Disappeared News

by Larry Geller

Hawaii, as far as it is from the US Supreme Court, has nevertheless been lapped by the wave of campaign law challenges resulting from the Citizen United case. Monday may move us briefly into the national spotlight as state laws that restrict campaign contributions by Hawaii plaintiffs are tested in federal court.

Oral arguments before Judge J. Michael Seabright are scheduled for Monday morning 9:00-11:00 in the case known here as A-1 A-Lectrician, Inc. This is the case brought by plaintiffs Jimmy Yamada and Russell Stewart (the two other plaintiffs) who wished to contribute S2,500 to the Aloha Family Alliance, a Political Action Committee, before the 2010 election.

In October, 2010, Judge Seabright issued a partial injunction so that the contribution could be made before the election.

The plaintiffs will be represented once again by attorney Randy Elf, and the State by Deputy Attorney General Charlene Aina, with others likely to be present on both sides as well.

I reported at that time on the dynamics of the argument in the courtroom. In part:

The heart of the hearing took place at about 11:00 a.m. in a spirited back-and-forth between Judge Seabright and attorney Elf. It was clear that Seabright had studied related cases from other circuits as well as Citizens United, the Supreme Court case that blew the lid off of corporate campaign contributions. During the discussion Elf demonstrated a command of the core issues that was impressive, and which helped Seabright to clarify his own understanding.

[Judge Seabright will issue partial injunction Thursday removing local firm’s campaign contribution limit, 10/1/2010]

On Monday, Seabright has before him motions for summary judgment both by the plaintiffs and by the Hawaii Campaign Spending Commission. Both sides have submitted extensive briefs, which the judge has already studied. We, as observers, may feel like New York City subway passengers waiting on a Local platform as the Express speeds by on the center tracks. We’re simply not in the stream of things (yet—see document links below for how to catch up).

Let’s move from 2010 to the present. The plaintiffs have made their contribution, and here we are, again in an election year. Hawaii law still blocks them from contributing. The arguments that you will hear if you attend on Monday will largely revolve around HRS §11-355, the section of Hawaii Revised Statutes that prohibits campaign contributions from city or state contractors. Prior arguments have covered most of the rest of the matters raised by each side.

As a catch-up, here is a snip from Plaintiff’s brief:

Before the 2010 general election, when A-1 was not a government contractor, it contributed to several Hawaii state-legislature candidates and seeks to do so again in 2012. However, now A-1 is a state contractor.

A-1 has a policy not to “buy favors” from elected officials, and it wants to make contributions, while it is a government contractor, to candidates – like those to whom it contributed in 2010 – who do not decide whether A-1 receives contracts and who do not oversee the contracts. However, Hawaii’s ban on candidate and noncandidate committees’ receiving contributions from government contractors, HRS.11-355, means A-1 may not contribute to candidates. A-1 will contribute to candidates only if a court enjoins the ban.

Here is the complete section from the HRS:

[§11-355]  Contributions by state and county contractors prohibited.  (a)  It shall be unlawful for any person who enters into any contract with the State, any of the counties, or any department or agency thereof either for the rendition of personal services, the buying of property, or furnishing of any material, supplies, or equipment to the State, any of the counties, any department or agency thereof, or for selling any land or building to the State, any of the counties, or any department or agency thereof, if payment for the performance of the contract or payment for material, supplies, equipment, land, property, or building is to be made in whole or in part from funds appropriated by the legislative body, at any time between the execution of the contract through the completion of the contract, to:

     (1)  Directly or indirectly make any contribution, or promise expressly or impliedly to make any contribution to any candidate committee or noncandidate committee, or to any candidate or to any person for any political purpose or use; or

     (2)  Knowingly solicit any contribution from any person for any purpose during any period.

     (b)  Except as provided in subsection (a), this section does not prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, any noncandidate committee by any person other than the state or county contractor for the purpose of influencing the nomination for election, or the election of any person to office.

     (c)  For purposes of this section, "completion of the contract" means that the parties to the government contract have either terminated the contract prior to completion of performance or fully performed the duties and obligations under the contract, no disputes relating to the performance and payment remain under the contract, and all disputed claims have been adjudicated and are final.

This case is a challenge to five Hawaii laws, again described in Plaintiff’s briefs. Snipping and paraphrasing (and responsible for any errors I might introduce):

• A-1 challenges Hawaii’s noncandidate-committee definition, HRS.11-302, because A-1 no longer wants to bear noncandidate-committee burdens…
• If a court holds Hawaii may not or does not define A-1 as a noncandidate committee, then A-1 must comply with electioneering-communication reporting requirements. … Having to devote time to preparing and filing reports, particularly 24 hour reports, is a severe burden on A-1’s resources…
• A-1 does not want Hawaii to regulate the content of the speech itself (disclaimer requirements)
• Hawaii bans the contributions A-1 wants to make to candidates. (HRS.11-355).
• Yamada’s and Stewart’s $2500 contributions to AFA-PAC exceed Hawaii’s $1000 per-election limit on contributions.

Many of the State’s arguments relate to transparency. That is, as the State quotes in its brief asking for partial summary judgment, referring to the same part of the HRS:

"The purpose of this part is to provide transparency in the campaign finance process."
HRS § 11-301

Referring to the Citizens United case:

As recognized by the United States Supreme Court in Citizens United v. Fed. Election Comm'n, transparency, disclosure, and the electorate's interest in information are extremely important governmental interests, all of which justify the regulation of campaign-related speech. This Court should uphold the disclosure provisions challenged here.

Plaintiffs' challenge has four parts: (1) the definitions of "noncandidate committee" and "expenditure," (2) the electioneering communications provision, (3) the definition of "advertisement" and disclaimer requirement, and (4) the government contractors provision. The first three are disclosure laws, aimed at ensuring transparency in campaign financing. The last is specific to government contractors, and is aimed at preventing corruption and the appearance of corruption.

Transparency is probably the strongest argument that states have left in dealing with the Supreme Court’s ruling.

If we listen carefully to Judge Seabright’s discussion on Monday, we may get a hint of how he might be inclined to rule. At the time Seabright issued his preliminary injunction in 2010, he worked out in rapid and efficient dialogue with attorney Elf exactly what would go into his order.

No short article can do justice to the extensive briefs. Anyone planning to attend the trial on Monday might want to read at least these two briefs to avoid being stranded on that Local platform. Right-click to download the Plaintiff’s brief here and the Defendant’s brief here. Warning: these are not the latest briefs in this case, but they provide the base material. Each side has responded, and the judge will sort it out.

Permalink posted by Larry @ 2/03/2012 03:49:00 PM