I noted yesterday on the blog that a promotion by the Jan Morgan campaign for governor — a drawing for a “gun giveaway” that people could enter by donating to her campaign — appeared to violate state law. This afternoon, the Morgan campaign put the contest on hold, and has took down the gun giveaway webpage on the candidate’s site.
The top prize in the drawing was a commemorative Kimber micro 9 handgun engraved with Jan Morgan’s signature. To enter the random drawing, people had to donate at least $50 to the campaign (via the normal donation process on the website). In response to my queries to the campaign about the website being taken down, I was contacted this evening by Joe Churchwell, a Hot Springs attorney who said that he had begun volunteering for the campaign today. Churchwell said that the webpage was taken down and the gun giveaway promotion for donations was temporarily suspended on his advice. The campaign asked him for help managing these issues, but campaign finance is not his area of expertise, so he needs time to research the law. He thought it prudent to put things on hold in the mean time. If he concludes that the raffle is prohibited by state law, it will be cancelled altogether, he said. He expects they’ll make a decision by the end of the week. If it is cancelled, he said the campaign would seek to return the donations people have already made to enter the contest or make whatever remedies were required by the law.
“This is not a sophisticated political machine with millions of dollars,” Churchwell said. “People make mistakes, and if it turns out this was a mistake, we’re going to take care of it.”
Morgan also removed a livestream video from her Facebook page that showed a separate raffle event held on Friday night during a campaign event (Churchwell said that he had not seen this video and couldn’t comment).
The Arkansas constitution bars lotteries except in narrow circumstances, and drawings such as the one announced by Morgan’s campaign have generally been considered unlawful lotteries. Amendment 84 to the Arkansas Constitution created an exception to the original prohibition on lotteries in the constitution, allowing raffles and bingo, but only for certain approved charities, which must acquire a license to hold such events, to raise money for “for charitable, religious, or philanthropic purposes.” A political campaign would not qualify. Amendment 87 later allowed lotteries, but only for a state lottery established by the General Assembly, with revenues targeted for certain designated purposes.
The Jan Morgan gun giveaway met none of those exemptions and appeared to be held in violation of the law. When I asked the Morgan campaign about the legality yesterday (prior to the involvement of Churchwell), a member of her campaign team replied by email, “Nowhere in the description does it say ‘raffle.'” However, the legality of such an event does not hinge on whether or not the word “raffle” is used, and in any case, quibbling over “raffle” misses the point. If it’s not an approved raffle, it’s an illegal lottery. Any contest that requires participants to pay to enter a contest for a prize, with the winner then chosen randomly (as opposed to, ahem, “electronic games of skill”), is illegal under the state constitution — unless it’s the state lottery, or an authorized raffle or bingo game held by a licensed nonprofit.
After my post was published yesterday, the webpage for the gun giveaway began to undergo alterations. Along with other changes, all mentions of the word “drawing” were changed to “choosing,” the words “prizes” and “giveaway” were eliminated, and the words “win,” “winning,” and “winner” were also deleted or replaced. None of this semantic tinkering changed the fact that it was an apparently unlawful contest to raise campaign cash.
“This particular gun-gimmick is of course illegal as Courts have long-held a raffle is just the simplest form of a lottery and that the terms are synonymous (See United States v Baker),” said Christopher Burks, an attorney for the Democratic Part of Arkansas, in an email. “Courts have also long held that a case is proven by the conduct of the parties and not merely the window-dressing they use to describe their conduct. It doesn’t matter that Morgan has changed how she describes her gun-gimmick, what matters is that the conduct violates the Arkansas Constitution prohibition against unapproved lotteries or raffles.”
The Morgan campaign said yesterday that they had talked with an Ethics Commission staff attorney “about the wording and legality.” However, when I spoke with this commission staffer today, he told me that he often gets questions from campaigns about raffle or drawing events to raise campaign funds and the first thing he tells them, as general information, is that such events are prohibited by the constitution. The Ethics Commission does not regulate or enforce that prohibition, however, so if a campaign wanted more information, they should contact the relevant local prosecuting attorney. If a campaign did decide to go through with such an event despite the constitutional prohibition, the staffer said, there would be reporting requirements that are under the purview of the Ethics Commission, such as properly reporting donors, and he could explain what those requirements were. But he would not okay the legality of a raffle, an issue which is outside the authority of the Ethics Commission; if anything, he said, while he cannot offer legal advice on a matter outside the scope of the commission, he would tend to suggest to candidates that they might want to avoid the appearance of violating the constitution.
Ethics Commission director Graham Sloan said that the comments described above would be typical: When queried about campaign raffles, commission staff would let candidates know about the constitutional prohibition as a point of general information, explain that the regulation and enforcement of the law on such events was outside of their purview, and make sure that candidates followed proper reporting requirements no matter what mechanism they used for fundraising.
Sloan concurred that a random drawing for a prize that people enter by making campaign donations would not fit under the exceptions for charitable raffles, and would thus be prohibited by the constitution. But he stressed that the issue was not one that the Ethics Commission had any authority over one way or the other. Just because something is illegal doesn’t mean it’s grounds for an Ethics Commission complaint, he pointed out. Enforcement would be entirely up to a prosecuting attorney.
“The commission does not have jurisdiction over the constitutional prohibition against raffles,” he said. “I think we would be remiss to not point out that they’re constitutionally prohibited. But it’s not under our jurisdiction, so I’m not going opine or comment about it. The Ethics Commission’s concern would be the proper reporting of the item contributed or purchased for the raffle and of the contributions raised from the sale of chances or tickets.”
In practice, it’s hard to imagine a prosecuting attorney going after an unlicensed raffle held by a political campaign. But for the record, a violation of the law on raffles by a licensed authorized organization is punishable by up to a $5,000 fine for the first offense, and a $10,000 fine for subsequent offenses. The Morgan campaign is not such an authorized organization and presumably does not have a license. If a raffle is conducted without a license, that would amount to a violation of the law on lotteries, with the first violation punishable by up to a $10,000 fine; the second or subsequent offense is a Class D felony. A felony conviction, FYI, would make someone ineligible to own a firearm.
The raffle event that already took place, on Friday night at a Morgan campaign event on a cruise boat, was advertised as a “reverse drawing,” a type of raffle where tickets are drawn out of a bowl and the final ticket drawn is the winner. It appeared from Morgan’s Facebook live video (since removed) that the event may have been raising money for the Morgan campaign; the campaign has not responded to my questions about whether that’s the case.
Here’s the gun, currently in limbo:
Here’s a promotion for the Friday event that featured the “reverse drawing” raffle: