New rules approved by the State Ethics Commission went into effect just after Thanksgiving, effectively prohibiting most gifts by lobbyists or their clients to legislators or legislative staff (see my earlier post, “New administrative rules for the State Ethics Commission went into effect Nov. 28“).
It didn’t take long at all for some legislators to push back in defense of their “right” to freebies, as Civil Beat reported yesterday (“Hawaii Lawmakers Want Their ‘Gifts Of Aloha’ Back”).
This isn’t the “money talks, and b.s. walks” kind of “gifts.” We’re talking small kine stuff that the lobbying pros regularly drop off to their key legislative contacts. Those boxes of pastries or manapua, or occasional box lunches, are welcome sights when they arrive in legislative offices. And the lobbyists who bring those small gifts know exactly what they’re doing. They are establishing themselves as friends and insiders, familiar faces who will later enjoy the access that political friends and insiders have (and that mere constituents and voters typically lack). The so called “gifts of Aloha” are also signals that the special interests those lobbyists represent are standing by, ready to “help” in other ways if asked.
One bill introduced by House Judiciary & Hawaiian Affairs chairman Mark Nakashima muddies the water by referencing rules that allow federal judges to accept certain gifts that would not be allowed by the current ethics commission rules.
The legislature notes that the Code of Conduct for United States Judges governs the federal judiciary, including the Supreme Court of the United States. The code acknowledges that certain cultural traditions, including acts of social hospitality, are acceptable practices.
The code also clarifies that acceptable traditions include “social hospitality based on 11 personal relationships” and “modest items, such as food and refreshments, offered as a matter of social hospitality”, and specifically excludes these customary traditions from the code’s definition of “gifts.” Applying these same guidelines to the legislature, the legislature believes that the Hawaiian custom of offering tokens of aloha is acceptable.
The implication is that, hey, it’s just aloha, after all, so why worry?
Well, yes and no. While it’s true that the rules for judges and judicial employees do allow gifts of “social hospitality” under some limited circumstances, those same rules also make clear that gifts may not be accepted from those with any business before the court.
A judicial officer or employee shall not accept a gift from anyone who is seeking official action from or doing business with the court or other entity served by the judicial officer or employee, or from any other person whose interests may be substantially affected by the performance or nonperformance of the judicial officer’s or employee’s official duties.
As applied to the legislature, that seems to support the ethics commission’s “no gifts from lobbyists” rules.
The broader problem is that there’s a “wolf in sheep’s clothing” problem. For example, should legislators who attend a public meeting in their community to hear constituent concerns have to bypass the refreshment table because their juice and pupu might be considered an improper gift? That seems silly. But what about when the public meeting is sponsored by an industry group that also lobbies for their own special interests? Suddenly the offer of food and drinks while socializing with lobbyists and their takes on a different character, and a strict rule makes more sense.
The rules are new, and haven’t been in place long enough to get a good sense of how the commission is going to interpret and enforce them, or how easy it will be for legislators to live with. Legislators need to wear the new off those rules before messing around with ill-considered legislation opposed by those we rely on to keep undue influence of special interests in check.