Group asks in on donation-law suit

It supports challenge of two-year limit on Arkansas campaign contributions

An attorney for Jones asked Moody last month to reserve a date on his October calendar for hearing the merits of the case, despite the fact that the case was — and remains — in the jurisdiction of the 8th Circuit, citing the urgency of the case.

An Alexandria, Va.-based conservative organization, The Institute for Free Speech, has asked a federal appeals court to let it weigh in on a dispute over Arkansas’ campaign contribution blackout period.

The nonprofit group that defines its mission as promoting and defending First Amendment rights announced Thursday that it had filed an amicus, or friend-ofthe-court brief, at the 8th U.S. Circuit Court of Appeals in St. Louis.

A three-judge panel is scheduled to hear oral arguments Sept. 26, rescheduled from Sept. 25, on the state’s appeal of a preliminary injunction that U.S. District Judge James Moody Jr. granted June 17 at the request of Peggy Jones, a Pulaski County woman who is challenging the law’s constitutionality.

The injunction blocked the state from enforcing the law, which has been in effect since 1996, until Jones’ claims could be decided. However, Moody later agreed to the state’s request that he “stay” the order, to maintain the status quo at least until the 8th Circuit decides the appeal.

The law prevents candidates for statewide offices from accepting campaign contributions more than two years before an election. Jones, who said she wants to donate money now to several people who are expected to be candidates in 2020, contends the two-year blackout period interferes with her First Amendment rights to donate as she wishes.

The law was part of a package of campaign-finance amendments adopted by voters in 1996. The amendments were designed to combat corruption, but Jones said the blackout period’s inclusion in the package went too far.

In its news release Thursday, the institute noted that attorneys for the state have asked for the lawsuit to be dismissed because Jones hasn’t been penalized by the law, or threatened with being penalized, which means she doesn’t have legal standing to pursue the case. “States cannot put unconstitutional laws on the books and then tell citizens that they cannot challenge those laws in court,” said Allen Dickerson, the institute’s free-speech legal director. “Most Americans will not exercise their First Amendment rights if they may be prosecuted for doing so, which is why courts routinely review unconstitutional laws before harm is done.”

The institute said that if the state’s argument is correct, “states could chill the First Amendment rights by anyone who lacks the resources or willingness to fight back in court. Indeed, Jones has refrained from making a contribution to avoid liability for herself and Sen. [Mark] Johnson.” The Republican senator from Conway, who intends to seek re-election, is so far the only candidate that Jones has publicly identified as one of the candidates she wishes to support.

“The Institute’s brief explains that courts have relaxed requirements for First Amendment challenges to prevent precisely this sort of outcome,” the institute asserts.

Its news release said the state “is incorrect in asserting that the only way to show a reasonable fear of prosecution is to have an actual prosecution. One need not await prosecution to challenge a statute imposing liability.”

It said the only harm Jones must show is “in the form of curtailed expressive activity due to the statute’s existence,” adding, “Here, she has plainly done so.”

An attorney for Jones asked Moody last month to reserve a date on his October calendar for hearing the merits of the case, despite the fact that the case was — and remains — in the jurisdiction of the 8th Circuit, citing the urgency of the case. Moody said he won’t set a hearing until the case is returned to him from the 8th Circuit.

The institute’s brief was the only amicus brief filed in the case as of Thursday.