Opinion No. 2012-148

January 9, 2013

David Couch, Co-Chair
Regnat Populus 2012 Ballot Question Committee
Post Office Box 1087
Little Rock, Arkansas 72203-1087

Dear Mr. Couch:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2011), of the popular name and ballot title for a proposed initiated act. You have previously submitted six similar measures. (I certified two submissions in Op. Att’y Gen. Nos. 2012-040 and 2012-049 and rejected four in Op. Att’y Gen. Nos. 2012-028, 2012-124, 2012-129, and 2012-142.) You have made changes in the text of your proposal since your last submission and have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

THE CAMPAIGN FINANCE AND LOBBYING ACT OF 2014

Ballot Title

AN ACT AMENDING ARKANSAS LAW, WHICH CURRENTLY ALLOWS INDIVIDUALS, CORPORATIONS, PROPRIETORSHIPS, FIRMS, PARTNERSHIPS, JOINT VENTURES, SYNDICATES, LABOR UNIONS, BUSINESS TRUSTS, COMPANIES, ASSOCIATIONS, POLITICAL PARTIES AND COMMITTEES TO MAKE CAMPAIGN CONTRIBUTIONS TO CANDIDATES AND TO AUTHORIZED POLITICAL ACTION COMMITTEES – TO PROVIDE THAT, WHILE THE FOREGOING MAY CONTINUE TO MAKE CAMPAIGN CONTRIBUTIONS TO AUTHORIZED POLITICAL ACTION COMMITTEES, ONLY INDIVIDUALS, POLITICAL PARTIES, COUNTY POLITICAL PARTY COMMITTEES, LEGISLATIVE CAUCUS COMMITTEES, AND AUTHORIZED POLITICAL ACTION COMMITTEES MAY MAKE CAMPAIGN CONTRIBUTIONS DIRECTLY TO CANDIDATES FOR PUBLIC OFFICE; AMENDING CURRENT ARKANSAS LAW – WHICH PROHIBITS MEMBERS OF THE GENERAL ASSEMBLY FROM ACTING AS REGISTERED LOBBYISTS FOR ONE YEAR AFTER THE EXPIRATION OF THEIR TERM IN OFFICE AND APPLICABLE ONLY TO MEMBERS ELECTED ON OR AFTER JULY 27, 2011 – TO EXPAND THE PROHIBITION TO TWO YEARS AND MAKE THE PROHIBITION APPLICABLE TO ALL MEMBERS ELECTED OR RE-ELECTED ON OR AFTER NOVEMBER 4, 2014; AND AMENDING ARKANSAS LAW TO PROHIBIT AND TO MAKE UNLAWFUL THE GOVERNOR, LIEUTENANT GOVERNOR, SECRETARY OF STATE, TREASURER OF STATE, AUDITOR OF STATE, ATTORNEY GENERAL, COMMISSIONER OF STATE LANDS AND MEMBERS OF THE GENERAL ASSEMBLY FROM SOLICITING OR ACCEPTING GIFTS FROM A LOBBYIST (OR ANYONE ACTING ON BEHALF OF A LOBBYIST, OR ANYONE EMPLOYING A LOBBYIST) WITH GIFT DEFINED AS ANY PAYMENT, ENTERTAINMENT, ADVANCE, SERVICES, OR ANYTHING OF VALUE, UNLESS CONSIDERATION OF EQUAL OR GREATER VALUE HAS BEEN GIVEN THEREFOR, BUT DEFINED NOT TO INCLUDE: (1) INFORMATIONAL MATERIAL SUCH AS BOOKS, REPORTS, PAMPHLETS, CALENDARS, OR PERIODICALS INFORMING THE GOVERNOR, LIEUTENANT GOVERNOR, SECRETARY OF STATE, TREASURER OF STATE, AUDITOR OF STATE, ATTORNEY GENERAL, COMMISSIONER OF STATE LANDS OR MEMBER OF THE GENERAL ASSEMBLY REGARDING HIS OR HER OFFICIAL DUTIES (BUT SUCH INFORMATIONAL MATERIAL SHALL NOT INCLUDE PAYMENTS FOR TRAVEL REIMBURSEMENT FOR ANY EXPENSES) (2) GIFTS WHICH ARE NOT USED AND WHICH, WITHIN THIRTY (30) DAYS AFTER RECEIPT, ARE RETURNED; (3) GIFTS FROM THE GOVERNOR’S, LIEUTENANT GOVERNOR’S, SECRETARY OF STATE’S, TREASURER OF STATE’S, AUDITOR OF STATE’S, ATTORNEY GENERAL’S, COMMISSIONER OF STATE LANDS’ OR MEMBER OF THE GENERAL ASSEMBLY’S OWN FAMILY; (4) LAWFUL CAMPAIGN CONTRIBUTIONS; AND (5) ANY DEVISE OR INHERITANCE.

The Attorney General is required, pursuant to A.C.A. § 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 substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition. 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.

In this regard, A.C.A. § 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, following Arkansas Supreme Court precedent, this office will not address the constitutionality of proposed measures in the context of a ballot title review unless the measure is “clearly contrary to law.”[1] Consequently, this review has been limited to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the proposed popular name and ballot title accurately and impartially summarize the provisions of your proposed amendment or act.

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.[2]

The popular name is primarily a useful legislative device.[3] 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.[4] The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.[5]

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.[6] 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.”[7] At the same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9-107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit in voting booths when other voters are waiting in line.[8] 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.[9] The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring.[10] A ballot title must convey an intelligible idea of the scope and significance of a proposed change in the law.[11] The ballot title must be intelligible, honest, and impartial.[12]

Applying the above precepts, I conclude that your proposed popular name is sufficient. It is, therefore, hereby certified as submitted. As for your ballot title, I have substituted and hereby certify the following:

Ballot Title

AN ACT AMENDING ARKANSAS LAW—WHICH CURRENTLY ALLOWS INDIVIDUALS, CORPORATIONS, PROPRIETORSHIPS, FIRMS, PARTNERSHIPS, JOINT VENTURES, SYNDICATES, LABOR UNIONS, BUSINESS TRUSTS, COMPANIES, ASSOCIATIONS, POLITICAL PARTIES, AND COMMITTEES TO MAKE CAMPAIGN CONTRIBUTIONS TO CANDIDATES AND TO AUTHORIZED POLITICAL ACTION COMMITTEES—TO PROVIDE THAT, WHILE THE FOREGOING MAY CONTINUE TO MAKE CAMPAIGN CONTRIBUTIONS TO AUTHORIZED POLITICAL ACTION COMMITTEES, ONLY INDIVIDUALS, POLITICAL PARTIES, COUNTY POLITICAL PARTY COMMITTEES, LEGISLATIVE CAUCUS COMMITTEES, AND AUTHORIZED POLITICAL ACTION COMMITTEES MAY MAKE CAMPAIGN CONTRIBUTIONS DIRECTLY TO CANDIDATES FOR PUBLIC OFFICE; AMENDING CURRENT ARKANSAS LAW—WHICH PROHIBITS MEMBERS OF THE GENERAL ASSEMBLY FROM ACTING AS REGISTERED LOBBYISTS FOR ONE YEAR AFTER THE EXPIRATION OF THEIR TERM IN OFFICE AND APPLICABLE ONLY TO MEMBERS ELECTED ON OR AFTER JULY 27, 2011—TO EXPAND THE PROHIBITION TO TWO YEARS AND MAKE IT APPLY TO ALL MEMBERS WHO ARE ELECTED OR RE-ELECTED ON OR AFTER NOVEMBER 4, 2014; AND AMENDING ARKANSAS LAW TO MAKE IT A CLASS A MISDEMEANOR FOR THE GOVERNOR, LIEUTENANT GOVERNOR, SECRETARY OF STATE, TREASURER OF STATE, AUDITOR OF STATE, ATTORNEY GENERAL, COMMISSIONER OF STATE LANDS, OR A MEMBER OF THE GENERAL ASSEMBLY TO KNOWINGLY OR WILLFULLY SOLICIT OR ACCEPT GIFTS FROM A LOBBYIST (OR ANYONE ACTING ON BEHALF OF A LOBBYIST, OR ANYONE EMPLOYING A LOBBYIST) WITH GIFT DEFINED AS ANY PAYMENT, ENTERTAINMENT, ADVANCE, SERVICES, OR ANYTHING OF VALUE, UNLESS CONSIDERATION OF EQUAL OR GREATER VALUE HAS BEEN GIVEN THEREFOR, BUT EXCLUDING FROM THE DEFINITION: (1) INFORMATIONAL MATERIAL—SUCH AS BOOKS, REPORTS, PAMPHLETS, CALENDARS, OR PERIODICALS—INFORMING THE GOVERNOR, LIEUTENANT GOVERNOR, SECRETARY OF STATE, TREASURER OF STATE, AUDITOR OF STATE, ATTORNEY GENERAL, COMMISSIONER OF STATE LANDS OR MEMBER OF THE GENERAL ASSEMBLY REGARDING HIS OR HER OFFICIAL DUTIES (BUT SUCH INFORMATIONAL MATERIAL SHALL NOT INCLUDE PAYMENTS FOR TRAVEL REIMBURSEMENT FOR ANY EXPENSES); (2) GIFTS THAT ARE UNUSED AND RETURNED WITHIN 30 DAYS OF RECEIPT; (3) GIFTS FROM THE GOVERNOR’S, LIEUTENANT GOVERNOR’S, SECRETARY OF STATE’S, TREASURER OF STATE’S, AUDITOR OF STATE’S, ATTORNEY GENERAL’S, COMMISSIONER OF STATE LANDS’ OR MEMBER OF THE GENERAL ASSEMBLY’S OWN FAMILY; (4) LAWFUL CAMPAIGN CONTRIBUTIONS; AND (5) ANY DEVISE OR INHERITANCE.


The popular name and ballot title herein certified supersede and replace those certified in Op. Att’y Gen. 2012-049.

Pursuant to A.C.A. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Constitution and of the penalties imposed for violations of this act. I have enclosed instructions that should be incorporated in your petition prior to circulation.

Sincerely,


Dustin McDaniel
Attorney General

DM/cyh

Enclosures

[1]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).
[2]See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
[3]Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
[4]E.g. 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).
[5]May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
[6]Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
[7]Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
[8]Id. at 288, 884 S.W.2d at 944.
[9]Id. at 293, 884 S.W.2d at 946–47.
[10]Id. at 284, 884 S.W.2d at 942.
[11]Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted).
[12]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).