Was Arkansas's constitutional ban on corporate political contributions still constitutional under the First Amendment after Citizens United and McCutcheon?

Plain-English summary

State Representative Bob Ballinger asked whether Arkansas's ban on direct corporate political contributions, set out in Article 19, § 28 of the Arkansas Constitution (added by Amendment 94, effective November 5, 2014), survived the First Amendment after the U.S. Supreme Court's recent campaign-finance trilogy.

Ark. Const. art. 19, § 28 made it unlawful for any candidate or someone acting on the candidate's behalf to accept a contribution from anyone other than: an individual; a political party meeting Ark. Code Ann. § 7-1-101 or § 7-7-205 standards; a county political party committee; a legislative caucus committee; or an approved political action committee. Corporations were excluded from that list. Ark. Code Ann. § 7-6-203 capped contributions from lawful contributors at $2,700 per election cycle.

AG Leslie Rutledge concluded the ban was probably constitutional under federal precedent as of February 2017, but explicitly flagged that the Supreme Court's trajectory after Citizens United and McCutcheon "strongly suggest[ed]" the Court would eventually find such bans invalid.

Currency note

This opinion was issued in 2017. 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.

The Court has not yet directly invalidated a state-level corporate-contribution ban as of late 2025 / 2026 cutoff date for this enrichment. Anyone considering reliance on this opinion's conclusion should check (a) the current state of FEC v. Beaumont under post-McCutcheon case law, (b) whether Ark. Const. art. 19, § 28 has been amended or judicially construed, and (c) any post-2017 Eighth Circuit or U.S. Supreme Court decisions on direct corporate contributions.

How the federal cases stacked up at the time

Buckley v. Valeo (1976). Upheld limits on contributions but struck independent-expenditure limits. The contribution / expenditure distinction was the foundation: contributions were a "marginal" speech restriction subject to "closely drawn" review.

FEC v. Beaumont (2003). Upheld a federal direct-ban on corporate political contributions (BCRA). The Court emphasized that "attack[s] on the federal prohibition of direct corporate political contributions go[] against the current of a century of congressional efforts." This case was the AG's main support for art. 19, § 28's constitutionality. Crucially, Beaumont dealt with a ban, not just a limit, and survived "closely drawn" scrutiny.

Citizens United v. FEC (2010). Struck restrictions on corporate independent expenditures. The Court held "the First Amendment does not allow political speech restrictions based on a speaker's corporate identity" and that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." The Court was careful that Citizens United did not directly invalidate contribution limits.

McCutcheon v. FEC (2014). Struck the BCRA's aggregate contribution limits. McCutcheon did not disturb base contribution limits and reaffirmed that the only legitimate target for campaign-finance regulation is "quid pro quo corruption or its appearance." McCutcheon also stated, importantly for art. 19, § 28, that "there is not the same risk of quid pro quo corruption or its appearance when money flows through independent actors to a candidate, as when a donor contributes to a candidate directly."

Eighth Circuit and D.C. Circuit follow-on. Swanson (8th Cir. 2012) upheld Minnesota's corporate-contribution ban but conceded Beaumont's precedential value was on "shaky ground." SpeechNow.org (D.C. Cir. 2010) held no anti-corruption interest could justify limits on contributions to independent-expenditure groups, but expressly preserved direct-contribution limits as an "accepted means to prevent quid pro quo corruption."

Why the AG saw the ban as still constitutional

The combination of Beaumont's direct holding and McCutcheon's acknowledgment that direct candidate contributions sit closer to the quid-pro-quo line than independent expenditures gave art. 19, § 28 enough doctrinal cover to survive challenge in early 2017. The AG identified three reasons the ban might still be vulnerable down the road:

1. Beaumont upheld a "ban," not a "limit," but the Court in that case was careful that the ban-vs-limit distinction matters at the application stage, not the standard-of-review stage. A future court could reach the application stage and decide a flat ban is not closely drawn.
2. The only remaining justification post-McCutcheon is preventing quid-pro-quo corruption, which is a narrower target than the broader anti-corruption interests Buckley permitted.
3. Justice Kennedy's Beaumont concurrence and the Citizens United plurality both signaled that the contribution / expenditure split may eventually merge under strict scrutiny, at which point flat bans would likely fall.

What this meant practically (in 2017)

A candidate who accepted a direct corporate contribution after November 5, 2014, was violating Ark. Const. art. 19, § 28 as written. The AG's opinion was not advice to ignore the rule or test it in court; it was a candid forecast that the federal doctrinal foundation was eroding.

The AG declined to address one question that necessarily lurked: whether limits short of a ban on corporate contributions might be upheld even if a flat ban is struck. The opinion mentioned the possibility but did not analyze it.

Common questions

What is Ark. Const. art. 19, § 28?
A constitutional provision added by voter-approved Amendment 94, effective November 5, 2014. It restricts who candidates and their agents can accept contributions from, and corporations are not on the permitted list.

Does this opinion apply to PACs?
Indirectly. The list of permitted contributors in art. 19, § 28 does include "approved political action committees." A PAC funded by corporations can still contribute, subject to the cap in Ark. Code Ann. § 7-6-203. The opinion did not address PAC funding flows.

Could a corporation make independent expenditures supporting a candidate?
Under Citizens United, yes, that's protected federally. Article 19, § 28 by its terms regulates contributions to candidates, not independent expenditures. The AG did not opine specifically on independent expenditures here.

Is this still good law?
That question is precisely what the AG was asked to forecast, and the AG's answer was "probably yes today, probably no eventually." Anyone relying on it for current activity should check post-2017 case law in the Eighth Circuit and the U.S. Supreme Court.

What is "quid pro quo corruption"?
The Latin phrase ("this for that") describes a direct exchange of an official act for money. After McCutcheon, that's the only kind of corruption campaign-finance laws are constitutionally allowed to target. Broader anti-influence concerns no longer suffice as standalone justification.

Background and statutory framework

Article 19, § 28 of the Arkansas Constitution was added by Amendment 94 in November 2014, after legislative referral to voters. Subsection (a)(1)(A) is the operative restriction. The implementing statutes are scattered through Title 7 of the Arkansas Code.

The federal framework discussed in the opinion is now codified at 52 U.S.C. § 30101 et seq. (the renumbered Federal Election Campaign Act, formerly 2 U.S.C. § 431 et seq.). The Bipartisan Campaign Reform Act of 2002 (BCRA) added the corporate-contribution provisions reviewed in Beaumont and the expenditure provisions later reviewed in Citizens United.

Citations

• Ark. Const. art. 19, § 28 (effective Nov. 5, 2014)
• Ark. Code Ann. § 7-1-101 (definition of political party)
• Ark. Code Ann. § 7-6-203 (per-cycle contribution cap)
• Ark. Code Ann. § 7-7-205 (party requirements)
• 52 U.S.C. § 30101 et seq. (Federal Election Campaign Act)
• Buckley v. Valeo, 424 U.S. 1 (1976)
• FEC v. Beaumont, 539 U.S. 146 (2003)
• Citizens United v. FEC, 558 U.S. 310 (2010)
• McCutcheon v. FEC, 134 S.Ct. 1434 (2014)
• SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010)
• Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012)
• FEC v. National Conservative PAC, 470 U.S. 480 (1985)

Source

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

Original opinion text

Opinion No. 2016-059
February 17, 2017

The Honorable Bob Ballinger
State Representative
1757 Madison 7150
Hindsville, AR 72738-9558

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Dear Representative Ballinger:

This is in response to your request for an opinion as to whether the state prohibition on corporate contributions is constitutional.

RESPONSE

Your request refers to Article 19, Section 28 of the Arkansas Constitution (entitled "Contributions"), which makes it "unlawful for a candidate for public office or a person acting on the candidate's behalf to accept a contribution from" a corporation. The most recent campaign-finance opinions issued by the United States Supreme Court strongly suggest that the Court will eventually find bans of direct corporate contributions invalid under the First Amendment. However, under federal precedent as it currently stands, Arkansas's prohibition on corporate contributions is constitutional.

See subsection (a)(1), stating that "[i]t is unlawful for a candidate for public office or a person acting on the candidate's behalf to:

(A) Accept a contribution from other than:
(i) An individual;
(ii) A political party that meets the definition of a political party under Arkansas Code § 7-1-101;
(iii) A political party that meets the requirements of Arkansas Code § 7-7-205;
(iv) A county political party committee;
(v) A legislative caucus committee; or
(vi) An approved political action committee.

Ark. Const. art. 19, § 28 (eff. Nov. 5, 2014); see also Ark. Code Ann. § 7-6-203 (setting $2,700 as the maximum amount, per election cycle, for campaign contributions from lawful contributors).

DISCUSSION

I. Controlling Precedent

A summary of case law addressing the regulation of campaign contributions will aid in explaining the tenuous but probable constitutionality, at present, of Arkansas's prohibition on contributions by corporate entities. These cases trace the erosion of the deference owed regulations on a corporation's campaign expenditures, and the increasing skepticism with which the U.S. Supreme Court treats such regulations. The Court has not yet held unconstitutional an outright ban of corporate contributions, with the result that according to current case law, states and the federal government may regulate a corporation's ability to contribute directly to a candidate. But the logic applied in the Court's recent cases (and some dicta) point in the direction of the Court eventually finding bans on corporate contributions unconstitutional.

Buckley v. Valeo, decided in 1976, remains the governing decision with respect to campaign contributions. 424 U.S. 1 (1976). Addressing a First Amendment challenge to the Federal Election Campaign Act of 1971 (now codified at 52 U.S.C. § 30101 et seq.), the Court in Buckley noted that "[b]y contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute ... entails only a marginal restriction upon the contributor's ability to engage in free communication." So even though limits on expenditures and contributions "operate in an area of the most fundamental First Amendment activities," restrictions on campaign contributions are permissible so long as the government can demonstrate (1) a "sufficiently important interest" in the regulation, and (2) that the regulation "employs means closely drawn to avoid unnecessary abridgment of associational freedoms." The Court found sufficiently important the "prevention of corruption and the appearance of corruption spawned by the ... influence of large financial contributions," and so upheld a cap on certain contributions (including those made by corporations) of $1,000. But because expenditure limitations "impose direct and substantial restraints on the quantity of political speech," the Court concluded that the interest in preventing corruption was "inadequate to justify [the Act's] ceiling on independent expenditures."

This differential review of contributions and expenditures, and the Court's inclination to uphold limits on the former, was present again in Beaumont v. Federal Election Comm'n, 539 U.S. 136 (2003), a 2003 decision involving the Bipartisan Campaign Reform Act of 2002 ("BCRA"). The BCRA amended portions of the Federal Election Campaign Act to make it "unlawful ... for any corporation whatever ... to make a contribution or expenditure in connection with certain federal elections." A nonprofit corporation initially succeeded in challenging this section, and the FEC petitioned for certiorari "solely as to the constitutionality of the ban on direct contributions." The Court noted at the outset that "attack[s] on the federal prohibition of direct corporate political contributions go[] against the current of a century of congressional efforts to curb corporations' potentially deleterious influences on federal elections." The Court reiterated that "limits on contributions are more clearly justified by a link to political corruption than limits on other kinds of ... political spending," which is to say limits on expenditures. And it found that the BCRA did not "complete[ly] ban" corporate contributions: the BCRA "permits some participation of ... corporations in the federal electoral process by allowing them to establish and pay the administrative expenses of" political action committees, entities that themselves can engage in associational speech. For these reasons, the Beaumont Court held that the BCRA's regulation of corporate contributions satisfied the "lesser demand of being 'closely drawn' to match a 'sufficiently important interest'" in preventing corruption.

After Beaumont, the Court solidified the scrutiny applied to political expenditures and called into question whether contributions can be limited in a way that expenditures cannot. In Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010) (plurality opinion), the Court held that the prohibition on spending a corporation's general-treasury funds for "expenditures for speech defined as an 'electioneering communication' or for speech expressly advocating the election or defeat of a candidate" violated the First Amendment. Like Beaumont, Citizens United was a challenge to the BCRA. And although the statutory section invalidated in Citizens United governed expenditures and not contributions, the Court took the opportunity to emphasize that "the First Amendment does not allow political speech restrictions based on a speaker's corporate identity." The Court went so far as to state that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." Congress therefore could not prevent a corporation from spending its general-treasury funds in furtherance of "political speech ... that is not coordinated with a candidate." The Citizens United Court couched its holding as consistent with Buckley, which "found that the governmental interest in preventing corruption and the appearance of corruption [was] inadequate to justify [the ban] on independent expenditures."

Then, in McCutcheon v. Federal Election Comm'n, 134 S.Ct. 1434, 1443 (2014) (plurality opinion), the Court invalidated a section of the BCRA that "ha[d] the effect of restricting how many candidates or committees the donor may support" by means of contributions. McCutcheon struck down the "aggregate limit" on contributions to political action committees, leaving intact the "base limit" on contributions. The Court had previously upheld the base-limit regulation because it "serv[ed] the permissible objective of combatting corruption." The Court found that regulating the aggregation of contributions, however, would result in "a substantial mismatch between the Government's stated objective and the means selected to achieve it," such that the aggregate regulation would fail under either "strict scrutiny or Buckley's 'closely drawn' test." The McCutcheon Court saw no need to "parse the differences between the two standards," given that the aggregate regulation didn't meaningfully address quid pro quo corruption, which Citizens United instructed was the "only ... type of corruption" susceptible to campaign-finance legislation. But the Court noted, of some importance to Ark. Const. art. 19, § 28, that "there is not the same risk of quid pro quo corruption or its appearance when money flows through independent actors to a candidate, as when a donor contributes to a candidate directly."

II. Continued Constitutionality of Ark. Const. art. 19, § 28

Buckley and Beaumont demonstrate that limitations on direct corporate contributions likely satisfy the First Amendment under current case law. Arkansas's prohibition on direct corporate contributions should be upheld, then, under these cases. Nevertheless, it is fairly likely in light of Citizens United and McCutcheon that the Court will further revise its doctrine and seriously entertain "attack[s] on the federal prohibition of direct corporate political contributions."

First, it may be significant that art. 19, § 28 regulates corporation-to-candidate contributions by eliminating them. As the Court noted in Beaumont, "the difference between a ban and a limit" on contributions should not be ignored. So while a prohibition on corporate contributions might not be a regulation closely drawn to a sufficiently important governmental interest, a cap on contributions might. In any event, the regulation upheld in Beaumont was a ban.

Second, McCutcheon confirmed that there is one governmental interest a campaign-finance regulation may target, quid pro quo corruption or the appearance of such corruption. Arkansas's prohibition on direct corporate contributions would therefore have to be closely drawn to the State's interest in reducing the instance of "dollars for political favors."

Third, there are indications that the parallel tracks traveled by contributions and expenditures may merge, such that "campaign finance laws are subject to strict scrutiny" no matter their focus. Beaumont, 539 U.S. at 164 (Thomas, J., dissenting). Justice Kennedy, who would author the plurality in Citizens United, concurred in Beaumont to note that the Court had "erred in sustaining certain state and federal restrictions on political speech," and by so doing had "misapprehended basic First Amendment principles." Beaumont did not present the Court, however, "with a case in which the distinction between contributions and expenditures under the whole scheme of campaign-finance regulation" was under review. And although Citizens United did not present that broad a question either, the Eighth Circuit Court of Appeals noted that the case "casts doubt on Beaumont, leaving its precedential value on shaky ground" with respect to limits on corporate contributions. Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 879 at n.12 (2012).

The District of Columbia Circuit Court of Appeals went further, "conclud[ing] that the government has no anti-corruption interest in limiting contributions to an independent expenditure group." SpeechNow.org v. Federal Election Comm'n, 599 F.3d 686, 694-95 (D.C. Cir. 2010). Operating on the premise that "independent expenditures do not corrupt or create the appearance of quid pro quo corruption," the D.C. Circuit reasoned that "contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption." Yet the D.C. Circuit was careful to point out that contributions and expenditures are not equivalent across the board. Its "holding d[id] not affect, for example, [the BCRA's] limits on direct contributions to candidates." Direct-contribution regulations remained "an accepted means to prevent quid pro quo corruption." Indeed, the U.S. Supreme Court has consistently contrasted the risk of corruption "when a donor contributes to a candidate directly" to the risk present "when money flows through independent actors," such as PAC's and super-PAC's. McCutcheon, 134 S.Ct. at 1452; see also SpeechNow, 599 F.3d at 695.

Inasmuch as art. 19, § 28 prohibits a "candidate for public office or a person acting on the candidate's behalf" from accepting a direct corporate contribution, Arkansas's prohibition on corporate contributions would survive scrutiny under the specific parameters of current case law. But because the "distinction between contributions and expenditures under the whole scheme of campaign-finance regulation" may be and likely is tenuous, and given that "the First Amendment does not allow political speech restrictions based on a speaker's corporate identity," it is at best unclear whether the Court will continue to uphold regulations on direct corporate contributions.

Sincerely,

LESLIE RUTLEDGE
Attorney General