Campaign Spending Commission

     This Advisory Opinion responds to an elected official’s question asking whether campaign contributions received by a candidate for a state or local office can be used to purchase gifts for other legislators for the Legislature’s opening day festivities. The Campaign Spending Commission (“Commission”) answers this question in the negative.

     Section 11-200, Hawaii Revised Statutes (“HRS”) reads in entirety as follows:

Sec. 11-200 Campaign contributions; restrictions against transfer.
(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

(2) To support the campaign of candidates other than the candidate, for whom the funds were collected or with whom the campaign treasurer or candidate’s committee is directly associated; or
(3) To campaign against any other candidate not directly opposing the candidate for whom the funds were collected or with whom the campaign treasurer or candidate’s committee is directly associated.

Any provision of law to the contrary notwithstanding, a candidate, campaign treasurer, or candidate’s committee, as a contribution, may purchase from its campaign fund not more than two tickets for each event held by another candidate, committee, or party whether or not the event constitutes a fundraiser as defined in section 11-203. (Emphasis added)

(b) This section shall not be construed to prohibit a party from supporting more than one candidate.
(c) This section shall not be construed to prohibit a candidate for the office of governor or lieutenant governor from supporting a co-candidate in the general election.
(d) This section shall not be construed to prohibit a candidate from making contributions to the candidate’s party so long as that contribution is not earmarked for another candidate. (Emphases added.)

The language of the statute clearly provides that all campaign funds are to be received and expended for the limited purpose of financing a candidate’s campaign.

     Section 11-191, HRS defines a “candidate” in part as follows:

“Candidate” means an individual who seeks nomination for election, or seeks election, to office.Until an individual terminates the individual’s candidacy with the commission, an individual is a candidate if the individual does any of the following: (Emphasis added)

An individual becomes a candidate by taking certain steps in seeking election to an office. In this instance, there is no contested issue regarding the status of the elected official being a candidate pursuant to the campaign spending laws.

     The plain language of the statute clearly shows that the legislature intended to limit the use of campaign contributions by a candidate for a state or local office. The legislature also provided that the use of those campaign contributions received by a candidate for a state or local office cannot be transferred to support the campaign of another candidate with exception of “two tickets” for each event held by another candidate.

     The use of such campaign funds are statutorily limited by Section 11-206(c), HRS, which provides 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 contribution 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.

Section 11-206(c), HRS provides explicit exceptions for the use of surplus funds after the general or special election. These exceptions do not authorize candidates to use funds to purchase gifts for their legislative or council peers.

     The reference for the use of campaign funds to purchase gifts is found in the Commission’s administrative rules. Section 2-14.1-15(a)(2), Hawaii Administrative Rules (“HAR”) seemingly provides broad authority for the expenditure of campaign funds for gifts of up to $50 to persons other than the candidate’s immediate relatives for “wedding, Christmas, birthday, funeral or other occasion(s)”. Section 2-14.1-15, HAR, “Expenditures for personal expenses.” provides specific guidance with respect to the general rule that campaign funds may not be spent on personal expenses. It provides in relevant part that:

(a) No candidate, committee, candidate committee or noncandidate committee shall use any campaign contributions for any personal expense, including without limitation the following:

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(2) Wedding, Christmas, birthday, funeral, or other occasion gifts or donations to immediate relatives of the candidate or in excess of $50 to friends or to other persons;

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(b) For the purposes of this section, a “personal expense” means any use of campaign contributions for an expense that would exist irrespective of a candidate’s campaign to seek the nomination or election to office or being elected to a political office.

     Paragraph (2) of section 2-14.1-15, HAR provides an exception to the conclusive presumption. In barring “gifts or donations…in excess of $50 to friends and other persons”, the language implies that any gifts or donations of less than $50 to any person other than immediate family members for any general purpose are authorized expenditures. However, that is not the case. Paragraph (2) provides a narrowly construed clarification. The Commission acknowledges that gifts and donations of less than $50 are allowed, however, those gifts and donations remain subject to the same scrutiny as all other expenditures and must not be used for personal expenses.

     Subsection (b) of the rule identifies the first test that must be satisfied before such expenditures would be permissible. The subsection defines “personal expenses” as those that would exist irrespective of a candidate’s campaign or election to office. We understand this provision to establish a requirement that a proper gift would be one that is less than $50 and is related to the candidate’s campaign or election to office. If a gift would have been given irrespective of the gift-giving candidate’s bid for nomination or elections, it is a personal expense and campaign funds cannot be used.

     The law does not expressly authorize gifts or donations of less than $50 to “friends or other persons” on “occasions” such as the Legislature’s opening day festivities. §11-200(a), HRS provides the legal guideline for the expenditure of campaign funds. As provided above, the law prohibits the transfer of money or anything of value unless the contribution or transfer is “directly related” to the candidate’s own campaign without mention of any expressed exceptions. Section 2-14.1-15, HAR provides additional guidance in the application of this provision by unequivocally prohibiting expenditures for personal expenses. Paragraphs (1) through (9) of subsection (a) provide a listing of expenditures that will be conclusively presumed to be personal expenses. In these enumerated subsections, no showing of personal use is necessary because such expenditures are presumed personal expenses and are not permitted.

     Gifts to fellow legislators may present an additional complication. Section 84-11, HRS, “Gifts.” provides as follows:

No legislator or employee shall solicit, accept, or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence the legislator or employee in the performance of the legislator’s or employee’s official duties or is intended as a reward for any official action on the legislator’s or employee’s part.

This provision of the state ethics code does not fall within the Campaign Spending Commission’s jurisdiction. However, it is imperative that the Commission acknowledges its provisions. Consequently, if gifts by legislators or other government employees implicate or involve resources available because of their official position, an attempt to influence another legislature to their advantage by the use of campaign funds would arguably run afoul of §84-11, HRS. Conversely, if gifts made in connection with elected office or official position is not intended to secure any advantage, the gifts could not be paid for with campaign funds, as they would not be directly related to the candidate’s campaign.

     Therefore, if there were no relationship between the gift recipient and a candidate’s campaign, for example, if no significant campaign related duties were ever performed by the recipient or the recipient’s family member and no benefit was gained by the campaign, the gifts may not be permitted under this rule. In the instant case, the benefits perceivably sought are influence over other legislators, the support for another candidate’s campaign, or general goodwill to fellow legislators, all of which do not impact the candidate’s own campaign and would result in circumstances that fail as valid purposes for gifts or donations under the law.

     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 § 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 amendments to the administrative rules by the Commission.

Dated: Honolulu, Hawaii, February 29, 2000.

CAMPAIGN SPENDING COMMISSION

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A. Duane Black
Chairperson

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Della Au
Commissioner

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Andrea Low
Commissioner

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E. Elizabeth Lee
Commissioner