditure" in a way that I am unable to summarize. The term is redefined, in part, to mean an "expenditure for a communication" that "[c]ontains express advocacy, or its functional equivalent, of the election or defeat of a clearly identified candidate." It is not clear what is meant by the phrase "or its functional equivalent." Perhaps you are intending to capture what is referred to in federal law as a communication that "is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate." But this is not clear from the measure itself; and your proposed ballot title contains no summary of the new definition. I believe the redefinition of "independent expenditure" is an essential fact to be conveyed to the voter. But I am unable to determine your intent in this regard and thus cannot substitute a ballot title accurately describing this important aspect of the proposed act.
Missing Section
The text of the proposed measure is missing the entirety of Section 103. While this may simply be a typographical error, it might also represent a substantive mistake that omits a whole section of your proposal. Accordingly, I cannot ensure that the ballot title adequately summarizes the text.
Insufficient Summary
The ballot title devotes most of its summary to a relevantly small section of the proposal. Specifically, the proposed measure's text spans eight pages. The ballot title summarizes those eight pages in 119 words, 80 of which summarize less than one page of the proposal. The resulting 39 words do not sufficiently summarize the remaining seven pages of the proposal in such a way that the voter is informed of the proposal's provisions. Nor does the ballot title attempt to explain to the voter how the proposal changes existing law. As Opinion No. 2014-135 indicated in response to one of your prior submissions, though I am legally authorized to craft a suitable ballot title, I am not authorized to craft one out of whole cloth.
My office in the certification of ballot titles and popular names does not address 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.
Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reasons and instruct you to redesign the proposed measure and ballot title. You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience.
Sincerely,
LESLIE RUTLEDGE
Attorney General
LR/cyh
Enclosure
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