How Unconstitutionally Low Can You Go?: HB1773

NEWS. March 13, 2025, from Little Rock.

Representative Wayne Long is running a bill to limit financial contributions to ballot question committees (BQC). The bill would call for the Arkansas Ethics Commission to set contribution limits—a maximum amount that can be donated—to BQCs and bar corporations from donating to BQCs. 

Under state law, if one intends to advocate for or against the passage of a measure on the ballot, such as marijuana, abortion, or paper ballots, the person must register with the Arkansas Ethics Commission as a BQC and meet financial reporting requirements. The failure to do so is an ethics violation subjecting the offender to a civil fine. 

The problem with Long’s bill is that it is unconstitutional. 

SCOTUS took up the issue of contribution and contributor limits in Citizen’s United v. FEC, 588 U.S. 310 (2010).  In that case, the court considered whether contribution limitations by corporations was constitutional in light of the free speech clause of the First Amendment.  At issue were prohibited contributions from corporations regarding “electioneering communications” about candidates for federal office.

SCOTUS held that the First Amendment does not permit restricted speech on what is anything functionally equivalent to express advocacy on political speech. The court held that type of “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” This includes speech that is a form of direct democracy. 

SCOTUS went on to say that “the right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.”

For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. In the end, SCOTUS ruled that the government may not limit the free political speech of anyone—including a corporation—or the funding of the same.

Turning to Long’s bill, the first question is simply this: Is encouraging people to vote for a ballot measure equivalent to political speech?  The answer is a resounding “yes.”  “Vote for paper ballots” and “vote no to paper ballots” both advocate for something political on the ballot.  In fact, it is the very definition of express advocacy for ballot measures.

Next, can Long restrict the ability of corporations to make political speech?  Not according to Citizen’s United.  There is no explanation for why he wants to do it, but it’s not a good look to run unconstitutional laws that restrict the rights of the people to say what they want about political issues. 

ANALYSIS.

This bill dies in committee, it dies on the floor, or it dies in the courts.  My question is always “why.”  Why are you doing this?  Here is law number one of Lancaster’s Laws of Legal Logic. When one limits advocacy for items it does not like, it also limits advocacy for items it does or would like. Limitation of this nature has an equally converse effect. 

Let’s take abortion.  I don’t like abortion.  Therefore, I want to restrict the ability of pro-choicers from advocating for abortion.  Problem solved?

Wait a minute, I like to advocate against abortion. However, I cannot advocate against abortion because there are contribution and contributor limits.

Nobody is going to believe that no advocacy is good advocacy. Nobody is going to believe that restricting political advocacy does not violate the First Amendment either.

Clinton W. Lancaster

Attorney. America First. Sued Hunter Biden for child support. Represented President Trump in the 2020 Wisconsin election challenge. Former attorney for the Wisconsin Special Counsel. An official “Tough Cookie” per President Trump.