Back in September 2015, I examined assertions being made by Kioni Dudley that ethics laws required Honolulu City Council members who received significant contributions from development interests, or who benefited from the independent activities of Super Pacs supporting the development of Hoopili, to recuse themselves from decisions regarding the development, which Dudley has strongly opposed. He suggested that the votes could be voided as a result of their failure to recuse themselves.
At the time, I described his view as an interesting theory, but one that was not supported by a clear reading of the law. Essentially, the city ethics provisions explicitly allows council members to solicit and accept legal campaign contributions. And as to the independent activities of Super Pacs, candidates could not be required to disclose those because, by definition, any such expenditures are independent of the candidates.
Yesterday the Honolulu Ethics Commission issued two opinions which generally agreed with my assessment of the two issues raised.
Advisory Opinion 2017-1 found that independent expenditures by Super Pacs do not create a conflict of interest for council members who benefit from their activities because “they are made without the coordination of a candidate or a candidate’s campaign and are therefore too attenuated.”
The opinion quotes from a federal court decision in the case of Yamada v. Kuramoto.
Although the government might still limit contributions made directly to candidates or parties, “the need for contribution limitations to combat corruption or the appearance thereof tends to decrease as the link between the candidate and the regulated entity becomes more attenuated.” If the organization receiving contributions truly engages in only independent expenditures, the link is not only attenuated—it is broken. An anti-corruption or appearance of corruption rationale is nonexistent.
Advisory Opinion 2017-2 addresses the issue whether a candidate who receives 40% or more of their campaign contributions from a special interest group has a conflict of interest as a result of those contributions.
The commission found that the matter is beyond their jurisdiction “because campaign contributions, regardless of amount, are specifically excluded from said section.” That’s the same thing I pointed out back in my 2015 post.
Furthermore, the opinion properly notes that the Campaign Spending Commission has “primary and exclusive jurisdiction over campaign issues,” and so the campaign laws preempt the kinds of issues Dudley has raised.