(POSTED 4/18/07)
The Hawai`i Campaign Spending Commission went along with the recommendation of its staff and, in a vote November 13, effectively overturned a key element of Hawai`i election laws. Now, the voting public will no longer be able to know who or what interests lie behind political ads such as the two published by a coalition of fishermen last November, on the eve of the general election.
The staff recommendation that the commission approved dealt with a complaint filed last year by Patricia Tummons, Environment Hawai`i editor, over the two ads. Both Honolulu dailies published the ads on November 5, 2006, two days before the general election. The ads alleged that “the current administration” (that of Governor Linda Lingle, up for re-election) “does not support fishing in Hawai`i.” Voters were told, “The future of fishing depends on your VOTE. Make a difference on NOVEMBER 7th.”
The ad in the Honolulu Advertiser carried the name of a sponsoring group, Hawai`i’s Concerned Fishermen and their Ohana. The group had not registered as a non-candidate committee with the CSC, even though any group running a political ad must do so.
In April, the CSC was asked by its staff whether it should continue its investigation into who was behind the ads or drop it, effectively throwing out the complaint. The commission found that the ads were, indeed, political, and it authorized further investigation.
Seven months later, the staff, through its powers of subpoena, determined who was behind the ads and who paid for them. Still, staff recommended that the whole matter be dropped.
What happened?
According to a staff report, a U.S. Supreme Court decision issued last June makes all the difference. In the F.E.C. v. Wisconsin Right to Life, wrote Grant Tanimoto, the deputy attorney general assigned to the commission, “the Court established a new test for determining whether an advertisement is the functional equivalent of express advocacy.”
According to the Supreme Court, an ad “is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
“Because the Fishermen’s two ads are not ‘susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,’ the ads may not be advertisements in light” of the Supreme Court ruling, Tanimoto concluded.
In other words, because the Concerned Fishermen argued, however feebly, that their ads were meant only to inform and not to sway voters, the CSC should give them a pass.
Nevermind that their claims fly in the face of the facts. The ads had a clear political message. They ran on the eve of a general election. They urged people to act in a political manner. The notion that they were intended merely to inform the public is ludicrous.
With the Campaign Spending Commission now having agreed with its staff, Hawai’s laws on non-candidate committees have been gutted. There is no longer any reason for such groups to file disclosure statements. Penalties can be avoided if the non-candidate committees simply claim that their ads were intended only to inform. Under the test the deputy attorney general and CSC staff proposed — and the CSC approved — they’re off the hook.
Just the Facts
The trail uncovered by the CSC staff, using its subpoena powers, has taken some interesting turns. Among other things, the mail box used by the fishermen’s group was rented by none other than Roy Morioka, former chairman of the Western Pacific Fishery Management Council. The checks paying for the ads were cut by Kimo Mills, a banker with First Hawaiian Bank.
The ads in the newspapers were placed by Marc Inouye, who was identified as being with a company called 4Ps, Inc. (It doesn’t exist in any state record.) The ad in the Advertiser cost $5,500; that in the Star-Bulletin was $2500 plus tax.
In August, the group filed a petition for dismissal of the complaint, identifying “some of Hawaii’s concerned fishermen.” Two of them — Morioka and Frank Farm — are former Wespac members. Their complaint insisted that “there is no legal support to find” that the ads were “express advocacy,” and that, as such, the CSC had no jurisdiction.
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