Advisory Opinion 03-02

     This advisory opinion clarifies the provision requiring the disclosure of expenditures over $2,000 for electioneering communications. The Campaign Spending Commission ("Commission") has been asked whether registered candidates and committees need to file a separate statement of information, as provided by Hawaii Revised Statutes ("HRS") section 11-207.6. In brief, the Commission answers in the negative.

HRS section 11-207.6 provides as follows:

     §11-207.6 Electioneering communications. (a) Every person who makes a disbursement for electioneering communications in an aggregate amount of $2,000 during any calendar year shall, within twenty-fours hours of each disclosure date provided in this section, file with the commission a statement of information described in subsection (b).

     (b) Each statement required to be filed under this section shall contain the following information:
     (1) The identification of the person making the disbursement, any entity sharing or exercising discretion or control over such person, and the custodian of the books and accounts of the person making the disbursement;
     (2) The state of incorporation and principal place of business or, for an individual, the address of the person making the disbursement;
     (3) The amount of each disbursement during the period covered by the statement and the identification of the person to whom the disbursement was made;
     (4) The elections to which the electioneering communications pertain and the names, if known, of the candidates identified or to be identified;
     (5) If the disbursements were made by a committee, the names and addresses of all persons who contributed to the committee for the purpose of publishing or broadcasting the electioneering communications;
     (6) If the disbursements were made by an organization other than a committee, the names and addresses of all persons who contributed to the organization for the purpose of publishing or broadcasting the electioneering communications; and
     (7) Whether or not any electioneering communication is made in coordination, cooperation, or in concert with or at the request or suggestion of any candidate, candidate committee, political party or agent of any candidate, candidate committee or political party and, if so, the identification of the candidate, candidate committee, political party, or agent involved.

     (c) For the purposes of this section:
     "Disclosure date" means, for every calendar year, the first date by which a person has made disbursements during that same year of more than $2,000, in the aggregate, for electioneering communications, and the date of any subsequent disbursements by that person for electioneering communications.
     "Electioneering communication" means any paid advertising broadcast from a television or radio broadcast station, or published in any periodical or newspaper, or sent by mail at a bulk rate, which refers to a clearly identifiable candidate and is made, or scheduled to be made, either within thirty days prior to a primary or initial special election or within sixty days prior to a general or special election. "Electioneering communication" shall not include communications in a news story or editorial, communications which constitute expenditures by the disbursing organization, or communications in house bulletins. (Emphasis added)

Hawaii Administrative Rules, section 2-14.1-24.1 provides as follows:

     §2-14.1-24.1 Electioneering communications. (a) Any paid advertising that a reasonable person could interpret as having no other purpose other than to directly associate a candidate with a specific effort to influence a candidate’s nomination, for election or election, or defeat in a nomination for election or election, shall be reported to the commission as required to be reported under section 11-207.6, Hawaii Revised Statutes.
     (b) Such reporting shall be in addition to the reporting of expenditures required to be reported under sections 11-212 and 11-213, Hawaii Revised Statutes by candidates and committees, unless such expenditures are reported elsewhere. (Emphasis added)

     The statutory and regulatory provisions specifically provide that expenditures that have previously been reported as campaign expenditures are not deemed electioneering communications for purposes of these sections and do not require a separate statement of information.

     The electioneering communications provision was promulgated in 1999 through Senate Bill 1502. Conference Committee Report No. 27 of the Twentieth State Legislature, Regular Session 1999, stated the legislative intent to define electioneering communications because informational and educational advertising campaigns were being used by unregulated persons to target individual candidates. The legislature further added that the purpose of the statutory amendment was to remove the "unfair advantage to those who are unregistered yet expending funds to affect a particular election." (Emphasis added.)

     In addition, the Federal Campaign Spending Law excludes reported expenditures and independent expenditures from the definition of "electioneering communications." The United States Code Title 2. Chapter 14, Subchapter I, Section 434(B)(ii) provides in pertinent part as follows:

     "(B) Exceptions. The term ‘electioneering communication’ does not include---
     …(ii) a communication which constitutes an expenditure or an independent expenditure under this Act; …"

     Therefore, it is clear that the legislative intent seeks to address "unregistered" persons and thus, the Commission will not require candidates and committees, who have reported such advertising or communications expenditures as required by law, to file a separate statement of information. Those individuals, entities and committees who are not registered with the Commission will be subject to the provisions of HRS section 11-207.6.

     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, June 12, 2003.

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

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Richard Choy
Commissioner