Are Arkansas's two-year ban on former state legislators lobbying and one-year ban on former constitutional officers lobbying constitutional under the First Amendment?

Subject

Whether Arkansas's timed restrictions on lobbying by former officials and employees violate the First Amendment, and who may enforce them while they remain on the books.

Plain-English summary

Representative Brit McKenzie asked about two restrictions after the Eighth Circuit's decision in Miller v. Ziegler. The first, A.C.A. § 21-1-402(f)–(g), bars former legislators from registering as lobbyists for two years and certain former executive constitutional officers and their employees for one year. The AG concluded that a court would likely hold these near-total bans unconstitutional under the First Amendment.

The AG treated lobbying as protected political speech and applied strict scrutiny rather than the less demanding test used for disclosure rules. He assumed, without deciding facts, that Arkansas could show a compelling interest in preventing quid pro quo corruption. Even on that assumption, he found the bans likely lacked narrow tailoring. They omit some former officials and legislative staff, permit certain carved-out lobbying, treat senior officers and their employees alike, and last longer than some other states' limits. The opinion also identifies existing laws against compensation for official action as potentially less restrictive means.

The second restriction, § 21-8-102(c), bars specified former state officials and employees for one year from acting as another person's principal or agent on matters within their former official responsibility in which the state is a party or has a direct or substantial interest. It also reaches conduct unrelated to lobbying, such as switching sides in a contract or litigation matter. The AG answered “Possibly” on constitutionality. He said a proper challenge based on lobbying would likely receive strict scrutiny, but he could not decide whether any particular application would fail without the real-world facts. He gave no general ruling that this statute survives or fails.

The Ethics Commission may investigate and discipline violations of § 21-1-402(f)–(g). Prosecuting attorneys may prosecute violations of that restriction and § 21-8-102(c). The AG said those officials are not bound by his analysis and could enforce the prohibitions until a court enjoins them or the General Assembly changes the laws.

What this means for you

Former officials and employees considering lobbying

The AG's constitutional view does not itself lift either statutory restriction. He cautioned that the relevant authorities could enforce them until a court enjoins them or the legislature changes them. The time period and the work covered differ between the two statutes, so check which provision applies to the proposed activity before acting.

Ethics and enforcement officials

The opinion identifies your statutory authority, then declines to predict what action you will take. It says the Ethics Commission can investigate and discipline alleged violations of § 21-1-402(f)–(g); prosecuting attorneys can prosecute that provision and investigate and prosecute § 21-8-102(c). The AG's opinion is advisory, not a command to enforce or decline enforcement.

Legislators reviewing these restrictions

The AG's narrow-tailoring analysis points to specific features of § 21-1-402(f)–(g): excluded categories of former officials, exceptions for some lobbying, the shared treatment of executive officers and their employees, and the length of the bans. His conclusion assumes a compelling anti-corruption interest and still finds the near-total restrictions likely unconstitutional.

Common questions

Did the AG hold both statutes unconstitutional?

No. For § 21-1-402(f)–(g), he predicted a court would likely find the near-total lobbying bans unconstitutional. For § 21-8-102(c), he answered “Possibly” and reserved the outcome of any specific lobbying-based challenge.

Why is the second statute different?

It applies to being a principal or agent on specified matters tied to a former official responsibility and the state's interest. That can include work unrelated to lobbying or political speech. The AG said a proper challenge based on lobbying would likely trigger strict scrutiny, but the result would depend on the facts.

Can the bans still be enforced after this opinion?

The AG said the Ethics Commission and prosecuting attorneys are not bound by his analysis. He cautioned that appropriate authorities could enforce the prohibitions until a court enjoins them or the General Assembly alters the laws.

Does unpaid lobbying escape the first set of bans?

The opinion says § 21-1-402 does not distinguish compensated from uncompensated lobbying and cites registration provisions that do not exempt uncompensated lobbyists. It notes a court's view that preventing quid pro quo corruption does not justify prohibiting uncompensated lobbying.

Background and statutory framework

The opinion distinguishes a restriction that prevents protected speech from a disclosure rule that burdens speech without preventing it. The AG applied strict scrutiny to the near-total registration bans in § 21-1-402(f)–(g), relying in part on Miller v. Ziegler, an Eighth Circuit decision about a Missouri lobbying ban. Strict scrutiny requires a compelling government interest and narrow tailoring. The AG assumed the first requirement for his analysis, then concluded the Arkansas bans likely failed the second.

For § 21-8-102(c), the opinion lists proceedings, contracts, claims, charges, and controversies within the former official's responsibility and involving a state interest. It explains why the provision could apply to non-lobbying conduct and leaves a lobbying-based challenge for a factual record. The final part identifies the Ethics Commission's and prosecuting attorneys' statutory powers, without predicting how they will exercise them.

Currency note

This opinion was issued in 2025. Check current statutory text and court decisions before relying on its analysis for a proposed lobbying engagement.

Citations

• A.C.A. § 21-1-402(f)–(g) (timed lobbying registration bans)
• A.C.A. § 21-8-102(c) (one-year principal-or-agent restriction)
• A.C.A. § 21-1-408 and § 7-6-217(g)(3) (Ethics Commission authority)
• A.C.A. § 21-1-405(a) and § 21-8-102(d) (penalties)
• A.C.A. § 21-8-404 (prosecutor investigative authority)
• Miller v. Ziegler, 109 F.4th 1045 (8th Cir. 2024) (as-applied Missouri decision)
• United States v. Harriss, 347 U.S. 612 (1954) (lobbying and the First Amendment)
• Calzone v. Summers, 942 F.3d 415 (8th Cir. 2019) (en banc) (lobbying as protected political speech)

Source

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

Original opinion text

Opinion No. 2024-092

March 10, 2025

The Honorable Brit McKenzie
State Representative
P.O. Box 2673
Rogers, Arkansas 72757

Dear Representative McKenzie:

I am writing in response to your request for my opinion about the constitutionality of “timed lob- bying ban[s]” in two Arkansas statutes for certain former State officials and employees. Your re- quest is in light of Miller v. Ziegler,1 a recent opinion from the United States Court of Appeals for the Eighth Circuit that holds a Missouri lobbying ban unconstitutional as applied. You ask:

1. A.C.A. § 21-1-402(f)–(g) bans former members of the General Assembly from registering as lobbyists for two years after their term ends and bans former constitutional officers and their former employees from registering as lobbyists for one year after their term or em- ployment ends. Are these total bans unconstitutional?

Brief response: Yes. It is my opinion that a court would apply strict scrutiny to these bans and hold that they violate the First Amendment to the United States Con- stitution.

2. A.C.A. § 21-8-102(c) bans—for one year after employment—a list of former state officials and employees from being a principal or agent in specified matters that “were within the former state official’s or former state employee’s official responsibility” and in which “the state is a party or has a direct or substantial interest.” Is this one-year ban unconstitutional?

Brief response: Possibly. A.C.A. § 21-8-102(c) applies to many situations, including situ- ations other than lobbying that are not protected by the First Amendment.
If a person brought a proper as-applied challenge based on lobbying, a court would likely apply strict scrutiny. But because the outcome of an as-

1
109 F.4th 1045 (8th Cir. 2024).

The Honorable Brit McKenzie
State Representative
Opinion No. 2024-092
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applied challenge is dictated by real-world facts, I am unable to opine whether any particular as-applied challenge would be successful.

3. If A.C.A. § 21-1-402(f)–(g) and A.C.A. § 21-8-102(c) are unconstitutional, would “our State Government or [the Attorney General’s Office] (or ethics commission) … enforce [these] law[s]”?

Brief response: The Arkansas Ethics Commission has authority to investigate and disci- pline violations of A.C.A. § 21-1-402(f)–(g). And the Prosecuting Attor- neys have authority to prosecute violations of both A.C.A. § 21-1-402(f)– (g) and A.C.A. § 21-8-102(c). I am unable to opine on what actions those officials may or may not take.

DISCUSSION

Lobbyists have always existed in our country. In 1792, William Hull—the earliest recorded lob- byist in the United States (who was later appointed governor of the Michigan territory)—was hired by veterans of the Revolutionary War to lobby Congress for additional compensation to be awarded to the veterans.2 And it wasn’t just Hull: during those early years, lobbyists would “wait[] outside Congress Hall to” speak with members.3 Even Alexander Hamilton took part, creating the “Philadelphia Society for the Promotion of National Industry,” which “[was the first formal] busi- ness lobby formed for the purpose of influencing legislatures on behalf of a powerful faction.”4 In short, lobbyists were “understood and considered by the Founders.”5

By 1868—when the Fourteenth Amendment was ratified and, as the Supreme Court has held, in- corporated the First Amendment against the States6—lobbyists had become even more woven into

2
Robert C. Byrd, Senate Majority Leader, Address to the U.S. Senate of Sept. 28, 1987 on Lobbyists, in 2 The Senate: 1789–1989: Addresses on the History of the United States Senate 492 (1991); see also Lela Akiashvili et al., Lobbying after Federal Service: The Revolving Door, Shadow Lobbying, & Cooling Off Periods for Former Government Offi- cials 11 (April 2018) (Consulting Capstone, Texas A&M University), https://bush.tamu.edu/wp-content/up- loads/2020/02/CRS-Exec-Branch-Lobbying-Capstone-Final-Report-2017-2018.pdf. 3 Byrd, supra note 2, at 492 (“In 1795, a Philadelphia newspaper described the way lobbyists waited outside Congress Hall to ‘give a hint to a Member, teaze or advise as may best suit.’” (quoting Roy Swanstrom, The United States Senate, 1787–1801: A Dissertation on the First Fourteen Years of the Upper Legislative Body 214 (1988)). 4 Vincent R. Johnson, Regulating Lobbyists: Law, Ethics, & Public Policy, 16 Cornell J.L. & Pub. Pol’y 1, at 11 (2006) (alteration in original) (quoting Robert V. Remini, The House: The History of the House of Representatives 38 (2006)). 5 Nicholas W. Allard, Lobbying is an Honorable Profession: The Right to Petition & The Competition to be Right, 19 Stan. L. & Pol’y Rev. 23, 37 (2008). 6 E.g., Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015); see also N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 37–38 (2022) (acknowledging the “ongoing scholarly debate” about whether the “scope” of incorporated

The Honorable Brit McKenzie
State Representative
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the legislative fabric. The post-Civil War changes increased pressure on legislatures and left Con- gress “more and more incompetent … to wield the enormous powers that [were] forced upon it,” with no “formal floor leadership” and “practically no staff, either for committees or for individual members.”7 Even those who were most suspicious of lobbyists understood them to be “a disagree- able necessity.”8

It appears that the first regulation of lobbyists, at least at the federal level, was a session resolu- tion—not even a federal statute—in 1876 that required lobbyists to register with the Clerk of the House, and some States had provided criminal prohibitions on lobbying by the end of the 1800s.9 The first federal statutory regulation of lobbying came in 1935, requiring only some lobbyists to file a disclosure statement before lobbying.10

This background informs how the First Amendment applies to lobbyists: lobbying regulations were not known in United States until long after ratification of the First Amendment and well after the ratification of the Fourteenth Amendment. Thus, courts across the country have long recog- nized that lobbying is a protected First Amendment activity.11 In fact, it is “core” to the First Amendment, implicating both the freedom of speech and the right to petition the government for a redress of grievances.12 But the lack of historical regulation does not mean that lobbyists may never be regulated; after all, “th[e] founding-era legislatures [may not have] maximally exercised

rights should be “pegged to the public understanding of the right when the Bill of Rights was adopted in 1791” or to “when the Fourteenth Amendment was ratified in 1868”). 7 Byrd, supra note 2, at 497 (quoting Margaret Susan Thompson, The “Spider Web”: Congress & Lobbying in the Age of Grant 49 (1985)). 8 Thompson, supra note 7, at 54.
9
Stacie L. Fatka & Jason Miles Levien, Protecting the Right to Petition: Why A Lobbying Contingency Fee Prohibition Violates the Constitution, 35 Harv. J. on Legis. 559, 569 (1998) (citing S. Rep. No. 99-161, at 52 (1986)). 10 Andrew P. Thomas, Easing the Pressure on Pressure Groups: Toward a Constitutional Right to Lobby, 16 Harv. J.L. & Pol’y 149, 153 (1993). 11 See, e.g., United States v. Harriss, 347 U.S. 612, 625–26 (1954); Calzone v. Summers, 942 F.3d 415, 422 (8th Cir. 2019) (en banc) (citing FTC v. Superior Ct. Trial Laws. Ass’n, 493 U.S. 411, 426 (1990), then quoting Meyer v. Grant, 486 U.S. 414, 422 (1988)); United States v. Sawyer, 85 F.3d 713, 731 n.15 (1st Cir. 1996) (explaining that employed lobbyists “are protected by the right ‘to petition the Government for a redress of grievance’ guaranteed by the First Amendment [to] the United States Constitution”); United States v. Kincaid-Chauncey, 556 F.3d 923, 941–42 (9th Cir. 2009), abrogated on other grounds by United States v. Skilling, 561 U.S. 358 (2010) (same); United States v. Silver, 948 F.3d 538, 558, n.11 (2d Cir. 2020) (quoting Kincaid-Chauncey, 556 F.3d at 942–43); Liberty Lobby, Inc. v. Pear- son, 390 F.2d 489, 491 (D.C. Cir. 1967) (Berger, J.) (“While the term ‘lobbyist’ has become encrusted with invidious connotations, every person or group engaged … in trying to persuade Congressional action is exercising the First Amendment right of petition.”). 12 Calzone, 942 F.3d at 422 (quoting Meyer, 486 U.S. at 422).

The Honorable Brit McKenzie
State Representative
Opinion No. 2024-092
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their power to regulate.”13 It does, however, lead to the conclusion, which practice bears out, that lobbying regulations should be closely reviewed by courts.

This background informs the answers to your questions about the two Arkansas statutes.

Question 1: A.C.A. § 21-1-402(f)–(g) bans former members of the General Assembly from reg- istering as lobbyists for two years after their term ends and bans former constitutional officers and their former employees from registering as lobbyists for one year after their term or em- ployment ends. Are these total bans unconstitutional?

Section 21-1-402 provides three limitations on lobbying:

• “A former member of the General Assembly shall not … [r]egister as a lobbyist” “until two (2) years after the expiration of the term of office for which he or she was elected.”14

• The seven executive constitutional officers “are not eligible to be registered as lobbyists … until one (1) year after the expiration of the respective terms of office to which they were elected.”15

• “An individual employed in” one of the seven executive constitutional offices “is not eli- gible to be registered as a lobbyist … until (1) year after the expiration of the individual’s employment in that office.”16

These regulations are near-total bans on lobbying, not allowing the named former officials and employees to lobby under any circumstances, except in the few instances a person is not required to register as a lobbyist, during the prohibited period.17 Yet lobbyists are entitled to “the freedoms guaranteed by the First Amendment—freedom to speak, publish, and petition the Government.”18

13
United States v. Rahimi, 602 U.S. 680, 739–40 (2024) (Barrett, J., concurring).
14
A.C.A. § 21-1-402(f)(1)(A).
15
Id. § 21-1-402(g).
16
Id. § 21-1-402(h).
17
The term “cooling-off period” is sometimes used to describe these complete bans. See, e.g., Geoffrey W. Rapoport, Licensing & Self-Regulation of Lobbyists, 23 Georgetown J.L. Ethics 749, 752, 752 n.17 (2010) (stating that “a ‘cool- ing off period’” “require[s] departing legislators and some staff to wait … before lobbying” or making any “contact” with legislators related to lobbying). Other times, the term is used to describe a more limited prohibition on former government officials and employees from lobbying related to certain “statutorily specified matters.” Laurence Tai, Harnessing Industry Influence, 68 Admin. L. Rev. 1, 14 (2016). 18 Harriss, 347 U.S. at 625.

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State Representative
Opinion No. 2024-092
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Although the U.S. Supreme Court has not yet addressed a lobbying ban like the statutes here,19 it has applied one of two means-end scrutiny tests to other lobbying regulations. The starting point is that “[l]aws that burden political speech are ‘subject to strict scrutiny,’ which requires the Gov- ernment to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.”20

But if a regulation is a disclosure requirement—a “burden [on] the ability to speak” that does “not prevent anyone from speaking”—courts apply “what has been termed ‘exacting scrutiny.’”21 Un- der this level of scrutiny, a regulation will be upheld if there is a “sufficiently important govern- mental interest” that is substantially related to the regulation.22

As explained above, lobbying is political speech.23 The near-total bans in A.C.A. § 21-1-402 bur- den that speech by preventing the regulated officials and employees from lobbying in almost every circumstance. Thus, A.C.A. § 21-1-402’s regulations are not disclaimer or disclosure requirements and are subject to strict scrutiny.24 Unless the regulations are narrowly tailored to achieve a com- pelling government interest, they are unconstitutional.

1. Compelling Government Interest. The U.S. Supreme Court “has recognized only one permis-
   sible ground for restricting political speech: the prevention of ‘quid pro quo’ corruption or its appearance.”25 To establish this interest, the State “must … point to ‘record evidence or legislative

19
Id. at 626–27 (declining to address a three-year ban because it was not necessary for the disposition of the case).
20
Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 874 (8th Cir. 2012) (quoting Citizens United v. FEC, 558 U.S. 310, 340 (2010)); see also, e.g., Dep’t of Tex., Veterans of Foreign Wars of U.S. v. Tex. Lottery Comm’n, 760 F.3d 427, 438–39 (5th Cir. 2014) (applying strict scrutiny to a law that prohibited certain funds from being used to “influence or attempt to influence legislation” because it burdened political speech); Nat’l Ass’n of Soc. Workers v. Harwood, 69 F.3d 622, 645 (1st Cir. 1995) (same for a law that prohibited only some lobbyists from being on the floor of the legislature). 21 Doe v. Reed, 561 U.S. 186, 196 (2010) (citations omitted); see also Miller, 109 F.4th at 1049 (quoting Citizens United, 558 U.S. at 366–67). It is “the effect of the provision”—that is, whether it burdens without preventing speech—that “determines whether [courts] treat it as ‘a disclosure requirement, or something more.” Id. at 1050 (quot- ing Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 426 (5th Cir. 2014)). 22 Miller, 109 F.4th at 1049 (quoting Citizens United, 558 U.S. at 366–67).
23
See also id. at 1049 (“The role of a lobbyist is ‘to influence’ government policy through information and persuasion,
… which qualifies as ‘core political speech’ ….” (first quoting McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995), then quoting Calzone, 942 F.3d at 422). 24 See id. at 1050 (applying strict scrutiny to a complete two-year ban on paid lobbying); Brinkman v. Budish, 692 F. Supp. 2d 855, 861–62 (S.D. Ohio 2010) (applying strict scrutiny to a complete one-year ban on both paid and unpaid lobbying on behalf of another). 25 FEC v. Cruz, 596 U.S. 289, 305 (2022).

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State Representative
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findings’ demonstrating the need to address … quid pro quo corruption in this context”—that is, in the context of the regulated speech.26

In passing the lobbying bans in A.C.A. § 21-1-402(f)–(g), the General Assembly did not make any legislative findings.27 Thus, to find a compelling government interest, the State would be required to produce evidence showing that the legislation attempts to “solv[e] a problem that … exists.”28 If it failed to do so, the lobbying bans in A.C.A. § 21-1-402(f)–(g) would be held unconstitu- tional.29

Because this Office is not a factfinder when issuing opinions,30 I cannot determine whether any evidence points to the existence of a compelling government interest. So for purposes of this opin- ion, I assume that evidence does exist and that the State could identify a compelling government interest for the near-total bans in A.C.A. § 21-1-402(f)–(g).

I will note, however, that under A.C.A. § 21-1-402(f)–(g) it does not matter whether a person is engaged in compensated or uncompensated lobbying.31 As one court has held, addressing quid pro quo corruption does not provide a compelling interest in prohibiting uncompensated lobbying.32

2. Narrow Tailoring. A regulation is narrowly tailored if it is necessary to advance the govern-
   ment’s interest: a regulation is not narrowly tailored if it is under- or overinclusive or if a less speech-restrictive option exists to accomplish the interest.33 As explained above, I assume for pur- poses of this opinion that there is a sufficient basis to sustain the compelling government interest in addressing quid pro quo corruption. Yet even with that assumption, it is my opinion that A.C.A.

26
Id. at 307; see also Miller, 109 F.4th at 1050–52.
27
See Act 1453 of 2003 (first restrictions on lobbying by former members of the General Assembly); Act 486 of 2013 (first restrictions on lobbying by former executive constitutional officers and former employees of those offices). 28 Miller, 109 F.4th at 1051.
29
Id.
30
E.g., Ark. Att’y Gen. Ops. 2024-088, 2017-088, 2007-308.
31
See A.C.A. § 21-1-402 (not distinguishing between compensated and uncompensated lobbying); id. § 21-8- 601(a)(3) (providing no exemption from registering as a lobbyist for uncompensated lobbyists). Areas of the Code that define “lobbyist” for other purposes similarly do not distinguish between compensated and uncompensated lob- bying. See, e.g., A.C.A. § 21-8-402(11)(B)–(C) (defining “lobbyist” to include people who do not receive compensa- tion for lobbying). 32 Brinkman, 692 F. Supp. 2d at 863.
33
Republican Party of Minn. v. White, 416 F.3d 738, 752 (8th Cir. 2005) (citations omitted); see also Greater Balti- more Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 879 F.3d 101, 111 (4th Cir. 2018) (“A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” (quoting Frisby v. Schultz, 487 U.S. 474, 485 (1988)).

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State Representative
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§ 21-1-402’s bans on lobbying are likely not narrowly tailored and are therefore unconstitutional for at least three reasons.

First, the lobbying ban—applying only to former members of the General Assembly, former of- ficeholders of the listed constitutional offices, and former employees of the listed constitutional offices—is likely underinclusive, which means that the law fails to regulate “conduct that similarly diminishe[s]” the government’s interest.34 For example, the ban does not apply to employees of the General Assembly or staff of members of the General Assembly, but these people would pre- sumably have more ability to influence legislation than run-of-the-mill employees of the listed constitutional offices. And, like the lobbying ban in Miller that the Eighth Circuit recently found to be unconstitutional as applied, A.C.A. § 21-1-402 “leaves [some] former executive-branch em- ployees [and officials] … free to lobby whomever they want.”35 The ban also includes carveouts that would allow the regulated individuals to lobby—so long as they are lobbying in a few author- ized ways or for a limited set of state-authorized causes.36 To avoid a court holding that this makes the law underinclusive, the State would need to show that “there is something special about the risk posed” by the people banned from lobbying and something special about the lack of a risk in the carved-out situations in which the people are not banned from lobbying.37

Second, the ban is likely overinclusive too. Some other States that have timed bans do so for less time.38 And still other States have no ban at all.39 It is questionable that Arkansas would have a unique problem with quid pro quo corruption that does not exist in other States. Further, the bans do not distinguish between the seven listed executive constitutional officers and their staff, but it isn’t “clear why it lumps” these two groups—e.g., the Attorney General and a legal assistant at the Attorney General’s Office—together “when their level of access and influence might be differ- ent.”40

34
Williams-Yulee v. Fla. Bar, 575 U.S. 433, 448 (2015). “Underinclusiveness can also reveal that a law does not actually advance a compelling interest.… Although a law’s underinclusivity raises a red flag, the First Amendment imposes no freestanding ‘underinclusiveness limitation.’ A State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.” Id. at 449 (citations omitted). 35 Miller, 109 F.4th at 1052.
36
See A.C.A. § 21-8-601(a)(3) (exempting people from registering as lobbyists if, for example, they are lobbying on behalf of news media in a publication or broadcast or they are lobbying on behalf of an Arkansas church). 37 Id.
38
See, e.g., 5 Ill. Comp. Stat. 430/5-45(b-5)–(b-7) (six months); N.C. Gen. Stat. § 120C-304(a)(2) (six months).
39
Craig Holman & Caralyn Esser, Public Citizen, Slowing the Federal Revolving Door: Reforms to Stop Lobbying Activity by Former Public Officials & States that Lead the Way 13 (July 23, 2019), https://www.citizen.org/arti- cle/slowing-the-federal-revolving-door/ (identifying seven States that, in 2019, had no time limit on former public officials lobbying). 40 Miller, 109 F.4th at 1052 (citing FEC v. Nat’l Conservative Pol. Action Comm., 470 U.S. 480, 501 (1985)).

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State Representative
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Finally, less restrictive alternatives exist—both in theory and in fact. For example, Arkansas al- ready prohibits public officials from accepting compensation in exchange for official action or inaction.41 And it prohibits people from being on the other side of that type of transaction too.42 In a legal challenge, the State would have to explain why these don’t sufficiently protect the State’s interest in addressing quid pro quo corruption.43 Further, the under- and overinclusiveness analyses above suggest several more potentially less restrictive alternatives: shorter periods and specifically addressing regulated officials and employees in ways that address each one’s unique position.

                                       *                 *                 *

This Office has previously opined that bans on lobbying like those addressed here raise potential constitutional issues.44 For the reasons explained above, I agree. Thus, it is my opinion that a court reviewing the near-total lobbying bans in A.C.A. § 21-1-402(f)–(g) would likely hold that they are unconstitutional under the First Amendment to the United States Constitution.

Question 2: A.C.A. § 21-8-102(c) bans—for one year after employment—a list of former state officials and employees from being a principal or agent in specified matters that “were within the former state official’s or former state employee’s official responsibility” and in which “the state is a party or has a direct or substantial interest.” Is this one-year ban unconstitutional?

Under A.C.A. § 21-8-102(c), a list of former state officials and employees—for one year after employment—cannot be “a principal or agent for anyone other than the state … in connection with any of the following if the matters were within [their] official responsibility and the state is a party or has a direct or substantial interest:”

• “A judicial, administrative, or other proceeding, application, request for a ruling, or other determination;”

• “A contract;”

• “A claim; or”

• “A charge or controversy.”45

Unlike the challenged prohibition in Miller v. Ziegler or the bans in A.C.A. § 21-1-402(f)–(g), this prohibition does not specifically apply to lobbying. Although someone might be able to bring an

41
See, e.g., A.C.A. §§ 5-52-101, -104, -107.
42
See, e.g., id. § 5-52-105.
43
Miller, 109 F.4th at 1053 n.3 (citing United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 816 (2000)).
44
Ark. Att’y Gen. Op. 2013-039.
45
A.C.A. § 21-8-102(c)(1)–(4).

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State Representative
Opinion No. 2024-092
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as-applied constitutional challenge related to lobbying, the language of the statute would often apply to conduct unrelated to lobbying or other political speech. For example, a State employee who facilitated a building contract could not leave State employment to immediately work for the contractor who won the bid. Nor could a State attorney leave State employment to switch sides in the middle of litigation.

Because as-applied challenges must be determined on a “case-by-case” basis, requiring real-world facts,46 and because I am not a factfinder when issuing opinions, I am unable to opine on whether application of § 21-8-102(c)’s prohibition to a person who lobbied in violation of the statute would be unconstitutional.47 I can opine, however, that if a person brought a proper as-applied challenge against § 21-8-102(c) related to lobbying, a court would likely apply strict scrutiny, requiring the State to identify a compelling government interest and proving that the regulation is narrowly tai- lored to achieve that interest.48

Question 3: If A.C.A. § 21-1-402(f)–(g) and A.C.A. § 21-8-102(c) are unconstitutional, would “our State Government or [the Attorney General’s Office] (or ethics commission) … enforce
[these] law[s]”?

The Arkansas Ethics Commission has authority to investigate and make findings about potential violations of A.C.A. § 21-1-402(f)–(g) and take disciplinary action for violations.49 And because a violation of § 21-1-402(f)–(g) is a Class D felony, prosecuting attorneys have authority to pros- ecute violations of the law.50

Potential violations of A.C.A. § 21-8-102(c), as Class A misdemeanors,51 are investigated and prosecuted by prosecuting attorneys.52

The elected Prosecuting Attorneys and the Arkansas Ethics Commission are not bound by my analysis in this opinion.53 Therefore, I cannot opine on what actions they may or may not take. I do caution, however, that the appropriate authorities could enforce the prohibitions in A.C.A. § 21- 46 City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 759 (1988).
47
E.g., Ark. Att’y Gen. Ops. 2024-088, 2017-088, 2007-308.
48
Because your request is limited to “timed lobbying bans,” I do not address A.C.A. § 21-8-102(c)’s application of other situations. 49 A.C.A. §§ 7-6-217(g)(3), 21-1-408.
50
See A.C.A. § 21-1-405(a).
51
A.C.A. § 21-8-102(d).
52
A.C.A. §§ 21-8-404 (giving prosecuting attorneys authority to investigate).
53
See Ark. Att’y Gen. Op. 2002-152 (“[T]he official opinions I issue are advisory only, and do not carry the force of law.”); see also Ark. Att’y Gen. Ops. 2001-189, 93-277.

The Honorable Brit McKenzie
State Representative
Opinion No. 2024-092
Page 10

1-402(f)–(g) and § 21-8-102(c), until enjoined by a court or unless the laws are altered by the General Assembly.

Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General