State representative wants reexamination of rule barring campaign contributions during period before, after regular sessions

Rep. David Ray, R-Maumelle, presents the HB1012, to amend the Freedom of Information Act of 1967, to the House Committee on State Agencies and Governmental Affairs on Wednesday, Sept. 13, 2023, at the state Capitol in Little Rock. .(Arkansas Democrat-Gazette/Thomas Metthe)
Rep. David Ray, R-Maumelle, presents the HB1012, to amend the Freedom of Information Act of 1967, to the House Committee on State Agencies and Governmental Affairs on Wednesday, Sept. 13, 2023, at the state Capitol in Little Rock. .(Arkansas Democrat-Gazette/Thomas Metthe)


State Rep. David Ray, R-Maumelle, said Friday that repealing a state House of Representatives rule that bars representatives from accepting campaign contributions during the period starting 30 days before a regular session and ending 30 days after a regular session warrants a serious conversation among House members, though it's difficult to change the state House rules.

The House rule also bars representatives from accepting campaign contributions during a special session and an extended session. The state Senate has a similar rule.

"It's not appropriate, in my opinion, to have a rule that is at odds with the United States Constitution," Ray said.

Attorney General Tim Griffin said in an advisory opinion requested by Ray that the state House and state Senate rules that prohibit legislators from accepting a campaign contribution 30 days before a legislative session, during the legislative session and 30 days after the session are unconstitutional under the First Amendment -- a conclusion reached by nearly every court that has considered such contribution restrictions.

House Speaker Matthew Shepherd, R-El Dorado, "is aware of the opinion but has not engaged in any significant discussion with members regarding it," said House spokesperson Cecillea Pond-Mayo. Shepherd is an attorney.

Senate President Pro Tempore Bart Hester, R-Cave Springs, said the Senate has not discussed the matter as a whole.

"I have spoken to many members about [the attorney general's] opinion and the feeling of the Senate is that even if we could accept contributions during those periods we should not do it," he said in a written statement.

"The Senate will discuss this matter in detail before the fiscal session [starting in April 2024]," Hester said. "It is likely we will have close to full support to keep our practice as we have done per our rule."

Under the Arkansas House of Representatives rules, "it shall be a violation of the Rules of the House for any member of the House to accept a campaign contribution during the period starting 30 days before and ending 30 days after any regular session of the General Assembly." If there is an extended recess of the General Assembly, the period shall end 30 days after the beginning of the recess.

"It shall also be a violation of the Rules of the House for any member of the House to accept a campaign contribution during any extended session of the General Assembly or during any special session of the General Assembly," under the House rules.

Under the Senate's ethics rules, "It shall be a violation of the Senate's Code of Ethics for any member of the Senate to accept a campaign contribution, including a pledge for a campaign contribution, for all offices, except an election for United States Representative, during the period beginning 30 ... days before and ending 30 ... days after any regular session of the General Assembly." If there is an extended recess, the period shall end 30 days after the beginning of the recess.

"It shall also be a violation of the Senate's Code of Ethics for any member of the Senate to accept a campaign contribution, including a pledge for a campaign contribution, during any extended session of the General Assembly or during any special session of the General Assembly except an election for United States representative," the Senate's ethics rules state.

"The term 'regular session' shall not apply to 'fiscal sessions' as required by Amendment 86 of the Arkansas Constitution," under the Senate's ethics rules.

Griffin, the state's former lieutenant governor, said in his advisory opinion to Ray that the blackout periods in the state House and state Senate rules that prohibit lawmakers from accepting contributions are substantially identical to an initiated act from the late 1990s that a federal district court considered unconstitutional.

"Like the two rules you ask about, Act 1 banned Arkansas's constitutional officers and members of the General Assembly from accepting contributions or promises of contributions for 30 days before any regular, extended or special session until 30 days after the session," he said.

A federal court ruled the blackout period was unconstitutional, said Griffin, who is also a former interim U.S. attorney and 2nd District congressman.

The state House of Representatives subsequently passed House Rule 108 and the state Senate passed Senate Rule 6.0 (2), the Republican attorney general said.

"As they pertain to members of the General Assembly, both rules are essentially identical to the statute the federal court declared unconstitutional," he wrote in an advisory opinion dated July 31. "And nearly every court to consider such blackout periods has declared them to be unconstitutional."

In 1999, the state House and state Senate approved rules in each chamber establishing a campaign contribution blackout period for state lawmakers, according to the Arkansas Democrat-Gazette's archives.

Although state senators can't prohibit people from giving them money, it is "good public policy" for senators not to accept donations during a time when it might be perceived as an attempt to influence legislation, then-state Sen. Tom Kennedy, D-Russellville, said in 1999.

At that time, supporters of the legislative rules said they wanted to eliminate the appearance of impropriety -- accepting donations while voting on matters of interest to donors -- that would exist without the rule. They said they also wanted to abide by the wishes of the Arkansas electorate, which approved the law in a statewide election.

Griffin said in his advisory opinion that the reason nearly every court to consider blackout periods has declared them unconstitutional "is because they are not narrowly tailored to achieve the government interests of preventing quid pro quo corruption or its appearance."

These courts have determined blackout periods are flawed in two main ways, he said.

First, they are overinclusive because they prohibit large and small contributions -- even though the courts have held that small contributions do not present a danger of corruption or its appearance -- and they prohibit legislators from personally donating to their campaigns during the blackout period, even though those types of contributions would not be influenced by corruption, Griffin said.

Secondly, the blackout periods also are underinclusive because they target contributions only when they are near or during a legislative session, he said.

"Courts have held these bans fail to 'recognize the reality that corruption can occur anytime, even outside the banned time period,'" Griffin said.

The House and Senate rules at issue "are fatally flawed in that they are both overinclusive and underinclusive, and, are, therefore unconstitutional, because they are not narrowly tailored to avoid corruption or its appearance," he said. "Therefore, a federal court would almost certainly declare the rules to be unconstitutional."

Ray said he requested an advisory opinion from Griffin because as "I studied the history of the 1996 initiated act on campaign finance, I discovered many of its provisions, including the blackout period, had previously been ruled unconstitutional by federal courts because they violate the First Amendment."

"Because our House rule contains identical language to the statute that was found to be unconstitutional, it gave me concern that our legislative body is imposing a standard on our own members that is violative of the First Amendment," he said.

"When I was sworn into office, I took an oath to defend our Constitution, and I take that oath seriously," Ray said.

"The constitutional rights to freedom of political speech and association protected by the First Amendment are some of the most bedrock freedoms we enjoy as Americans. I requested an Attorney General opinion to get further clarification on this topic from legal experts," he said.

Sometimes, some state lawmakers have reported taking campaign contributions within 30 days of the start of the regular session or while the session was underway, although House and Senate rules barred them from accepting contributions during that time.

For instance, 13 state lawmakers reported taking contributions within 30 days of the start of the 2013 regular session or while the session was underway, according to the Arkansas Democrat-Gazette's archives.

At that time, two lawmakers said they mistakenly accepted campaign contributions during those periods and would return the contributions, and eight other lawmakers said they actually received the contributions more than 30 days before the session and they incorrectly reported the days they received them. Three state representatives contended the House rule didn't apply to them because, although they had been elected by December, they were not sworn into office.