Are Arkansas House Rule 108 and Senate Rule 6.0(2) banning campaign contributions during legislative session unconstitutional?
Plain-English summary
Arkansas's House Rule 108 and Senate Rule 6.0(2) prohibit legislators from accepting campaign contributions during a "blackout period": 30 days before a legislative session starts, during the session, and 30 days after it ends. Representative Ray asked whether these rules violate the state or federal constitution.
The AG's answer is direct: yes, the rules are unconstitutional under the First Amendment, and likely federally preempted by FECA for any legislator running for a federal office.
The exact same rule was struck down in 1998. Initiated Act 1 of 1996 was an Arkansas voter-passed campaign-finance law that, among other things, banned this same blackout period as a statute (codified at A.C.A. § 7-6-203(g)). In Ark. Right to Life State Political Action Comm. v. Butler (W.D. Ark. 1998), a federal court held the blackout period unconstitutional. The General Assembly repealed the statute in 2001. A few years later, the House and Senate adopted essentially identical rules. Same language, same constitutional problem.
The First Amendment analysis. Campaign contributions are protected as both political speech and political association. State action restricting them is subject to strict scrutiny: the restriction must be narrowly tailored to serve a compelling state interest. Preventing quid pro quo corruption (or its appearance) is a recognized compelling interest. The question is whether a session-period blackout is narrowly tailored to that interest.
Nearly every court that has considered blackout periods has said no. The blackouts are flawed in two opposite ways:
- Overinclusive. They ban small contributions (which courts say cannot create a corruption appearance), and they ban legislators from contributing to their own campaigns (which obviously cannot create quid pro quo with anyone else).
- Underinclusive. They permit the same contributions when made just before the 30-day pre-session window. Corruption can occur outside the blackout window as easily as inside it. The window-based ban does not actually prevent the conduct it claims to deter.
Because the rules fail strict scrutiny, they are unconstitutional under the First Amendment. A federal court would almost certainly strike them down if challenged.
Federal preemption. The Federal Election Campaign Act (FECA) preempts state laws governing federal elections (52 U.S.C. § 30143). For an Arkansas legislator running for a federal office (Congress, Senate, etc.), the blackout rule cannot apply because FECA has its own rules for federal-candidate fundraising. The Eleventh Circuit confirmed this in Teper v. Miller (1996), which preempted a Georgia blackout for federal candidates. (Senate Rule 6.0(2) tries to carve out U.S. House candidates from this issue, but the broader preemption point still applies.)
The bottom line: these rules are practically unenforceable. A legislator who accepts a contribution during the blackout period is technically violating a chamber rule, but the rule itself cannot survive constitutional review. In practice, this creates ethics-process exposure with limited substantive consequence (and gives any disciplined legislator a strong constitutional defense).
What this means for you
State legislators
Read the rule, then read the constitutional analysis. The rule appears in your chamber's rules, but it cannot be constitutionally enforced. If you are accused of violating it, you have a strong First Amendment defense: the AG (and the federal courts) have said the rule fails strict scrutiny. The chamber's ethics committee may still discipline under internal rules, but a court would not uphold the rule against a challenge.
If your campaign is accepting contributions during the blackout period, document the political speech / association character of the contributions. The legal exposure is mostly chamber-internal, not external.
That said, every chamber has discretion over its own rules. The constitutional analysis affects state action against citizens; the chamber's discretion to govern its own members may be partly insulated from external review (the political-question doctrine and self-governance principles). A House member disciplined under a House rule may have limited ability to seek federal-court review of the discipline as such, even if the rule's external application is unconstitutional. Talk to a campaign finance attorney about the specific procedural posture.
Campaign-finance attorneys advising candidates
The blackout period is a problem on the books but a defense in practice. Advise candidates and their PACs as follows:
- The rule cannot survive a First Amendment challenge.
- The rule cannot apply to federal candidates due to FECA preemption.
- Internal chamber discipline is a separate question, but the substantive rule is constitutionally infirm.
- A candidate who challenges discipline based on the rule has a strong substantive defense.
For candidates contemplating a public-facing challenge, the Arkansas history (Initiated Act 1, Butler, repeal, re-adoption as rules) gives a clear narrative for why this rule should not stand.
Political action committees
You can contribute to legislators during the blackout period without legal risk to yourself. The legislator may face internal chamber issues, but PAC contributions are not separately illegal under Arkansas law (since the underlying statute was repealed in 2001). Document your contribution as you normally would.
Ethics committees in the General Assembly
Your enforcement options are practically limited. If a member is disciplined for accepting a contribution during the blackout, the member has a constitutional defense and (depending on Arkansas's separation-of-powers caselaw) may be able to seek state-court review. In addition, the political risk of disciplining members under a constitutionally suspect rule is real: the discipline draws attention to the rule's infirmity, and the disciplined member becomes a sympathetic plaintiff.
A more sustainable approach is to amend the rule to focus on actual quid pro quo or appearance-of-corruption indicators rather than a categorical session-period ban.
Constitutional and election law attorneys
The opinion is a useful catalog of cases. Russell v. Burris (8th Cir. 1998) and Butler (W.D. Ark. 1998) are the directly-binding authority for Arkansas. Jones v. Jegley (8th Cir. 2020) is more recent on a different blackout (two-years-before-election ban) and applies the same analytical framework. The Fourth Circuit in N.C. Right to Life v. Bartlett (1999) is the rare outlier upholding a contribution ban specifically on lobbyists and political committees during legislative session, though courts since have not extended Bartlett's reasoning broadly.
Citizens following campaign-finance debates
Blackout periods sound common-sense ("don't let lobbyists buy votes during the session") but they don't actually prevent corruption. Corruption can happen the day before the blackout starts, the day after it ends, or via PACs and independent expenditures. The narrow legal answer is that strict scrutiny requires more precise tailoring than a calendar-based ban.
If you want effective anti-corruption rules, look at: comprehensive disclosure requirements, contribution limits per donor per cycle, anti-bundling rules, post-employment lobbying restrictions, and recusal rules. These are more likely to survive constitutional review and more likely to actually reduce corruption.
Common questions
The rule is in the House and Senate rules. Can a court even strike down a chamber's internal rule?
A court can declare the rule unconstitutional as applied to external state action (like enforcement against a citizen donor). Whether a court can strike down a chamber's internal disciplinary application depends on separation-of-powers and political-question principles. The pure constitutional analysis (the rule fails strict scrutiny) is settled; the procedural question (who can challenge it where) is more nuanced.
What's the difference between a "rule" and a "statute" here?
The 1996 voter-initiated act was a statute (codified at A.C.A. § 7-6-203(g)). It was repealed in 2001. The current rules are internal House/Senate procedural rules adopted by the chambers, not statutes. The First Amendment analysis is the same; the enforcement mechanism differs.
Why was the statute struck down but the rules survived this long?
The statute was challenged in federal court because it applied to citizens externally. The internal chamber rules have not been litigated as such. They sit on the books as a legislative discipline mechanism, with little external enforcement.
What about a special session? Does the blackout cover those too?
Yes, the rules apply to "regular, extended, or special session." The same constitutional analysis applies; the specific dates of the blackout are not what makes it unconstitutional.
Can the legislature fix this without making the law worse?
Probably yes. Targeted reforms that focus on actual quid pro quo behavior, rather than calendar-based bans, are more likely to survive review. Options include: comprehensive disclosure of contributions during session, recusal rules, post-employment cooling-off periods, and limits on simultaneous lobbyist/employee status.
Does this opinion bind future legislatures or courts?
No. AG opinions are persuasive but not binding. A federal court may also reach different conclusions if presented with new evidence (e.g., specific evidence of corruption tied to session-period contributions). But the existing federal precedent is consistent and adverse to blackout periods.
Background and statutory framework
Initiated Act 1 of 1996 was an Arkansas campaign-finance overhaul. It included a session-period blackout codified at A.C.A. § 7-6-203(g). Federal courts in Russell v. Burris (8th Cir. 1998) and Butler (W.D. Ark. 1998) struck down most of the act as violating the First Amendment. The General Assembly repealed § 7-6-203(g) in 2001 (Act 1839 of 2001, § 2). A few years later, the House and Senate adopted Rule 108 and Rule 6.0(2), which mirror the struck-down statute.
The First Amendment framework: contributions are protected as speech and association (McCutcheon v. FEC, 572 U.S. 185 (2014); Citizens United, 558 U.S. 310 (2010)). Restrictions trigger strict scrutiny: the restriction must be narrowly tailored to serve a compelling interest. Preventing quid pro quo corruption (or its appearance) is recognized as compelling, but bans must actually prevent the conduct without sweeping in protected speech.
Most courts have held blackout periods are not narrowly tailored: Butler (Arkansas), Russell v. Burris (8th Cir.), Alaska Civil Liberties Union (Alaska SC, partial), Maupin (E.D. Mo.), Dodd (Florida SC), Emison (E.D. Tenn., re: nonincumbents), Zimmerman v. City of Austin (5th Cir., re: 6-month pre-election ban), Jones v. Jegley (8th Cir., re: 2-year pre-election ban). The outliers are Bartlett (4th Cir., upholding a lobbyist/PAC blackout) and a partial holding in Alaska Civil Liberties Union upholding a 60-day post-session ban.
FECA preemption is explicit at 52 U.S.C. § 30143 and applied in Teper v. Miller, 82 F.3d 989 (11th Cir. 1996), to invalidate a Georgia blackout for federal candidates.
Citations
- A.C.A. § 7-6-203(g) (repealed 2001)
- 52 U.S.C. § 30101 et seq. (FECA)
- 52 U.S.C. § 30143 (FECA preemption)
- Ark. Right to Life State Political Action Comm. v. Butler, 29 F. Supp. 2d 540 (W.D. Ark. 1998)
- Russell v. Burris, 146 F.3d 563 (8th Cir. 1998)
- State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999)
- Shrink Mo. Gov't PAC v. Maupin, 922 F. Supp. 1413 (E.D. Mo. 1996)
- State v. Dodd, 561 So. 2d 263 (Fla. 1990)
- Jones v. Jegley, 947 F.3d 1100 (8th Cir. 2020)
- Emison v. Catalano, 951 F. Supp. 714 (E.D. Tenn. 1996)
- Zimmerman v. City of Austin, 881 F.3d 378 (5th Cir. 2018)
- N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999)
- McCutcheon v. Fed. Election Com'n, 572 U.S. 185 (2014)
- Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010)
- Teper v. Miller, 82 F.3d 989 (11th Cir. 1996)
- Acts 1995, No. 901, § 2 (state-funded primary system)
- Act 1839 of 2001, § 2 (repealing § 7-6-203(g))
Source
Original opinion text
Opinion No. 2023-022
July 31, 2023
The Honorable David Ray
State Representative
137 Summit Valley Circle
Maumelle, Arkansas 72113-6096
Dear Representative Ray:
I am writing in response to your request for my opinion on the constitutionality of House Rule 108 and Senate Rule 6.0(2). Each rule prohibits legislators from accepting a campaign contribution 30 days before a legislative session, during the legislative session, and 30 days after the session. You ask whether these rules violate the state or federal constitution.
RESPONSE
Yes, both rules are unconstitutional under the First Amendment, a conclusion reached by nearly every court that has considered such contribution restrictions. In addition, the rules are likely preempted by the Federal Election Campaign Act for any candidate running for a federal position. (Senate Rule 6.0(2) applies to elections for all federal positions except United States Representative.)
DISCUSSION
Consistent with several courts and scholars, I will refer to the period of time within which these rules prohibit legislators from accepting campaign contributions as the "blackout period."
- The rules' history. The blackout periods in House Rule 108 and Senate Rule 6.0(2) are substantively identical to an initiated act from the late 1990s that a federal district court considered unconstitutional. Initiated Act 1 of 1996, which was codified at A.C.A. § 7-6-203(g), was part of a broader effort to change Arkansas's campaign-finance law. Between two federal court decisions, nearly all of Act 1 of 1996 was held to violate the First Amendment and declared unconstitutional. Like the two rules you ask about, Act 1 banned Arkansas's constitutional officers and members of the General Assembly from accepting contributions or promises of contributions for 30 days before any regular, extended, or special session until 30 days after the session.
Opponents of Initiated Act 1 of 1996 challenged the constitutionality of multiple provisions of the act in federal court. In that case, the plaintiffs argued that the blackout period infringed on their right to political speech and association, which are fundamental rights protected by the First Amendment. The court agreed and held that the blackout period was unconstitutional. A few years later, after the General Assembly repealed A.C.A. § 7-6-203(g), the House of Representatives passed Rule 108, and the Senate passed Rule 6.0(2). As they pertain to members of the General Assembly, both rules are essentially identical to the statute the federal court declared unconstitutional. And nearly every court to consider such blackout periods has declared them to be unconstitutional.
- Constitutional standard. The rights to political speech and political association are core freedoms protected by the First Amendment. Contributions to political campaigns are protected as both political speech and political association: Contributions are general expressions of support for candidates, but also, through those contributions, contributors join with others to advance their shared political beliefs. Because of this protection, when state action restricts political contributions, that action is subject to strict scrutiny, which means the action is presumptively unconstitutional and will be upheld only if it is "narrowly tailored to serve a compelling state interest."
There is no question that these rules restrict political contributions. And every court that has considered blackout periods agrees that, in principle, states have a sufficient interest in preventing quid pro quo corruption or the appearance of corruption. Therefore, the only remaining question about the rules' constitutionality is whether they are narrowly tailored to achieve those interests.
- Narrow tailoring. The reason nearly every court to consider blackout periods has declared them unconstitutional is because they are not narrowly tailored to achieve the government interests of preventing quid pro quo corruption or its appearance. These courts have determined that blackout periods are flawed in two main ways. First, they are overinclusive because (1) they prohibit both large and small contributions, even though courts have held that small contributions do not present a danger of corruption or its appearance; and (2) they prohibit legislators from personally donating to their campaigns during the blackout period, even though those types of contributions would not be influenced by corruption. Second, the blackout periods are also underinclusive because they target contributions only when they are near or during a legislative session. Courts have held these bans fail "to recognize the reality that corruption can occur anytime, even outside the banned time period."
The house and senate rules at issue are fatally flawed in that they too are both overinclusive and underinclusive, and are, therefore, unconstitutional because they are not narrowly tailored to avoid corruption or its appearance. Therefore, a federal court would almost certainly declare the rules to be unconstitutional.
- Federal preemption. Finally, the rules are likely preempted by the Federal Election Campaign Act (FECA) to the extent they apply to candidates running for federal positions. The FECA provides that its provisions and rules "supersede and preempt any provisions of state law with respect to election to Federal office."
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General