Advisory Opinion 02-10
This advisory opinion clarifies the scope of enforcement as provided by section 11-207.6, Hawaii Revised Statutes ("HRS"), Electioneering Communications. In brief, the Campaign Spending Commission ("Commission") applies the "express advocacy" test provided by the Ninth Circuit Court of Appeals to determine whether a particular electioneering communication shall be regulated by section 11-207.6.
As discussed in Advisory Opinion 00-04, the Commission regulates all forms of "express advocacy" including but not limited to radio and television productions and broadcasts. The United States Supreme Court allows regulation of advertisements containing "express advocacy." Advertising that is merely "informational," stating facts or opinions and not expressly advocating any candidate, enjoys constitutional protection from administrative regulation pursuant to the First Amendment. The Ninth Circuit Court of Appeals articulated the federal constitutional standard in Federal Election Commission v. Furgatch, 807 F.2d 857 (9th Cir. 1987). The Court of Appeals stated the test for express advocacy as follows:
When read as a whole, and with limited reference to external events, be susceptible to no other reasonable interpretation but as an exhortation to vote for or against a specific candidate. This standard can be broken into three main components. First, even if it is not presented in the clearest, most explicit language, speech is "express" for present purposes if its message is unmistakable and unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed "advocacy" if it presents a clear plea for action, and thus speech that is merely informative is not covered by the Act. Finally it must be clear what action is advocated. Speech cannot be "express advocacy of the election or defeat of a clearly identifiable candidate" when reasonable minds could differ as to whether it encourages a vote for or against a candidate or encourages the reader to take some other kind of action.
See, also, FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 249 (1986) (citing Buckley v. Valeo, 424 U.S. 1 (1976)).
The identification of whether an advertisement, as additionally defined in section 11-207.6, HRS, is "express advocacy" or merely information and general education will determine whether a particular electioneering communication will be exempt from the disclosure, disclaimer and contribution limit provisions put in place to serve the public’s interest. Any organization or committee may produce a pure informational advertisement that would avoid all the requirements of public accountability associated with express advocacy.
The intent of the law is to regulate any form of advertisement that is a specific and expressed effort to influence a candidate’s nomination bid, election, or defeat in an election. The Commission’s interpretation and application of the Ninth Circuit Court of Appeal’s decision and Hawaii’s campaign spending laws adopts and applies the "express advocacy" test to determine, on a case by case basis, whether an electioneering communication is subject to the campaign spending laws.
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 § 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 amendments to the administrative rules by the Commission.
Dated: Honolulu, Hawaii, December 23, 2002.
CAMPAIGN SPENDING COMMISSION
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A. Duane Black
Chairperson
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Clifford Muraoka
Commissioner
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Mona Chock
Commissioner
