The Hawaiʻi

State Constitutional Convention Clearinghouse

Information Related to Hawaiʻi's November 6, 2018 State Constitutional Convention Referendum

Summary: Over an eight day period from Nov. 5, 2018, when the campaign finance disclosure violation was made on the front page of the Honolulu Star-Advertiser, to Tuesday morning, Nov. 13, 2018, when this summary is being written, the Campaign Spending Commission was aware of and acknowledged the violation but did nothing about it. This post charts that correspondence. The first email was published on Hawai`i Free Press on Nov. 5, 2018. A similar violation and enforcement dynamic (that is, an indifference to enforcing the law) occurred in Rhode Island in 2014.


From: ‘J.H. Snider, The Hawai`i State Constitutional Convention Clearinghouse’
Sent: Monday, November 5, 2018 2:36 PM
To: 
Campaign Spending Commission
Subject: Violation of Hawaii law regarding advertising in today’s front page print edition of the Honolulu Star-Advertiser
Importance: High

Dear General Counsel Kam:

Before sending this email to you, I called the Campaign Spending Commission’s phone at 808/586-0285 to make sure you were the appropriate contact person. I am filing a complaint regarding advertising on the front page, upper-right of today’s Honolulu Star-Advertiser and other publications. As I understand the law, such ads require a disclaimer containing the name and address of the committee paying for the advertisement. For example, see Advisory Opinion 04-03:

The Campaign Spending Commission by this advisory opinion responds to questions that arise often in the course of an election. Section 11-215, Hawaii Revised Statutes (“HRS”) provides that all advertisements, as defined under section 11-191, HRS, shall include a disclaimer containing the name and address of the candidate, committee, or party paying for the advertisement. The purpose of the disclaimer is to clearly identify to the public the person or persons behind an advertisement and where they can be contacted.

The disclaimer requirement applies to all advertisements, which includes any communication, exclusive of bumper stickers or other sundry items, that advocates for or against a candidate or ballot issue. A communication is broadly considered as published, broadcast, televised, or otherwise circulated and distributed.

I look forward to finding out what steps, if any, your office is taking to remedy this problem. Earlier today, I both emailed and called in a complaint to the Office of Elections. Since I didn’t get through on the call and didn’t hear back on the email, I thought I should reach out to you. Given that today is one day before Election Day and the ad was placed in the most prominent media location in the entire State on the most competitive ballot item in the entire State, this matter should be treated with the utmost urgency.

Sincerely,

J.H. Snider, Ph.D.|
Editor of  The Hawaiʻi State Constitutional Convention Clearinghouse

(J.H. Snider is the author of Who Spent What, When, and Where on the Con-Con Referendum.)


Source: Snider, J.H., ConCon Complaint: Campaign Spending Violation on Front page, Hawai`i Free Press, November 6, 2018.


November 6 Update

Dear Editor Walden:

I thought you might be interested in this update. Beginning late yesterday afternoon just before the Campaign Spending Commission closed and six times today beginning about an hour after the Commission’s office opened, I called the Commission to follow up on my email to the General Counsel. Each time I called the publicized contact telephone number, (808) 586-0285, I got a recorded message asking me to leave a message with my contact information. More than 20 hours have passed since I left my first message with contact information, and no one has called me back.

I confirmed with the Office of Elections that the Campaign Spending Commission is responsible for all disclaimer notice violations and that (808) 586-0285 is the correct number to call.

The log of my telephone correspondence following up on my email to General Counsel Kam is copied below. I primarily called back in the hope, which proved unrealistic, of reaching a human being.

November 5, 2018

  • Called at 4:25 pm and left a voice message with the requested contact information.

November 6, 2018

  • Called on 11/6/2018 at 8:40 am and left a voice message with the requested contact information.
  • Called on 11/6/2018 at 9:00 am and left a voice message with the requested contact information.
  • Called on 11/6/2018 at 9:25 am and left a voice message with the requested contact information.
  • Called on 11/6/2018 at 10:15 am and left a voice message with the requested contact information.
  • Called on 11/6/2018 at 11:30 am and left a voice message with the requested contact information.
  • Called on 11/6/2018 at 12:15 pm and left a voice message with the requested contact information.

To paraphrase a maxim taught to law students, a law without an effective remedy is a farce. The Campaign Spending Commission’s ad disclaimer requirement regarding the constitutional convention ballot question is such a farce.

Although the tendency is to focus on the advertiser’s role in this violation, the newspaper’s critical enabling role may be more fundamental and thus important. When the state’s most prominent newspaper, the Honolulu Star-Advertiser, has a financial incentive to blatantly violate a campaign finance disclosure law, something is obviously flawed in that law.

A premise of the ad disclaimer disclosure law was that the court of public opinion, implemented via the power of the press, would be adequate to deter violations. Otherwise, the negligible financial penalties, a $25 fine for an ad that could cost many thousands of dollars (with 100% of the $25 fine allocated to the advertiser and 0% to the press selling and promoting the ad), would be inexplicable. But when those assumed to be the chief enforcers of the law instead become the chief enablers of its violation, the enforcement system is built on a fatally flawed premise.

Sincerely,

J.H. Snider, Ph.D.
Editor of  The Hawaiʻi State Constitutional Convention Clearinghouse


November 7 Update

General Counsel Gary Kam returned my calls at 11:15 am. He confirmed that the ad violated the law but that under the statute the enabler of the violation, the Honolulu Star-Advertiser, had no legal liability and the liability of the advertiser, the short-lived Preserve Our Hawaii, would be limited to $25, assuming this was their first violation. We discussed additional details, such as that Preserve Our Hawaii had both previously run the same ad and done so with the required disclaimer.


November 9 Update

From: J.H. Snider, The Hawai`i State Constitutional Convention Clearinghouse [mailto:snider@hawaiiconcon.info]
Sent: Friday, November 09, 2018 1:22 PM
To: Hawaii Campaign Spending Commission <csc@hawaii.gov>
Subject: RE: violation of Hawaii Law regarding advertising in today’s front page print edition of the Honolulu Star-Advertiser

Thank you for calling me on Wednesday morning in response to my email to you on Monday [see above]. Thank you also for saying you would investigate the complaint. I called a few minutes ago to follow up and was told you were busy and couldn’t take the call, so I left a message requesting that you get back to me by the end of today. Please let me know if Preserve Our Hawaii agreed to pay the $25 fine in response to your query. I cannot imagine a simpler case than this one. Hopefully, it didn’t take more than a few minutes of your time to resolve.

J.H. Snider, Ph.D.
Editor of The Hawaiʻi State Constitutional Convention Clearinghouse


From: Hawaii Campaign Spending Commission <csc@hawaii.gov>
Sent: Friday, November 9, 2018 8:27 PM
To: ‘J.H. Snider, The Hawai`i State Constitutional Convention Clearinghouse’
Subject: RE: violation of Hawaii Law regarding advertising in today’s front page print edition of the Honolulu Star-Advertiser

Dear J.H. Snider, Ph.D.:

We only have five employees. We regulate over 600 committees. With the election over, our main focus is to certify that all winning candidates are able to be sworn into office. In the meantime if you have proof that Preserve Our Hawaii paid for the front-page advertisement in the November 5, 2018 Star Advertiser (which I am unwilling to assume), attached is a complaint form for you to fill out. Pursuant to Hawaii Revised Statutes §11-402(c), a complaint filed by a person other than the Executive Director must be notarized. Send the completed application back to the Commission. Thank you.

********

Confidentiality Notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and/or privileged information. Any review, use, disclosure, or distribution by unintended recipients is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and delete and/or destroy all copies of the original message.

Use of Email Limited: E-mail messages to Commission staff shall not be considered or construed to be a request for an advisory opinion to the Commission under HRS §11-315, nor shall e-mail messages from Commission staff be considered or construed to be an advisory opinion rendered by the Commission.


Note: The email above lacks an identified author but for purposes of the email below I assumed it was General Counsel Kam because I had previously emailed and spoken to him, and even if he didn’t author it, he at least assigned it.

From: J.H. Snider, The Hawai`i State Constitutional Convention Clearinghouse <snider@hawaiiconcon.info>
Sent: Friday, November 9, 2018 11:22 PM
To: ‘Hawaii Campaign Spending Commission’ <csc@hawaii.gov>
Subject: RE: violation of Hawaii Law regarding advertising in today’s front page print edition of the Honolulu Star-Advertiser

Dear General Counsel Kam:

You cannot be serious. When we spoke on Wednesday, you acknowledged that the violation was self-evident. It was, after all, on the front page of the Honolulu Star-Advertiser on the day before Election Day in the highest profile advertising spot in all of Hawaii, and you had already confirmed the violation.  You initially suggested that you call the Star-Advertiser to find out who placed the ad.  I responded that that probably wasn’t necessary as the only ballot issue committee on the constitutional convention referendum to register with your office was Preserve Our Hawaii. Moreover, Preserve Our Hawaii had already run the same ad on the interior pages of the Star-Advertiser with the disclaimer specifying who had placed the ad. In response, you said you’d contact Preserve Our Hawaii and get back to me. We’re talking about a $25 violation here.  Please don’t waste my time and your time on what is clearly a bureaucratic absurdity. I have already submitted the complaint in writing, and you have already confirmed the violation. And if for some reason you doubt the source of the ad was Preserve Our Hawaii, you can call the Star-Advertiser to find out who placed it, as you originally planned to do anyway.

Please don’t make a mockery of the Campaign Spending Commission, and the trust the public has placed in it.

Sincerely,

J.H. Snider, Ph.D.
Editor of  The Hawaiʻi State Constitutional Convention Clearinghouse

 

Pin It on Pinterest