Dark Money, and other 2021 Legislative Priorities

One of the primary functions of the Arkansas Bar Association is to consider changes to the laws of the State of Arkansas, debate the desirability and necessity of such changes, and then lobby for any agreed proposals with the legislature.  The Bar always wants the public to participate in this process, but getting the public’s attention in these matters is not always easy.  The Bar’s current highest legislative priority is to prevent “dark money” from influencing Supreme Court and Court of Appeals elections in the State.  This was a major issue in the 2018 Arkansas Supreme Court race, and so far nothing has been done to address it.  The Bar has, upon careful and lengthy consideration, developed a proposal.  You can see the entirety of it below, but in short it is to require anyone other than the candidate spending money on behalf of the candidate to register as a “committee” with the state, and then comply with all state and federal campaign financing laws.  This will theoretically provide transparency about who exactly is spending money in Arkansas judicial elections, and will also allow citizens of the State of Arkansas to sue those people in Arkansas courts if they violate the law.

 

If you have thoughts about this, or any Arkansas Bar issues, please feel free to send an email to Todd Watson, who is a current trustee of the Arkansas Bar, at [email protected]  He would be happy to discuss this with you, and convey your concerns to the Bar president.

 

Please find the rest of the Arkansas Bar’s current legislative priorities listed below:

 

Arkansas Bar Association

2021 Legislative Package Overview

 

INDEPENDENT EXPENDITURE

  1. Intent

The disclosure, rulemaking and enforcement provisions of the act are necessary to protect public confidence in the integrity of appellate judicial elections.

  1. Covered Elections

The bill addresses elections for Arkansas Supreme Court and Court of Appeals.

  1. Separation from Existing Independent Expenditure Law

Current independent expenditure law, which applies to all political and judicial races, is not amended by this bill and will remain in effect.  This bill defines non-candidate expenditures in appellate judicial races as ones not disclosed as independent expenditures under Ark. Code Ann. § 7-6-220.

  1. Non-Candidate Independent Expenditures and Committees

The bill defines a non-candidate expenditure as a communication that “names or provides a photograph or other image of a specific candidate or specific set of candidates for the office of Court of Appeals Judge or Supreme Court Justice within 120 days before an election,” and is targeted to or expected to be received by 1,000 or more voters.

A non-candidate expenditure committee is a person that accepts contributions from 1 or more persons in order to make a non-candidate expenditure for an appellate judicial election and is registered as a non-candidate expenditure committee under § 7-6-235 prior to making a non-candidate expenditure.

Exceptions include:

(i) A news, editorial, or opinion article or statement (as further defined),

(ii) a communication between an organization and a member of the organization as reflected in the organization’s membership records,

(iii) a communication between 2 or more members of an organization as reflected in the organization’s membership records, or

(iv) an informational guide to candidates (as further defined) disseminated in printed form or on the internet.

  1. Reporting of Non-Candidate Expenditures and Contributions to Committees

The bill requires a non-candidate expenditure committee, that accepts contributions or makes non-candidate expenditures in a calendar year that exceed an aggregate amount or value of $1,000, to file reports with the Secretary of State no later than: 60, 30 and 15 days before a preferential primary election, general election, or special election, in addition to a final report 30 days after the end of the month in which the last election is held.

  1. Contents of Verified Reports

As for non-candidate expenditures for committees, the report must contain the same expenditure detail required for candidate campaigns for statewide office under § 7-6-207(b)(1). For individuals, the report must contain their identifications and the expenditure detail.

As for contributions (including in-kind) to committees, the report must contain information to identify each contributor who contributed more than $250, along with the amount, and the balance of funds in the account.  Individual volunteer service is excluded.

The Arkansas Ethics Commission will promulgate rules governing expenditures, contributions and reporting, and reports will be filed in searchable, electronic format with the Secretary of State.

  1. Registration of Non-Candidate Expenditure Committees

Registration is required before making expenditures, and all committee members must be disclosed on forms approved by the Arkansas Ethics Commission. Registrations are renewed annually.

An out-of-state non-candidate expenditure committee shall comply with the registration and reporting requirements if the committee makes expenditures within the State of Arkansas that exceed $1,000 during a calendar year.

  1. Restrictions

A non-candidate expenditure shall not be made in arrangement, cooperation, or consultation between a candidate or an authorized agent of the candidate and the person making the expenditure or an authorized agent of that person.

A contributor to a non-candidate expenditure committee shall not contribute funds received by transfer from another person.

Contributions to a non-candidate expenditure committee shall comply with the limitations imposed on contributions to candidates and independent expenditure committees under § 7-6-205.

A non-candidate expenditure committee that makes a non-candidate expenditure shall maintain any funds in a segregated account.

  1. Record Keeping

Committee records shall be made available to the Arkansas Ethics Commission and the prosecuting attorney and maintained for a period of 4 years.

The commission and the prosecuting attorney in the district in which the candidate resides are delegated the responsibility of enforcement.

  1. Citizen Suits

An Arkansas registered voter may bring an action pursuant to the Arkansas Rules of Civil Procedure against a non-candidate expenditure committee in circuit court to force compliance with the act.

If the registered voter prevails in an action, the voter shall be entitled to reimbursement of expenses and reasonable attorney’s fees from the defendant.

  1. Ethics Commission Rulemaking

The Arkansas Ethics Commission shall promulgate rules to implement the act.

  1. Implementation

The registration and reporting requirements created by this act are not required for the 2022 Nonpartisan Judicial General Election held on the date of the preferential primary for other offices.

The registration and reporting requirements created by this act shall be required for the 2022 November Nonpartisan Judicial Runoff Election, with registration and reporting to begin on July 1, 2022.

 

UNIFORM LAW: LLC ACT

The Uniform Limited Liability Company Act (ULLCA) permits the formation of limited liability companies (LLCs), which provide owners with the advantages of both corporate-type limited liability and partnership tax treatment. The 2011 and 2013 amendments, enacted as part of the Harmonization of Business Entity Acts project, updated and harmonized the language in this Act with similar provisions in other uniform and model unincorporated entity acts.

 

UNIFORM LAW: INCOME AND PRINCIPAL ACT

The Uniform Fiduciary Income and Principal Act (UFIPA) is a revision of the former Uniform Principal and Income Act with a new name to differentiate the act from its three predecessor versions. While older trusts often had clear delineation between income and principal interests, modern trust accounting requires flexibility. Trustees now tend to invest for the greatest total return, and then adjust between interest and principal to produce a fair result for all the beneficiaries. UFIPA recognizes this trend toward total-return investing and includes unitrust conversion rules to allow even older trusts to take advantage of modern investment trends. UFIPA gives estate planning attorneys additional flexibility to tailor a trust for each client’s needs and includes a new governing law section to help avoid jurisdictional disputes.

 

UNIFORM LAW: CIVIL REMEDIES FOR THE UNAUTHORIZED DISCLOSURE OF INTIMATE IMAGES ACT

The Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act (UCRUDIIA) addresses the disclosure of private images of nudity or sexual conduct without consent. The UCRUDIIA creates a civil cause of action; protects victims’ identities; and provides various remedies.

 

 

POWER OF ATTORNEY CHANGE

Proposed Amendments to Ark. Code. Ann. §§ 18-12-501 and 18-12-502 The purpose of these amendments is to replace the outdated term “letter of attorney” with the common usage “power of attorney”. The terms “letter of attorney” or “letters of attorney” are not found elsewhere in the Arkansas Code. These code sections can be difficult to find using any modern legal research database as the terms “letter of attorney” and “letters of attorney” are not commonly used.