US Supreme Court decision places cloud on publicly funded campaigns

This past Tuesday, all eyes were on some hotly contested primaries, but there was also a decision by the United States Supreme Court that may have an impact on publicly funded campaigns across the country, Hawaii included. The Supreme Court temporarily blocked Arizona from distributing matching campaign funds to publicly funded candidates. Here's a link to the CBS News story.

Lower courts are split on the constitutionality of Arizona's matching fund program. In January 2010, U.S. District Court Judge Roslyn Silver ruled that matching funds discourage privately funded candidates from raising or spending donations because that would trigger the matching government funds for their opponents. That constituted an impact on free speech. The Ninth Circuit Court of Appeals, however, disagreed and ruled that the impact to free speech was minimal. This week's decision serves to stop Arizona's Clean Elections program at least until the Supreme Court determines whether to hear the opponent's full appeal.

Tuesday's decision only affects Arizona, but Connecticut and Maine have similar campaign matching funds programs. What does this mean in Hawaii?

For the 2010 election, the County of Hawaii was given the authority by the legislature to conduct a pilot program using matching or equalizing funds for the Hawaii County Council races. The bill, HB661 became law as Act 244 without the Governor's signature. It established the pilot program for Hawaii County only, and for three election cycles starting with the 2010 election.

In 2009, HB345 proposed that the pilot program be postponed, to start with the 2014 election. The primary reason cited was a concern over funding sufficiency. The Campaign Spending Commission, while not opposed to the bill, called attention to the constitutionality question and recommended that the equalizing funding section be removed, citing the case in Arizona. They stated:

"Notwithstanding the complexities in the law discussed above, the Commission is recommending removal of the equalizing fund provisions based upon In re McComish v. Brewer, No. 2:08-cv 1550, Order (Aug. 29,2008). The Court, therein, determined that Arizona's equalizing fund provision "violates the First Amendment of the U.S. Constitution." A copy of the Order is attached to our testimony. The Commission submits that the Legislature should take proactive
action, rather than passively await possible litigation involving equalizing funds."

Here is their full testimony.

The bill which sought to postpone the pilot program passed the House but stalled in the Senate.

At this time, the pilot program for Hawaii County Council races is going forward, but the future of the program is uncertain until the U.S. Supreme Court takes further action.

County of Hawaii Council Reso supports passage of HB345

While it does not appear to be online yet, the County of Hawaii County Council passed a resolution, No. 98-09, on Monday, April 13th, supporting the passage of House Bill 345, relating to the postponement of a comprehensive public funding program for the County of Hawaii Council Elections.

House Bill 345 essentially delays the pilot project for public funding of Hawaii county council elections to the general election in the year 2014. The bill, introduced by Rep. Jerry Chang, passed the House and crossed over to the Senate. However, it stalled when the Senate Judiciary and Government Operations committee did not schedule it for hearing. As the bill is not currently moving in the Legislature, the pilot project is scheduled to begin in the 2010 elections.

The pilot project, established through Act 244, 2008 Session Laws of Hawaii, allows any candidate for a Hawaii County Council office to apply for public funding, up to $300,000 from the Hawaii Election Campaign Fund, provided that the person obtains 200 signatures and a nominal $5 contribution from each signer.

Included in the various WHEREAS statements, the resolution states that the public funding program "may create a frenzy of potential candidates applying for the funds and potential legal challenges relating to who should receive the limited funds." It states that the concept of "equalization funds" has been challenged in Arizona, and that US District Judge Roslyn Silver recently ruled that a key provision of Arizona's public campaign financing system violates constitutional free speech rights.

Also included in the WHEREAS clauses, the resolution points to the expense of the program and that "the Hawaii State Campaign Commission stated that the Hawaii fund would be bankrupt within the first year of a statewide program, and the additional check-off would not generate anywhere near the required funds to maintain a viable program." The council believes that unless adequate funding can be provided, the project should be delayed.

The Council of the County of Hawaii is therefore asking the legislature to postpone the implementation of the public funding pilot program. The Council contends that a "true pilot program will encompass all counties, not just Hawaii County, to determine if such a program could be feasible on a statewide basis and urges the Legislature to further amend Act 244 to include all county elections, notwithstanding elections for mayor and prosecutor."

The resolution was introduced by Council member Greenwell. The vote was 6-3. Ayes: Enriques, Greenwell, Ikeda, Naeole, Onishi, Yoshimoto. Noes: Ford, Hoffmann, Yagong.

Delaying the Fair Elections law is wise

Submitted by:

Representative Mark Nakashima (District 1 – North Kohala, South Kohala, Hamakua, North Hilo, South Hilo)
Representative Jerry Chang (District 2 –South Hilo, Waiakea Kai, Kaumana, Keaukaha)
Representative Clift Tsuji (District 3 – South Hilo, Panaewa, Puna, Keaau, Kurtistown)
Representative Robert Herkes (District 5 – Puna, Kau, South Kona, North Kona)
Representative Cindy Evans (District 7 – North Kona, South Kohala)

The Big Island legislative delegation supports the Fair Elections law, and those of us who were in office at the time voted for the original measure. However, given our current economic climate, the right thing to do is to postpone its implementation.

HB345 proposes to postpone the pilot project, which would allow public funding of candidates for Hawaii County Council races starting in 2010. If the pilot project were to go forward at a time when the nation and our state are in economic crisis, its chances of survival are questionable. Here’s why:

From a fiscal standpoint, the Hawaii State Campaign Spending Commission estimates that the base funding required for election to the Hawaii County Council in 2010 would amount to at least $190,110—assuming that only one candidate runs in each race for both the primary and general election. The equalizing funds provision for the same scenario would increase that figure to $380,220. With two candidates running in each race, that figure increases by two-fold to $760,440.

These projections are conservative. In 2008 alone, 24 candidates ran for Council offices on the Big Island. You can do the math. It is clear that the expense of the pilot project could be prohibitive. In addition, both the Hawaii County Council Chairman and the Hawaii County Clerk support the passage of HB345, given the need to consider fiscal and operational concerns.

Most notably, the Campaign Spending Commission has identified nearly two dozen additional responsibilities, the execution of which would benefit from a deferral. These new duties include tracking and investigating all independent expenditures for every committee and every individual who supports nonparticipating candidates, awarding equalizing funds without sufficient time to verify information that is provided, and establishing an independent, nonpartisan review committee along with the administrative support necessary to staff such a committee. Given the Commission’s workload related to the gubernatorial election in 2010, these additional operational duties would be very difficult and could compromise the Commission’s efforts.

In addition, the Campaign Spending Commission reports that Massachusetts and Kentucky have already terminated full funding of similar programs due to their exorbitant costs, while Connecticut has reported an increase from $15 million in 2006 to a staggering $45 million for 2008. The costs of implementing such a pilot program in Hawaii County during the current fiscal climate warrant a postponement, which would allow for our local economy to first recover before we engage in potentially costly endeavors.

Finally, postponing the Fair Elections law would enable campaign officials to better clarify the legality of the current law's equalization funds provision. In short, the constitutionality of such a provision has been called into question. Comparable legislation in Minnesota, which would have provided candidates with one-half the amount of independent expenditures made by opposing candidates, was deemed unconstitutional. Similarly, in its review of the Bipartisan Campaign Reform Act of 2002, the United States Supreme Court concluded that the right to use personal funds to finance a campaign should not result in fundraising advantages for opponents.

Taken together, these issues detract from the spirit of the Fair Elections law. Publicly funded elections require additional time and consideration in order to become the truly fair and equitable enterprise that they were intended to be. We therefore ask voters in Hawaii County to consider our current economic situation, and ask for their patience as we continue to sort through some of the troubling issues swirling around the pilot program. Our objective is to achieve a comprehensive publicly funded campaign mechanism that is at once feasible, efficient, and just.

(This opinion was submitted to the Hawaii Tribune-Herald and was printed on Sunday, March 22, 2009. It was not, however, posted to the newspaper's website.)

Maui News Poll on Publicly Funded Elections

The Maui News is currently running a poll on whether Maui residents favor publicly funded elections for the Maui County Council, similar to the recently passed legislation for Hawaii County. Here's the link.

The poll question is: "The state Legislature passed by a wide margin a proposal to publicly fund some Big Island elections as a pilot program. Would you favor a law that would establish publicly financed elections in Maui County?"

As this is being written, the majority of respondents do not favor publicly funded elections with 17% checking YES, 53% checking NO, and 30% checking DEPENDS on how the pilot program works.

The bill, HB661, awaits Gov's signature.