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 the timed lobbying bans in A.C.A. § 21-1-402(f)–(g) (two-year ban on former General Assembly members; one-year ban on former constitutional officers and their employees) and the one-year ban in A.C.A. § 21-8-102(c) (former state officials and employees from being a principal or agent in specified matters) violate the First Amendment, and if so, whether enforcement authority still exists.
Plain-English summary
State Representative Brit McKenzie asked the AG to review Arkansas's "revolving door" lobbying restrictions in light of Miller v. Ziegler, a 2024 Eighth Circuit decision that struck down Missouri's two-year lobbying ban on former state employees as unconstitutional as applied. McKenzie's questions focused on two Arkansas statutes:
A.C.A. § 21-1-402(f)–(g): A complete ban on certain former officials registering as lobbyists. Former General Assembly members can't register for two years after their term. The seven executive constitutional officers (Governor, Lt. Governor, AG, Secretary of State, Auditor, Treasurer, Land Commissioner) and their employees can't register for one year.
A.C.A. § 21-8-102(c): A separate one-year ban on a list of former state officials and employees from being a "principal or agent" for anyone other than the state in matters that were within their official responsibility and in which the state is a party or has a direct or substantial interest.
The AG's conclusions:
Q1: Are the § 21-1-402(f)–(g) lobbying bans unconstitutional? Yes, probably. Lobbying is protected First Amendment activity (core political speech, plus the right to petition). The bans are not disclosure rules; they prohibit lobbying entirely. So they get strict scrutiny: a compelling government interest, narrowly tailored. The Supreme Court has recognized only one acceptable interest for restricting political speech, quid pro quo corruption or its appearance. Even assuming the State could show that interest (which would require evidence the General Assembly didn't make legislative findings about), the bans likely fail narrow tailoring on three grounds:
- Underinclusive. The bans don't cover legislative staff, who arguably have more influence than rank-and-file constitutional-office employees. They also include carveouts (lobbying for news media, churches) that undercut the corruption rationale.
- Overinclusive. Other states have shorter periods (six months in Illinois and North Carolina) or no ban at all (seven states cited). Arkansas would have to explain why it has a unique corruption problem.
- Less restrictive alternatives exist. Arkansas already prohibits public officials from accepting compensation in exchange for official action (§§ 5-52-101 et seq.). A timed ban isn't necessary if direct bribery is already criminal.
Q2: Is the § 21-8-102(c) ban unconstitutional? Possibly, on as-applied lobbying challenges. The statute is broader than just lobbying (it covers being a principal or agent in adjudicative or contractual matters), so a facial challenge fails. But if a person brought an as-applied challenge based on lobbying, strict scrutiny applies. Whether any specific application is unconstitutional is a fact-dependent question the AG can't answer.
Q3: Can the laws still be enforced? Yes. The Arkansas Ethics Commission has authority to investigate and discipline violations of § 21-1-402(f)–(g), and prosecutors have authority to charge violations as Class D felonies under § 21-1-405(a). Section 21-8-102(c) violations are Class A misdemeanors prosecuted by elected prosecutors. The AG cannot direct what those officials choose to do, but cautioned that the prohibitions remain enforceable until enjoined or amended.
The opinion is unusual for explicitly inviting constitutional challenges to Arkansas statutes the AG's own office is responsible for defending. The AG provided detailed history of lobbying regulation (lobbyists existed at the founding; first federal regulation came in 1876; first federal statutory regulation in 1935) to ground the constitutional analysis in originalist methodology.
What this means for you
Former state officials thinking about lobbying
The opinion is not a license to ignore the law. Until a court enjoins the statutes or the General Assembly amends them, the prohibitions in § 21-1-402(f)–(g) and § 21-8-102(c) remain enforceable. The Arkansas Ethics Commission can investigate violations of § 21-1-402(f)–(g), and prosecutors can charge violations as Class D felonies (§ 21-1-405(a)). If you violate the statutes hoping to invoke this opinion as a defense, you are betting your liberty on litigation that has not happened yet.
What the opinion does provide is strong support for an as-applied or facial challenge if you are charged. The AG's office, in a defense of the statutes, would have to come up with the legislative findings the AG opinion says the General Assembly didn't make. Practical advice:
- Talk to a First Amendment attorney before lobbying within the prohibited period. A pre-enforcement injunction action against the Ethics Commission or a relevant prosecutor is a cleaner path than risking criminal exposure.
- Consider whether any registration exemption applies. § 21-8-601(a)(3) lists situations in which lobbying does not require registration (including for news media in publications and for Arkansas churches). The complete bans in § 21-1-402(f)–(g) only apply to "registered" lobbyists, so unregistered activity may already be outside their reach.
- Lobbying for free is treated the same as paid lobbying. § 21-1-402 does not distinguish between compensated and uncompensated lobbying. The AG flagged this as a separate constitutional weakness; Brinkman v. Budish (S.D. Ohio 2010) held that quid-pro-quo corruption can't justify barring uncompensated lobbying, since there's no money to corrupt.
Lobbying firms hiring former state officials
The AG opinion changes your risk calculus, but it does not eliminate the risk. If you hire a former state legislator within two years of their term ending and have them register as a lobbyist, the firm and the former legislator both face exposure. The Ethics Commission can investigate under § 21-1-408; prosecutors can charge under § 21-1-405(a). If the former legislator chooses to challenge the statute pre-enforcement, the AG opinion is on their side, but until that case is litigated, the law applies.
State legislators and policy staff
The opinion is, in effect, a legislative request: the General Assembly made the regulatory choice in 2003 (Act 1453) and 2013 (Act 486) without legislative findings. To save the bans, the General Assembly should:
- Make explicit findings. Document the corruption history that justifies a complete ban. The AG flagged that "this Office is not a factfinder" and that the State would have to produce evidence of a corruption problem in litigation.
- Narrow the scope. Sweep in the missing categories (legislative staff) or remove the ones that are likely overinclusive (low-ranking constitutional-office employees).
- Consider shortening the period. Six months is the Illinois and North Carolina baseline; that is harder for a court to call overinclusive than two years.
- Tailor based on access to influence. Distinguish between the seven constitutional officers and a legal assistant in their office.
Arkansas Ethics Commission
The AG opinion does not bind you. § 21-1-408 still authorizes you to investigate and discipline violations. The opinion does, however, signal that any disciplinary action against a former General Assembly member or constitutional officer for lobbying activity is likely to be met with a constitutional defense, citing this opinion. You may want to coordinate with prosecutors and the AG's office on whether to bring enforcement actions during the period that the law is in flux, or to refer cases to prosecutors who can develop a record on the quid pro quo corruption interest the AG opinion says is missing.
Prosecutors
If you have an active investigation under § 21-1-405 or § 21-8-102, the AG opinion is a litigation map. Expect a motion to dismiss on First Amendment grounds and prepare to respond with: (a) evidence of the corruption interest the AG opinion says is missing, and (b) narrow-tailoring arguments tied to the specific facts of your case. As-applied challenges fare better than facial ones for § 21-8-102, so isolating the lobbying conduct from non-lobbying violations may matter.
First Amendment attorneys
The opinion is unusually candid for an AG document and is essentially a brief outline of how to challenge the lobbying bans. The pre-enforcement framework most likely to succeed:
- Plaintiff: A former General Assembly member or constitutional-office employee who has accepted a job that would require lobbying within the prohibited period.
- Defendant: The Ethics Commission and the relevant elected prosecutor.
- Theory: Strict scrutiny under Miller v. Ziegler and FEC v. Cruz; failure of compelling-interest evidence; failure of narrow tailoring.
The Eighth Circuit's Miller v. Ziegler decision is the closest authority and provides the doctrinal architecture. The AG opinion's narrow-tailoring analysis maps directly onto the Miller framework.
Common questions
Q: Can I lobby for free during the cooling-off period?
Probably not without legal risk. Even though § 21-1-402 does not distinguish paid from unpaid lobbying, the registration requirement applies to anyone falling within the statutory definition of "lobbyist." § 21-8-402(11)(B)–(C) defines "lobbyist" to include unpaid activity. So unpaid lobbying could still trigger the prohibition. The AG opinion notes this is constitutionally weakest under Brinkman v. Budish, but that's an as-applied argument, not a safe harbor.
Q: I worked at the Attorney General's office as a paralegal. The two-year ban applies to me?
The seven executive constitutional officers' "employees" are subject to the one-year ban, not the two-year ban. The two-year ban is for former members of the General Assembly. So a former AG paralegal would face the one-year ban only. Note the AG opinion's specific concern that the ban "lumps" the constitutional officer together with a legal assistant when "their level of access and influence might be different."
Q: Does the ban apply to lobbying federal officials?
§ 21-1-402(f) addresses registering as a "lobbyist," which Arkansas defines through Title 21 to mean lobbying with respect to Arkansas state government. Lobbying federal officials in Washington isn't covered. Lobbying Arkansas state officials on federal issues likely is. The lines can be tricky; check the registration requirement at § 21-8-601(a) and the lobbyist definition at § 21-8-402(11).
Q: What about lobbying my own former agency?
Section 21-8-102(c) is the more direct prohibition. It bars former state officials from being a principal or agent for anyone other than the state in matters that "were within [their] official responsibility" and in which the state is a party or has substantial interest. That's both broader and narrower than the lobbying ban: it covers more conduct (not just lobbying) but only on matters within your former responsibility. The opinion suggests a facial challenge to § 21-8-102 fails because much of the covered conduct (litigation switching, contract negotiations) is not protected by the First Amendment.
Q: What is "strict scrutiny"?
The most demanding level of constitutional review. The government must show (1) a compelling interest, and (2) that the regulation is narrowly tailored to achieve that interest. "Narrowly tailored" means not under- or overinclusive, with no less-restrictive alternative reasonably available. Most laws fail strict scrutiny. The AG concluded these lobbying bans likely fail it.
Q: What is Miller v. Ziegler?
A July 2024 Eighth Circuit decision (Arkansas is in the Eighth Circuit) that held Missouri's two-year ban on certain former state employees lobbying as unconstitutional as applied. The court applied strict scrutiny, found that Missouri's compelling-interest evidence was thin, and concluded the ban wasn't narrowly tailored. Miller is binding precedent for Arkansas First Amendment challenges to similar bans, and is the engine driving this AG opinion.
Q: Has anyone actually challenged the Arkansas statute yet?
Not that the AG opinion mentions. The opinion is essentially an open invitation for someone to bring such a challenge. Once one is filed, the AG's office (defending the statute) would have to respond to its own opinion's constitutional analysis, which is awkward but not unprecedented.
Background and statutory framework
Arkansas's lobbying-disclosure regime is in Title 21, Chapter 8, of the Arkansas Code. The two statutes McKenzie asked about are:
A.C.A. § 21-1-402. A former General Assembly member cannot register as a lobbyist for two years after their term ends. The seven executive constitutional officers (and their employees) cannot register as lobbyists for one year after term or employment ends. Violations are Class D felonies under § 21-1-405. Originally enacted in Act 1453 of 2003 (legislators) and Act 486 of 2013 (executive officers and staff).
A.C.A. § 21-8-102(c). A list of former state officials and employees cannot be a "principal or agent for anyone other than the state" for one year after employment ends, on matters that were within their official responsibility and in which the state is a party or has a direct or substantial interest. Covered matters: judicial, administrative, or other proceedings; contracts; claims; charges or controversies. Violations are Class A misdemeanors under § 21-8-102(d).
The First Amendment framework the AG applies tracks Citizens United v. FEC (laws burdening political speech are subject to strict scrutiny), FEC v. Cruz (only quid pro quo corruption justifies restricting political speech), and the historical analysis under Reed v. Town of Gilbert (incorporation of First Amendment to the states in 1868 via the Fourteenth Amendment, with ongoing scholarly debate).
Lobbying is "core" political speech. United States v. Harriss, 347 U.S. 612 (1954), confirmed lobbyists' First Amendment status, though it didn't address bans (only disclosure). Calzone v. Summers, 942 F.3d 415 (8th Cir. 2019) (en banc), reiterated that lobbying implicates both the freedom of speech and the right to petition.
Disclosure regulations get the lower "exacting scrutiny" under Doe v. Reed, 561 U.S. 186 (2010). But complete bans aren't disclosure rules; they prevent speech entirely, which is why strict scrutiny applies. The Eighth Circuit applied strict scrutiny to a complete two-year ban in Miller v. Ziegler, 109 F.4th 1045 (2024).
The compelling-interest analysis: Under FEC v. Cruz, the State must "point to record evidence or legislative findings demonstrating the need to address … quid pro quo corruption in this context." The General Assembly didn't make legislative findings when enacting Act 1453 of 2003 or Act 486 of 2013. So the State, defending the statute, would have to develop evidentiary support post hoc.
The narrow-tailoring analysis: Under Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005), a regulation is not narrowly tailored if it is under- or overinclusive or if a less-speech-restrictive option exists. The AG's analysis identifies all three problems with § 21-1-402.
Enforcement authority remains intact: Ethics Commission under § 7-6-217(g)(3) and § 21-1-408; prosecutors under § 21-1-405(a) (felonies under § 21-1-402) and § 21-8-404 (misdemeanors under § 21-8-102).
Citations
- A.C.A. § 21-1-402(f)–(h) (two-year and one-year lobbying bans)
- A.C.A. § 21-1-405(a) (criminal enforcement of § 21-1-402)
- A.C.A. § 21-1-408 (Ethics Commission disciplinary authority)
- A.C.A. § 21-8-102(c)–(d) (one-year principal-or-agent ban)
- A.C.A. § 21-8-402(11)(B)–(C) (definition of lobbyist)
- A.C.A. § 21-8-404 (prosecutor investigative authority)
- A.C.A. § 21-8-601(a)(3) (lobbying-registration exemptions)
- A.C.A. §§ 5-52-101, -104, -105, -107 (criminal bribery / quid pro quo statutes)
- A.C.A. § 7-6-217(g)(3) (Ethics Commission)
- Act 1453 of 2003 (original two-year legislator ban)
- Act 486 of 2013 (one-year constitutional-officer ban)
- Miller v. Ziegler, 109 F.4th 1045 (8th Cir. 2024) (Missouri two-year ban unconstitutional as applied)
- United States v. Harriss, 347 U.S. 612 (1954) (lobbyists protected by First Amendment)
- Calzone v. Summers, 942 F.3d 415 (8th Cir. 2019) (en banc) (lobbying as core political speech)
- Citizens United v. FEC, 558 U.S. 310 (2010) (strict scrutiny for political-speech burdens)
- FEC v. Cruz, 596 U.S. 289 (2022) (compelling interest = quid pro quo corruption only)
- Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015) (underinclusiveness analysis)
- Doe v. Reed, 561 U.S. 186 (2010) (exacting scrutiny for disclosure rules)
- Brinkman v. Budish, 692 F. Supp. 2d 855 (S.D. Ohio 2010) (uncompensated lobbying)
- Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (narrow tailoring)
- Prior AG opinions: 2024-088, 2017-088, 2013-039, 2007-308, 2002-152, 2001-189, 93-277
Source
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, 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:
- 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.
- 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-
applied challenge is dictated by real-world facts, I am unable to opine
whether any particular as-applied challenge would be successful.
- 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. And it wasn't just Hull: during those early years, lobbyists would "wait[]
outside Congress Hall to" speak with members. 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." In
short, lobbyists were "understood and considered by the Founders."
By 1868—when the Fourteenth Amendment was ratified and, as the Supreme Court has held, in-
corporated the First Amendment against the States—lobbyists had become even more woven into
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." Even those who were most suspicious of lobbyists understood them to be "a disagree-
able necessity."
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.
The first federal statutory regulation of lobbying came in 1935, requiring only some lobbyists to
file a disclosure statement before lobbying.
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. 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. 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
their power to regulate." 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."
• 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."
• "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."
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. Yet lobbyists are entitled to "the freedoms
guaranteed by the First Amendment—freedom to speak, publish, and petition the Government."
Although the U.S. Supreme Court has not yet addressed a lobbying ban like the statutes here, 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."
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.'" 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.
As explained above, lobbying is political speech. 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. Unless the regulations are narrowly tailored to achieve a com-
pelling government interest, they are unconstitutional.
- 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." To establish this interest, the State "must … point to 'record evidence or legislative
findings' demonstrating the need to address … quid pro quo corruption in this context"—that is,
in the context of the regulated speech.
In passing the lobbying bans in A.C.A. § 21-1-402(f)–(g), the General Assembly did not make any
legislative findings. 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."
If it failed to do so, the lobbying bans in A.C.A. § 21-1-402(f)–(g) would be held unconstitu-
tional.
Because this Office is not a factfinder when issuing opinions, 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. As one court has held, addressing quid pro
quo corruption does not provide a compelling interest in prohibiting uncompensated lobbying.
- 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. 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.
§ 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. 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." 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. 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.
Second, the ban is likely overinclusive too. Some other States that have timed bans do so for less
time. And still other States have no ban at all. 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."
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. And it prohibits people from being on the other side of that type of transaction too. 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. 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. 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."
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
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, 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. 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.
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. 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.
Potential violations of A.C.A. § 21-8-102(c), as Class A misdemeanors, are investigated and
prosecuted by prosecuting attorneys.
The elected Prosecuting Attorneys and the Arkansas Ethics Commission are not bound by my
analysis in this opinion. 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-
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