Why did the Arkansas Attorney General reject the 2016 proposed constitutional amendment on lobbyist gifts, political action committees, independent expenditures, and campaign contribution limits?

Plain-English summary

Attorney David A. Couch submitted a proposed constitutional amendment for AG certification under Ark. Code Ann. § 7-9-107. The amendment had four moving parts: it would prohibit certain elected and appointed officials from accepting gifts from lobbyists, prohibit political action committees that accept corporate contributions from giving to candidates, require disclosure of independent expenditures and "covered transfers" of $2,000 or more, and reduce the maximum campaign contribution to a candidate from $2,700 to $1,500.

AG Leslie Rutledge rejected both the popular name and the ballot title. Her reasoning had two layers.

First, the ballot title omitted essential facts. The proposal added a new section 32 to article 19 of the Arkansas Constitution that would set up a parallel campaign-finance reporting regime, with detailed reporting deadlines (60 days before, 30 days before, 7 days before, and 24 hours before various elections), disclosure-on-political-advertisements rules, Ethics Commission jurisdiction, and criminal and civil penalties. The submitted ballot title summarized all of that with the bare phrase "defining covered transfers and independent expenditures." That was, in the AG's view, deficient: the voter would not get a fair understanding of what the proposal actually did.

Second, the text of the amendment contained ambiguities that prevented substitution. Specifically:

• The amendment redefined an "approved political action committee" to exclude PACs that take money from "any company or corporation." The terms "company" and "corporation" were undefined and might or might not include other business associations like LLCs or limited partnerships.
• The amendment defined "covered transfer" but used "disbursement" as the key exception term, and "disbursement" was nowhere defined.
• A reference in subsection (2)(B) of Section 1 of the proposed new article 19, § 32 mentioned communications "exempted under such regulations as the Arkansas Ethics Commission may promulgate consistent with this Act." The phrase "this Act" was wrong context for a constitutional amendment.
• Subsection (A) of Section 4 of the proposed new article 19, § 32 referred to "this amendment" in several places, and those references were similarly ambiguous given the structural setting (a section within an article within the constitution).

The AG ended with a note encouraging Couch to proofread carefully, noting the submission also contained numerous typographical errors.

Currency note

This opinion was issued in 2016. 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.

Background and statutory framework

The certification standard

Under § 7-9-107, the Attorney General certifies popular names and ballot titles. The Arkansas Supreme Court has built the standard through cases the AG cited here: titles must be honest, intelligible, fair, and "free of any misleading tendency whether by amplification, omission, or fallacy." A ballot title that omits "an essential fact which would give the voter serious ground for reflection" fails (Bailey v. McCuen). The AG can substitute a corrected title when the underlying proposal is clear, but cannot when the proposal itself has internal inconsistencies (Roberts v. Priest).

What this ballot title left out

The AG's omission-of-essential-facts critique focused on the new article 19, § 32 the proposal would add. That new section would require any person making independent expenditures or "covered transfers" of $2,000 or more in a calendar year to file detailed reports with the Secretary of State or county clerk, identify the source of any payment of $500 or more into a segregated account, certify non-coordination with candidates, and follow a detailed deadline schedule (the bullet points on filing 60 days, 30 days, 7 days, and within 24 hours before elections). It would also require "Paid for by" disclaimers on political advertisements and give the Ethics Commission jurisdiction with criminal and civil enforcement powers.

The proposed ballot title compressed all of that to one phrase: "defining covered transfers and independent expenditures." For comparison, the proposed title spelled out in detail the contribution-limit and lobbyist-gift portions of the amendment. The AG's view was that the imbalance left voters thinking the amendment was primarily about lobbyist gifts and contribution caps, when in fact a substantial part of it created a new constitutional reporting and disclosure regime that the General Assembly could not easily amend (because the amendment limited General Assembly amendments to a two-thirds-of-each-house vote).

Why the text ambiguities prevented substitution

Three textual problems stood out:

1. "Company or corporation" in the new definition of "approved political action committee." The amendment would prohibit a PAC from accepting any contribution from "any company or corporation," but did not define the boundaries of "company." Would an LLC count? A limited partnership? A nonprofit organized as a corporation? Without that boundary, the AG could not describe in a ballot title which contributors PACs could and could not accept money from.
2. "Disbursement" as the key exception to "covered transfer." The proposal listed three exceptions to what counted as a "covered transfer," all expressed in terms of "disbursements" made in particular circumstances. But "disbursement" was undefined. The AG could not summarize what was in or out of the new reporting regime when the central exception term lacked content.
3. "This Act" and "this amendment" references in places that did not align with constitutional structure. Constitutional amendments do not use "Act" terminology consistently with statutes; the references created uncertainty about scope and penalty reach.

The AG also pointed Couch to her earlier opinion certifying a similar measure (Op. Att'y Gen. 2015-083, issued to Couch in July 2015), to illustrate how a cleaner draft could clear certification. The pattern suggested the AG was open to certifying campaign-finance reform proposals when the text was tight.

Common questions

Q: Did the AG say PAC reform and lobbyist-gift restrictions are unconstitutional?
A: No. The AG was certifying the title, not evaluating the policy. The rejection was about drafting clarity and the completeness of the summary, not about whether voters could constitutionally adopt the measure.

Q: Could the sponsor fix the proposal and resubmit?
A: Yes. § 7-9-107(c) lets the sponsor revise and resubmit. The AG's footnote referencing Op. Att'y Gen. 2015-083 implied that a cleaner version of campaign-finance reform was certifiable.

Q: Did this amendment make it to the 2016 ballot?
A: No. The rejection here, combined with the broader difficulties of qualifying a measure for the ballot, kept this amendment off the November 2016 ballot.

Q: What is a "covered transfer" in plain English?
A: As drafted, it was a payment to someone else that was earmarked, requested, or reasonably understood to be used for independent expenditures. The idea was to prevent dark-money pass-through arrangements where Donor A gives money to Group B, which then makes independent expenditures, without Donor A being identified. The amendment's reporting rules would have reached those upstream transfers.

Q: Why does the difference between "company" and "corporation" matter for PAC rules?
A: If "company" sweeps broadly, it could prohibit PACs from taking contributions from LLCs, partnerships, professional associations, labor unions, and the like. If "company" means only an incorporated entity, the prohibition is much narrower. The AG could not write a ballot title that told voters which version of the rule they were adopting.

Citations and references

Statutes and constitutional provisions:

• Ark. Code Ann. § 7-9-107 (Supp. 2015) (AG certification of ballot titles)
• Ark. Code Ann. § 7-5-309 (voting-booth time limit)
• Ark. Code Ann. § 7-6-215 (PAC registration)
• Ark. Code Ann. § 7-6-207(b)(1) (campaign finance reporting requirements)
• Ark. Const. art. 19, § 28(c)(1)(A)(i) (approved political action committee definition)

Cases:

• Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000)
• Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984)
• Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950)
• Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004)
• Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980)
• Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994)
• Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994)
• Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990)
• Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000)

Source

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

Official summary

Request for certification of the popular name and ballot title of a constitutional amendment proposed to prohibit persons holding certain offices from receiving gifts from lobbyists, limiting campaign contributions by certain political action committees, requiring disclosure of sources of independent expenditures, reducing campaign contributions to candidates, and other purposes. RESPONSE: Rejected due to ambiguities in the text and absence of a complete summary of the proposal in the ballot title.

Original opinion text

This rejection letter follows the standard AG ballot-title rejection format. The complete original (which includes the full proposed constitutional text spanning multiple sections and amending three articles of the Arkansas Constitution) is preserved as scraped; the substantive analysis is summarized in the sections above. See the linked landing page for the official source.

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2016-035
April 11, 2016
David A. Couch
Attorney at Law
1501 North University, Suite 228
Little Rock, AR 72207
Dear Mr. Couch:
I am writing in response to your request for certification, pursuant to Ark. Code
Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed
initiated measure.
At the outset, I wish to make clear to you that the decision to certify or reject
a popular name and ballot title is in no way a reflection of my view of the
merits of a particular proposal. I am not authorized to, and do not consider
the merits of the measure when making my determination to certify or reject
a popular name and ballot title.
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 this office 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," this office will not require that a measure's proponents acknowledge in the
ballot title any possible constitutional infirmities. 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 proposal.
RESPONSE
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."
The ballot title you have submitted fails, in my opinion, to meet these guidelines.
Our court has consistently warned that the ballot title must convey an intelligible
idea of the scope and significance of a proposed change in the law. Your
proposed title is deficient in this respect. It fails to summarize several key sections
of the proposal so that the voter is informed of the substance of the proposal. It is
my conclusion that the ballot title must be redesigned to include essential facts
beyond the summary statement that the proposed constitutional amendment
"defin[es] covered transfers and independent expenditures[.]" This language is
deficient in its failure to fairly or completely summarize the effect of your
proposal, particularly with respect to the significant proposed changes in current
law in this respect.
Even when summarized accurately, the true contents of your measure cannot, in
my view, be sufficiently conveyed to the voter in a ballot title for this proposed
constitutional amendment because of ambiguities in the text of the measure. I
refer to the following:

• Your proposed measure would amend the definition of "approved political
  action committee" under Ark. Const. art. 19, § 28(c)(1)(A)(i) so that the
  term means "any person that receives contributions from one (1) or more
  persons, but not from any company or corporation . . . ." The emphasized
  words "company or corporation" are ambiguous. It is unclear what
  business associations are encompassed by these words. The definition of
  an "approved political action committee" is critical to the substantive
  provisions of art. 19, § 28. Yet it is unclear whether "company" and
  "corporation" under this definition are synonymous or whether these terms
  include other business associations such as limited partnerships.
• Your proposed measure would add a new section 32 to Ark. Const. art. 19
  defining "independent expenditure" and "covered transfer," and requiring
  certain reporting in this regard. Subsection (1)(A) of Section 1 of this
  proposed new constitutional provision defines "covered transfer" as "any
  transfer or payment of funds by a person other than an individual to another
  person" if certain conditions are met. Subsection (1)(B) of this section then
  states that "covered transfer" "does not include a disbursement" under
  several scenarios. The term "disbursement" is not a defined term under
  your proposed amendment, and thus subsection (1)(B) is of uncertain
  meaning.
• Subsection (2)(B) of Section 1 of the proposed new art. 19, § 32 states that
  "independent expenditures" does not include certain communications,
  including any communication "exempted under such regulations as the
  Arkansas Ethics Commission may promulgate consistent with this Act."
  The emphasized reference to "this Act" is ambiguous in the context of this
  proposed constitutional amendment.
• Subsection (A)(1) and (2) of Section 4 of the proposed new art. 19, § 32
  refer to "this amendment." Subsection (A)(1) states that "[a] person who
  knowingly violates this amendment is guilty of a Class A misdemeanor."
  Subsection (A)(2) states that "[i]n addition to the criminal penalty, this
  amendment shall be under the jurisdiction of the Arkansas Ethics
  Commission[,]" and (A)(2)(D) refers to a violation of "this amendment."
  The emphasized references to "this amendment" are unclear in the context
  of this proposed new article to the constitution.
  CONCLUSION
  The ambiguities noted above are not necessarily all the ambiguities contained in
  your proposal, but they are sufficiently serious to require me to reject your popular
  name and ballot title. I am unable to substitute language in a ballot title for your
  measure due to these ambiguities. The above concern regarding the failure to
  adequately summarize key provisions of the proposal must also be addressed.
  Further, additional ambiguities may come to light on review of any revisions of
  your proposal.
  My office, in the certification of ballot titles and popular names, does not address
  the merits, philosophy, or ideology of proposed measures. I have no constitutional
  role in the shaping or drafting of such measures. My statutory mandate is
  embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate.
  Based on what has been submitted, my statutory duty is to reject your proposed
  ballot title for the foregoing reasons and instruct you to redesign the proposed
  measure and ballot title. You may resubmit your proposed act along with a
  proposed popular name and ballot title at your convenience.

If you choose to resubmit, please review your submission carefully for typographical errors. There were numerous such errors in the instant submission.

Sincerely,
LESLIE RUTLEDGE
Attorney General