By: Jack Notar
Several months ago, I was hit by a sudden urge to move to Hawaii. I’d never been before, but I’d seen pictures, and my college roommate had just gotten back from a vacation there. She’d spent a month aboard a fashion mogul’s yacht, docked off the port of Honolulu, kayaking during the day, and drinking rum at night. Yacht-owners, from what I’ve been told, are almost never on the high seas. They have companies to run, politics to control, and mistresses to impress. At most, they spend a month out of the year actually using their vessels and let them sit idle the rest of the time. During this eleven-month period, yacht-owners hire out skeleton crews to keep their boats up and running. These skeleton crews are left to their own devices, so long as they’re ready at a moment’s notice to pick up the owner and his 20-40 closest friends. My roommate joined a skeleton crew and went on to have “the best month of her life.”
Hawaii isn’t like the other states. For one, it wasn’t even a state until 1959. Located 2,000 miles from the mainland, for centuries it was its own kingdom – The Kingdom of Hawaii – until we decided to make it state number fifty. Hawaii, in a lot of ways, still acts like it’s on its own. For instance, through a healthcare bill enacted in the 1970s, Hawaii essentially guarantees healthcare for a vast majority of its citizens, bested only by Massachusetts; Hawaiian law firms are small, really only located in Hawaii, and its lawyers are experienced (some would say old), especially when compared to more robust metropolitan legal centers like San Francisco or New York City; and now, with HRS §11-362, Hawaiian elections will be bought and paid for mostly by Hawaiians. Yes, yes just like other hermit states – think Iceland or North Korea – Hawaii is trying to limit the amount of influence outsiders have over it. Those from the mainland may be allowed to park their boats there and even sail around the white shores, but they should leave their politics at home.
HRS §11-362 states, in plain language, that candidates for state-level offices can raise no more than 30% of their campaign funds from out-of-state contributions. The statute is almost one of a kind, with only Alaska also having a cap on out-of-state contributions (although their statute was recently struck down by the 9th Circuit Court of Appeals and is now up in front of the Supreme Court). Unlike Alaska’s bill, however, little has been said since passage of the Hawaii bill in 2010. Alaskan bill proponents said that the purpose of their statute was to stem corruption and money in politics, with detractors saying that the bill stifles First Amendment free speech. Hawaii, on the other hand, apparently has no proponents and no detractors. No mention of the bill can be found online, and you’ll find no record of it on the Hawaii State Campaign Spending Commission’s website. If you type “30% out-of-state contributions Hawaii campaign finance,” or something similar, into a search engine, nothing of substance will come up. Hell, without a Lexis Nexis or WestLaw subscription, it’s almost impossible to find a transcript of the actual statute. And even with one of those subscriptions, there’s very little to see. All of this – the lack of substance and litigation, the endless search to even find the bill – begs the question: has the bill done anything?
Hawaiian politics have been dominated by Democrats and incumbents since around the Nixon resignation. That’s almost forty years of total control. Hawaii’s state legislature currently has just a handful of Republicans in its 76 seats, all four of Hawaii’s federal congressmen are Democrats, the last Republican president a majority of Hawaiians voted for was Reagan (when he was up against the pitiful Walter Mondale), and there’s been only one Republican governor since the Kennedy assassination. While the Hawaiian campaign finance bill may be only nine years old, and things can always change, Hawaii is run by a certain group of individuals, and it looks like that group ain’t changing.
The Alaskan bill’s recent defeat may give mainlanders looking to influence Hawaiian elections hope. For if Alaska’s bill can go down, why not Hawaii’s? The two states are in the same circuit after all. But not so fast. The whole Alaska litigation fiasco started because a mainlander couldn’t give his Alaskan brother-in-law money for his campaign. Hawaii is already one step ahead of this potential problem. Their bill, unlike Alaska’s, clearly states that contributions from immediate family members don’t count. And while Alaska places a dollar limit on out-of-state contributions – which was struck down on First Amendment grounds – Hawaii only places a percentage limit. Who knows how a court may interpret the difference? Part of the 9th Circuit’s reasoning for striking down the Alaska bill was that it doesn’t make sense for a donation that comes earlier (before the dollar limit is reached) to be allowed, when a later donation wouldn’t be. But Hawaii’s bill creates the reality of a continuum. While you may be able to give to a politician on Saturday, but not on Sunday, if the campaign gains a lot of in-state money on Monday, you can give on Tuesday. This reality might seem arbitrary, but arbitrary does not equate to prohibitive.
So, will Hawaii’s bill be challenged in court? The real answer is that it doesn’t matter. Hawaii post-bill looks the same as it did pre-bill: blue and rejecting change. There’s a good argument to be made that HRS §11-362 is unconstitutional, but what would be the point in challenging it? For some upcoming lawyer to make a name for him or herself? But who would pay their bills? Republicans won’t waste the money, and Democrats won’t upset the apple cart. Maybe a fervent First Amendment group? Do those even exist anymore? Who knows. If I had to make book on this whole thing, I’d put the odds at 10:1. And even then, I’d still take the favorite. Hawaiians move at a slower pace than the rest of us, for as they say on the big island, “why make waves in the courtroom when there are plenty outside your window?”