Campaign bills spark questions
By Johnny Brannon
Advertiser Staff Writer
Gov. Linda Lingle's proposals for changes in campaign financing laws to eliminate any hint of bribery in government have drawn strong applause from constituents weary of scandal. But others caution that the ideas may go too far in some areas and not far enough in others.
Lingle wants to break the link that many see between politics and government contracting by banning campaign contributions from people and companies that compete for contracts.
And she wants to clamp down hard on unwarranted gifts to public officials, calling for mandatory jail time for anyone caught offering bribes or accepting them. The crackdown wouldn't be limited to secret envelopes of money or other crass inducements.
"Large gifts to public officials, including exclusive golf outings and lavish entertainment, will be presumed attempts to bribe and treated as such," Lingle said in her State of the State address last month.
The idea is to restore trust in government by eliminating even the appearance of influence peddling, said Randy Roth, Lingle's senior policy adviser.
"Corruption of public officials in just not going to be tolerated," Roth said. "The governor hopes and expects that this message is going to be received loud and clear."
Lingle's administration has drafted detailed legislation to address the campaign and bribery issues, and bills on each subject are pending in the House and Senate.
The Legislature passed a major campaign finance measure last year, but former Gov. Ben Cayetano vetoed it because, he said, lawmakers had unfairly exempted themselves from its provisions.
The campaign bills, HB 1095 and SB 1348, would ban the state and all counties from contracting with any person or entity that contributed money or anything else of value to the campaign of a politician with authority to approve the deal.
The legislation would cover contracts for materials, services, land and buildings, and would apply to contributions made up to two years before the date a contract became available.
But Roth said the main focus is contracts for professional services, which are not typically awarded to the lowest bidder. Instead, the cost of such "non-bid" awards is usually negotiated after a contractor is ostensibly selected on the basis of qualifications and other criteria.
"Even people who are following the rules are perhaps perceived as having an inside track on getting non-bid contracts," Roth said. "The governor feels we simply need to eliminate any doubt that campaign contributions increase someone's chances of getting a non-bid contract."
State Campaign Spending Commission director Robert Watada said that while he supports such goals, the administration's bills contain unfair loopholes and fail to address other key problems.
The bills extend the ban on contributions to anyone who owns at least 25 percent of a company that contracts with the government. Watada said that would essentially show people how to flout the contribution restrictions.
"Once you start putting something like that in, it takes all the teeth out," he said.
"The people who are making illegal contributions know that all they have to do is dilute the ownership, on paper anyway."
The bills would also be unfair to smaller companies, particularly those that are family-owned, he said.
Some large corporations implicitly require high-salaried employees to make large campaign contributions, which are paid for through salary bonuses, according to Watada. Since those people often do not have a direct ownership interest in the company, they wouldn't be covered by the new restrictions.
A better way would be to limit all companies and individuals to giving no more than $2,000 to any state or county candidate over two years, ban direct contributions from corporations and labor unions, and bar such entities from collecting money from salaried employees for political action committees, he said.
Such provisions are included in a separate bill that Watada supports, SB 629, sponsored by Sen. Colleen Hanabusa, D-21st (Nanakuli, Makaha).
Others say the administration's bills are flawed because they don't ban contributions from government contractors to members of the Legislature — the problem Cayetano cited in his veto of last year's reform bill.
"That's a significant puka that we will be fixing," said House Majority Whip Brian Schatz, D-25th (Makiki, Tantalus). "We believe all government officials should be held to the same standard, including ourselves."
Attorney General Mark Bennett, who oversaw drafting of the bills, said the intent is to get at the heart of the problem by eliminating contributions to people who directly award contracts. Lawmakers don't handle such duties.
"It's reasonable to target the law at what people perceive as the real problem," Bennett said.
But Schatz said another concern is that the bills do not specify when the legislation would take effect, meaning any campaign contributions made before a measure is signed into law would be exempt.
"That's a giant loophole," Schatz said. "That's sort of slipping it in under the radar."
Bennett said the administration wanted to be flexible and allow the Legislature to pick a date that would be fair to people who had already made political donations.
The administration's bribery bills, HB 1125 and SB 1278, are meant to correct flaws in current law that make it very difficult to win convictions, Bennett said. The bills would also prohibit officials from accepting most gifts.
The problem with the law now is the requirement for prosecutors to prove that a person who offered a bribe intended to influence an official's decision, and that the parties to the bribe reached an explicit agreement before the bribe was accepted, he said.
The proposed legislation would make it easier to convict someone who gives or receives a bribe after the official has done something in exchange for it, according to Bennett. The law would also apply to officials who left office after the bribery occurred.
People convicted of giving or accepting bribes would face mandatory jail time: at least one year for a first-degree conviction and 30 days in a second-degree case. No deferred acceptance of plea, akin to probation, would be possible. Neither would a suspended sentence.
The proposal has won support from the Honolulu Police Department and the city prosecutor's office. But state Ethics Commission director Dan Mollway said wording in another part of the legislation could open a can of worms.
The provision would outlaw gifts to public officials, including legislators, from people they are in a position to regulate or investigate. Anyone who offers or accepts an illegal gift could be charged with a felony.
"Trivial" gifts, and those from family members, would be excluded. But gifts of almost any value to lawmakers from a person "known to be interested in a bill, transaction or proceeding, pending or contemplated," would be banned.
"We think that it may go a little bit too far," Mollway said during a hearing on the House bill last week. "The problem is there are 70,000 state employees and 76 legislators and what this bill would do is say that anything given by a person that is subject to their official's actions ... would constitute a crime."
The current law regulating gifts is part of the state Ethics Code, which is civil rather than criminal. A gift is considered wrong "if it is reasonable to infer that it's given to influence or reward," Mollway said, and violators can face fines and public censure.
"That's a flexible standard, and I think that standard works well in allowing certain gifts," because many state employees aren't in a position to directly regulate others, or may do so on a very limited basis, he said.
It could also be hard to define which gifts are "trivial," he said. For instance, it's unclear whether it would be OK for lawmakers to attend the grand opening of a hotel or business and accept a meal.
The Ethics Commission generally allows such gifts, including airfare to new Neighbor Island hotels and overnight accommodations, because it's usually not reasonable to assume they are given to influence or reward a legislator's actions, Mollway said.
Bennett said the gift provisions are based on the American Law Institute's Model Penal Code, and have been adopted by other states.
The Legislature could clarify the bill by specifying a dollar amount that would define what gifts are trivial and allowable, he said. The scope could also be narrowed to clarify that certain casual exchanges are legal.
Reach Johnny Brannon at jbrannon@honoluluadvertiser.com or 525-8070.
