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, chair of the Regnat Populus Ballot Question Committee, submitted the popular name and ballot title for a proposed initiated act called the Campaign Finance Act of 2016. This was a revision of an earlier version the AG had rejected in Op. 2015-042. The AG rejected this revision too.

The substantive subject of the proposed act was disclosure of independent expenditures and the donors behind them. The proposal would have expanded the definition of "independent expenditure" to cover three categories of election-related communications (express advocacy, functional-equivalent advocacy, and pre-election communications mentioning a candidate), required uniform quarterly and monthly reporting, required electronic filing for expenditures exceeding $2,000, and added a "Top Funders" disclosure regime. It also called on the Arkansas congressional delegation and General Assembly to support a federal constitutional amendment on campaign spending.

The AG's review under Ark. Code Ann. § 7-9-107 is limited to whether the popular name and ballot title accurately and impartially summarize the proposal. The AG does not pass on the merits of the proposal itself. The standard, set by Arkansas Supreme Court precedent, requires that the ballot title be free from any misleading tendency, whether by amplification, omission, or fallacy, and convey an intelligible idea of the scope and significance of the proposed change.

The AG identified two misleading aspects.

First, "sponsors." The proposed ballot title required disclosure of "sponsors" of independent expenditure advertisements. But "sponsors" was not defined in the text of the measure or in current Arkansas law. A reader of the title had no way to know who would be subject to the disclosure requirements. The AG treated this gap as a critical defect: voters need to know which persons or organizations are subject to a new disclosure regime.

Second, the $2,000 threshold ambiguity. The proposed ballot title said the measure would require "electronic filing and disclosure of independent expenditure advertisements or advertisements for or against ballot questions or legislative questions that exceed $2,000." The underlying text was clear that the $2,000 was an aggregate threshold. But the text and title left unclear whether the threshold applied distributively or collectively. Distributively, a person could spend up to $2,000 on any one of the three categories (independent expenditures, ballot-question ads, legislative-question ads) before disclosure kicked in, meaning $5,999 across the three categories would not trigger. Collectively, the three categories would add together to reach $2,000. The two readings produced different real-world rules, and the AG said voters would not know which one they were voting for.

The AG rejected the title and instructed Spencer to redesign the measure. Spencer subsequently revised the proposal and the AG certified the revised version in Op. 2015-059 (the version of the ballot title certified in 2015-059 used "donors" and was clearer about the aggregate-threshold framing).

This opinion is a useful example of the AG's exercise of the rejection power under § 7-9-107(c). Where rewriting would not cure the defect (because the underlying text is ambiguous, not just the title), the AG must reject and let the proponents go back to the drawing board.

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

Arkansas Code § 7-9-107 governs Attorney General certification of popular names and ballot titles for initiated acts and constitutional amendments. The statute gives the AG three options:

1. Certify as submitted, if the popular name and ballot title accurately summarize the proposal.
2. Substitute and certify a more suitable name or title, when the defects are surface-level and the AG can rewrite them.
3. Reject the entire petition, when the proposal is "sufficiently misleading."

The choice between substitution and rejection turns on whether the defects can be cured by better drafting (substitute) or whether the underlying text creates ambiguity that no rewriting could fix (reject). The Arkansas Supreme Court held in Roberts v. Priest (2000) that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." When the proposed act's text contributes to the confusion, the AG cannot fix the problem by rewriting the title.

The ballot-title sufficiency standard comes from a long line of Arkansas Supreme Court cases. The leading principles:

• The title must give voters a fair understanding of the issues (Becker v. Riviere, 1980).
• Information omitted from the title must be disclosed if it would give voters serious ground for reflection (Bailey v. McCuen, 1994).
• The title must be free from misleading tendency by amplification, omission, or fallacy (Bailey).
• The title must convey an intelligible idea of the scope and significance of the proposed change (Christian Civic Action Committee v. McCuen, 1994).
• Brevity matters too: voters are limited to five minutes in the booth by § 7-5-522, so a ballot title that cannot be read in that time would defeat the purpose (Bailey).
• A title should not be "tinged with partisan coloring" (Becker v. McCuen, 1990; Bailey).
• The popular name is a useful legislative device (Pafford v. Hall, 1950) and is considered together with the title (May v. Daniels, 2004).
• Where the text of the proposed measure is unclear or ambiguous, the AG cannot perform the duty without clarification (Roberts v. Priest, 2000).

The substantive subject of the proposal (independent-expenditure disclosure) traces to Citizens United v. Federal Election Commission (2010) and the wave of state-level disclosure proposals that followed. The Regnat Populus committee was one of several Arkansas groups proposing campaign-finance ballot measures in the 2014-2016 cycle.

Common questions

Could the AG have rewritten the ballot title instead of rejecting it?
Not for these defects. The "sponsors" problem was a defect in the underlying text (no definition), which the AG could not cure by substituting better title language. The $2,000 ambiguity also flowed from the text. Rewriting the title would have papered over substantive ambiguities, which is exactly what § 7-9-107's rejection path is designed to prevent.

Did the proponents fix the problems?
Yes, in the version certified by Op. 2015-059. The revised version used "donors" rather than "sponsors" and clarified the aggregate-threshold framing.

What happens after a rejection?
The proponents are instructed to redesign the measure and submit a new proposal. They can resubmit at any time. § 7-9-107(c) provides that mechanism.

Why did the AG focus on "sponsors" rather than other potentially ambiguous words?
"Sponsors" was the term the proposal used to identify which persons or organizations would have to disclose. Without a definition, voters had no way to know if "sponsors" meant the candidate, the political action committee, the consultants who placed the ads, the donors who funded the ads, the broadcasters who aired them, or some other set of actors. That uncertainty went to the heart of the disclosure regime.

Did the AG comment on the merits of the campaign-finance regime?
No, and the AG explicitly said the office cannot. § 7-9-107 confines AG review to the ballot title and popular name. Whether the proposed disclosure rules were good policy is a question for voters, not the AG.

Why did the AG warn about the five-minute limit?
Section 7-5-522 limits voters to five minutes in the booth when others are waiting. A ballot title that takes longer than five minutes to read would functionally prevent voters from completing their ballot, so the AG and the courts have read § 7-9-107 to require brevity along with accuracy.

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