Advisory Opinion 07-01
Hawaii’s law sets limits for contributions to candidates. The limits on the amounts contributed vary by source and by candidate’s office. These contribution limits are applicable during an “election period.” “’Election period’ means 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 time period between general election days if a candidate is seeking nomination or election to a four-year office.” Section 11-191, Hawaii Revised Statutes (“HRS”).
This Advisory Opinion rescinds a series of past Advisory Opinions1 that have addressed the contribution limits and the election periods for special elections, reapportionment, and overlapping election periods. The rescinded Advisory Opinions are numbered 00-10, 01-05, 01-05 Amended, 01-10, 02-01, and 02-07.
The Commission’s interpretation of contribution limits and election periods for special elections, for reapportionment, and for overlapping election periods follows, beginning with special elections.
HRS section 11-204 (a) (2) provides in relevant part as follows:
(2) For purposes of this section, the length of term of an office shall be the usual length of term of the office as unaffected by reapportionment, a special election to fill a vacancy, or any other factor causing the term of the office the candidate is seeking to be less than the usual length of term of that office.2
Additionally, HAR section 2-14.1-8 (b) provides in pertinent part as follows:
(b) Where a special election is held the applicable contribution limit shall be from the last general election held for the office to the day of the special election.
Thus, for purposes of a special election, the contribution limit will be the limit for the usual length of term of the office. The election period will be from the previous general election for that office until the day of the special election.
For example, if an official elected as Mayor in 2004, leaves office in 2006, and thereafter a Mayoral special election is held in 2006, a candidate for this office will have a contribution limit of $4,000, even though the candidate will hold office for only two years. Moreover, the election period will be November 3, 2004 to the day of the special election.
Further, for the general election that follows the special election, the contribution limit will be the limit for the usual length of term of the office. The election period will be from the date of the previous special election to the day of the general election.
In the example presented above, for the 2008 Mayoral election, the contribution limit will be the limit for the usual length of term of the office. The election period will be from the date of the special election in 2006 to the day of the general election in 2008.
For purposes of a reapportionment, the contribution limit will be the limit for the usual length of term of the office. The election period will be from the previous general election for that office until the day of the special election.
For example, if a reapportionment was mandated, where all twenty-five Senate seats would be opened for election in 2008, Senate incumbents elected in 2004, would have a contribution limit of $4,000, which would be applied for the election period of November 3, 2004 through November 4, 2008. Senate incumbents elected in 2006, would have a contribution limit of $4,000, which would be applied for the election period of November 8, 2006 through November 4, 2008.
For the issue of overlapping election periods, where an elected official now seeks a new office before the elected official’s current office expires, contributions for the previous office will not be aggregated with contributions for the new office for the purpose of contribution limits.
This issue was addressed in Lex R. Smith, et al. v. State of Hawaii Campaign Spending Commission, Civ. No. 02-00068 (D. Haw. filed June 6, 2002). The U.S. District Court for the District of Hawaii held, in an Order Granting Permanent Injunction, that “[t]he Commission is permanently enjoined from reducing the amount of money that may be contributed to a candidate under Haw. Rev. Stat. § 11-204 (a) by the amount of money contributed to the candidate while he or she sought election in a previous election.”
As an example, if Candidate “A” is elected as a Senator in 2006 for a four year term, and decides to run for Mayor in 2008, and Contributor X gave Candidate “A” $4,000 for Candidate “A”’s Senate race, Contributor X may also give Candidate “A” up to $4,000 for the Mayor race. Contributor X’s contributions to Candidate “A” of $4,000 in 2006 will not be aggregated with Contributor X’s contribution of $4,000 in 2008.
This interpretation shall not apply to any candidate who fails to appear on a ballot and any candidate who switches campaigns during the same election period after receiving contributions for a different office3.
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 section 11-191, et seq. and 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, March 1, 2007.
CAMPAIGN SPENDING COMMISSION
Steven E. Olbrich
Michael E. Weaver
1 In Advisory Opinion 00-10, the Commission opined that the contribution limit in a Honolulu City Council special election in 2000, for council seats with an original term from 1998 to 2002, was the amount for the usual length of term of the office, $4,000. The election period was the day after the general election in 1996 through the day of the general election in 2000. (This is corrected in Advisory Opinion 01-10, in which the election period should be from the day of the general election through the day of the special election.)
Advisory Opinion 01-05 provided that the contribution limit for reapportioned Senate seats would be the amount for the usual length of term of the office, $4,000. Following reapportionment, all twenty-five Senate seats were open for election in 2002. Some seats were for two year terms, while others were for four year terms. The election period for those elected in 1998 and running in 2002, was the period from 1998 to 2002, and the election period for those elected in 2000 and running in 2002, was the period from 1998 to 2002. (This confuses the “usual length of term of the office” with the “election period.” The election period for those elected in 2000 and running in 2002 would have been 2000 to 2002.)
Next came Advisory Opinion 01-10, in which the Commission opined that the election period for the 2002 Honolulu City Council special election was the period from the day after the previous general election in 1998 through the day of the special election in 2002. (This was correct, though it referenced HAR section 2-14.1-10 which was later repealed on January 25, 2002.)
Thereafter, Advisory Opinion 01-05 Amended was published and provided that the election period is not decided by the usual term of the length of the office. Rather, the election period was the period between the general election and the Honolulu City Council special election in 2002. A second point made by this Advisory Opinion was that where a candidate participates in a special election prior to a primary or general election, the candidate “may be subjected to an overlapping contribution period and aggregate contribution limits would apply.” (This correctly identified the election period as running from general election to general election, or from general election to special election. However, the Hawaii U.S. District Court later ruled that a candidate’s contributions cannot be aggregated for overlapping election periods.)
Advisory Opinion 02-01 clarified the election periods for special elections and reapportionment. (This Advisory Opinion is correct and its contents will be subsumed into new Advisory Opinion 07-01.)
Finally, in Advisory Opinion 02-07, the Commission opined that “contributions given to a candidate who campaigns for and appears on the ballot for different elected offices with overlapping election periods will not be aggregated together for contribution purposes.” (This is correct and will be subsumed into Advisory Opinion 07-01.)
2 This paragraph was added by Act 242, SLH 2000 “to resolve uncertainty about limits for candidates seeking nomination and election to state senate offices after the reapportionment in 2001 results in some senators elected to serve for two years and others for four.”
3 Advisory Opinion 01-11 provides guidance for a candidate that switches campaigns during the same election period.