Justin Allen: Passage Of Issue 3 Ushers In A New Era In Arkansas Politics

Editor’s note: Justin Allen, the author of this guest commentary, is a partner in the law firm of Wright, Lindsey & Jennings LLP and is a former Chief Deputy Attorney General of Arkansas. This op-ed first appeared in the latest magazine edition of Talk Business & Politics.

With Republicans holding nearly a supermajority of seats in the General Assembly, all seven constitutional offices and all six seats in Arkansas’ congressional delegation, it is truly a new day in Arkansas politics. And, based on the smooth passage of the governor’s tax cut and the re-authorization of the private option, there is reason to be optimistic that this dramatic partisan shift will bring a new era of cooperative progress to our state.

For those working in and with government, the impact of the constitutional amendment known as Issue 3, approved by 52% of the people on Nov. 2, could be just as dramatic. It’s a lengthy measure and it does quite a bit. In my opinion, the most significant aspects are: 1) lengthening of term limits; 2) prohibition of corporate campaign contributions; 3) an increase in pay for legislators, constitutional officers and judges; and, 4) a ban on gifts for elected officials from lobbyists or those that employ lobbyists.

While there have been a few questions associated with the various provisions, particularly the term limits and the independent citizens commission, the lobbying restrictions have folks scratching their heads. Elected officials, lobbyists and lawyers have been poring over those provisions in an effort to determine what a lobbyist can do in this new day. The immediate effect of this provision, the uncertainties of the language and the criminal penalties associated with it have led one legislator I know to keep a bottle of water in his suit jacket, so that he will not be tempted to accept even a cup of coffee from a lobbyist.

QUESTIONS ABOUND
There are numerous questions about these new lobbying restrictions. Many more than can be addressed in the space allowed for this piece. However, I will highlight a few of them.

One question is whether the traditional legislative social functions, such as lunches and dinners hosted by lobbyists and their clients, are still permissible and, if so, how they must be handled. Attorney General Op. No. 2014-125 addressed some aspects of this issue – opining that social functions for elected officials may still be held, so long as the entire “governmental body” is invited to a “planned activity.”

What is still unclear is what groups can qualify as a “governmental body.” The AG opinion asserts that a body must be established by “official action” of one of the three branches of government. This begs the question though – may the different branches of government create additional “governmental bodies” that will qualify for this exception? The level of planning that is required to be considered a “planned activity” has also been a point of contention.

WHO IS AFFECTED?
There are several open questions about who is affected by the prohibition on gifts. For example, the language of Issue 3 prohibits only the seven constitutional officers, members of the General Assembly and members of the independent citizens commission from accepting gifts. However, some have asked whether the inclusion of cities, counties and other political subdivisions in the definition of “governmental body” is an indication that the prohibition on gifts was also intended to apply to local government.

A similar question has been raised about the use of the term “office,” and whether that was intended to extend the prohibition on gifts to all employees of an elected official holding an “office.” Most believe that the answer to both questions is no, but that is far from certain.

Some clarity will be provided as the legislature implements Amendment 3 via statute, and the Ethics Commission adopts rules and issues opinions. But, it will take some time for this to play out. In the meantime, lobbyists and elected officials are learning their way around in this new era of Arkansas politics.