Back in November 2017, I took a position against any ban on political fundraising during Hawaii’s legislative session (“Don’t Ban Campaign Fundraising During Legislative Sessions“).

My main point was pretty simple. Raising money to fund a political campaign involves the First Amendment issue of free speech. In the modern world, without money, a candidate has only limited opportunities to get their message out to voters.

Let’s also be clear on another thing. A candidate’s right to raise funds to enable their own political speech is protected by the First Amendment. In fact, political speech is considered the most important form of protected speech. Attempts to restrict such a right by prohibiting fundraising will almost certainly be subject to “strict scrutiny” by the courts and will not be allowed to go forward unless they meet several legal conditions.

Any proposed restriction must be justified by a “compelling” government interest. The restriction must be narrowly tailored to achieve the desired goal. And the proposal must be the least restrictive way to achieve the stated government interest.

Fast forward to this year. HB89 unanimously passed the House early in this session and crossed over to the Senate. that would ban elected officials from soliciting or accepting campaign contributions while the legislature is in session, and in a short period before and after any session. And SB1493 has been passed by the Senate Judiciary Committee and is awaiting a full Senate vote. Neither the version of the bill as amended by the Judiciary committee, nor the committee report, are posted yet on the legislative website, but the original senate bill was narrower than HB89 and applied only to contributions by lobbbyists, using the same definition of lobbyist as Chapter 97 HRS, the state’s Lobbyist law. Under this definition, a lobbyist is someone who engages in lobbying, which in turn is defined as involving attempts to influence legislative action or executive branch rulemaking.

HB89 is the first bill in play. My concern is that this bill is far broader than it needs to be to have the intended impact on the public perception of legislators, and that makes it constitutionally questionable.

According to House Standing Committee Report 79:

Your Committee finds that this measure implements one of the recommendations made by the Commission to Improve Standards of Conduct established pursuant to House Resolution No. 9, Regular Session of 2022. If enacted, this measure would reduce the negative perception of legislators soliciting or accepting contributions from individuals or organizations that have an interest in matters pending before the Legislature during session.

HB89 seems pretty simple. It adds a brief section (c) to Section 11-257 regarding prohibited contributions.

(c) No elected official as defined in section 11-342(d) shall solicit or accept campaign contributions during any regular session or special session of the legislature, including any extension of any regular session or special session and any legislative recess day, holiday, or weekend.”

And, in turn, Section 11-342(d) provides: “Elected official” means an individual who currently holds an elected state or county office, including the governor, lieutenant governor, state senator, state representative, trustee of the office of Hawaiian affairs, county mayor, county council member, county prosecuting attorney, and any individual appointed to serve in any of the aforementioned offices.

So here’s the problem. The intent of the bill, as expressed by the committee report, is to “reduce the negative perception of legislators” who solicit contributions while the legislature is in session.

But how does a fundraiser for a Kauai County Council member, for example, possibly reflect on “the negative perception of legislators”? There doesn’t appear to be enough of a nexus between contributions to non-legislators and public perception of legislators to warrant this blanket prohibition during legislative sessions. Remember that infringing on the rights of candidates to further their “free speech” requires a compelling government interest. It seems to me that there is arguably a compelling interest in reducing opportunities for corruption by limiting contributions to legislators during the session. But what’s the compelling interest in restricting fundraising by other elected officials during the legislative session? And without such a compelling interest, it seems to me clear that this bill is on very, very shaky ground.

In addition, by prohibiting elected officials from soliciting or accepting contributions while the legislature is in session, the house bill infringes on the rights of voters in counties far from the State Capitol from exercising their right to contribute to a county official of their choice, even during an election year.

And the impact of the bill would, at best, be cosmetic. It might reduce the negative perceptions held by some, but it would not realistically do anyting to reduce the overall impact of big money on politics.

Would restricting the bill’s reach to lobbyists, as the senate bill would do, make any meaningful difference? It would still appear to prevent someone who is registered to provide lobbying services at the legislature from contributing to a county council member’s campaign during a legislative session that doesn’t involve the council member. So, again, what’s the compelling purpose?

In any case, just my two cents worth.