Thursday, January 4, 2001
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Posted on: Thursday, January 4, 2001

Judge strikes down Hawai'i campaign fairness code

By William Cole
Advertiser Courts Writer

Hawaii’s effort to keep things civil and high-minded when politicos battle for elective office has been declared unconstitutional by a federal court.

See full text of the Campaign Spending Commission's Code of Fair Campaign Practices.
i’s "Code of Fair Campaign Practices" amounts to a restriction of free speech, U.S. District Judge Helen Gillmor ruled.

By taking the voluntary, nine-point pledge, politicians vowed to refrain from mud slinging during campaigns. Under the code, penalties were handed out to those who didn’t live up to the pledge.

The ruling involved a dispute between Republican state Senate candidate Roger Ancheta and incumbent Democrat Randy Iwase. Ancheta sued after the Hawaii Campaign Spending Commission censured him for putting an unflattering cartoon of his opponent, in a campaign flier in 1998.

The federal court sided with Ancheta and ordered the censure’s removal.

Gillmor said the state should not be regulating speech in campaigns.

There appear to be few politicians who lament the code’s demise.

State Democratic Party Chairman Walter Heen called it "a rather grand, lofty attempt to make people behave as good citizens."

However, Iwase warned that ending the code might make political campaigns uglier in the future.

The Code of Fair Campaign Practices calls for no "personal vilification" or "character defamation" of other candidates; an agreement not to spread malicious or unfounded accusations; and condemnation of unethical or dishonest practices, among other requirements.

Commission Executive Director Robert Watada, who is named in the suit, said yesterday he was not sure what the group’s next move would be.

Ancheta, who lost to Iwase, had said his criticism was truthful, and therefore protected. The cartoon, showing a smiling Iwase in the money-lined pocket of "special interests," says that when Iwase was chairman of the Senate Planning, Land and Water Use Committee, his law firm received $1 million for Bishop Estate land and water legal work.

Iwase complained to the Spending Commission and asked for an investigation, saying he never derived any compensation from the law firm for the work - which was done by other attorneys.

In granting Ancheta summary judgment and ordering the censure’s removal, Gillmor said "the state of Hawaii’s attempts to regulate speech through the Code of Fair Campaign Practices has the potential of prohibiting or chilling a substantial range of protected speech."

Ancheta’s attorney, David Simons, said the decision "doesn’t mean you can go out there and say untruthful things ... It just means the state agency can’t go in there and brand what speech is fair and what speech isn’t."

Officials on both sides of the aisle weren’t complaining.

Hawaii Republican Party Chairwoman Linda Lingle, who appeared at a news conference yesterday with Ancheta at Simons’ law office, said it was a "victory for all candidates." Lingle said that "nobody should be stopped from telling the truth."

Democratic Party Chairman Heen, meanwhile, said he has "no problem" with the decision. "I’ve always questioned (the code)," he said. "It appears to be a rather grand, lofty attempt to make people behave as good citizens."

But Iwase, the target of the cartoon and now a member of the Labor and Industrial Relations Appeals Board, said the decision could make for even uglier campaigns to come.

"It’s going to be like leaving the proverbial fox to guard the chicken house," he said. "Politicians are going to be asked to regulate their own campaigns. That’s fine if they do it - over the last few years, they haven’t."

Agreeing to the code is voluntary, but the commission publicizes the names of those candidates who do and do not participate, Gillmor noted in her decision. In 1999, the commission took the additional step of censuring Ancheta after concluding his flier contained "personal attacks," according to court documents.

Watada said the Code of Fair Campaign Practices was put into place in the late 1970s.

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