Last spring, Arkansas TV viewers were presented with a 30-second spot imparting some surprising information about Arkansas Supreme Court candidate Tim Cullen: According to the ad, he believes "child pornography is a victimless crime." The attack ad was condemned as misleading by FactCheck.org, several Arkansas lawyer groups and conservative and liberals alike for grossly distorting a statement Cullen made in a years-old brief while working on an appellate case involving a sex offender. It also may have been decisive in the election: Cullen lost to his opponent, Robin Wynne, 48 percent to 52 percent.
Yet Wynne claimed to know nothing about the group that actually bought the commercial, a 501(c)(4) organization based in Virginia called the Law Enforcement Alliance of America (LEAA). It's not clear where the LEAA gets its funds. As a nonprofit, it's not required to disclose its donors, nor why it chose to get involved in an Arkansas judicial race, although the group has a record of interjecting itself into small races with outsized influence. The spot cost the LEAA over $300,000, while Cullen and Wynne only spent about $43,000 between them.
And yet, according to current state law, the LEAA attack was not a political ad at all.
"Call Tim Cullen. Tell him to stop claiming these are victimless crimes. Predators belong behind bars," a voice intones at the end of the LEAA spot. What's missing from that exhortation is an explicit instruction to vote for or against either Cullen or Wynn. Under existing Arkansas statute, a commercial that doesn't "expressly advocate" for a candidate (that is, use specific words such as "support" or "vote against") isn't regulated by the state. The LEAA ad was treated no differently from a public service announcement against littering or drunk driving. No reporting, no disclosure, no public record at all. The same goes for dozens of other TV ads and untold volumes of direct mail, web-based advertisement and other shady political smears in 2014.
Regnat Populus, a local grassroots good-government organization, wants to change that. The group is trying to get an initiative on the 2016 ballot that would target commercials bought by outside groups that mention a candidate's name for clear political ends yet don't fall under the "express advocacy" umbrella. Such ads are often called "electioneering communications." The proposal would require electioneering ad purchases of $2,000 or above to be disclosed to the state.
"Arkansas has pretty much zero laws when it comes to electioneering," said Paul Spencer, the chair of Regnat Populus and a teacher of history and government at Catholic High. As he sees it, an ad purchased by a group like LEAA on behalf of a candidate is the de facto equivalent of a contribution to that candidate. Requiring transparency for campaign contributions but not for electioneering is nonsensical, Spencer believes.
"I don't want my senators and representatives being bought," he said, "but if somebody's going to buy them, at least tell me who owns them. ... We might as well have Martha Shoffner's pie box if you're going to have no disclosure laws."
Political nonprofits like LEAA are entities created to influence elections, as are their close cousins, PACs and SuperPACs. Outside groups like these spend tremendous sums in congressional and presidential contests. In Arkansas's 2014 race for U.S. Senate, the amount of cash expended by outside groups sympathetic to Tom Cotton exceeded $30 million, which is more than twice the amount that the Cotton campaign itself spent; outside groups favorable to Mark Pryor spent around $20 million, according to the Center for Responsive Politics. But at least at the federal level there are some reporting requirements. Federal electioneering ads must be reported to the Federal Election Commission (FEC) if they are broadcast in the weeks preceding an election.
Campaign finance laws at the state level are a patchwork. However, as big money from outside groups begins to play a bigger role in state politics, state statutes are beginning to catch up. According to the National Institute on Money in State Politics, a nonprofit that monitors such laws, 31 states now require the disclosure of electioneering communications, up from 25 in 2013. There's no clear red/blue divide: The states with the greatest degree of transparency include Texas, California, Massachusetts, Kansas, Maryland and Utah.
Spencer said that the issue is about good governance, not partisan gain. He's heard calls for change from "people of knowledge on both left and right," but rarely publicly. Most politicians are unwilling to speak out against a system they depend on for crucial dollars, Spencer said, no matter how much they dislike it. "They think it's wrong, but they don't have the political will to lose an election on principle ... watching Sen. Pryor's race, it became an issue only when he got behind in the polls. You never hear of a frontrunner saying, 'Oh there's too much money in politics.' "
Getting the measure on the ballot before voters in 2016 will require attorney general approval, and outgoing AG Dustin McDaniel has already rejected the first draft of the proposal. This isn't unusual; the AG's office often rejects popular ballot initiatives multiple times, requesting that ambiguous language be improved and mistakes corrected. Among other things, McDaniel noted in his comments that Regnat Populus must clearly define "electioneering" on the ballot title, since "most people are unfamiliar with campaign-finance jargon."
Incoming Attorney General Leslie Rutledge herself faces questions about an ad aired on her behalf in the recent election. A complaint filed with the Arkansas Ethics Commission by Little Rock attorney and blogger Matt Campbell alleges that Rutledge improperly coordinated with an outside group called the Republican Attorneys General Association, or RAGA, to produce the ad. (Rutledge herself appears onscreen.) Electioneering expenditures are unregulated by the state, but to qualify as electioneering they must be made independently of the candidate they're aiding; if an outside group makes an ad in coordination with the candidate herself, it begins to look suspiciously like a direct in-kind campaign contribution. Resolution of that complaint is still pending.
Spencer doesn't believe that will be an obstacle in getting Rutledge to sign off on the proposal to tighten campaign finance law once the proper corrections are made to the text. "I'm looking forward to working with the new AG, although politically I think she and I will differ on a lot of viewpoints," he said, adding that he was confident Rutledge would work for the interests of the state.
Even so, the road ahead is a long one. If the proposal is approved by the new AG, Regnat Populus must still gather the thousands of signatures necessary to get it on the ballot ... and even then, if voters approve it in 2016, the proposal wouldn't kick in until after the general election. Two years is a long time to wait for reform, especially when there's a crucial presidential election in the meantime. An easier route would be for the legislature to simply take up the issue during the new legislative session, which begins Jan. 12.
Spencer said he's not particularly interested in trying to work with the legislature because of the "shenanigans with Issue 3," the recently enacted ethics reform measure that prohibits legislators from accepting gifts from lobbyists (among other things). In 2013, Spencer worked with a bipartisan duo of legislators, Rep. Warwick Sabin (D-Little Rock) and Sen. Jon Woods (R-Springdale), to craft what eventually became Issue 3, which was approved by voters this November and went into effect immediately after Election Day. Since then, lobbyists have circumvented the spirit of the law by holding buffets and other free-for-all feeding events for the legislature that can't quite be construed as "gifts" but still provide ample enjoyment for lawmakers.
"I don't feel betrayed by Warwick or Jon, but betrayed by the General Assembly," Spencer said. "I'm really disgusted with the abuses ... even after people of the state said, 'We don't like these kinds of things going on,' they're doing it anyway. So personally that left a pretty bad taste in my mouth."
He also acknowledges that disclosing electioneering communications is only one part of a larger struggle to reform campaign finance. The ballot measure Regnat Populus is now pushing also calls upon the Arkansas congressional delegation to support an amendment to the U.S. Constitution that reverses the 2010 Citizens United decision of the U.S. Supreme Court. In that ruling and other ancillary decisions, the court struck down elements of federal campaign finance law in the name of free speech, which has paved the way for much of the explosion in outside money in the past few years. The court's decision won't be easily changed, but Spencer said grassroots groups must fight with the long game in mind.
"If the courts never reversed course we'd still have slavery. We wouldn't have women voting," he said. "We need to keep the issue in the public eye. I think that if you get enough of the people speaking out, and we get enough states willing to pass laws — at least to the point where it causes the [U.S.] Supreme Court to have to pause and look at this issue again — I don't think you can go wrong with that."