Campaign Spending Commission

     This Advisory Opinion responds to a contractor who asks whether an elected official, who is also a candidate, may enter into a personal services contract with the State and, during the period between execution and completion of the contract, knowingly solicit any contribution from any person for the elected official’s candidate committee.

     The Campaign Spending Commission (“Commission”) responds in the affirmative.

     Hawaii Revised Statutes (“HRS”) section 11-205.5 provides in relevant part:

Campaign contributions by state and county contractors. (a) It shall be unlawful for the person who enters into any contract with the State, any of its counties, or any department or agency thereof .  .  . for the rendition of personal services . . . to the State, any of its counties, department or agency thereof . . . if payment for the performance of the contract . . . is to be made in whole or in part from funds appropriated by the legislative body, at any time between the execution of the contract through the completion of the contract, to:

(1) Directly or indirectly make any contribution or to promise expressly or impliedly to make any contribution to any political party, committee, or candidate or to any person for any political purpose or use; or
(2) Knowingly solicit any contribution from any person for any purpose during any period.1

     This law prohibits certain government contractors from making any contributions or soliciting any contributions; and from knowingly soliciting “any contribution from any person for any purpose during any period.”

     In order to determine whether the law is applicable to a candidate who is a government contractor we start with the standard rules of statutory construction. 

First, the fundamental starting point for statutory interpretation is the language of the statute itself.  Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning.  Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.  Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.

Peterson v. Hawaii Elec. Light, Co., Inc., 85 Haw. 322, 327-28, 944 P.2d 1265, 1270-71 (1997).

     Further, to clarify an ambiguity in the law, legislative history, as well as the reason and spirit of the law may be examined.  See HRS section 1-15 (1993).2

     Moreover “the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality.  Nelson v. University of Hawaii, 99 Hawai’i 262, 265, 54 P.3d 433, 436 (2002).

     We first note that this law was enacted as part of Act 203, Session Laws of Hawaii 2005 (“Act 203”) and replaced another law which required government contractors to register and report to the Commission.

     The 2005 Legislature specified that “the prohibition on contributions by state and county contractors applies to the specific contracting entity and not to individuals associated with the contractor, such as the individual owners of a contracting entity….”3   During the floor debate regarding the bill that was enacted as Act 203, one legislator referred to the “pay-to-play game.”4

     The “literal” interpretation of HRS §11-205.5 would be to prohibit any “person,” including a government contractor who is a candidate, from soliciting any contributions for the candidate’s campaign.  This reading, however, would produce an absurd and clearly unintended result for a government contractor/candidate who would be prohibited from receiving any contributions, either from the candidate or from other persons.  The law was intended to address concerns with pay-to-play.  Additionally, there are also constitutional concerns with such an interpretation because the government contractor/candidate could not campaign effectively, if at all, for office without contributions.  The government contractor/candidate would not solicit contributions to his/her campaign, in order to award himself/herself a government contract.

     While the government contractor/candidate may solicit contributions or make contributions to the government contractor/candidate’s own candidate committee, the government contractor/candidate is still prohibited from directly or indirectly making any contribution or promise expressly or impliedly to make any contribution to any political party, committee, or candidate or to any person for any political purpose or use; or knowingly soliciting any contribution from any person for any purpose during any period.

     Thus, a government contractor/candidate may enter into a contract with the State for the rendition of personal services and, between execution and completion of the contract, knowingly solicit any contribution from any person or make contributions, to the government contractor/candidate’s committee.

     The Commission provides this Advisory Opinion 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 the enactment of amendments to the Hawaii Revised Statutes or the adoption of administrative rules by the Commission.

Dated: Honolulu, Hawaii, June 13, 2007.

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 §11-205.5 Campaign contributions by state and county contractors. (a) It shall be unlawful for the person who enters into any contract with the State, any of its counties, or any department or agency thereof either for the rendition of personal services, the buying of property, or furnishing any material, supplies, or equipment to the State, any of its counties, department or agency thereof, or for selling any land or building to the State, any of its counties, or any department or agency thereof, if payment for the performance of the contract or payment for material, supplies, equipment, land, property, or building is to be made in whole or in part from funds appropriated by the legislative body, at any time between the execution of the contract through the completion of the contract, to:

(1) Directly or indirectly make any contribution or to promise expressly or impliedly to make any contribution to any political party, committee, or candidate or to any person for any political purpose or use; or
(2) Knowingly solicit any contribution from any person for any purpose during any period.

(b) This section does not prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, any separate segregated fund by any state or national bank, corporation, or labor organization for the purpose of influencing the nomination for election or the election of any person to office; provided that the commission shall by rule establish contribution limits for limited liability companies as defined in section 428-101, limited liability partnerships as defined in section 425-101, and limited liability limited partnerships as defined in section 425E-102. Sole proprietors subject to this section shall comply with applicable campaign contribution limits in section 11-204.

2 § 1-15 Construction of ambiguous context.

Where the words of a law are ambiguous:

(1) The meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.
(2) The reason and spirit of the law, and the cause which induced the legislature to enact it, may be considered to discover its true meaning.
(3) Every construction which leads to an absurdity shall be rejected.

3 Con. Com. Rep. No. 185 (2005).

4 Representative Gaylen Fox in a floor debate, stated “It’s such a complete disappointment for me, Session after Session, year after year, not to see us go after the heart of the problem, which is the ‘pay-to-play’ game.  We should simply outlaw, ban contributions from people who do business with government.  We ought to do it.  It should have been done long ago . . . .”  House Journal, at 477 (2005).