Opinion No. 2013-128

October 23, 2013

Paul J. Spencer, Co-Chairman
Regnat Populus Ballot Question Committee
Post Office Box 1087
Little Rock, Arkansas 72203-1087

Dear Mr. Spencer:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2013), of the following popular name and ballot title for a proposed initiated measure. You have previously submitted a similar measure, which I rejected due to, among other things, ambiguities in the text of your proposed measure. See Op. Att’y Gen. No. 2013-113. You have since made changes to your proposal and now submit the following popular name and ballot title for my review:

Popular Name

The Arkansas Political Spending and
Conditional Limited Liability for Corporations Act


Ballot Title

An act providing that the principles of limited liability of corporate entities and their investors shall not apply to any corporate entity organized under the laws of Arkansas, nor any corporate entity organized under the laws of any other state which conducts business in, owns real property in or performs any other activity in Arkansas…

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, consistent with Arkansas Supreme Court precedent, unless the measure is “clearly contrary to law,”[1] this office 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.[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] The ballot title must be honest and impartial,[11] and it must convey an intelligible idea of the scope and significance of a proposed change in the law.[12]

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.”[13] 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.”[14] 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.

Having analyzed your proposed amendment, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that (a) ambiguities in the text of your measure and (b) deficiencies in the ballot title prevent me from certifying your proposed popular name and ballot title. Further, these ambiguities render me unable to fairly and completely summarize your proposal in a popular name or ballot title. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

You have submitted a ballot title that ends in ellipses and fails to mention whole sections of your proposal. Thus, I have not been presented with a full and complete summary of your proposal. While I am authorized to modify the language in a ballot title so that it aligns more closely with legal requirements, I am not authorized to craft a ballot title out of whole cloth. The current ballot title is wholly deficient.

Further, I must reject your proposal as submitted for four additional reasons: (1) Section 1 is clearly unconstitutional; (2) Section 1 contains a critical ambiguity; (3) you have failed to remedy the clear constitutional problem I previously noted with Section 4; and (4) there are several ambiguities in the text setting out the resolution part of your proposal.

The constitutional problem with Section 1
In response to your prior submission (Op. 2013-113), I noted that the two main parts of your proposal contradicted each other. While you have tried to address this contradiction, the attempt to solve the problem has resulted in a provision that is clearly unconstitutional. At this stage, I merely point this out because you may be unaware of it. Further, you should know, as I pointed out in Op. 2013-113, that the Arkansas Supreme Court has indicated that the people lack Amendment 7 power to initiate statutes that are unconstitutional. To show how your attempted solution is clearly unconstitutional, I will briefly review the problem with your prior proposal, examine the current effort to remedy the problem, and explain why the proposed remedy creates further problems.

In response to your earlier submission, I noted that your proposal essentially addressed two distinct issues: a prohibition on corporate spending to influence elections and a resolution regarding a federal constitutional amendment to overturn the U.S. Supreme Court decision in Citizens United v. Federal Election Commission.[15] I went on to note that these two parts of your proposal were inconsistent with each other. On the one hand, the resolution provisions seemed to recognize both (a) that the U.S. Supreme Court has held that the First Amendment to the U.S. Constitution affords corporations the right to spend money in those ways and (b) that, therefore, the only way to prohibit corporations from making such expenditures is to amend the U.S. Constitution. Yet, on the other hand, the prohibition sought to effect those restrictions by way of a state statute. (The prohibition was to be enforced by a penalty: offending corporations were to be stripped of their limited liability.) Because of this inconsistency, I was unable to ensure that your measure was properly summarized in the ballot title.

Your current submission tries to resolve this inconsistency by retaining the resolution and rewording the prohibition language so that, instead of flatly prohibiting the corporate spending, the measure seeks to deter such spending through a penalty. Under your proposal, corporations must choose between either (a) engaging in certain constitutionally-protected speech (i.e., certain kinds of election spending) and being stripped of their limited liability, or (b) refraining from constitutionally-protected speech in order to retain their limited liability. So the proposal’s earlier iteration tried to stop constitutionally protected speech before it occurred (via the prohibition) and tried to enforce that prohibition by way of a penalty (via the provision about losing limited liability). The current proposal attempts to achieve the same result (preventing certain constitutionally-protected speech) by way of a penalty.

While this shift in wording does resolve the proposal’s internal inconsistency, it does so in a way that renders the proposal clearly unconstitutional. Under the unconstitutional conditions doctrine, “the government may not indirectly accomplish a restriction on constitutional rights which it is powerless to decree directly, and the government may not deny a benefit to a person on a basis that infringes the person’s First Amendment rights.”[16] In other words, the doctrine “prevents the government from penalizing those who exercise their constitutional rights by withholding a benefit that would otherwise be available.”[17] In this case, the benefit that is otherwise available is the retention of and protection afforded by the limited liability that is part and parcel of the corporate form. Your current proposal clearly attempts to arrive at the same objective as your prior proposal: fewer corporations engaging in, what the Court has declared to be, constitutionally protected speech. The only material difference between the two proposals is the means chosen to arrive at that objective: the prior proposal flatly prohibited the corporate spending, while the current proposal tries to deter it by way of a penalty.

The unconstitutional conditions doctrine, which prohibits this kind of government action, is illustrated by the Court’s 1958 decision in Speiser v. Randall.[18] California had certain property-tax exemptions for veterans. The state passed a law requiring that, in order to receive the exemptions, a veteran had to sign a declaration affirming that they did not believe that the United States government should be overthrown by force or violence. The Court held that the statute was unconstitutional because, inter alia, “[t]o deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for this speech.”[19] In a later case, the Court elaborated on the impropriety of penalizing the exercise of a clear constitutional right:

[E]ven though a person has no “right” to a valuable government benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally-protected interests—especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized or inhibited.[20]

Your proposal is designed to penalize corporations for engaging in constitutionally-protected speech. Accordingly, it falls squarely within the unconstitutional conditions doctrine and is, therefore, clearly unconstitutional.

Section 1’s penalty provision is ambiguous
In the foregoing discussion, I explained why the government cannot penalize constitutionally-protected activity, especially in the area of speech rights. So the foregoing addressed the use of a penalty at all. In this section, I address the ambiguities associated with the kind of penalty your proposal employs. Your penalty provision states: “Principles of limited liability otherwise applicable to corporate entities and their investors by common law, statute, regulation or otherwise under Arkansas law, shall not apply with respect to any corporate entity organized under the laws of this state…which [corporation] spends funds to influence any federal, state, or local election in Arkansas [in certain ways].”

Even if the use of a penalty were constitutional, the following ambiguities prevent me from ensuring that your penalty provision is properly summarized in the ballot title:

The proposal does not indicate who or what body decides whether a corporation has engaged in activities that violate the proposal’s terms.

The proposal does not indicate how a corporation’s limited liability is stripped. For example, it is unclear whether this will occur through some court or administrative action.

The proposal does not indicate the temporal scope of the penalty. For example, if a corporation engages in the kind of spending that the proposal would prohibit, is the corporation forever subject to having its limited liability stripped?

These are matters of significant interest to the voters. Accordingly, they must be summarized in the ballot title so that voters will have a fair understanding of the issues presented. But unless these ambiguities are resolved, I am unable to substitute and certify a more suitable ballot title for the measure.

Section 4 is clearly unconstitutional
As currently worded, Section 4 attempts to insulate your entire proposal from being modified or repealed either by a future initiated measure or by the General Assembly: “This act shall not be limited, voided, or altered by any conflicting laws in any section of the Arkansas Code including, but not limited to, any section of Title 7.” This language, which is identical to your prior submission, is clearly unconstitutional. In response to your prior submission, I explained (on p. 6, note 18) why this language was problematic. Pursuant to Amendment 7, the General Assembly has the authority to “amend or repeal” initiated acts “upon a yea and nay vote on roll call of two-thirds of all the members elected to each house….” Art. 5, § 1, under “General Provisions.” Therefore, the power to initiate such a provision falls outside the Amendment 7 power.

Ambiguities in the text of the resolution provisions
The resolution part of your proposal is comprised of two sections. Section 2 of the proposed measure identifies a policy and directs all of Arkansas’s elected and appointed officials “to act whenever possible to promote this policy.” Section 3 calls for a “joint resolution” amending the U.S. Constitution as one means of promoting the policy. As explained below, Section 2 is structurally ambiguous and contains textual ambiguities. There are also ambiguities contained in the text of Section 3, and in the way Sections 2 and 3 work together.

Section 2 is structurally ambiguous in two ways. First, while it is labeled a “policy,” it directs Arkansas officials to act to “promote” the policy. Thus, the Section appears to move beyond stating policy to directing officials to act in certain ways. Second, Section 2(2) says that “[w]hen carrying out the policy under subsection (1), Arkansas’ [sic] elected and appointed officials are generally directed as follows….” The Section then lists a series of separately enumerated clauses, all beginning with the phrase “that the people of Arkansas” believe, intend, or regard something to be true or desirable. It is unclear what the relationship is between these clauses and the prefatory language about the officials being “generally directed” according to them. For example, it is unclear whether these additional statements are further policy statements – statements that would typically appear in a section of a resolution where certain things are “resolved” to be the case – or something else entirely. These ambiguities regarding the meaning of Section 2 prevent me from ensuring it is accurately summarized in a ballot title.

Sections 2 and 3, when considered together, jointly call for and explain some goals for an amendment to the U.S. Constitution. These sections contain the following ambiguities and deficiencies that prevent me from ensuring that your measure is properly summarized in a ballot title:

Section 2 contains numerous typographical errors where words are inadvertently lumped together. For example, Section 2(1) states, “It is the policy of the state [sic] of Arkansas that corporations are not endowedwith [sic] the constitutional rightsof [sic] people and should not be permitted to use….”

Section 2(2)(B) says that “the people of Arkansas believe that the rights of natural persons under the United States Constitution should not be extended to corporations[.]” If no provisions in the Bill of Rights will apply to corporations, then your proposal would attempt to overturn many other U.S. Supreme Court rulings. Given that your proposal as a whole is directed to corporate spending, I realize that this particular provision carries with it an implied restriction to the context of the First Amendment. Nevertheless, read literally, this provision could apply either to (a) all rights of found anywhere in the Constitution, (b) all the rights enumerated in the Bill of Rights, (c) only those rights found in the First Amendment, or (d) only those speech rights found in the First Amendment. This ambiguity, which occurs in other provisions of Sections 2 and 3 (e.g., Section 3(1)(B)), must be clarified before I can ensure your proposal is adequately summarized in a ballot title.

Section 2(2)(E) states that Arkansans want a “level playing field in campaign spending,” which includes “voluntary public funding programs designed to limit undue influence by wealthy interests and amplify the voices of ordinary citizens.” The terms “wealthy interests” and “ordinary citizens” are undefined. It is impossible to provide voters with a fair understanding of this provision without some information regarding the scope of these terms.

Sections 2(2)(D) and 2(2)(E), when viewed together, are inconsistent. On the one hand, the former speaks of “allow[ing] all individuals, regardless of wealth, to express their views to one another and their government.” (Emphasis added.) On the other hand, the latter speaks of “limiting” the “influence” of “wealthy interests.” So while one section speaks of proposing a constitutional amendment that treats persons equally, without regard to their wealth, the next section speaks of limiting the influence of wealthy persons. These two sections are contradictory, which prevents a summary in the ballot title.

Section 3(1)(A) says that Arkansans “call upon their congressional delegation to propose a joint resolution offering an amendment to the United States Constitution that: overturns the U.S. Supreme Court’s ruling in Citizens United v. FEC.” Citizens United contains at least three holdings or, as you say, “rulings”: (1) the First Amendment prevents the government from suppressing the political speech of a corporate entity; (2) a federal statute barring independent corporate expenditures for electioneering communications violated the First Amendment; and (3) the disclaimer and disclosure provisions of the Bipartisan Campaign Finance Reform Act of 2002 did not violate the constitution under the facts of the case. Your proposal is unclear on whether it calls for all or only some of these holdings to be “overturned.” This ambiguity prevents me from ensuring that your ballot title properly summarizes your measure.

Section 3(1)(B) calls for the amendment to establish “that corporations are not endowed with the constitutional rights of people.” This is ambiguous for the reason noted above in my discussion of Section 2(2)(B).

Section 3(1)(D) calls for the amendment to “overturn[] the U.S. Supreme Court’s ruling in Buckley v. Valeo which struck down mandatory limits on expenditures with respect to elections[.]” Because this is not an accurate summary of Buckley, including this language in the ballot title would mislead voters. In fact, Buckley had several holdings, including the holding that contributions trigger associational (as distinct from speech) rights under the First Amendment. And, therefore, caps or bans on contributions are more likely to pass constitutional scrutiny. Overturning Buckley in toto would also overturn this holding, something I suspect you do not intend, given some of your proposal’s other provisions. The failure to state which of the many holdings in Buckley will be overturned prevents me from adequately summarizing your measure in a ballot title.

Section 3(1)(E) calls for the amendment to “authorize[] Congress and the states to impose content-neutral limitations on private campaign contributions, campaign expenditures and independent political expenditures.” It is not clear what is meant by “private campaign contributions.” Nor is it clear whether the terms “campaign expenditures and independent political expenditures” are modified by the term “private.” Further, the provision is not clear about whose “contributions,” “campaign expenditures,” and “independent political expenditures” are supposed to be limited. These ambiguities prevent me from ensuring that your ballot title properly summarizes your measure.

I cannot begin to certify a ballot title for your proposed amendment in the face of the ambiguities noted above. You must remedy these confusing and ambiguous points before I can perform my statutory duty.

My office, in the certification of ballot titles and popular names, does not concern itself with 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 A.C.A. § 7-9-107 and my duty is to the electorate. I am not your counsel in this matter and cannot advise you as to the substance of your proposal.

My statutory duty, under these circumstances, is to reject your proposed ballot title (for the foregoing reasons) and instruct you to “redesign” the proposed measure and ballot title. You may, after addressing the matters discussed above, resubmit your proposed amendment, along with a proposed popular name and ballot title, at your convenience. I anticipate, as noted above, that some changes or additions to your submitted popular name and ballot title may be necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.

Sincerely,



Dustin McDaniel
Attorney General

DM/cyh

Enclosure
[1]See 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).
[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. 293, 884 S.W.2d at 946–47.
[10]Id. at 284, 884 S.W.2d at 942.
[11]Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
[12]Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted).
[13]Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000).
[14]Id.
[15]558 U.S. 310 (2010).
[16]16A Am. Jur. 2d Constitutional Law § 411 (2013).
[17]Erwin Chemerinksy, Constitutional Law: Principles and Polices, 4th ed. (Wolters Kluwer, 2011), p. 1009; see generally Mitchell N. Bermann, Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions, 91 Tex. L. Rev. 1283, 1316–1333 (2013); Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. Pa. L. Rev. 1293 (1984).
[18]357 U.S. 513 (1958).
[19]Speiser, 357 U.S. at 518.
[20]Perry v. Sindermann, 408 U.S. 593, 597 (1972) (emphasis added).