John White, director of the Pacific Resource Partnership, primary sponsor of a website bashing mayoral candidate Ben Cayetano for having been on the receiving end of illegal campaign contributions in his last campaign more than a decade ago, sidesteps an important point in his discussion of campaign finance ills.
1998 was a long time ago in terms of how special interest money flows into campaigns. The crackdown on contributors who bypassed contribution limits by giving money under false names, or using shills as intermediaries, resulted in a series of criminal prosecutions along with the Campaign Spending Commission’s administrative fines, and effectively broke the back of that kind of influence buying.
Then along came Citizens United, the U.S. Supreme Court decision that bestowed personhood on corporations and took the lid off of special interest campaign money.
As a result of Citizens United, those corporate interests can legally spend as much as they want to support or oppose candidates as long as they are technically “independent” of the candidates.
John White and PRP are right there at the front of the line in taking advantage of this new campaign landscape.
PRP was one of the first “Super Pacs” to registered with the Campaign Spending Commission, allowing it to accept unlimited contributions from other corporations, individuals or organizations, and spend unlimited amounts attacking candidates of choice, in his case Ben Cayetano. It registered as an “independent expenditure committee” on June 1, a month after launching its “Imua Rail” campaign.
PRP and other corporate interests no longer have to use those clumsy old techniques of false names and accidental overages. Now they’re free to spend what they want to spread their propaganda and attack ads.
I’m afraid the contemporary form of money & politics is a lot more damaging to democracy than the old, nickel and dime stuff.
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This is an interesting point, Ian. In light of the new landscape of campaign finance law, big supporters might indeed decide the risk/reward calculus for making illegal contributions is lousy compared to the one for funneling money to a PAC. Illegal contributions might wane.
But I think this glosses over the fact that Super PACs’ independent expenditures have not eliminated the need for hard money. Candidates still spend a lot of time and energy raising money, and key supporters still give the max directly to the campaigns. That’s because hard money gives candidates greater flexibility to use it toward whatever ends they deem necessary. Someone, somewhere, is still giving his or her employees bonuses with the intention that they’ll donate it to a particular candidate.
So I don’t know that it’s fair to draw a straight line between independent expenditures and illegal campaign contributions. At the very least, the latter broke the law while the former does not. That’s a key distinction, no?
US. Supreme Court has left democracy in a helluva vise (or is that vice?)
I will be voting for Ben Cayetano for mayor, because he opposes the rail project, he recognizes the need to improve sewage disposal and infrastructure and avoid raising taxes; and he gave a pretty good imitation of being a Republican governor. But I’m writing in support of giving corporations the same free-speech rights as individuals.
I know the left loves to rail against what Ian describes as “Citizens United, the U.S. Supreme Court decision that bestowed personhood on corporations and took the lid off of special interest campaign money.” But that court decision did not “bestow” personhood on corporations, which have long been recognized as having aspects of personhood. And that court decision did not “take the lid off of” special interest campaign money, which the labor unions have long been infusing into political campaigns.
Labor unions have long enjoyed collecting dues from their hapless members and spending gobs of money on political activities unrelated to collective bargaining, including huge campaign contributions to lefty candidates even when most of their members actually oppose them. It’s very hard for individual union members to enforce federal law allowing them to demand refunds for the portion of their union dues or “agency fees” which go to political activity. If unions can have PACs, then corporations should also be able to have them. Corporations have long been recognized in law as having many of the attributes of personhood, including the right to sue, and be sued, for slander, libel, defamation, etc. (look up “SLAPP” lawsuits) and to be found guilty of violating criminal laws.
Anyway, even though I am in favor of Cayetano’s candidacy, and I think the PRP ads against him are reprehensible, I support the right of corporations to have superPACs (independent expenditure groups).
History will likely record that the Citizens United decision marks the beginning of the end of our democracy and the beginning of the rise of its replacement by a corporate plutocracy.
Sorry Ian, but I have to disagree with your statements against John White and the Pacific Resource Partnership.
If you take a close look at all the the “Super PACS” across the country, I understand that about 85% are run conservative political activists who want to do away with everything from minimum wages to reproductive choice to public schools.
Since I will never see in my lifetime elections at all three levels of government funded other than with private money, I appreciate PRP stepping up to go after that person running for mayor,
No worries, it won’t be the first time.
Ben, has my vote!
On the Civil Beat website, attached to an entry by Michael Levine, I recently came across a 2006 State Attorney General Opinion written in response to a question from the Campaign Spending Commission. I believe the AG Opinion serves to explain why former Governor Ben Cayetano is not required to replace money “abandoned” to his campaign fund by donors using false names if the “abandoned” money was used for campaign purposes before Governor Cayetano was made aware that campaign spending laws had been violated by the donors.
The AG Opinion states that “under Hawaii Revised Statutes (“HRS) § 11-202, ‘[a]ll contributions made in the name of a person other than the true or established name of the actual owner of the money or property shall escheat to the Hawaii election campaign fund.’ The resolution of your inquiry hinges on how the term “escheat” is treated for purpose of HRS § 11-202.”
“Escheat”?
The AG Opinion goes on to discuss the meaning of the word “escheat.” It’s all in the body of the opinion that will be included at the end of this comment, but what stands out to me is that according to the AG Opinion “escheat” is generally used in situations unrelated to wrongdoing. Rather, “escheat” is used, for example, to describe what becomes of the property of individuals who die without heirs. The AG Opinion further explains that “the term applies to the process by which the State takes title or interest to property that has been presumed to be abandoned.” My assumption is that this reflects the intent of the crafters of the law who intentionally avoided the use of the word “fine,” which would denote wrongdoing in favor of “escheat” to reflect the presumed innocence of campaigns to which contributions have been made by donors through the use of various illegal methods, including the use of false names. It is vital to keep in mind that in Governor Cayetano’s situation it is the donors that have been found to have acted illegally, not the campaign.
A later paragraph offers two possible meanings of the word “escheat.” This is the definition of “escheat” that the AG Opinion, in the end, assigns to Governor Cayetano’s situation:
“if instead, the term “escheat” is understood to essentially be a forfeiture of funds that have been abandoned by the contributor due to the use of a false name, then the candidate’s committee merely needs to turn over whatever funds it has up to the amount of the false name contribution. No further debt would be owed to the Campaign Spending Commission if the candidate’s committee did not have enough money to turn over.”
Regardless of what Governor Cayetano’s political enemies believe, or claim to believe, the Attorney General Opinion concludes “Given that we cannot impute knowledge of a false name contribution, it would be inappropriate to penalize the candidate by treating the reference to ‘escheat’ as being the equivalent of a fine. [. . .] the term ‘escheat’ is simply a forfeiture of whatever the candidate’s committee has up to the amount of the false name contribution.”
In other words, you shouldn’t fine someone who has not been proved to have done anything wrong, presumably because to pursue such a penalty in a situation like the one Governor Cayetano, and others, found themselves in would in itself be wrong. Instead, the Campaign Spending Commission takes what’s left of the contribution a donor “abandoned” by violating the law and that’s all there is to it according to this legal opinion.
To reiterate, in Governor Cayetano’s situation, the word “escheat” cannot be defined “as being the equivalent of a fine” because a person in Governor Cayetano’s position is less guilty of wrongdoing than a person who gets “fined” for not returning to a parking meter before time runs out.. After what has been said on various online forums over the past few weeks I feel this point must be emphasized — the word “escheat” is used because the word “fine” is inappropriate for Governor Cayetano’s situation.
***
STATE OF HAWAII
DEPARTMENT OF THE ATTORNEY GENERAL
425 QUEEN STREET
HONOLULU, HAWAII 96813
(808) 586-1500
April 3, 2006
Barbara U. Wong
Executive Director
Campaign Spending Commission
235 S. Beretania Street, Room 300
Honolulu, Hawaii 96813
Re: False Name Contributions
Dear Ms. Wong:
This is in response to your letter, dated March 6, 2006, requesting our opinion as to what
happens if a false name contribution is discovered after an election and the candidate has already expended or encumbered the candidate’s funds, including the false name contributions.
Specifically, you ask whether the inability of the candidate’s committee to pay for the false name contribution would cause it to run a deficit.
As you are aware, under Hawaii Revised Statutes (“HRS) § 11-202, “[a]ll contributions made in the name of a person other than the true or established name of the actual owner of the money or property shall escheat to the Hawaii election campaign fund.” The resolution of your
inquiry hinges on how the term “escheat” is treated for purpose of HRS § 11-202.
The term “escheat” can have a variety of meanings depending on the context in which it
arises. Typically, the term is used in the context of intestacy to refer to the process whereby
property reverts to the State due to a lack of anyone competent to inherit. Black’s Law Dictionary 545 (6th ed. 1990). Similarly, the term applies to the process by which the State takes title or interest to property that has been presumed to be abandoned. HRS § 523-1.
In the present situation, if the term “escheat” is understood to essentially be a fine then the candidate’s committee is responsible for the payment of the false name contribution, even if this results in the candidate’s committee running a deficit. If instead, the term “escheat” is understood to essentially be a forfeiture of funds that have been abandoned by the contributor due to the use of a false name, then the candidate’s committee merely needs to turn over whatever funds it has up to the amount of the false name contribution. No further debt would be owed to the Campaign Spending Commission if the candidate’s committee did not have enough money to turn over. As noted in your letter, “escheated property is subject to the control of the lawmaking
powers . . . so long as it remains intact and has not been used or consumed for some other purpose.” Shanks v. Board of Education of City of Wischester, 221 Ky, 470, 470, 298 S.W.
1111, 1112 (1927). In other words, the Campaign Spending Commission cannot be escheated more property than exists in the candidate’s campaign fund.
Given that we cannot impute knowledge of a false name contribution, it would be inappropriate to penalize the candidate by treating the reference to “escheat” as being the equivalent of a fine. Additionally, the assessment of an administrative fine in a campaign spending context cannot occur without providing “written notice and an opportunity to be heard at a hearing conducted under chapter 91.” HRS § 11-228. As such, the term “escheat” is simply a forfeiture of whatever the candidate’s committee has up to the amount of the false name contribution.
Should you have further questions, please feel free to contact us at 586-1255.
Very Truly Yours,
Aaron H. Schulaner
Deputy Attorney General
APPROVED:
Mark J. Bennett
Attorney General
Interestingly, once the Campaign Spending Commission takes the illegally made “abandoned” contributions from the campaign committee to which the funds were “abandoned,” and votes to close the case, thereby freeing the candidate to whom illegal contributions were “abandoned” to run for office in the future, if one employs reasoning similar to that used by certain political enemies of Governor Cayetano in their attacks on him, it becomes fair game to say something along the lines of “members of the Campaign Spending Commission took illegal contributions; they took pay to allow candidates to play.”
And if former members of the spending commission were to publicly oppose this rail project, it could happen. It’s exactly the way some rail proponents operate. Words are grouped together in a way that has some sort of basis in reality but that leaves the public believing something divorced from that basis. And they get away with it to an extent — an extent that remains to be measured in Gov. Cayetano’s case. It’s rather disturbing really.
America has long been a corporate plutocracy that likes to pose as a pseudo-democracy.
Evidence of the abuse of power:
Big Five
AT&T
Standard Oil (ExxonMobil)
The Supreme Court can and will overturn its own stupid previous decisions. as such, I’m far more concerned right now with getting Obama in for another four and keeping the US Senate away from Republicans grasping at straws (AND i am NOT SO CONCERNED ABOUT THE DANGER OF RAIL ON AN ISLAND, BETWEEN KAPOLEI AND ALA MOANA!!! OMG WE ALL GONNA DIE! lord, it’s a miracle hawaii allows its own airports…..)
The reaction I get around town is that people do not like the PRP “bash Ben” ads. Two points keep coming up: 1) the ads smell of dirty politics and 2) PRP comes across as a greedy organization. In the end they may be counterproductive to what PRP hopes to achieve.
I came across the page I’ve quoted from below at honolulumagazine.com recently. Seeing as how the “frontman” of the group spoken of in that Honolulu Magazine piece found time to comment on a recent discussion involving his group here on Ian Lind’s site, I thought he should have the opportunity to respond to what was said on honolulumagazine.com as well.
“Pacific Resource Partnership Launches Honolulu Rail Support Campaign”
The carpenters union seems to be going off the rails. First, its public relations wing, Pacific Resource Partnership, launched a multimedia campaign in support of rail, I Mua Rail. Check out its webite, it’s packed with whoppers like these:
“With rail, we’ll have more time for the important things in life. We’ll spend less time sitting in bumper-to-bumper traffic and more quality time with family and friends.” And this, “One more hour with family.”
Makes it sound like commute times will shorten with rail, doesn’t it?
Pure shibai. Even the city has stopped trying to imply that post-rail drive times will decrease, because they won’t. Here’s what the Federal Transit Administration had to say about this in its Record of Decision on Honolulu’s rail project:
“Many commenters reiterated their concern that the Project will not relieve highway congestion in Honolulu. FTA agrees, but the purpose of the Project is to provide an alternative to the use of congested highways for many travelers. This alternative to the use of highways is especially important for households that cannot afford an automobile for every person in the household who travels for work or for other reasons.”
(Quoted from the project’s Environmental Impact Statement, available in full through a link found here.)
I agree that as slogans go, “Rail: Making traffic slightly less horrible than it would otherwise be” isn’t much of a selling point, but it would at least be honest. But why settle for honesty when self-interest is on the line?
For the rest: http://www.honolulumagazine.com/Honolulu-Magazine/May-2012/Pacific-Resource-Partnership-Launches-Honolulu-Rail-Support-Campaign/
Since that appeared at honolulumagazine.com, the pro-rail traffic reduction claims have gotten more direct. This is what the latest “Imua rail” commercial says:
“Rush hour started a long time ago and it’s only getting worse. We build new tunnels and highways. Expanded bus service islandwide. But in most places like West Oahu, rush hour has become rush day. We have the worst traffic in the nation. Traffic congestion effects us all. But rail transit gives us the best way to take cars off the road. Rail will lessen driving time, frustration, and expensive rush days, wherever you are going. Imua rail. Keep it on track.
This Imua rail commercial talks about the severity of our current traffic problems, mentions that these problems are “getting worse,” and then goes on to claim “rail will lessen driving time.” The paramount fact is, however, that the FTA agrees that “the Project will not relieve highway congestion in Honolulu.”
Residents of West Oahu are seeing the “rail will lessen driving time” commercial much more frequently than they are coming across references to the more illuminative rail project Record of Decision from the FTA (page 208, I believe). The short term goal of some rail proponents seems to be to use brute force via the sweeping reach and repetition their money affords them to overcome the occasional accurate presentation of how rail is forecast to affect traffic that manages to make it to the news. It’s the “a thousand shouted lies can sometimes overcome a few quietly spoken truths” theory in action.
Thanks to the claim made in the “Imua rail” commercial and ads like it, West Oahu residents by the thousands will be voting in the upcoming mayoral election under the mistaken belief that the money sacrificed to build rail will give them the shorter drives to and from work they’ve been longing for and demanding for decades. Many will vote just the way they did in 2008 –the last time the deceptively incomplete “rail will reduce traffic” message was pushed into their homes.
As one has closely watched each Hawaii election since 1966 — that’s 22 and heading to 23 by my count, negativity is a positive tool.
Lee Cataluna did a fair job of analyzing that on Sunday. Surely kept the late Heftel from Washington Place. Hawaii is in great need of a bipartisan truth squad to counter false claims in brochures, print ads and on radio and television. Almost every state legislator I have known inflates the bacon he claims to have brought home, often by several times.
And by the way is C, Brewer still a “person” for spending purposes. Doc Buyers is gone and his corporate entity seems withered. Jut what is the threshold for determining corporate “people?”
Or is it like Chicago where the headstones allegedly vote (and sometimes often)?
And does a double negative equal a positive? This seems to be the case in the rail battle since neither side seems to adhere much to veracity.
“FTA agrees, but the purpose of the Project is to provide an alternative to the use of congested highways for many travelers. This alternative to the use of highways is especially important for households that cannot afford an automobile for every person in the household who travels for work or for other reasons.”
Essentially, this allows business to employ workers at a lower salary. In other words, for the same job, it is possible for a company to pay less. The employee need not pay for a car and all the costs of operating a car.
Economists call this, I believe, “increasing the productivity of labor” and indeed, it is one reason to build a transit system.
So any transit system (including Mufi’s Rail) will have some effect in depressing wages.
As to reducing the number of cars on the road, it will have no effect. If one person gives up a parking space in the downtown area, it will be rapidly snapped up by someone else, since parking spaces are a valuable commodity. So net change in the number of cars will be close to zero even should the train be packed.
Development Oriented Transit will, of course, increase the number of cars on the roads.
As the FTA said, there will be an alternative to congested highways for many travelers. They didn’t say the highways would be any less congested.
John White & the PRP super-PAC can legally raise & spend $ to try to defeat Ben, but they’re not winning any friends & public support for their attacks on him. There is enough suspicion on the validity of the Rail project as it is without all the BS. I hope they eat crow.
Facts on rail:
$5.2 billion to build first 20 miles
$1.5 billion for rail O&M thru year 2030=
$6.7 billion needed thru 2030 from local taxpayers just for a new rail system = $7,450 per person on Oahu. This is an unaffordable position for many who are overtaxed now.
Of the $850 million in GETax for rail collected since 1/’07, -$600 million or more has already been spent.
The project needs $6 billion more dollars by 2030, yet no one can say if GET revenue collection predictions will climb.
-And Fed funding shortfalls? Who knows what will come out of the Senate/House Conference Committee for a surface transit bill w/or without “rail new starts” reauthorization that the USHouse would prefer to kill and send the Senate a bill version with states having more control over transit funding, giving states more back from fed fuel/gas taxes per barrel/gallon.
Why is the fed gas tax used for roads, funding rail projects in the first place?
This years 2013 presidential FY’13 appropriation ‘request’ (earmark) of $250 million for HNL rail was cut $150 million…
What happened to last years 2011 presidential FY’12 appropriation of $250 million request for rail?
Did Honolulu get it?
No?
Did that ever once make the news? I wonder why not? Some kind of oversight? Coverup?
Hmmm, a request was made, but no follow thru or comment from the USsenate or UShouse members from Hawaii on what happened to the presidential request for last years rail funding? Did they forget to pass a budget?
Let’s see if a transit bill that must pass by this Saturday at midnight can shed any light on the future of the HNL rail to nowhere.
If not, I hope Ben wins in August to begin to stop the madness of the repeated, non-stop, pro-rail PR propaganda gone bananas in the news, print, radio, and TV commercials up the Imua yin yang.
It must stop.
I would like to see Ian take as much interest in the mainland, conservative “think tanks,” who operate as PAC’s, disguised as non-profits. They are strongly allied to anti-rail activities throughout the country, and it would be naive to think they are not involved here in Honolulu.
Good point.
I have tried to do my part to promote the anti-rail cause because I believe in Ben’s stance against rail. IMHO I don’t detect any mainland involvement, if anything it would be for pro-rail concerns. I believe Ben’s message is a grassroots effort that will be decided come August 11th by a Cayetano victory of 50%+ in spite of the millions of dollars spent to promote rail and negatively depict Cayetano’s message, which he delivered to communities at cafeterias, get-togethers and gatherings from one end of the island to the other. He has interacted in communities with presentations, answered questions and earned their support one voter at a time. Enough said.