One of the items on the agenda for today’s meeting of the State Ethics Commission is a report by Executive Director Les Kondo, which includes a list of “Projects Under Consideration.”
The first item: Reconsidering whether “lobbying,” as defined in HRS section 97-1(7) includes “goodwill” or relationship-building lobbying.
There’s no indication of what the proposed “reconsideration” involves, but if it means that the intent is to reinterpret the law to exclude “goodwill lobbying,” that would be a real setback.
The commission’s current position is spelled out in a December 6, 2007 memo by then-executive director Dan Mollway.
The Lobbyists Law is set forth in chapter 97 of the Hawaii Revised Statutes (“HRS”). HRS section 97-1(7) defines the term “lobbying” as follows:
“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.
When trade associations and others meet with lobbyists for the purpose of “getting to know” legislators or to develop rapport, this is considered “goodwill lobbying,” and would constitute lobbying under HRS section 97-1, since there is communication for the purpose of lobbying. The fact that specific legislative measures are not discussed does not mean that the meetings are not considered lobbying. If the purpose of the meeting is to develop a relationship with legislators, getting to know legislators, or establishing rapport with legislators, and the trade association, etc., will be lobbying, then such meetings with legislators constitute lobbying in accordance with chapter 97 and must be reported on the appropriate expenditures report for the appropriate lobbying reporting period.
It seems to me that when lobbyists set out to build personal or social relationships with lawmakers, it is certainly undertaken for the purpose of influencing subsequent legislative action whether or not specific legislation is discussed during each contact.
Just ask yourself how much lobbyists spend on former legislators after voters dump them out of office. It’s not personal, it’s political. It’s really not the personal relationships, it’s about what it takes to get bills through the legislature in forms acceptable to the lobbyists and their clients.
Exempting goodwill lobbying would potentially open a big loophole in an already weak lobbying law.
And it’s important to note that exempting goodwill lobbying from lobbyist disclosure requirements is highly controversial elsewhere.
That said, there are aspects of goodwill lobbying that could be reconsidered, including the propriety of inviting legislators to public charitable events such as fundraising dinners or receptions.
Congressional rules allow such events under certain circumstances, and it wouldn’t hurt to review whether we could benefit from adoption of a similar approach. However, because certain large and politically influential special interest groups in Hawaii are technically nonprofit or charitable in nature, this is trickier than perhaps in the national/Congressional context.
A Google search did turn up an interesting 1995 court decision in Vermont that spells out why regulation and disclosure of goodwill lobbying doesn’t run afoul of the First Amendment.
In any case, I hope that any “reconsideration” the commission might undertake is done with considerable care.
Other projects being considered, according to the agenda:
Reconsidering whether HRS sections 84-14(a) and/or 84-14(d) does not apply to state employees serving on private organizations’ boards in their “state capacities”;
Examining whether state employees may accept discounts and other special deals offered to them because of their status as state employees from private organizations; whether employees may accept discounts and other special deals offered only to employees of a specific state agency from private organizations; ·
Examining legislators’ use of their 2015 discretionary allowances.
