Category Archives: Campaigns

The Councilman, the Crime Boss, and the “Hostage” Trees

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Tree at Joe Lukela park claimed by Mike Miske

Now that Trevor Ozawa is again a candidate running to take back his former seat on the Honolulu City Council, voters should examine his past misuse of his political position to benefit the late racketeering boss Mike Miske.

As a voter in his district, I haven’t forgotten how Ozawa—who served on the council from 2014 to 2018—aggressively used his legislative power to muscle the Department of Parks and Recreation into giving Miske special treatment.

In a nutshell

In 2016, Miske took over a tree in a park along Maunalua Bay in Hawaii Kai and wrapped it tightly with lights. The city Department of Parks and Recreation eventually received complaints and directed Miske to remove the lights. He belatedly complied, but wanted to repeat the tree lighting in 2017 over the department’s objections.

Miske turned to the Honolulu City Council member from his district, Trevor Ozawa, who became his rather enthusiastic advocate, eventually resorting to legislative threats and insider political muscle to get Miske what he wanted. Ozawa successfully forced the city to approve Miske’s lights despite substantive opposition from the parks department that cited the danger to tree health, the administrative problems posed by privatizing park trees, the precedent affecting 200,000 other trees, and the placement of bright lights along the shoreline, which posed a threat to seabirds and appeared to violate environmental laws.
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What about the First Amendment?

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Civil Beat’s “Sunshine Blog” threw it’s weight behind House Bill 371, proposed legislation described as “the measure that would ban the owners, officers and close family members of government contractors and organizations that receive state grants in aid from donating to political campaigns.”

Apparently CB sees it as a way to put an end to pay-to-play politics.

A worthy goal.

However, in my view, CB and the Sunshine Blog are making a grave error in not taking into account the First Amendment implications of this bill.

The sweeping scope of this bill and its restrictions on First Amendment political speech is breathtaking. Despite this, the legal issues surrounding free speech in the context of political campaigns and campaign finance were not mentioned in any of the testimony during hearings on this bill.

That’s a huge omission because, if passed into law, HB371 would not simply “chill” free speech of corporations, it would eliminate the First Amendment rights of an large but as-yet-undetermined number of individuals associated with , and would trample on long-accepted legal precedents.

These issues are so glaring that the bill appears written to invite a successful First Amendment legal challenge.

Back to Basics

What happens when there’s a direct conflict between the First Amendment right to free speech during an election campaign, and the public’s interest in combatting corruption?

Political speech and expression are at the heart of the First Amendment. After all, the First Amendment’s primary purpose was to protect open discourse about government affairs. Thus, political speech usually receives the strongest protection.

This means that courts tend to apply strict scrutiny to test the constitutionality of restrictions on political speech or expression. Strict scrutiny is the most difficult standard to meet. It requires a restriction to serve a compelling government interest in the least restrictive manner.

A compelling government interest, implemented in the least restrictive manner, or at least in a narrowly targeted manner.

So let’s take a look at HB371.

It would prohibit contributions by state or county contractors, as well as state or county grantees, along with their officers or immediate family members, whether or not they have any role in the contracts or grants, or even any contact with the family member directly involved.

And immediate family members, according to the bill, includes any child, parent, grandparent, brother, or sister, and the spouses or reciprocal beneficiaries of those officers.

I haven’t seen any discussion of the loss of rights for officers of state grantees, along with their family members.

Check this list of organizations that received state grants in aid during the 2024 legislative session.

Here’s page 1 of the 4-page list of grant-in-aid recipients, just to provide a sense of the bill’s broad impact.

Somewhere about 150 community nonprofit organizations are on the list. And all of their officers, along with their parents, grandparents, siblings, and their spouses or partners, will not only be prohibited from contributing to the candidates of their choice, but from contributing to “any political committee,” or to “any person for any political purpose,” or to solicit any contribution “for any purpose.”

One glaring omission is the lack of any nexus between these sweeping prohibitions, the contracts or grants that trigger them, and any actual potential for corruption stemming from those contracts or grants.

For example, an argument can be made that a corporate contractor or grantee, and its officers, should be prohibited from making campaign contributions to the level of government that originates the contract or grant. So you get a state contract, and you shouldn’t then contribute to the governor. But why should that state contract limit your ability to contribute to the mayor’s race, or a city council race, when those positions play no role whatsoever in awarding the contracts or grants?

At one point, my father’s small restaurant supply company competed for contracts to equip school kitchens. If he had landed any of those contracts, my political rights would have been eliminated, along with those of my wife, despite there being no crossover between my dad’s Republican leanings and my own political views.

It seems to me that this is classic overreach, and far from the targeted restrictions that First Amendment analysis requires.

There are already plenty of laws prohibiting pay-to-play corruption. It’s illegal to enter into explicit or implicit quid-pro-quo understandings linking campaign contributions to discretionary action by an elected official. It’s illegal to structure campaign contributions in order to evade contribution limits, by giving money to others (employees, relatives, friends, customers, etc) that they would then contribute in their own names.

Obviously, a narrowly-targeted approach to clamping down on pay-to-play would be to substantially increase the budget for investigation and prosecution of these crimes, and they are crimes, or perhaps to prohibit all contributions by corporations to state and local candidates, as is done at the federal level.

Those are approaches which do not get into the thorny area of restricting constitutionally protected rights.

In any case, this is a discussion that hasn’t happened during the consideration of HB371.

There is also a broader issue. How do we see the political arena? Is it a system in which conflicting special-interest groups clash in a complex dance of deals, accommodations, and tradeoffs, or one in which the goal is to eliminate actual “interests” and leave decisions to neutral arbiters of the “public” interest?

But that is necessarily a discussion for another day.

Judge Alan Kay remembered

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I was very sorry to learn of the recent death of retired Federal Judge Alan C. Kay, who served from 1986 to 2000 before moving to senior status.

I remember Kay quite well as the author of a lengthy April 1993 opinion invalidating a state law limiting the disclosure of information about complaints filed with the Campaign Spending Commission. Kay ruled the law was a clear violation of First Amendment rights.

The law made it a criminal misdemeanor for “any person” to disclose information about a complaint unless the commission first found “probable cause” that a violation had occurred. A violation was punishable by up to a month in jail and a fine of up to $1,000.

Kay’s decision was a strong affirmation of the First Amendment and a rather scathing comment on the state’s defense of what he saw as a clearly unconstitutional law.

Here’s a short version of the story.

At that time, I was publishing a monthly newsletter, Hawaii Monitor. An article in the June 1992 issue described a complaint I had filed with the Campaign Spending Commission that accused the University of Hawaii Professional Assembly (UHPA), the union whch represents faculty in the UH system, of failing to properly disclose expenditures in support of Gov. John Waihee’s 1990 reelection bid (“Commission sets hearing on UHPA complaint/UH faculty union PAC belatedly reports cost of Waihee ad“).

That short article prompted UHPA to complain to the commission that I had violated the confidentiality provision of the law. In an attempt to head off further commission action, my lawsuit was filed asking for the law to be declared unconstitutional and an injunction issued to prevent its enforcement. I was represented by Honolulu attorney Clayton Ikei, who recently passed away.

• Read Judge Kay’s 1993 decision in the case of Lind v. Grimmer on Justia.com

Kay’s decision was upheld by the 9th Circuit Court in a decision still cited in First Amendment cases.

• Read the 9th Circuit Court’s decision filed July 22, 1994.

Using campaign funds to support other candidates

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I haven’t written about campaign finance issues for a while. But now that election season is in full swing, I recalled that a friend recently asked me a question about candidates, often elected officials, who use their campaign funds to contribute to other candidates.

By law, campaign funds can only be spent for limited purposes, primarily for the election of the candidate whose campaign committee received the contribution. Passing that money on to another candidate appears to be contrary to the law.

But…there’s an exception allowing for the purchase of “not more than two tickets for each event held by another candidate or committee,” whether it is technically a fundraiser or not.

I hadn’t previously thought about this much, so I took a quick look at contributions to candidates during this election cycle up through June 30, the latest data available for download. This probably isn’t complete, because I searched for contributions from any committee named “friends of…”. There could be other candidate committee names that I missed.

How much money was transferred from one candidate to another so far during 2023-2024, through the end of June?

I really didn’t know what to expect, but I was surprised–shocked, perhaps–by the answer.

By my quick count, the total was $189,194 and a few cents.

Here’s a summary.

First, here is a list of candidates who have spent $5,000 or more buying tickets for other candidate’s events.

Screenshot

Gil Keith-Agaran, who served as Judiciary chair in the House and Senate, and later as vice-chair of the powerful Senante Ways and Means Committee, spent far more than any other candidate supporting others. He resigned from the Senate a year ago to concentrate on his role as a Maui attorney involved in Lahaina fire litigation.

He used campaign funds to buy tickets to other candidate’s events for years, often spending $1,000-$2,000 at a time, and spreading his money around to numerous candidates. He has continued since leaving office, as he liquidates his campaign committee’s accumulated bank balance.

Rep. Nadine Nakamura, who appears to have her eye on the position of House Speaker, spent less money on other candidates but spread her influence just as far, parceling out $300-$500 to a couple of dozen campaigns.

Then here are the candidates who received a total of $5,000 or more from other candidates.

If you want to look at the full lists, here are links to donors and recipients

My conclusion is simple. The legislature created a simple but significant loophole that, in part, has been applied in a manner that nullifies a fundamental tenet of Hawaii’s campaign spending law.

It works like this.

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