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.)