Did the Arkansas Attorney General certify the popular name and ballot title for the proposed Campaign Finance Act of 2016 covering independent-expenditure disclosure?

Plain-English summary

Paul J. Spencer, chairman of the Regnat Populus Ballot Question Committee, asked the Arkansas Attorney General to certify the popular name and ballot title for a proposed initiated act called the Campaign Finance Act of 2016. He had revised a proposal rejected in Opinion No. 2015-042. The AG rejected this submission's ballot title too and invited a redesign and resubmission.

The AG identified two misleading points. First, the proposed title used “sponsors” for people or organizations subject to disclosure, but the term was defined neither in the measure nor in current law. Voters could not tell who would have to disclose. Second, the title described electronic filing and disclosure of advertisements “that exceed $2,000.” The measure made clear that $2,000 was an aggregate amount, but neither measure nor title said whether the three listed types of spending were aggregated separately or together. The AG explained that the two readings would trigger disclosure at different times.

The AG reviewed whether the proposed name and title fairly and intelligibly summarized the measure. She expressly said certification or rejection did not express a view on its merits. The opinion does not report any later version or certification.

Currency note

This 2015 opinion concerns a specific proposed ballot title and measure. It does not establish that the proposal became law or that a later version was certified. Check the current election record for a later filing or outcome.

Background and statutory framework

Ark. Code Ann. § 7-9-107 requires AG certification of an initiated act's popular name and ballot title before petition circulation. The opinion says the AG can substitute a more suitable name or title if practicable, or reject the petition when the submitted wording is sufficiently misleading. The AG said she could not resolve the proposal's ambiguities through certification here.

The opinion explains that a ballot title must give voters a fair understanding of the measure and avoid misleading omissions or wording. It also notes the need for brevity, citing Ark. Code Ann. § 7-5-522's five minute limit in voting booths when other voters are waiting.

Common questions

Why did “sponsors” matter?
The proposed title used it for a group subject to disclosure, but neither the measure nor current law defined it. The AG said voters needed to know which persons or organizations the disclosure duty would cover.

What was unclear about $2,000?
The proposed title listed independent expenditure advertisements, ballot question advertisements, and legislative question advertisements. The AG said the text made the amount aggregate, yet did not clarify whether each category had its own threshold or whether spending across all three categories was combined.

Did the AG reject the policy behind the proposal?
No. She said her review concerned whether the name and title fairly summarized the proposal, and that her office had no authority to judge its merits.

Could the sponsor submit another version?
Yes. The AG instructed Spencer to redesign the proposed measure and ballot title and said he could resubmit at his convenience. This opinion records no later submission.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-052
May 26, 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 Ark. Code Ann. § 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. 2015-042. 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 submitted ballot title described the proposal as amending Arkansas law to require uniform quarterly and monthly reporting of independent expenditures through the Secretary of State or County Clerk; to require disclosure of "sponsors" of independent expenditure advertisements; to expand the definition of reportable independent expenditures to include (I) express-advocacy communications, (II) functional-equivalent communications, and (III) communications mentioning a candidate within 60 days of the election that target the candidate's voting constituency; to require electronic filing and disclosure of advertisements that exceed $2,000; and to call upon Arkansas's congressional delegation and General Assembly to support and ratify a federal constitutional amendment on campaign spending.]

The Attorney General is required, pursuant to Ark. Code Ann. § 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.

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 act.

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 section 7-9-107(b)); otherwise voters could run afoul of Ark. Code Ann. § 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.

Having applied the foregoing precepts, I conclude that I am unable to certify the ballot title as submitted due to several misleading aspects of the proposed ballot title.

First, the term "sponsors" appears in the ballot title, though it is not defined in the text of the measure nor in current law. It is critical that the voter have a clear understanding of which persons or organizations are subject to the disclosure requirements.

Second, the ballot title states that the measure will amend Arkansas law "to require electronic filing and disclosure of independent expenditure advertisements or advertisements for or against ballot questions or legislative questions that exceed $2,000." The text is clear that the phrase "that exceed $2,000" refers to $2,000 in the aggregate. Yet neither the text nor the ballot title is clear on whether the phrase "that exceed $2,000" is intended to be taken in the distributive or collective sense. If the former, then one could spend up to $2,000 on any one of the three items before triggering the disclosure requirements. If taken in the collective sense, then expenditures less than $2,000 in any one category would not trigger disclosure, though all expenditures in the three categories would be added together to reach the $2,000 disclosure threshold.

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
Enclosures