Are Arkansas House Rule 108 and Senate Rule 6.0(2) banning campaign contributions during legislative session unconstitutional?

Plain-English summary

House Rule 108 and Senate Rule 6.0(2) prohibit legislators from accepting campaign contributions during a period beginning 30 days before a legislative session and ending 30 days after it. Representative Ray asked whether the rules violate the state or federal constitution. The Attorney General answered that both are unconstitutional under the First Amendment and are likely preempted by the Federal Election Campaign Act (FECA) to the extent they apply to federal candidates. Footnote 1 notes that the Senate rule excludes elections for United States Representative.

The AG compared the rules with the contribution blackout in Initiated Act 1 of 1996. A federal district court held that earlier blackout unconstitutional, and the General Assembly later repealed it. The opinion says the House and Senate rules are essentially identical to that statute as applied to legislators.

According to the opinion, contribution restrictions receive strict scrutiny. The AG found the rules overinclusive because they reach small contributions and legislators' contributions to their own campaigns. The AG also found them underinclusive because corruption can occur outside the restricted period. He concluded that a federal court would almost certainly declare the rules unconstitutional. The opinion separately quotes FECA's preemption provision and says the rules are likely preempted when applied to federal candidates.

What this means for you

Legislators and campaign counsel

The opinion concludes that these contribution blackouts violate the First Amendment. It discusses the constitutional rule and likely FECA preemption. It does not decide how either chamber would handle discipline under its own rules.

Federal candidates

The AG's preemption conclusion is expressly limited to the extent the rules apply to candidates for federal positions. The opinion notes the Senate rule's exception for elections to the United States House of Representatives.

Contributors

The opinion addresses restrictions on legislators accepting contributions. It does not decide whether any particular contributor has separate legal exposure.

Common questions

Why did the AG find the rules unconstitutional?
The opinion says the blackout periods are not narrowly tailored to preventing quid pro quo corruption or its appearance: they cover small and self-funded contributions while leaving contributions outside the blackout period untouched.

Had a similar blackout been considered by a court?
Yes. The opinion says a federal district court declared the blackout in Initiated Act 1 of 1996 unconstitutional, and the legislature later repealed the provision.

Does the opinion say either chamber cannot discipline a member?
It does not address chamber disciplinary procedures. Its conclusion concerns the rules' First Amendment validity and likely preemption for federal candidates.

Background and statutory framework

Initiated Act 1 of 1996 included a contribution restriction codified at A.C.A. § 7-6-203(g). The opinion cites Ark. Right to Life State Political Action Comm. v. Butler for the ruling against that blackout and Act 1839 of 2001, § 2, for its repeal. In its First Amendment analysis, the AG cites cases finding other contribution blackouts unconstitutional and also identifies two narrower holdings sustaining restrictions: N.C. Right to Life, Inc. v. Bartlett and part of State v. Alaska Civil Liberties Union. Footnote 18 cites 52 U.S.C. § 30143 and Teper v. Miller for the federal preemption discussion.

Citations

• A.C.A. § 7-6-203(g) (repealed 2001)
• Act 1839 of 2001, § 2
• 52 U.S.C. § 30101 et seq.
• 52 U.S.C. § 30143
• 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)

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

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. 1

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.”

1. 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. 2 Between two federal court decisions, nearly all of Act 1 of 1996 was held to violate the First Amendment and declared unconstitutional. 3 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

1
Senate Rule 6.0(2) applies to elections for all federal positions except United States Representative. ARK. S., S. ETHICS, 94 Sess., at 3 (2023). 2 Ark. Right to Life State Political Action Comm. v. Butler, 29 F. Supp. 2d 540, 542 (W.D. Ark. 1998).
3
See Russell v. Burris, 146 F.3d 563 (8th Cir. 1998); Butler, 29 F. Supp. 2d 540.

323 CENTER STREET, SUITE 200
LITTLE ROCK, ARKANSAS 72201
The Honorable David Ray
State Representative
Opinion No. 2023-022
Page 2

contributions for 30 days before any regular, extended, or special session until 30 days after the session. 4 Opponents of Initiated Act 1 of 1996 challenged the constitutionality of multiple provisions of the act in federal court. 5 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. 6 The court agreed and held that the blackout period was unconstitutional. 7 A few years later, after the General Assembly repealed A.C.A. § 7-6-203(g), 8 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. 9

2. Constitutional standard. The rights to political speech and political association are core
   freedoms protected by the First Amendment. 10 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. 11 Because of this protection, when state action restricts political contributions, that action is subject to strict scrutiny, which means the action is presumptively

4
A.C.A. § 7-6-203(g) (repealed 2001).
5
Butler, 29 F. Supp. 2d at 542.
6
Id.
7
Id. at 553.
8
Act 1839 of 2001, § 2.
9
Alaska: State v. Alaska Civil Liberties Union, 978 P.2d 597, 629 (Alaska 1999); Arkansas: Butler, 29 F. Supp. at 553; Missouri: Shrink Mo. Gov’t PAC v. Maupin, 922 F. Supp. 1413, 1424 (E.D. Mo. 1996); Florida: State v. Dodd, 561 So. 2d 263, 265–66 (Fla. 1990). Courts have also held bans of other blackout periods unconstitutional. Alaska: Alaska Civil Liberties Union, 978 P.2d at 629 (holding a nine month pre-election contribution ban to be unconstitutional because there was no evidence of corruption); Arkansas: Jones v. Jegley, 947 F.3d 1100, 1105–06 (8th Cir. 2020) (holding a ban on contributions two years before an election to be unconstitutional because the ban did not advance anti-corruption aims); Tennessee: Emison v. Catalano, 951 F. Supp. 714, 722–23 (E.D. Tenn. 1996) (holding that a ban on contributions to nonincumbents during legislative session was unconstitutional because the court found that nonincumbents are not subject to quid pro quo corruption like incumbents); Texas: Zimmerman v. City of Austin, 881 F.3d 378, 391–93 (5th Cir. 2018) (holding that a ban on contributions during the six months before an election was unconstitutional because the ban did not prevent actual corruption or its appearance). But the Fourth Circuit upheld a ban on contributions by lobbyists and political committees during the legislative session. N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 714–17 (4th Cir. 1999). And the Alaska Supreme Court upheld a ban on contributions during the 60 days after a legislative session. Alaska Civil Liberties Union, 978 P.2d at 630. 10 McCutcheon v. Fed. Election Com’n, 572 U.S. 185, 203 (2014).
11
Id.
The Honorable David Ray
State Representative
Opinion No. 2023-022
Page 3

unconstitutional and will be upheld only if it is “narrowly tailored to serve a compelling state interest.” 12 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. 13 Therefore, the only remaining question about the rules’ constitutionality is whether they are narrowly tailored to achieve those interests.

3. 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; 14 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. 15 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.” 16

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.

4. Federal preemption. Finally, the rules are likely preempted by the Federal Election Campaign
   Act (FECA) 17 to the extent they apply to candidates running for federal positions. The FECA 12
   Butler, 29 F. Supp. 2d at 551.
   13
   McCutcheon, 572 U.S. at 206–09; Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 357 (2010); Jones, 947 F.3d at 1105; Bartlett, 168 F.3d at 715; Russell v. Burris, 146 F.3d 563, 568 (8th Cir. 1998) (internal quotations and citations omitted); Emison, 951 F. Supp. at 723; Maupin, 922 F. Supp. at 1420; Alaska Civil Liberties Union, 978 P.2d at 631 (internal quotations and citations omitted). But there are often evidentiary disputes over whether such corruption or its appearance existed before the blackout period was enacted. See Jones, 947 F.3d at 1105 (Arkansas failed to show that contributions made more than two years before an election pose a greater risk of actual or apparent quid pro quo corruption); Butler, 29 F. Supp. at 551 (Arkansas failed to show that actual corruption had occurred from incumbents receiving contributions during the legislative session); Maupin, 922 F. Supp. at 1420 (Missouri failed to show that corruption had occurred from contributions during the legislative session); Alaska Civil Liberties Union, 978 P.2d at 629 (Alaska failed to show that contributions made prior to an election or during the legislative session posed a greater risk of corruption). 14
   Butler, 29 F. Supp. 2d at 552.
   15
   Maupin, 922 F. Supp. at 1422.
   16
   Maupin, 922 F. Supp. at 1422; see Butler, 29 F. Supp. 2d at 552; see also Dodd, 561 So. 2d at 265–66.
   17
   52 U.S.C. § 30101 et seq.
   The Honorable David Ray
   State Representative
   Opinion No. 2023-022
   Page 4

provides that its provisions and rules “supersede and preempt any provisions of state law with respect to election to Federal office.” 18 Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

18
52 U.S.C. § 30143; see Teper v. Miller, 82 F.3d 989, 999 (11th Cir. 1996) (holding that the FECA preempted a Georgia blackout period as to candidates for federal elections).