A Hawaii News Now story by Mileka Lincoln broadcast yesterday put a spotlight on a misleading flier mailed to residents in Rep. Linda Ichiyama’s House district (“Same-sex marriage critics working to rally opposition“).

The mailer reads “Hawai’i’s state legislature may soon vote to legalize same-sex marriage without your input, Rep. Linda Ichiyama may vote yes.” It goes on to urge recipients to contact Rep. Ichiyama and ask her to vote no to same-sex marriage.

In a statement, Ichiyama describes the flyer as containing “half-truths and misinformation about the proposed same-sex marriage bill. For example, the flyer states that churches can be “forced” to conduct same-sex marriages “even if it violates their beliefs.” The draft same-sex marriage bill specifically protects religious freedom and ensures that churches may refuse to perform same-sex marriages for any reason.”

The story then veers of into a discussion of whether or not the flyer violates campaign spending laws.

Nowhere does it indicate who the mailer is from, but campaign spending commission officials say that’s not illegal because only advertisements that call for the support or defeat of specific ballot issues or candidates require disclosure.

“There’s really no message calling for Rep. Ichiyama’s defeat or election and it doesn’t concern itself with a ballot issue. Same-sex marriage issue is not a ballot issue,” explained Gary Kam, the Campaign Spending Commission’s General Counsel.

Kam says the purpose of campaign disclosure laws are to educate voters.

“Basically disclosures are one of the only things we have to keep the public informed on where the money is coming from when it comes to candidates and issues and the message that is being given by the ads,” Kam explained.

But Lincoln was simply on the wrong track. The flyer isn’t campaign material, but does fall under the state’s lobbyists law.

First of all, it clearly falls within the definition of “lobbying” spelled out in Chapter 97 HRS:

“Lobbying” means communicating directly or through an agent, or soliciting others to communicate, with any official in the legislative or executive branch, for the purpose of attempting to influence legislative or administrative action or a ballot issue.

The individuals who prepared and mailed the flyer could be required to register as lobbyists with the State Ethics Commission “within 5 days of becoming a lobbyist” if they spent “in excess of five hours” or more than $750 on the flyers or related activities.

In addition, whoever paid for the flyers and their distribution will also be required to publicly disclose that spending by filing a “statement of expenditures” with the State Ethics Commission if the total amount spent was at least $750.

Failure to file register or file required reports could face an administrative fine of up to $500 for each violation.

Last year, the ethics commission fined the Hawaii Catholic Conference and Hawaii Family Forum a total of $3,000 for failing to properly disclose lobbying expenditures made in opposition to same-sex marriage.

But that action came long after the fact, drawing criticism from some quarters.

Unfortunately, the existing deadlines for lobbyist disclosures do not provide timely disclosure to the public. For example, spending for or against the Abercrombie administration’s marriage bill that will be considered during a special legislative session later this month does not have to be made public until a report due on January 31, 2014, far too late to inform the public about the groups trying to influence the legislative outcome.

In addition, the ethics commission does not have the resources to proactively intervene to assure that lobbyists are registered and organizations are aware of the responsibility to (eventually) disclose their spending.