Campaign Spending Commission

     The Campaign Spending Commission (“Commission”) issues this Advisory Opinion in response to a question regarding an advertisement run by a candidate for the House of Representatives that included other candidates and elected officials.  The issue is whether the advertisement was merely an endorsement by the other candidates, and thus, a permissible expenditure by the candidate; or whether it expressly advocated the election or defeat of other candidates and, thus, payment would need to be pro-rated among the House candidate and other candidates.

     The Commission responds that the advertisement was a permissible expenditure under the specific circumstances described in this Opinion.

     The advertisement was entitled “Teamwork” and stated that “Big Island Legislators Support” the candidate and that “It takes Teamwork to Get Things Accomplished in the Legislature.”  The advertisement included a group shot of the candidate and seven State legislators.  Additionally, the names of the seven legislators were listed in the advertisement, along with the names of another legislator and the legislator whose seat the candidate was seeking.  The advertisement included a notice that it was paid for by the candidate’s committee.1  The candidate paid $773.77 to publish the advertisement six times in October and November, 2006 in the Hawaii Tribune Herald (Herald).

Contributions must be used only for expenditures permitted by Hawaii’s campaign spending law.  Hawaii Revised Statues (“HRS”) §11-200 states that:

(a) A candidate, campaign treasurer, or candidate’s committee shall not receive any contributions or make any transfer of money or anything of value:

(1) For any purpose other than 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 campaigns 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.

     The Commission has previously provided “advice on the parameters of endorsements by one candidate for another candidate.”2

 The Commission…relies on the notion that donors give contributions to a candidate to be used by the candidate solely for that candidate’s own campaign.  In addition, a candidate that is able to raise large amounts of funds is prohibited from using those funds to assist another candidate.  A plain reading of the statute provides that there can be no transfer of “anything of value”.  Therefore, if a candidate has an official campaign photo taken and paid for with campaign funds, the use of a copy of that photo to support another candidate would in fact constitute a transfer of something of value. Purchasing t-shirts with campaign funds and giving them to another candidate is a transfer of something of value.  A candidate loaning campaign signs purchased with campaign funds to another candidate is a transfer of something of value.  Similarly, candidate phone banks, polls and surveys by one candidate and shared with another candidate could be a transfer of something of value.  Loaning campaign funds to another candidate, however temporary, is prohibited.

In other instances, a candidate will ask voters to support a fellow candidate, such as a House candidate asking for support of a Senate candidate running in the same district, in a brochure or newspaper advertisement.  Clearly, if a candidate pays for an advertisement and asks voters to support a fellow candidate in the same advertisement, section 11-200, HRS, is violated.  In some instances, candidates have paid for advertisements and supported a fellow candidate in more subtle ways through photos and content.  While endorsement of a fellow candidate in and of itself is not a violation, the transfer of anything of value from campaign A to campaign B or candidate A expressly supporting candidate B in an advertisement paid for by candidate A will be considered a violation.  In summary, a violation occurs when there is a clear and unambiguous endorsement by candidate A for the candidacy of candidate B that involves the transfer or expenditure of any resources from the campaigns of either candidate for the benefit of the other.  (Emphases added.)

     The payment for this advertisement is a permissible expenditure by the candidate.  The legislators endorsed the candidate; however the candidate did not provide anything of value to further their election.  While the Herald has an island-wide circulation and this advertisement was published six times just before the general election, the advertisement did not expressly advocate the election or defeat of legislators or refer to the candidacy of legislators for re-election.3  The advertisement did not state that “we” ask for your vote or implore voters to vote for “us.”

     Moreover, the candidate was prominently featured in the advertisement.  She appeared twice in the advertisement; she was in the center of a group picture with the legislators and another picture of the candidate was superimposed over the group picture.  The legislators were not involved in preparing or reviewing the advertisement.  The advertisement did not solicit contributions for the legislators (or the candidate).  Therefore, payment for the advertisement was not a non-monetary contribution to the legislators’ campaigns, but instead was an allowable expenditure of the candidate’s funds for the candidate’s election.

     The Commission provides this Advisory Opinion as a means of stating its current interpretation of the Hawaii Campaign Spending 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 Hawaii Revised Statues (HRS) §11-215.

2 Advisory Opinion No. 00-12.

3 Nine Big Island legislators were included in the advertisement.  One State senator was unopposed for election.  Another State senator’s term had not expired.  Two House candidates were unopposed; and four candidates were opposed in the general election.  The last person was the retiring legislator whose seat the candidate was seeking.