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.