A federal judge said Wednesday that he needs more details before he can decide whether a Pulaski County woman, Peggy Jones, can pursue a challenge of a state law that bars candidates for state office from accepting campaign contributions more than two years before an election.
At a hearing on Jones' request for a preliminary injunction that would block the state from enforcing the law while the issue of its constitutionality is pending, U.S. District Judge James Moody Jr. said he first needs to decide whether Jones has legal standing to pursue the case. Standing requires a party to have a sufficient stake in the outcome of the case.
Jones, who calls herself a longtime political activist, filed the lawsuit April 8 complaining that the blackout period created by Arkansas Code 7-6-203(e) infringes on her right to political expression by preventing her from donating money now to people she wants to support as candidates in the 2022 election.
Moody said that the way he reads the law, it prohibits candidates from accepting campaign contributions, but doesn't necessarily prohibit donors from donating. If Jones isn't subject to being penalized by the law, he said, she may not have a good enough reason to sue.
Little Rock lawyer Chad Pekron, one of the attorneys who filed the suit on Jones' behalf, said the law's practical effect still stifles would-be contributors from supporting their candidates of choice, since contributors don't want to subject their candidates to any penalties.
"There are good reasons the recipients don't want to come challenge it themselves," Pekron said.
Moody asked which candidates Jones wants to support, to which Pekron replied, "I actually don't know. ... She says she has people in mind."
Jones wasn't at the hearing.
But after Moody said he needs "something more concrete than that" to decide the standing issue, Pekron said, "We're happy to submit a supplemental affidavit with names of people she wants to give to."
Pekron said he doesn't think Jones should have to reveal which candidates she wants to support -- in other words, to reveal "her private political decisions," in order to challenge the law, but that he will provide the information.
Attorney Daniel McFadden of the Arkansas attorney general's office argued that Jones doesn't have standing because she isn't being prosecuted and hasn't engaged in conduct that would subject her to prosecution.
The U.S. Constitution allows only federal judges to preside over "an actual, ongoing case or controversy." It requires plaintiffs to show "an actual or threatened injury as a result of the challenged law."
"The complaint does not allege that (she) or any other person has served a sentence, paid a fine, or otherwise endured punishment by the state for violation of Arkansas Code Annotated 7-6-203(e)," McFadden wrote in response to Jones' request for a preliminary injunction. "Nor does the complaint allege any candidate has been fined for any violation" of the law.
He said the U.S. Supreme Court and the 8th U.S. Circuit Court of Appeals, which oversees federal courts in Arkansas, have made clear that a preliminary injunction "should not be granted unless a plaintiff clearly carries his or her burden of persuasion."
Moody allowed the attorneys to argue the merits of the injunction question in the event he decides Jones has standing to bring the case.
Jones contends the blackout-period law is unconstitutional because it's "not closely drawn to address an important governmental interest," and is over-broad "because it bars all campaign contributions, including small contributions that do not present a potential for corruption."
The law was adopted by voters in 1996 as part of a package of amendments to state campaign-finance laws, for the purpose of combating corruption.
McFadden said the state's interest in fighting corruption makes the law valid.
"She says she wants to encourage people to run for office," he told Moody, adding, "I don't know what's stopping her right now, other than herself."
Violations of the law can be prosecuted as Class A misdemeanors, which are punishable by up to a year in jail and a fine of up to $2,500. Violations can also result in the state Ethics Commission fining candidates.
Moody said he agrees with Pekron that Jones doesn't have to violate the law to fight it, "but I do think she has to show more" of an injury or potential injury to do so.
McFadden asked the judge to abstain from deciding the issue in order to allow the state to fine-tune the law first, if necessary. He acknowledged, however, that he isn't aware of any current issue over the law pending before the state courts.
Metro on 06/13/2019