Advisory Opinion 01-11
A candidate asks for an advisory opinion to clarify sections 11-203 and 11-204, Hawaii Revised Statutes (“HRS”) regarding the applicable contribution limit for any person contributing to a candidate where the candidate seeks an office, different from the office that the candidate initially sought during the same election period. This factual situation also raises the issue of which fundraising provision should be applied where a candidate for a statewide office decides to seek a non-statewide office within the same election period. These questions arise because the candidate held more than two “fundraisers” and received contributions from persons for a 2002 statewide gubernatorial campaign, however, prior to the primary election for the gubernatorial seat, the candidate initiated a new alternate campaign to seek a non-statewide mayoral seat. The campaign finance laws impose lower contribution limits and a fixed number of allowable fundraiser activities for a non-statewide office campaign
The request for guidance on the applicable contribution limits for a candidate who originally campaigned for statewide office and subsequently decides mid-election period to seek a non-statewide office presents the Commission with an issue of first impression. The current statutes provide guidance with respect to the application of contribution limits but no legal precedence or guidance for fundraiser limitations when a candidate switches campaigns within the same election period. In the absence of such direction we can only conclude that the statute reflects no explicit intent to penalize a candidate, for statewide office, for holding in excess of two fundraisers before switching campaigns.
For reasons discussed below, the Commission finds that section 11-204(a), HRS, will be interpreted to require the candidate to return prior contributions received while the candidate was actively seeking a statewide gubernatorial seat but are over the applicable contribution limits for the office sought. Also, the candidate will be allowed the statutory maximum of two fundraisers for seeking nomination or election to the non-statewide office.
In Advisory Opinion 00-05, the Commission stated that section 11-204(a), HRS, provides that the applicable contribution limits for the election period are determined by the office that the candidate is actively seeking. All contributions received from any person during the applicable election period are counted toward the contribution limit for the office that the candidate now seeks regardless of whether the candidate was seeking a different office during the same election period. A nearly identical question was addressed in Advisory Opinion 97-04 where a prevailing candidate for a two-year term sought a subsequent four-year term.
Section 11-204(a), Hawaii Revised Statute reads as follows:
(a) No person, political party, political committees established and maintained by a national political party, or any other entity shall make contributions to:
(1) A candidate seeking nomination or election to a two-year office or to the candidate’s committee in an aggregate amount greater than $2,000 during an election period;
(2) A candidate seeking nomination or election to a four-year statewide office or to the candidate’s committee in an aggregate amount greater than $6,000 during an election period; and
(3) A candidate seeking nomination or election to a four-year nonstatewide office or election to a four year nonstatewide office or to the candidate’s committee in an aggregate amount greater than $4,000 during an election period.
These limits shall not apply to a loan made to a candidate by a financial institution in the ordinary course of business. (Emphasis added)
The contribution limits are defined by the words “during an election period”. Section 11-191, Hawaii Revised Statutes defines “election period” as “the two-year period between general election days if a candidate is seeking nomination or election to a two-year office and the four-year period between general election days if a candidate is seeking nomination or election to a four-year office”. Thus, in both prior instances the Commission opined that the applicable contribution limit for any contributor is the limit prescribed for the office that the candidate seeks within a given election period.
Section 11-203, HRS, specifically provides that candidates who are not seeking statewide office are limited to no more than two fundraisers prior to a general or special election. Fundraisers are defined in section 11-203, HRS, to mean any function held for the benefit of a person that is intended or designed to raise funds for a political purpose where the price or suggested contribution exceeds $25 per person. This provision does not speak to or contemplate the status of a candidate who seeks a statewide office, with no fundraiser activity limits, and subsequently switches to a non-statewide campaign with applicable fundraiser activity limits. At the time that the candidate held more than two fundraiser activities, the candidate was acting in compliance with all applicable laws and administrative rules. The campaign spending law does not support a finding that a technical violation of the fundraising statutory provision exists by virtue of the candidate’s decision to switch campaigns.
The Commission believes that a statutory amendment is necessary to adequately address both issues. However, to promote the policies of the campaign spending laws and in fairness to candidates who must resolve these issues for the 2002 elections, the Commission finds that a fair conclusion requires that candidates, who received contributions in excess of the applicable contribution limits for the office being sought, notify the Commission and return those contributions, equal to the excess, back to the original contributors within thirty days of being deemed a candidate under the Campaign Finance law. The return of such contributions shall not be subject to any fines or penalties for receipt of excess contributions. Contributions not returned within thirty days shall escheat to the Hawaii Election Campaign fund.
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 amendments to the administrative rules by the Commission.
Dated: Honolulu, Hawaii, November 21, 2001.
CAMPAIGN SPENDING COMMISSION
A. Duane Black