Advisory Opinion 09-02

     This advisory opinion responds to a candidate who applied for partial public financing.  The candidate received a $100 qualifying contribution from an individual resident of Hawaii during a primary election matching payment period and asked whether it was permissible to receive a qualifying contribution up to $100 from the same individual during the general election matching payment period.

     The Campaign Spending Commission (Commission) responds in the affirmative to that question.  The Commission also rescinds Advisory Opinion No. 98-07 and incorporates our response in that earlier opinion in this Advisory Opinion No. 09-02.

Partial public financing is available if the candidate:

·         Agrees to limit the candidate’s expenditures to the amounts allowed in section 11-209, Hawaii Revised Statutes (HRS);[1]
·         Receives from “individual residents of Hawaii”[2] after filing a notice of intent a minimum amount of “qualifying campaign contributions”[3] once in an election period;[4]
·         Receives the qualifying campaign contributions during a “matching payment period,”
·         Has an opponent for nomination or election,
·         Timely files an affidavit and an application for public financing, and
·         Meets specified accounting, expenditure and auditing requirements.

The candidate who posed the question received a $100 qualifying campaign contribution from Individual X during the primary election matching payment period.  The candidate received partial public financing in the primary election and won that election.  The candidate asked whether the receipt of a qualifying campaign contribution up to $100 from Individual X during the general election matching payment period is permitted.

Our affirmative response is based upon the plain language of the statutes.[5]

The Hawaii Constitutional Convention of 1978 passed a constitutional amendment regarding partial public financing and voters ratified the amendment.  The laws regarding partial public financing were first enacted in Act 224, SLH 1979 (Act 224) and are read and construed in pari materia, that is, with reference to each other.[6]

The definitions of a “qualifying campaign contribution” and a “matching payment period” were included in Act 224.  Those definitions currently read as follows:

“Qualifying campaign contribution” means an aggregate monetary contribution of $100 or less, by any person during any matching payment period.  Qualifying contributions do not include loans or in-kind contributions.

“Matching payment period” means:

(1)  For a primary election, from January 1 of the year of a general election through the day of the primary election, . . .; and

(2)  For a general election, from January 1 of the year of a general election through the day of the general election.[7]  (Emphases added).

Thus, there are two matching payment periods.

A candidate must receive the minimum amount of qualifying campaign contributions only once.[8]

For purposes of a candidate receiving the minimum amount of qualifying campaign contributions, an individual is prohibited from contributing more than $100 in the aggregate as set forth below:

(4)  The candidate or committee authorized by the candidate has received the qualifying sum of private contributions for the office sought by the candidate as set forth in section 11-219; and

(5)  The aggregate of contributions certified with respect to any person under paragraph (4) does not exceed $100.  (Emphasis added.)[9]

….

     Thus, an individual could not contribute up to $100 in the primary matching payment period and $100 in the general matching payment period for purposes of the candidate receiving the minimum amount of qualifying campaign contributions.

However, there is no prohibition on an individual contributing up to $100 in the primary matching payment period and contributing up to $100 in the general matching payment period for purposes of matching payments.  If an individual contributes in each matching payment period, there must be two separate monetary contributions for each matching payment period.  One check cannot be written with some funds designated for the primary matching payment period, and the remaining funds for the general matching payment period.

We determined in Advisory Opinion No. 98-07 and affirm in this Opinion, that an individual is not allowed “to contribute large sums and segregate $100” during a matching payment period.  While a “qualifying campaign contribution” previously included a contribution that was “not more than $100 of a person’s total aggregate monetary contribution,” this provision was repealed by the Legislature.[10]  Thus, for example, an individual cannot contribute $500 to a candidate during the primary matching payment period with $100 “peeled-off” as a qualifying campaign contribution.

Permitting a candidate to receive a $100 qualifying contribution from an individual resident of Hawaii during the primary election matching period and a qualifying contribution up to $100 from the same individual during the general election matching payment period encourages the use of partial public financing.

The Commission provides this Advisory Opinion as a means of stating its current interpretation of the Hawai’i Election Campaign Contributions and Expenditures laws[11] and the administrative rules of the Commission.[12]  The Commission may adopt, revise, or revoke this Advisory Opinion upon the enactment of amendments to the Hawaii Revised Statutes or the adoption of administrative rules by the Commission.

DATED:  Honolulu, Hawaii, September 9, 2009.

CAMPAIGN SPENDING COMMISSION

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Paul Kuramoto
Chairperson

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Steven E. Olbrich
Vice Chairperson

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Gino Gabrio
Commissioner

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Dean Robb
Commissioner

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Michael E. Weaver
Commissioner
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1  The expenditure limit and the maximum amount of public financing available to a candidate varies depending on the office that the candidate is seeking and the number of registered votes in the last preceding general election.

2  HRS § 11-219.

3  The minimum amount varies depending of the office sought.  HRS § 11-219.

4  HRS § 11-221(a).

5  The Commission’s past practice has been to allow qualifying contributions up to $100 from an individual during the election period.

6  HRS § 1-16.

7  Act 224, SLH 1979, first enacted the definition as follows:
(15)  “Matching payment period” means:
(A) For a primary election, from January 1 of the year of a general election through the day of the primary election, or nine months prior to a special primary or special election through the day of a special primary or special election; and
(B) For a general election, from the day after a primary or special primary election through the day of the general or special general election.

Act 10, Special Session Laws of Hawaii 1995, amended the law as follows:
[(15)] “Matching payment period” means:
[(A)] (1) For a primary election, from January 1 of the year of a general election through the day of the primary election, or nine months prior to a [special primary or] special election through the day of a [special primary or] special election; and
[(B)] (2) For a general election, from the day after a
primary [or special primary] election through the day of the general [or special general] election.

Act 375, SLH 1997, amended the definition to read:
“Matching payment period” means:
(1) For a primary election, from January 1 of the year of a general election through the day of the primary election, or nine months prior to a special election through the day of a special election; and
(2) For a general election, from the [day after a primary election] January 1 of the year of a general election through the day of the general election.

8  §11-221 Entitlement to payments. (a) A candidate shall obtain the minimum amount of qualifying contributions set forth in section 11-219, once for the election period….

9  §11-220 Eligibility for payments.

*  *  *  *

(b) To be eligible to receive payments pursuant to section 11-217, a candidate shall certify to the commission that:

(1) The candidate and all committees authorized by the candidate shall not incur campaign expenses in excess of the expenditure limitations imposed by section 11-209;
(2) The candidate has qualified to be on the election ballot in a primary or general election;
(3) The candidate has filed a statement of intent to seek qualifying contributions. A contribution received before the filing of a statement of intent to seek public funds shall not be considered a qualifying contribution;
(4) The candidate or committee authorized by the candidate has received the qualifying sum of private contributions for the office sought by the candidate as set forth in section 11-219; and
(5) The aggregate of contributions certified with respect to any person under paragraph (4) does not exceed $100.

10  Act 64, SLH 1999, amended the definition as follows:
“Qualifying campaign contribution” means [a] an aggregate monetary contribution of $100 or less,[and not more than $100 of a person’s total aggregate monetary contribution.] by any person during any matching payment period.  Qualifying contributions do not include loans or in-kind contributions.” (Emphasis added)   The amendments are drafted in ramseyer format.

The purpose of this amendment was to “clarify that makers of such contributions cannot have contributed more than $100 during any matching payment period.” Conf. Comm. Rep. No. 82.

11  HRS § 11-191, et seq.

12  Chapter 2-14, Hawai’i Administrative Rules.