Campaign Spending Commission

     This Advisory Opinion responds to a person who asked the Campaign Spending Commission (“Commission”) to consider whether the factual circumstances presented herein are distinguishable from Advisory Opinion No. 06-01, thereby resulting in a different conclusion.

     In Advisory Opinion No. 06-01, the signatory employers made payments to a Labor-Management Cooperation Fund (“Sponsoring Organization”)1 which then made payments to its noncandidate committee (“Committee”).2  The Commission determined that the Sponsoring Organization was the “donor” to the Committee.

     However, when signatory employers to a collective bargaining agreement (“Agreement”) make payments directly to the Committee pursuant to the Agreement, the Commission responds that the employees are the “donors” to the Committee.

     We understand that in this opinion request the Committee registered with the Commission by filing an organizational report.3  The Committee also must file preliminary, final, and supplemental reports with the Commission, which disclose, among other things, “the amount and date of deposit of the contribution and the name and address of each donor who contributes an aggregate of more than $100 during an election period.”4

     The signatory employers are not donors because their payments to the Committee are not contributions.  A “contribution” includes any gift, deposit of money, or anything of value made by any person for the purpose of influencing an election for a Hawaii elective public or constitutional office.5  The employers’ payments are made pursuant to the Agreement, rather than for the purpose of influencing an election.  Moreover, the employers’ payments are not deductible for income tax purposes.

     The employees are the donors based upon the facts presented in this request.  We understand that the signatory employers make payments directly to the Committee based upon an hourly rate multiplied by the number of hours worked by employees of signatory employers; this same method is used to calculate other employees’ benefits (i.e., pension, annuity, training, vacation, and holiday).  The amount of the employers’ payments to the Committee ($0.03 per work hour) is negotiated by the employers and the employees’ union.  The payments to the Committee, payments for other benefits, and wage payments comprise the “benefits package” for employees. The signatory employers send payments monthly to the Committee and a transmittal listing each employee and the number of hours worked by each employee.

     The Committee is governed by a joint Board of Trustees (equally composed of representatives of the employers and employees) and payments to the Committee are used to promote the industry as a whole.

     Accordingly, under these specific circumstances, where the signatory employer to an Agreement makes contributions for the employees directly to the Committee pursuant to the Agreement, the “donors” are the employees.6

     The Commission provides this Advisory Opinion as a means of stating its current interpretation of the Hawaii Campaign Spending laws provided under Hawaii Revised Statutes (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 the enactment of amendments to the statue or the adoption of rules by the Commission.

Dated: Honolulu, Hawaii, October 11, 2006.

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 Sponsoring Organization is a §501(c)(6), Internal Revenue Code trust.  This section provides an income tax exemption for business leagues, chambers of commerce, real estate board, boards of trade, and professional football leagues, which are not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.

2 The Sponsoring Organization was not a mere “flow-through” for the funds to the noncandidate committee.

3 Sections 11-194 and 11-196.5, Hawaii Revised Statutes (HRS).

4 Sections 11-212(b) and 11-213(b), HRS.

5 “Contribution” means:
(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 or committee for the purposes set out in subparagraph (A) or (B);
(2) The payment, by any person political party, or any other entity other than a candidate or committee, of compensation for the personal services or services of another person that are rendered to the candidate or committee without charge or at an unreasonably low charge for the purposes set out in paragraph (1)(A), (1)(B), or (1)(C);
(3) A contract, promise, or agreement to make a contribution; provided that notwithstanding this paragraph and paragraphs (1) and (2), the term “contributions” shall not include services or portions thereof voluntarily provided without reasonable compensation by individuals to or in behalf of a candidate or committee; or
(4) Notwithstanding paragraphs (1), (2), and (3), a candidate’s expenditure of the candidate’s own Sponsoring Organizations or the making of a loan or advance in the pursuit of the candidate’s campaign shall not be a contribution for the purpose of this subpart but shall nevertheless be reportable as a campaign receipt. See section 11-191, HRS.

6 Because the employers make payments directly to the noncandidate committee, this opinion differs from Advisory Opinion 06-01.  Footnote 6 of Advisory Opinion 06-01 states, “If the employers were to make payments directly to the noncandidate committee, our answer would differ.  Since we find, in this set of facts, that signatory employers are not donors, we do not need to address the issue of preemption of Hawaii’s campaign spending law by the Federal Labor Management Relations Act that was raised by the person requesting reconsideration of Advisory Opinion No. 05-05.