Category Archives: Legislature

Only a few early bird legislators have filed personal financial disclosures

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The deadline for legislators to file their annual personal financial disclosures is February 1, just over a week away.

As of this morning, just six members of the 51 member state House, and three members of the 25-person Senate, have filed their disclosures.

Senator Russell Ruderman gets the “First to File” award for getting his disclosure filed at 10:46 p.m. on Sunday, January 3.

Here’s the list of those who had filed by the time of this posting. I haven’t looked through all the disclosures yet, but I give these legislators credit for not procrastinating.

2016

To check the current list of filers, click here. The links on that page will also take you directly to the online forms.

Remaining to be seen–how many legislators will miss the February 1 deadline altogether.

Sen. Thielen questions “separation of powers” argument in case of Hawaiian funding

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Are Hawaii State Constitutional Public Trust obligations enforceable? And if so, by whom?

Those were the questions state Senator Laura Thielen addressed in a post on her legislative blog this week.

Her questions were prompted by the Supreme Court’s ruling that the state has violated its constitutional obligation to provide sufficient funding for operations of the Department of Hawaiian Home Lands, and the announcement that the state would be appealing the decision, with support from the legislature.

The state is expected to argue that the “separation of powers” prevents the Supreme Court from imposing a duty on the legislature.

Thielen asks what happens if the legislative and executive branches just blow off their constitutional duties? She says some suggested that the response is to vote those who fail in the duties out of office.

Thielen then pointed out the limits of this idea.

But what happens when the public trust is an obligation to a group who happens to be a minority of voters (for example, current and potential DHHL beneficiaries)? Even if they band together, they can’t vote out officials because they’re a minority. And isn’t one of the purposes of elevating a matter to the constitutional level to ensure the majority doesn’t infringe on the constitutional rights of the minority?

What happens when the public trust obligation is to future generations – who aren’t around today to vote? Ask any youngster, and they would gladly vote for more protection of our public trust natural and cultural resources. Sorry! No remedy for you until you turn 18 (if those resources are still around then).

I would suggest two places to find answers. First, there’s the earlier 2012 decision by the Hawaii Supreme Court in an earlier round of this same case involving funding for the Hawaiian Homes Commission and DHHL.

That decision rested on whether the separation of powers would prevent the court from intervening in the funding question. The court concluded that one part of the larger case–the question of whether the state had provided “sufficient sums” for administrative and operating expenses of DHHL as mandated by the state constitution–was subject to judicial interpretation.

So reviewing that court decision may provide sufficient answers to the current controversy.

And then I started looking to the State of Washington, where its Supreme Court not only ruled that the state’s system of school funding is unconstitutional, but found the legislature in contempt of court for failing to implement changes to comply with the state constitution. The case obviously raises similar “separation of powers” issues.

Documents filed in the long running case are publicly available on the Washington state court system’s website.

There’s also a Harvard Law Review article that is on point (“McCleary v. State/Washington Supreme Court Holds Legislature in Contempt for Failing to Make Adequate Progress Toward Remedying Unconstitutional Education Funding Scheme“).

The Washington Supreme Court has long recognized the power to work cooperatively with the legislature in vindicating the constitutional right to education.

McCleary made clear that the judicial role in that project is twofold: first, the court draws a baseline to ensure that the legislature has “done enough” to fulfill its constitutional duty; and second, once the legislature has defined the specifics of its duty through education policies, the court enforces the legislature’s self-drawn standards. The court’s approach thus stands as a modest judicial principle: a legislature must keep its promises regarding constitutional duties. This judicial posture toward legislative discretion is unlike the federal separation of powers scheme, in which constitutional grants of legislative or executive discretion weigh heavily if not absolutely in favor of judicial forbearance.

For Washington’s education clause jurisprudence, the opposite is true. Standing “idly by” even at the remedy stage would “abdicate the court’s own duty.” Accordingly, each “unfulfilled promise” by the legislature in the McCleary litigation prompted further mistrust from its Article IX partner, and thus appropriately triggered increasingly aggressive judicial enforcement.

The law review article includes footnotes to additional commentaries on the separation of powers issues.

It looks to me as if the state is simply stalling to put off the need to provide the constitutionally mandated funding. But perhaps some of the lawyers out there could provide some suggestions on how we should be interpreting these earlier rulings.

Improving laws on campaign and lobbyist disclosure

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There are two new reports from the National Institute on Money in State Politics that assess how well California does in regulating campaign spending and lobbying disclosures.

Here’s how they describe the two reports.

California state and local governments have instituted many effective disclosure policies when it comes to money in politics. But two new reports that look at the accessibility, completeness, and timeliness of providing that information to the general public find that California state and local governments have room for improvement.

In ”Best Practices for Local Campaign Finance Disclosure in California,” we looked at the rules and their actual implementation in five cities and two counties in California. Overall, it appears that local governments are doing well but can do more to expand transparency when it comes to money in politics.

In ”Improving Disclosure & Transparency: A Review of California’s Political Disclosure System,” we reviewed California’s political disclosure system for campaign finances and lobbying expenses. As with the local governments, we found that California has thorough political campaign disclosure laws. However, the systems that are used to share that information with the public can be enhanced, and the report identifies practices in other states that might help.

I found the section on lobbying disclosure laws, part of the second report, very interesting. It first reviews California’s laws regulating lobbying and requiring public disclosure of spending. In many respects, California’s definition of lobbying and what it requires to be made public is much better than Hawaii’s lobbyist law, but the report goes further by suggesting additional improvements. It would be great to see a bill drafted to bring Hawaii’s law up to the recommended California standard, and then see how Hawaii’s lawmakers would respond.

In any case, these are both excellent reports that suggest what a “state of the art” system for campaign and lobbying disclosures would look like.

Would sex between a legislator and lobbyist trigger the gift provisions of the ethics law?

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A Missouri legislator has been getting a lot of media attention for introducing a bill that would require a lobbyist who has sex with a legislator or staff member to include the act on the lobbyist’s required gift disclosure form.

According to a report in the Kansas City Star:

From the bill: “For purposes of subdivision (2) of this subsection, the term ‘gift’ shall include sexual relations between a registered lobbyist and a member of the general assembly or his or her staff. Relations between married persons or between persons who entered into a relationship prior to the registration of the lobbyist, the election of the member to the general assembly, or the employment of the staff person shall not be reportable under this subdivision. The reporting of sexual relations for purposes of this subdivision shall not require a dollar valuation.”

It’s really not an off-the-wall bit of legislation.

I suspect this could be, at least in part, a reaction to a February 2015 opinion by North Carolina’s State Ethics Commission, which ruled that consensual sexual relationships between a lobbyist and a legislator do not constitute a reportable gift under the state’s ethics law.

According to the commission opinion:

Section 120C-303(a)(1) of the Lobbying Law restricts a registered lobbyist from giving a gift to a designated individual unless a gift ban exception applies. “Gift” is defined as “[a]nything of monetary value given or received without valuable consideration….” G.S. 138A-3(15). A lobbyist must report certain “reportable expenditures,” defined to include gifts and “things of value” greater than $10 per day given to a designated individual or immediate family member.

Consensual sexual relationships do not have monetary value and therefore are not reportable as gifts or “reportable expenditures made for lobbying” for purposes of the Lobbying Law’s expenditure reporting provisions. See G.S. 120C-402 and G.S. 120C-403.2

The commission did note, however, that providing paid prostitution services could be considered a gift, “depending on the particular facts.”

The prompts me to wonder how the Hawaii State Ethics Commission would view the same issue. I’m aware of several situations here in the past where a lobbyist allegedly engaged in sex with a legislator, or paid for someone else to have sex with the lawmaker. But the issue has never reached the commission, as far as I know.

Hawaii’s gift statute seems to be a bit broader than the North Carolina law, and may get around the problem of placing a dollar value on consensual sex.

Section 84-11 HRS provides:

§84-11 Gifts. No legislator or employee shall solicit, accept, or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing, or promise, or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence the legislator or employee in the performance of the legislator’s or employee’s official duties or is intended as a reward for any official action on the legislator’s or employee’s part.

That’s a definition that seems extremely broad, applying to a range of types of gifts, including services, entertainment, hospitality, “or in any other form,” in addition to simpler things like money, travel, etc.

Would the commission include sex? I think there’s a good chance they would, but of course that’s just a prediction, not a reality.

Should Hawaii clarify the gift law in the same way this Missouri legislator is proposing?