Advisory Opinion 02-08

     This Advisory Opinion ("Opinion") responds to questions from candidates related to their appearances in public and private forums and whether those appearances constitute contributions and non-monetary in-kind contributions on the part of the individual or entity sponsoring the campaign activity.

     The Campaign Spending Commission ("Commission") interprets sections 11-191 and 11-200, Hawaii Revised Statutes ("HRS") broadly. The definition for "Contributions" includes any deposit of money or anything of value intended to influence the nomination or election of any person to office. There are no specific statutory references to particular activities that may or may not be excluded from the definition of "contributions". However, the Commission, by this Opinion, provides parameters for applying sections 11-191 and 11-200, HRS, to candidate appearances in person, on radio, television or other media forums. In brief, if all the conditions set forth in this Opinion are met, the person or entity sponsoring or hosting a candidate appearance shall not be required to disclose applicable expenditures as non-monetary in-kind contributions.

     The Commission acknowledges that candidates are often invited to appear and speak at various private and public forums sponsored by individuals, non-profit organizations, and corporations or companies. Other forums include radio and television discussions or debates sponsored by various public and private entities. The Commission is also aware of the prevalent practice of allowing a candidate to visit or "walk through" a company’s scheduled activity, an individual’s private business location, and community sponsored events.

     A literal reading of sections 11-191 and 11-200, HRS, provides that all the aforementioned activities may constitute something of value influencing the outcome of an election. It is without question that the primary purpose and intent of the candidates’ appearances and participation is to advance their respective campaigns for office. However, the Commission also understands that its efforts to prevent the appearance of corruption by requiring financial disclosures must be weighed against its purpose to encourage citizen participation in the electoral process.

     Therefore, the Commission looks to the Federal Elections Code of Regulations, 11 CFR 114.4, for guidance. The conditions set forth below must be met in order to exclude expenditures arising from candidate appearances from the definition of contributions.

1. If a candidate or a candidate's representative is permitted or invited to address or meet attendees, members or employees, all candidates for that office who request to appear must be given a similar opportunity to appear;
2. The candidate, candidate's representative or party representative shall not accept contributions before, during or after the appearance while at the meeting, convention or other function, but may leave campaign materials or envelopes for members of the audience or attendees;
3. Any person or entity sponsoring or hosting the event shall not, either orally or in writing, solicit or direct or control contributions by members of the audience to any candidate or party in conjunction with any appearance by any candidate or party representative, and shall not facilitate the making of contributions to any such candidate or party;
4. Any person or entity sponsoring or hosting the event shall not, in conjunction with any candidate, or candidate's representative appearance, expressly advocate the election or defeat of any clearly identified candidate(s) or candidates of a clearly identified political party and shall not promote or encourage express advocacy by the members of the audience or attendees;
5. No candidate, candidate's representative or party representative shall be provided with more time or a substantially better location than other candidates, candidates' representatives or party representatives who appear, unless the sponsor or host is able to demonstrate that it is clearly impractical to provide all candidates, candidates' representatives and party representatives with similar times or locations;
6. Any coordination with each candidate, candidate's agent, and candidate's authorized committee(s) may include discussions of the structure, format and timing of the candidate appearance and the candidate's positions on issues, but shall not include discussions of the candidate's plans, projects, or needs relating to the campaign;
7. Representatives of the news media may be present during the appearance of the candidate, candidate's representative or the party representative; and
8. The sponsor or host may not reproduce or distribute candidate campaign material.

     In summary, expenditures related to any candidate appearance for any person, committee or party may be excluded from the definition of contribution as provided in sections 11-191 and 11-200, HRS, if all the aforementioned conditions exist. A determination by the Commission that any condition has not been met shall result in any and all expenditures being deemed a contribution or non-monetary in-kind contribution that shall be reported accordingly. Expenditures related to candidate appearances for news related stories, editorials, or communications are specifically excluded.

     This Advisory Opinion is provided by the Commission as a means of stating its current interpretation of the Hawaii Election Campaign Contributions and Expenditures laws provided under HRS section 11-191, et seq. and the administrative rules of the Commission provided in chapter 2-14, Hawaii Administrative Rules. The Commission may adopt, revise, or revoke this Advisory Opinion upon its own initiative or upon the enactment of amendments to the Hawaii Revised Statutes or the adoption of administrative rules by the Commission.

Dated: Honolulu, Hawaii, November 1, 2002.

CAMPAIGN SPENDING COMMISSION

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A. Duane Black
Chairperson

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Della Au Belatti
Commissioner

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Clifford Muraoka
Commissioner

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Mona Chock
Commissioner