Blue Hog may have opened his biggest can of worms yet

Editor’s note: Dustin McDaniel is a legal analyst for Talk Business & Politics. He is a partner at McDaniel Richardson and Calhoun in Little Rock and served as Democratic Attorney General of Arkansas from 2007-2015.

Opinions, commentary and other essays posted in this space are wholly the view of the author. They may not represent the opinion of the owners of Talk Business & Politics.

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Legislators often fear “unintended consequences.” However, once a bill becomes law, the consequences are just that: consequences … intentional or otherwise. A recent letter from the Arkansas Ethics Commission potentially reveals new unintended legal consequences, and the political ramifications could be epic.

Liberal blogger Matt Campbell (www.bluehogreport.com) recently filed a complaint with the Commission alleging that the Attorney General and State Treasurer were prohibited by law from campaigning for a presidential candidate during their offices’ regular business hours. The accused argued that the statute in question does not apply to elected officials the same as it would for hourly employees. Elected officials do not accumulate sick and vacation time and cannot take a leave of absence. They do not get overtime, and, conversely, they get paid full salary whether they go to work or not. I agreed with them at the time.

However, the Commission did not accept their argument, which would have been huge news had they not also dismissed the complaint on other grounds. They dismissed the complaint because candidates for federal office do not meet the Commission’s limited, state-centric definition of a “candidate.” That solved one problem, but now begs the question: are similar campaign efforts on behalf of fellow state candidates prohibited? The answer appears to be “yes.”

Ark Code Ann. § 7-1-103 prohibits “any public servant” from devoting any time or effort campaigning for “any other candidate” during office hours. “Public servant” specifically includes both elected officials and state employees. Violation of this law is a Class A Misdemeanor, punishable by up to a year in jail and potentially removal from office.

Thus, it appears that public servants may (at least under this act) devote time to help Mike Huckabee, Marco Rubio, Ted Cruz and John Boozman (as many elected officials have), because those guys aren’t really “candidates” under state law. However, to do the same thing for a state candidate would be a crime, according to the commission ruling. Common sense and tradition dictate that elected officials often campaign for themselves and others during the day. Examples are rampant: governors host breakfast and noontime fundraisers for favored legislators; constitutional officers issue endorsement press releases while reporters are at work; and legislators of both parties similarly aid loyal members and candidates.

Breakfasts at the Poultry Federation, lunches at Doe’s and 4:30 cocktails at Samantha’s Tap Room have become routine, almost daily, fundraising opportunities for legislators. Invitations often boast elected officials lending their names to other candidates’ events as a “Host” or “Special Guest.” Are each of these really criminal acts? More complaints may lead us to soon find out. The Commission’s analysis all but invites the ever vigilant Mr. Campbell, also an attorney, to swear out misdemeanor affidavits, attaching the fundraiser invitations as exhibits.

One would think that the legislature would have rejected a bill that criminalizes common political activity on the state level, yet exempts the same conduct if performed on behalf of federal candidates. On the other hand, this act first passed in 1969 and has been amended more than a dozen times since, most recently in 2013. Perhaps this is exactly what the legislature intended, and the act has simply been ignored or misinterpreted all of these years.

Three last points:
1. I didn’t agree with Mr. Campbell’s complaint because it was so counterintuitive — not because I had actually read the law. A closer look now produces a harsh result not likely intended by the legislature, but with few loopholes nonetheless.

2. This act could be easily changed to allow current practices in an upcoming special session, but no fix would be retroactive.

3. When Mr. Campbell filed his complaint, a few Republicans told me they might prepare similar complaints against Governor Beebe and me because we did the same thing in both state and federal races. To be clear: we did, many times, under the same logic as the current office holders. Unfortunately, ignorance of the law was not and is not a defense. Fortunately, the statute of limitations is. The statute of limitations for a Class A Misdemeanor is one year. Beebe and I left office 14 months ago.

My grandmother once told me about a small town on the highway to Memphis setting a ridiculously low speed limit. The police chief insisted on strict enforcement, writing tickets for even one or two miles per hour over the low limit. When asked about it by the local paper, the chief said that the best way to get rid of a bad law is to enforce it, but enforcing this law could wreak untold political havoc.