Did the Arkansas AG certify a popular name and revised ballot title for the proposed Campaign Finance Act of 2016 disclosure initiative?

Plain-English summary

This was a recertification request from David Couch on behalf of Regnat Populus for an initiated act called the Campaign Finance Act of 2016. The AG's office had already certified the popular name and substituted a ballot title in Opinion No. 2015-059 in June 2015. The sponsor came back with a revised ballot title aimed at better addressing how the measure would affect "legislative questions," and asked the AG to certify both the popular name and the revised ballot title.

The Attorney General certified them as submitted. The opinion repeated the standard ballot-title framework laid down by the Arkansas Supreme Court, then said the purpose of the proposal was now sufficiently set out, but it included a cautionary note: the measure was a substantial overhaul of Arkansas campaign-finance regulation, and the AG had observed a direct correlation between the complexity of initiated measures and the likelihood of a successful ballot-title challenge in court. Any textual ambiguity could become the hook for a later challenge.

The proposed initiative would have done six main things. It expanded the definition of "independent expenditure" to cover functionally advocacy communications and certain communications within 60 days of an election that target a candidate's electorate. It set $2,000-and-$500 thresholds for electronic reporting to the Secretary of State or County Clerk. It imposed quarterly and monthly reporting on contribution-takers using the same schedule as candidates. It required additional 60-day-window reports on independent expenditures of $2,000 or more. It required "Disclosure Internet Web sites" listing the top 10 cumulative contributors. It required "Top Funders" disclosures inside political advertisements across radio, television, video, mass mailings, and print. The Act also proposed a resolution calling for a federal constitutional amendment authorizing Congress and the states to regulate and set reasonable limits on campaign spending and to distinguish between natural persons and corporations.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does it mean for the AG to "certify" a popular name and ballot title?

Under Ark. Code Ann. § 7-9-107, before signatures can be circulated on a proposed initiated act or constitutional amendment, the Attorney General has to certify the popular name (the short label that goes at the top of the ballot) and the ballot title (the brief description voters read in the booth). The AG can either certify the proposal as submitted, substitute and certify a more suitable version, or, if the submission is sufficiently misleading, reject it outright.

Does certification mean the AG endorses the measure?

No. Every certification opinion of this era opens by saying that neither certifying nor rejecting a popular name and ballot title reflects the AG's view of the merits. The AG has no authority to consider the merits.

Did this opinion change Arkansas campaign finance law in 2015?

No. The opinion only certified language so the sponsors could begin collecting signatures. Whether the law would change depended on whether the sponsors gathered enough valid signatures and whether voters then approved the act. The AG's office made no determination about whether the policy was a good idea or whether it would survive constitutional scrutiny if enacted.

What were the AG's specific concerns?

The opinion did not call out specific concrete defects in the revised ballot title; it issued the certification. But it warned, based on experience with prior initiated measures, that ambiguities in the text of a complex measure tended to become the basis for ballot-title challenges in the Arkansas Supreme Court. Sponsors of complex measures were on notice that opponents could later argue the title failed to fairly summarize the proposal.

What does the ballot-title sufficiency standard require?

The opinion restated the standard developed in Bailey v. McCuen, Becker v. Riviere, May v. Daniels, and related cases. The title must be impartial, must give the voter a fair understanding of the issues, and must disclose any essential fact that would give a voter serious ground for reflection. It must also be brief and concise, because Arkansas law caps a voter at five minutes in the booth if others are waiting. The title need not be perfect, but it must be free from misleading tendency by amplification, omission, or fallacy.

Background and statutory framework

The AG's authority to certify or substitute a ballot title sits in Ark. Code Ann. § 7-9-107. Subsection (b) authorizes the AG to substitute and certify a more suitable popular name and ballot title where practicable; subsection (c) authorizes rejection if the title is sufficiently misleading. Section 7-9-108 requires that instructions to canvassers and signers accompany every petition.

The substantive policy of the proposed act would have rewritten parts of Title 7, Chapter 6, Subchapter 2 of the Arkansas Code, principally A.C.A. § 7-6-201 (definitions) and § 7-6-220 (reporting of independent expenditures), and would have added § 7-6-228 (disclosure Internet web site) and § 7-6-229 (top-funder disclaimers on advertisements). The Whereas clauses framed the measure as a response to Citizens United v. Federal Election Commission and an effort to require fuller disclosure of contribution sources behind political advertising.

The opinion drew on the Arkansas Supreme Court's longstanding ballot-title sufficiency line: Pafford v. Hall on the role of the popular name as a legislative device; Bailey v. McCuen on the essential-fact and brief-and-concise requirements; Becker v. McCuen, Christian Civic Action Committee v. McCuen, and Becker v. Riviere on the impartial-summary and intelligible-idea-of-scope requirements; Roberts v. Priest on the principle that internal inconsistencies in the text can defeat a popular name and ballot title. The cautionary note about constitutional infirmities derived from Kurrus v. Priest, Donovan v. Priest, and Plugge v. McCuen.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2013)
• Ark. Code Ann. § 7-9-107(b)
• Ark. Code Ann. § 7-9-107(c)
• Ark. Code Ann. § 7-9-108
• Ark. Code Ann. § 7-5-309
• Ark. Code Ann. § 5-55-601(b)
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-083
July 24, 2015

David A. Couch
Attorney at Law
1501 North University, Suite 228
Little Rock, Arkansas 72207

Dear Mr. Couch:

Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal. This Office has been given no authority to consider the merits of any measure.

This is in response to your request for recertification of the ballot title initially submitted by Paul Spencer, Regnat Populus, on May 28, 2015. This office certified the popular name as submitted and revised and substituted the ballot title on June 11, 2015, as evidenced by Opinion No. 2015-059. On July 10, 2015, we received your request for recertification based upon your concerns that the ballot title does not sufficiently address the effect of the measure on legislative questions. The initially proposed popular name and the text of the proposed initiative have not changed. You have revised the ballot title and submitted the following proposed popular name and ballot title for my certification:

Popular Name

The Campaign Finance Act of 2016

Ballot Title

This Act amends Arkansas law regarding campaign finance in the following six ways:

(1) First, the Act creates two new categories of election-related spending by expanding the definition of what is currently called an "independent expenditure." Currently, Arkansas law defines an "independent expenditure" as an expenditure (a) that is not a "contribution," which current law separately defines (b) that expressly advocates the election or defeat of a clearly identified candidate for office, and (c) that is made without arranging, cooperating, or consulting with any candidate or his or her authorized committee or agent. This Act expands the definition of "independent expenditure" to also include two additional kinds of election-related speech. First, it expands the definition to include expenditures for communications that functionally advocate for or against a candidate. This means that, though the communication effectively urges a vote for or against a candidate, the communication does not expressly do so. Second, this Act expands the definition of "independent expenditure" to include expenditures for communications, without regard to whether they advocate (expressly or functionally) for the election of a clearly-identified candidate for office, if they occur within 60 days of the election, and target a certain number of the candidate's electorate.

(2) Second, the Act requires that a person who makes a payment or promises to pay at least $2,000 in the aggregate in a calendar year for any of the foregoing kinds of independent expenditures must report electronically to the Secretary of State or County Clerk (whichever is appropriate, depending on the office) (a) the amount of the payment, (b) the elections to which the payment pertains, (c) the names of the candidates identified, (d) the name, address, occupation of the person who made (or will make) the payment.

(3) Third, this Act requires that a person who receives contributions of at least $500 in the aggregate in a calendar year for the purpose of making independent expenditures must file reports with the Secretary of State or County Clerk (whichever is appropriate) according to the same quarterly and monthly schedule that currently applies to candidates for office.

(4) Fourth, this Act requires that, within 60 days of an election, a person or committee that receives at least $500 in a calendar year for the purpose of making independent expenditures must file additional reports electronically with the Secretary of State or County Clerk (whichever is appropriate) for each additional independent expenditure of at least $2,000 in the aggregate. These reports must include certain specified information, including (among other things) the name, address, place of business, employer, and occupation of any person who contributed at least $200 to the person making the expenditure.

(5) Fifth, this Act requires persons who raise or spend $2,000 or more during a reporting period for independent expenditures communications, or advertisements for or against ballot questions or legislative questions, to establish and maintain a "Disclosure Internet Web site" that identifies the contributors who gave the top 10 largest cumulative contributions.

(6) Sixth, this Act requires that independent expenditure advertisements, or advertisements for or against ballot questions or legislative questions, whether made by mass mailings or on video, television, radio, telephone, or in print, contain specific information about the "Top Funders" of that communication.

In addition, this Act also proposes a resolution that calls upon the Congressional Delegation of Arkansas to support, and the Arkansas General Assembly to ratify, an amendment to the United States Constitution clarifying the power of Congress and the States to regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections, and in so doing, to distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

The Attorney General is required, pursuant to Ark. Code Ann. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may, if practicable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General may reject the entire petition.

Section 7-9-107 neither requires nor authorizes the Attorney General to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to law," the Attorney General will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents.

Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.

The popular name is primarily a useful legislative device. It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. According to the Court, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." At the same time, however, a ballot title must be brief and concise (see Ark. Code Ann. § 7-9-107(b)); otherwise voters could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths when other voters are waiting in line. The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke. The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring. The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.

Furthermore, the Court has confirmed that a proposed amendment cannot be approved if "[t]he text of the proposed amendment itself contribute[s] to the confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure." The Court concluded that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without clarification of the ambiguities.

Applying the above precepts, I conclude that your popular name and ballot title should be and are hereby certified as submitted.

In my view, the purpose of your proposed measure is sufficiently stated in the ballot title as submitted. Nevertheless, I believe a cautionary note is warranted due to the significance of the subject matter undertaken — significant changes to Arkansas's campaign-finance regulations — and the complexity and far-reaching effects of this proposal. You should be aware that according to my experience there is a direct correlation between the complexity of initiated measures and their susceptibility to a successful ballot-title challenge. Any ambiguity in the text of a measure could lead to a successful challenge.

Pursuant to Ark. Code Ann. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and of the associated penalties for violations. Enclosed herewith, over the signature of the Attorney General, are instructions that should be incorporated in your petition prior to circulation.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/cyh

[Enclosures: Instructions to Canvassers and Signers; full text of the proposed Act, including Section 1 (Disclosure of Sources of Campaign Expenditures), Section 2 (Constitutional Amendment resolution), and Section 3 (Severability), as set out in the official PDF.]