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Hawaii Campaign Finance Law Survives Constitutional Challenge

As a random quirk of our law practice, we have done some work with the Hawaii Campaign Spending Commission.  Not surprisingly, the Commission's laws and regulations were challenged after the Citizen's United case and today, we have the Ninth Circuit's take on Hawaii's election laws in light of Citizen's United.  It upheld Hawaii's election laws and noncandidate committee requirements.  The case is A-1 A-Lectricians v. Snipes.  The opinion is here.

This case was a challenge to the constitutionality of Hawaii's campaign finance laws following the Supreme Court's decision in Citizen's United v. Federal Election Comm'n, 558 U.S. 310 (2010).  Hawaii election laws, available at the Campaign Spending Commission's website, here, require the creation of noncandidate committees for those entities who expend more than $1,000, requires those committees to have certain disclaimers, requires identifying information in electioneering communication and the ban on contributions from governmental contractors.

The court's summary, a reading aid, states:

The panel affirmed in part and reversed in part the district court’s summary judgment in an action brought by two individuals and a Hawaii for-profit corporation, A-1 A-Lectrician, Inc., challenging the constitutionality of Hawaii’s campaign finance laws. During the 2010 election, plaintiff A-1 contributed over $50,000 to candidates, candidate committees and party committees. It also purchased three newspaper advertisements. As a result of these expenditures and contributions, A-1 was required to register as a “noncandidate committee,” and was subjected to reporting and disclosure requirements (HRS § 11-302) and advertising disclaimer requirements (HRS § 11-391). A1, which plans to run similar advertisements and make similar contributions to candidates in the future, objects to both the disclaimer requirement and the noncandidate committee registration and reporting requirements.

Addressing A-1's Fourteenth Amendment due process vagueness challenge to Hawaii’s reporting and disclosure requirements, the panel held that HRS § 11-302’s definitions of “expenditure,” and “noncandidate committee” were not vague given the narrowing construction of the term “influence” proffered by Hawaii’s Campaign Spending Commission. The panel also held that § 11-302’s definition of “advertisement” was not unconstitutionally vague because read as a whole and in context it was sufficiently clear to give a person of ordinary intelligence a reasonable opportunity to know what was prohibited. Addressing the First Amendment challenges, the panel held that the registration, reporting and disclosure requirements that Hawaii places on “noncandidate committees” survived exacting scrutiny as applied to A-1. The panel held that the requirements were substantially related to Hawaii’s important interests in informing the electorate, preventing corruption or its appearance, and avoiding the circumvention of valid campaign finance laws. The panel also held that Hawaii’s requirement that political advertising include a disclaimer as to the affiliation of the advertiser with a candidate or candidate committee did not violate the First Amendment as applied to A-1’s political advertisements.

The panel declined to consider A1’s challenge to Hawaii’s electioneering communication reporting requirements (HRS § 341) because it determined that A-1 was not subject to those requirements as of the date the complaint was filed. The panel rejected A-1’s First Amendment challenge to Hawaii’s ban on campaign contributions by government contractors to candidates or candidate committees, (HRS § 11-355). The panel held that Hawaii’s government contractor contribution ban survived closely drawn scrutiny even as applied to A-1’s proposed contributions to candidates who neither decide whether A-1 receives contracts nor oversee A-1’s contracts. The panel held that the individual plaintiffs were entitled to attorney’s fees arising from their prior interlocutory appeal challenging HRS § 11-358, which prohibited any person from making contributions to a noncandidate committee in an aggregate amount greater than $1,000 in an election.

The panel held that because plaintiffs prevailed in the interlocutory appeal, and subsequently became prevailing parties after the district court entered judgment in their favor, the district court erred by failing to consider whether to award them reasonable appellate attorney’s fees. The panel referred the matter to the Ninth Circuit Appellate Commissioner to determine the amount of fees to be awarded.

Seems likely that Supreme Court review will be coming...stay tuned.

Hawaii Governor Ige Considering Amendment to Hawaii Information Practices Law

The Honolulu Star-Advertiser had a front page story today on a bill passed by the Legislature proposing an amendment to Hawaii's Uniform Information Practices Act, Hawaii Revised Statutes Ch. 92F.

The bill, H.B. 287, underwent re-writes throughout the session.  The version that passed, and is awaiting Governor signature or veto, is:

     SECTION 1.  Section 92F-14, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     ****

     (8)  Information comprising a personal recommendation or evaluation; [and]

     (9)  Social security numbers[.]; and

    (10)  Information that if disclosed would create a substantial and demonstrable risk of physical harm to an individual."

The State of Hawaii Judiciary testified in favor of changes to Ch. 92F and Civil Beat's Law Center for the Public Interest opposed the changes.  The testimony of both the Judiciary and the Law Center is available here.  

The Judiciary's position appears to be tied to the physical safety and security vulnerable from the public disclosure of information:

This legislation is designed to promote the safety and security of individuals by ensuring that a review of matters relating to personal safety and security is part of the equation in determining whether particular documents shall be disclosed pursuant to Hawaii's Uniform Information Practices Act. While the present law states that government records shall not be disclosed if their disclosure would constitute a "clearly unwarranted invasion of personal privacy," the law does not specifically address situations where disclosure could result in a threat to one's physical safety or security.

The Law Center for Public Interest's testimony outlines its observation that personally identifiable information (read: social security number, etc) is already protected by Ch. 92F.

In addition to the Judiciary, the Honolulu Police Department supported the bill.  Several others opposed the bill, including Common Cause Hawaii, the Office of Information Practices, the Society of Professional Journalists and the American Civil Liberties Union.

Governor Ige has a few weeks to decide whether to sign the bill, veto the bill or let it become law without his signature.

On balance, Hawaii's law favors disclosure of government records.  The Star-Advertiser prevailed on its suit to compel Governor Abercrombie to produce the list of candidates he was considering for a supreme court justice-ship.  [Disclosure:  we represented the Star-Advertiser in that litigation].  

One wonders how many folks are at risk of physical harm from the government disclosure of this information. Hawaii is not known for high incidence of violent crime, in fact, those crimes are on the decline, and it seems unusual to change the law without an incident triggering the need for this law change, but most violent offenders probably find their victims through other means than Ch. 92F.  

Stay tuned for the Governor's action.