COUNTERPOINT
What campaign reform?

By Robert M. Rees
Moderator of 'Olelo Television's "Counterpoint" and Hawai'i Public Radio's "Talk of the Islands"

Those who fear the unintended First Amendment consequences of the new McCain-Feingold bill and of Hawai'i's just-passed campaign reform bill have plenty of cause for concern in the track record of Hawai'i's Campaign Spending Commission.

The commission, established to implement Hawai'i's campaign spending laws, offers proof that well-intended attempts to remove self-interest from the election process do more harm than good.

Just recently, right in the midst of this year's run-up to the Democratic Party's gubernatorial primary, the spending commission charged the campaign of Jeremy Harris with violations of the law because it had contributed $100,000 to the Democratic National Committee. Having tainted the Harris campaign as potentially criminal, the executive director of the commission, Bob Watada, when challenged in federal court, attempted to unring the bell he had rung.

Said Watada, "Let's let it cool off."

It's not just Harris who has felt the sting of cockeyed state laws. In 1998, the commission censured Melodie Aduja because her campaign against City Councilman Steve Holmes urged that Holmes be held responsible for the poor condition of city projects. This, determined the commission, constituted a "scurrilous personal attack" that violated its Code of Fair Campaign Practices.

In 1999, the commission censured Republican candidate Roger Ancheta, who had run against Sen. Randall Iwase for the state Senate, because Ancheta's campaign had used a caricature depicting Iwase in a money-stuffed pocket labeled special interests. Ancheta and attorney Matthew Viola successfully sued the commission for First Amendment violations.

Even when the commission makes the right decision, it's wrong for democracy. In 1996, in order to discredit Hawai'i Family Forum's campaign against same-sex marriage, a group called Protect Our Constitution asked the commission to force Family Forum to release the names of its contributors. Protect Our Constitution argued that the Family Forum campaign was advocacy and not an educational effort, a distinction without a difference insisted on by state law.

Family Forum won, but as the forum's director, Kelly Rosati, recalls, "We had to go through the entire (commission) process, which was expensive and distracting."

Not content with its tangled and arcane web, our Legislature this year considered no fewer than 26 new bills designed to plug the ever-expanding list of loopholes. What finally passed was a brand-new loophole.

Rep. Brian Schatz, a proponent of campaign reform, says the new bill's "best provision is the one that disallows contractors from making contributions to candidates who are in a position to give contracts."

However, this provision does not apply when minority owners, those with less than 25 percent ownership, make the donations. This means that most large companies — jointly held enterprises — are immune from the law. Also exempt from the law's provisions are the legislators who passed the bill. They immunized themselves on the grounds that they are impotent, and don't "influence or award" contracts.

Just before the bill passed, in a letter sent to Sen. Brian Kanno, chairman of the Judiciary Committee, the commission's Watada added to the loophole. He warned that the bill "creates an unintended result. ... Corporations will be allowed to circumvent the corporate contribution limits by contributing an unlimited amount to their 'separate segregated fund.' "

Meanwhile, fearing for the bill's ability to pass First Amendment muster, the Honolulu City Council is looking at its own version aimed only at the mayor. It stops short of barring contributions to campaigns by contractors 12 months before or after a contract's effective dates. As Councilman John Henry Felix explains, Hawai'i's courts already have struck down a similar provision.

And so it goes. By attempting to limit supply in the face of overwhelming demand, all these new laws do is to create new loopholes. Plugging these loopholes leads inevitably to infringements on First Amendment freedoms and to dangerous government interference in the political process.