Advisory Opinion 00-01
A candidate wants to keep options open for 2000 or beyond and asks if funds can be solicited at this time. By this advisory opinion, the Commission advises that candidates may raise funds for a future election. When the candidate raises funds, the law requires the candidate to declare on their registration the office being sought. Furthermore, the campaign spending statute requires campaign contributions to be used for purposes directly related to an election.
The campaign spending law requires a candidate to state an office that the candidate is seeking. The registration requirement for each candidate pursuant to section 11-194, Hawaii Revised Statutes (“HRS”) specifies that the candidate’s organizational report provide for the office sought. Section 11-196(a)(2), HRS reads:
(a) The organizational report shall include:
(2) The name, address, office sought, district, and party affiliation, of each candidate or individual whom the committee is supporting; (Emphasis added)
The public and particularly the contributors for the candidate need to be given notice of the office that the candidate is seeking, as reported on the organizational report.
Pursuant to section 11-191, HRS, contributions are specifically for influencing the outcome of an election. Section 11-191, HRS defines a “Contribution” in part as follows:
(1) A gift, subscription, deposit of money or anything of value, or cancellation of a debt or legal obligation and includes the purchase of tickets to fundraisers for the purpose of:
(A) Influencing the nomination for election, or election, of any person to office;
(B) Influencing the outcome of any question or issue that appears or is reasonably certain to appear on the ballot at the next applicable election described in subparagraph (A); or
(C) Use by any party for the purposes set out in subparagraph (A) or (B); (Emphasis added)
The campaign spending law clearly provides that contributions are to be used solely for a campaign for nomination, or election to an office.
This precise language is mirrored in the definition of expenditure in the same section. Section 11-191, HRS defines “Expenditure” in part as follows:
(1) Any purchase or transfer of money or anything of value, or promise or agreement to purchase or transfer money or anything of value, or payment incurred or made, or the use or consumption of a nonmonetary contribution for the purpose of:
(A) Influencing the nomination for election, or election of any person seeking nomination for election, or election, to office whether or not the person has filed the person’s nomination paper;
(B) Influencing the outcome of any question or issue that has been certified to appear on the ballot at the next applicable election; or
(C) Use by any party or committee for the purposes set out in subparagraph (A) or (B); (Emphasis added)
The definitions in section 11-191, HRS are emphasized clearly in section 11-200, HRS which restricts the use of campaign contributions. Section 11-200(a), HRS reads in part as follows:
(a) A candidate, campaign treasurer, or candidate’s committee shall not receive any contributions or receive or make any transfer of money or anything of value:
(1) For any purpose other than that directly related:
(A) In the case of the candidate, to the candidate’s own campaign; or
(B) In the case of a campaign treasurer or candidate’s committee, to the campaign of the candidate, question, or issue with which they are directly associated; or
Section 11-200(a), HRS limits contributions to be used for purposes “directly related” to the candidate’s campaign. An exception is provided to allow a candidate to purchase no more than two tickets for fundraisers held by another candidate.
However, a distinction exists between funds being raised for an upcoming election and surplus funds, which remain after the previous general election. Section 11-206(c), HRS provides in part as follows:
(c) Such contributions may be used after a general or special election for any fundraising activity, for any other politically related activity sponsored by the candidate, for any ordinary and necessary expenses incurred in connection with the candidate’s duties as a holder of an elected state or county office, or for any contributions to any community service, educational, youth, recreational, charitable, scientific, or literary organization, or any other organization which the commission by rules adopted pursuant to chapter 91 deems appropriate. (Emphasis added)
In summary, while the law does not prohibit a candidate from receiving contributions for a future election, the use of such contributions, generally, must be for purposes of the next applicable election. A candidate that receives contributions in 2000, is expected to file for nomination within a reasonable time in some future election.
Receiving and using campaign contributions raised for a future election to donate to community organizations is not a purpose directly related to a campaign. Expenditures of new funds to maintain visibility in the community would not be acceptable as allowable expenditures, unless directly related to a campaign. To give such donations or other consideration to constituents before an election comes perilously close to buying votes and may be in violation of section 19-3, HRS. It is election fraud to give “valuable consideration” to any person in order to induce any elector to vote or refrain from voting for any person.
“Directly related” expenses are those expenses that acquaint the electorate to the stand or positions of the candidate, such that, the electorate can make a knowledgeable decision on their vote for a particular candidate for an office. The courts have used the notion of express advocacy in other instances on advertising by or for a candidate. Any message or costs related to any message by the candidate would have to be for advocating for the election or defeat of a candidate.
This Advisory Opinion is provided by the Commission as a means of stating its current interpretation of the Hawaii election Campaign Contributions and Expenditures laws provided under HRS section 11-191, et seq. and the administrative rules of the Commission provided in chapter 2-14, Hawaii Administrative Rules. The Commission may adopt, revise, or revoke this Advisory Opinion upon its own initiative or upon the enactment of amendments to the Hawaii Revised Statutes or the adoption of administrative rules by the Commission.
Dated: Honolulu, Hawaii, February 29, 2000.
CAMPAIGN SPENDING COMMISSION
A. Duane Black
E. Elizabeth Lee