Columns » Jay Barth

Ethics gone wild



In 2012, advocates of an initiated act on ethics in Arkansas initially put forward by the grassroots group Regnat Populus worked for months to interest national good government groups like Common Cause to invest in the effort to gain the signatures necessary to place the legislation on the ballot. If it had gotten there, all signs are that the initiative (ending corporate and union donations to Arkansas campaigns, employing the "Wal-Mart rule" to prevent lobbyists from providing gifts to legislators, and a two-year cooling-off period before outgoing legislators could be employed as a lobbyist) would have passed easily. Despite some last minute fundraising and spending by a bipartisan group working in tandem with Regnat Populus, the effort came up just short. As of last week, however, these national groups are finally engaged in an Arkansas initiative effort on ethics; unfortunately, despite the best of intentions, this new proposal is a thoroughly flawed one.

Since 2012, Paul Spencer, the Catholic High School civics and history teacher who got Regnat Populus off the ground, has not let up in his effort to lessen the influence of big money in the Arkansas political system. During the legislative session earlier this year, Spencer and fellow traveler David Couch worked with state Rep. Warwick Sabin to get an ethics package, overlapping to a large degree with the 2012 proposal, placed before the voters at the 2014 election. Some are upset that the constitutional amendment also includes components that would extend term limits and create a mechanism for raising elected officials' salaries necessitated to gain to votes of a sufficient number of legislators. Because of the need for both (decidedly less popular) reforms, I am actually hopeful that they can be pulled along by the "ethics" amendment. Decidedly more troubling in my eyes are other exceptions to the Wal-Mart rule allowing lobbyists to purchase meals for identifiable groups of legislators and permitting interests to cover the cost of elected officials' travel to conferences outside the state; their enshrinement in a constitutional amendment that would be difficult to alter in the future ratchets up that concern. Still, there is decidedly more good than bad in "The Arkansas Elected Officials Ethics, Transparency, and Financial Reform Act."

Now Regnat Populus is back with an initiated act supported by Common Cause, Public Citizen, and other national groups who could not be lured to the state in 2012. In addition to very attractive (and unproblematic) rhetoric critiquing the 2009 Supreme Court decision in Citizens United v. FEC and emphasizing that "corporations are not human beings," the initiative (now at the Attorney General's office for review) would prohibit all corporations doing business in Arkansas from making political contributions or expenditures in Arkansas elections. Going well beyond the ban on corporate contributions to candidates found in the proposed constitutional amendment, this new proposal has the promise to undermine legitimate involvement in the political process that is at the heart and soul of the First Amendment.

Imagine the following quite imaginable scenario: In the closing weeks of the gubernatorial campaign, the Planned Parenthood Federation of America's political action fund decides to spend money on a direct mail campaign in Arkansas targeted at pro-choice voters educating them about Asa Hutchinson's opposition to reproductive choice. Under this incredibly broad initiative, that expenditure would not be allowed. This is because Planned Parenthood is a corporation, albeit a nonprofit one, incorporated in New York, that would be engaged in an expenditure "with the intention of influencing public perception of a clearly identifiable candidate" barred under the initiative. Similar groups would be denied from engaging in ballot issue campaigns including, ironically, this ethics proposal itself.

Progressives are divided between free speech purists who argue that any limitation on spending in politics is an intrusion into the First Amendment's promise of free speech and egalitarians who contend that some reasonable controls on spending is necessary to maintain some semblance of equality in the American electoral system. I veer in the egalitarian direction and, following the Supreme Court's truly radical decision in Citizens United with its devastating ramifications for the practice of democracy in the United States, have swerved even more sharply. Some controls on campaign spending, which is not pure speech, create a fairer system of governance. But, the possibility for deep intrusion into political expression found in the latest Regnat Populus effort just goes too far.

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