Did the Arkansas Attorney General certify the popular name and ballot title for the Campaign Finance Act of 2016, a proposed initiated act on disclosure of independent expenditures and donors?
Apply this to your situation
This page answers the general question as of 2015. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Paul J. Spencer, chair of the Regnat Populus Ballot Question Committee, asked the AG to certify the popular name and ballot title of a proposed initiated act called the Campaign Finance Act of 2016. The committee had submitted prior versions, the most recent of which the AG had rejected in Opinion 2015-052. This was a re-submission with altered text and ballot title.
The popular name (the short title voters see) was "The Campaign Finance Act of 2016." The AG certified it as submitted.
The ballot title (the longer summary voters read in the booth) was the problem. The submitted version was a dense paragraph of statutory cross-references and technical campaign-finance jargon that, in the AG's view, required the voter to be a campaign-finance expert to understand. Arkansas Supreme Court precedent (Kurrus v. Priest, Donovan v. Priest, Plugge v. McCuen) held that a ballot title is legally insufficient if it places "the voter in a position of either having to be an expert in the subject of [the proposal] or having to guess as to the effect his or her vote would have." So the AG exercised the statutory authority in Ark. Code Ann. § 7-9-107 to rewrite the ballot title and certify the rewritten version.
The substituted ballot title summarized the proposed act in six numbered changes:
- Expanded the definition of "independent expenditure" to cover not just express advocacy but also (a) functional-equivalent communications and (b) communications mentioning a candidate within 60 days of the election that target the candidate's electorate.
- Required anyone making $2,000 or more in such expenditures to report payment amount, election, candidates identified, and payer information to the Secretary of State or county clerk.
- Required anyone receiving $500 or more in contributions for the purpose of independent expenditures to file electronic quarterly and monthly reports on the candidate schedule.
- Required additional 48-hour reports within 60 days of an election for each additional $2,000+ expenditure, with detailed contributor information for $200+ donors.
- Required certain persons to maintain a "Disclosure Internet Web site" listing the top 10 cumulative contributors.
- Required election-related advertisements (video, TV, radio, mail, print) to include "Top Funders" disclaimers identifying the largest contributors.
The act also called on the Arkansas congressional delegation and General Assembly to support and ratify a federal constitutional amendment authorizing Congress and the states to set reasonable limits on campaign spending and to distinguish between natural persons and corporations.
The AG flagged a practical caution: complex initiated measures are vulnerable to ballot-title challenges, and any ambiguity in the underlying text could be a problem. The AG urged the proponents to consult private counsel.
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's initiative and referendum process required Attorney General certification of the popular name and ballot title before a petition could be circulated. Under Ark. Code Ann. § 7-9-107, the AG could (a) certify as submitted, (b) substitute and certify a more suitable name or title, or (c) reject the entire petition if the proposal was sufficiently misleading. The statute did not authorize (and did not require) the AG to evaluate the merits of the proposed law.
The ballot-title sufficiency standard came from Arkansas Supreme Court precedent. The Court's repeated holding was that a ballot title is insufficient if it places the voter in the position of being an expert or guessing about the effect of a yes vote (Kurrus v. Priest). Earlier cases (Donovan v. Priest; Plugge v. McCuen) had set the same baseline. The AG's role under § 7-9-107 was to enforce that standard at the front end, before petitions began circulating.
The substantive subject of the proposed Act, the regulation of independent expenditures, traced its modern lineage to Citizens United v. Federal Election Commission (2010), which the proposal's "Findings and Purposes" section cited as motivating the disclosure regime. The act's design (expanded definition of independent expenditure, reporting thresholds at $500 and $2,000, electronic filing, contributor disclosure, "Top Funders" labeling) reflected a state-level effort to require transparency about who funds election-related speech after Citizens United.
The Disclosure Internet Web Site requirement was unusual at the time. The act would have required anyone exceeding $2,000 in independent expenditures during a reporting period to maintain a web page listing the 10 largest cumulative contributors, with the text "Top Funders" at the top and each contributor on a separate horizontal line in descending order. The on-advertisement "Top Funders" requirement was similarly granular, with detailed rules for TV/video (solid black background, bottom one-third of screen, minimum five or ten seconds), radio (read at the end of the ad, listing the top three funders), and print/mail (at least 12 square inches in size, with a boxed disclosure area).
The petition packet attached to the opinion also included the standard "Instructions to Canvassers and Signers" under Ark. Code Ann. § 7-9-108, which describes the constitutional procedure for citizen-initiated measures (8% of legal voters for an initiated act, 10% for a constitutional amendment, 6% for a referendum) and the criminal penalties for petition fraud under § 5-55-601(b).
Common questions
Did the AG approve the substance of the Campaign Finance Act of 2016?
No. § 7-9-107 expressly forecloses that question. The AG was certifying that the popular name and ballot title accurately and impartially summarized the proposal, not that the proposal was a good idea.
Why did the AG rewrite the ballot title instead of rejecting it?
The AG has three options under § 7-9-107: certify as submitted, substitute and certify, or reject. Rejection is the strongest remedy and is appropriate when the proposed title is misleading rather than just technical. Here, the title was too dense and expert-oriented, but it was not misleading in substance, so substitution was the appropriate remedy.
Did this act ever make it to the ballot?
The opinion does not say. Certification was the first step; the proponents still had to gather signatures (8% of legal voters statewide for an initiated act) and survive any ballot-title challenge before voters would see the proposal.
What is a "Disclosure Internet Web site" under the Act?
A web page maintained by a person or committee that made $2,000+ in independent expenditures or received that much in cumulative contributions for that purpose. The page had to list the 10 largest cumulative contributors during the election in descending order, with "Top Funders" centered at the top.
What was the proposed federal constitutional amendment?
The Act's Section 2 called on Arkansas's congressional delegation to propose and the General Assembly to ratify a constitutional amendment giving Congress and the states the power to regulate and set reasonable limits on campaign spending, including the power to distinguish between natural persons and corporations. It also said nothing in the amendment would be read to abridge freedom of the press.
Why did the AG warn about complexity inviting challenges?
Because the Arkansas Supreme Court had repeatedly invalidated ballot titles for being too vague or for failing to capture the act's effects. The AG's experience was that the more complex the underlying text, the easier it was for an opponent to find a gap in the ballot title and sue. The warning was a heads-up to the proponents, not a legal ruling.
Source
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2015-059
June 11, 2015
Paul J. Spencer, Chairman
Regnat Populus Ballot Question Committee
P. O. Box 1087
Little Rock, Arkansas 72227
Dear Mr. Spencer:
Neither certification nor rejection of a popular name or 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 following popular name and ballot title for a proposed initiated act. You have previously submitted several similar measures, the most recent of which I rejected in Opinion No. 2015-052. 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 uniform quarterly and monthly reporting of independent expenditures through the Secretary of State or county clerk; to require the disclosure of certain donors to independent expenditure advertisements, or advertisements for or against ballot questions or legislative questions; to expand the definition of reportable independent expenditures to include (I) a communication that expressly advocates the election or defeat of a candidate, (II) a communication that is the functional equivalent of express advocacy because it is suggestive of no reasonable meaning other than an exhortation to vote for or against a candidate, or (III) a communication that mentions a candidate, targets that candidate's voting constituency and is disseminated within 60 days of the election; to require electronic filing and disclosure of independent expenditure advertisements or advertisements for or against ballot questions or legislative questions of $2,000 or more in the aggregate for a person who does not receive contributions in excess of $500 from other persons, or for a person who receives in the aggregate contributions in excess of $500 from other sources, shall file regular disclosure reports following the reporting schedule applicable to candidates as well as report electronically within 48 hours each additional independent expenditures [sic] in the aggregate of $2,000 or more made within 60 days of the election; a person making independent expenditures who receives aggregate contributions or makes expenditures of $2,000 or more in a reporting period shall also set up a disclosure internet web page; and to call 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 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 to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment.
Having applied these precepts, I conclude that your proposed popular name is certified as submitted. But the ballot title you have proposed does not meet the standards established by the Arkansas Supreme Court. The Court has made it clear that a ballot title is legally insufficient if it places "the voter in a position of either having to be an expert in the subject of [the proposal] or having to guess as to the effect his or her vote would have ...." The proposed ballot title in this instance requires the voter to be an expert in campaign-finance regulation to understand what he or she is being asked to approve. I have therefore rewritten and hereby certify the following ballot title:
This Act amends Arkansas law regarding campaign finance in the following six ways:
(1) First, the Act creates two new categories of election-related spending by expanding the definition of what is currently called an "independent expenditure." Currently, Arkansas law defines an "independent expenditure" as an expenditure (a) that is not a "contribution," which current law separately defines (b) that expressly advocates the election or defeat of a clearly identified candidate for office, and (c) that is made without arranging, cooperating, or consulting with any candidate or his or her authorized committee or agent. This Act expands the definition of "independent expenditure" to also include two additional kinds of election-related speech. First, it expands the definition to include expenditures for communications that functionally advocate for or against a candidate. This means that, though the communication effectively urges a vote for or against a candidate, the communication does not expressly do so. Second, this Act expands the definition of "independent expenditure" to include expenditures for communications without regard to whether they advocate (expressly or functionally) for the election of a clearly-identified candidate for office. Specifically, the definition is expanded to include an expenditure for a communication that mentions a candidate, occurs within 60 days of the election, and targets a certain number of the candidate's electorate.
(2) Second, this Act requires that a person who makes a payment or promises to pay at least $2,000 in the aggregate for any of the foregoing kinds of independent expenditures must report to the Secretary of State or County Clerk (whichever is appropriate, depending on the office) (a) the amount of the payment, (b) the elections to which the payment pertains, (c) the names of the candidates identified, and (d) the name, address, occupation of the person who made (or will make) the payment.
(3) Third, this Act requires that a person who receives contributions in of at least $500 in the aggregate in a calendar year for the purpose of making independent expenditures must file reports electronically with the Secretary of State or County Clerk (whichever is appropriate) according to the same quarterly and monthly schedule that currently applies to candidates for office.
(4) Fourth, this Act requires that, within 60 days of an election, a person or committee that receives at least $500 in a calendar year for the purpose of making independent expenditures must file additional reports with the Secretary of State or County Clerk (whichever is appropriate) for each additional independent expenditure of at least $2,000 in the aggregate. These reports must include certain specified information, including (among other things) the name, address, place of business, employer, and occupation of any person who contributed at least $200.
(5) Fifth, this Act requires certain persons to establish and maintain a "Disclosure Internet Web site" that identifies the contributors who gave the top 10 largest cumulative contributions.
(6) Sixth, this Act requires that certain election-related advertisements (whether on video, television, telephone, or print) contain specific information about the "Top Funders" of that specific advertisement.
In addition, this Act also proposes a resolution that calls 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.
In my view, the purpose of your proposed measure is sufficiently stated in the above revised ballot title to satisfy this office's mandate under section 7-9-107. I believe a cautionary note is warranted, however, due to the significance, complexity, and far-reaching effects of this proposed measure. You should be aware that according to my experience there is a direct correlation between the complexity of an initiated measure's amendments and its susceptibility to a successful ballot-title challenge. Any ambiguity in the text of a measure could lead to a successful challenge. That is why I urge you, if you have not already done so, to consult private counsel in order to be assured that the stated purpose is accomplished by the text of your proposal.
Pursuant to Ark. Code Ann. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and of the associated penalties for violations. Enclosed herewith, over the signature of the Attorney General, are instructions that should be incorporated in your petition prior to circulation.
Sincerely,
LESLIE RUTLEDGE
Attorney General
LR/cyh
Enclosures
Get today's answer for your situation
You just read a 2015 opinion on this question. Ezel checks the current Arkansas statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.