Advisory Opinion 98-07

     Counsel representing a political party has requested an advisory opinion on the question of whether the making of aggregate contributions in excess of $100 during a matching payment period disqualifies a contributor from making any "qualifying campaign contributions" for the purposes of partial public funding.

     The statutory scheme provides candidates for public offices with the opportunity to receive partial public funding upon the meeting of certain conditions. These conditions include: 1) committing to, and abiding by, expenditure limits (section 11-208, Hawaii Revised Statutes ("HRS"), 2) obtaining a minimum amount of "qualifying campaign contributions" during a "matching payment period" (section 11-219, HRS), 3) timely filing an intent to seek qualifying contributions, and an application for such funds (section 11-222, HRS), 4) having an opponent for nomination or election (section 11-221, HRS), and 5) meeting specified accounting, expenditure and auditing requirements (sections 11-223 and 11-225. HRS).

     In part, to qualify for partial matching funds, a candidate must receive a minimum amount of "qualifying campaign contributions" during a "matching payment period". Section 11-191, HRS defines the terms as follows:

     "Matching payment period" means:

(1) For a primary election, from January 1 of the year of a general election through the day of the primary election, or nine months prior to a special election through the date of a special election; and

(2) For a general election, from January 1 of the year of a general election through the day of the general election.

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     "Qualifying campaign contributions" means a monetary contribution of $100 or less, and not more than $100 of a person’s total aggregate monetary contribution. Qualifying contributions do not include loans or in-kind contributions.

     Thus, candidates seeking matching funds must receive in the aggregate at a minimum, depending upon the office sought (section 11-219, HRS), between $500 and $100,000 in contributions of $100 or less between the period of January 1 of the year of the election or after filing a statement of intent to seek qualifying contributions and the election. Primary and general elections are treated as separate elections. If other conditions are met, qualifying contributions matched from the Hawaii Election Campaign Fund (section 11-217, HRS). The minimum and maximum amount of the match is dependent upon the office sought (section 11-218, HRS).

     The question presented is whether a contribution of $100 or less received during the matching payment period will still be considered a "qualifying campaign contribution" if the contributor’s aggregate contribution exceeds that amount during the matching payment period.

     The Commission’s rules are dispositive of this question. Hawaii Administrative Rules ("HAR") section 2-14.1-19, Application for Public Funds, provides in relevant part:

(a) Application for public funds shall be on forms prescribed by the commission and shall certify that all penalties and any other money owed by the candidate to the Hawaii election campaign fund have been paid. To apply for public funds a candidate shall:

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(4) Submit a qualifying campaign contribution schedule which shall list:

(A) The name and address of each person who contributed an aggregate of $100 or less to the candidate since filing the statement of intent to seek qualifying campaign contributions; and

(B) The total amount of each such qualifying campaign contribution and the date of receipt by the candidate or campaign treasurer of the contribution.

     The rule clearly identifies a "qualifying campaign contribution" as those received from a person "who contributed an aggregate of $100 or less...." The rule was adopted pursuant to the provisions of Chapter 91, HRS. Accordingly, it was subject to extensive public inspection, public hearings, review by interested parties, Attorney General review and amendment, and review and approval by the Governor. The Commission is therefore bound to its terms.

     The Commission finds no reason to pursue amendment of this rule at this time. First, it conforms to the parameters and purposes of the partial public funding program. The purpose of the partial public funding system is to "remedy the unhealthy influence of money in politics and to restore competition in political campaigns." The system is therefore intended to "facilitate political competition and reduce the dependence on large contributions." (House SCR 670 (1979) Minimum aggregate qualifying contributions of less than $100 are required to demonstrate "broad-based support", id..

     Essentially, the program facilitates competition by partially matching small contributions if enough of such contributions can be obtained to demonstrate candidate credibility. No matching of contributions larger than $100 is provided for, in fact such matching would have exacerbated any "dependence upon large contributions."

     If contributors were permitted to contribute large sums and segregate $100 of their contribution for the purposes of establishing a "qualifying campaign contribution," this too would undermine the purposes of the program. Because in that event candidates would be permitted to both pursue "large contributions" while taking full advantage of a program designed to limit the "unhealthy influence of money" and "facilitate political competition." The legislature arguably addressed this potential conflict by requiring applying candidates to certify that "[t]he aggregate contributions certified with respect to any person [making a qualifying campaign contribution] does not exceed $100." (section 11-220(b)(5), (HRS)

     Second, application of the rule would not be unfair and impose no unfair surprise upon candidates seeking to participate in the partial public funding program. HAR, section 2-14.1-19 was effective as of January 3, 1998, so this is the first election cycle for which the Commission is bound by its terms. However, the interpretation embodied by its terms was also applied in the 1996 election cycle and has been the interpretation that has been provided to candidates since 1995. And even prior to final adoption, the language of the rule has been available since mid 1996. In that time, no challenge has been made to the interpretation or application, legislative committees have concurred with this reading, and amendments to the program have been based upon it. It should therefore surprise no one or work any unfairness for its terms to be applied to this election cycle.

     And third, application will not discourage public funding. It is true that prior to the 1996 elections, the Commission applied a differing interpretation. But application of the substance of this rule did not demonstrably deter participation in the program. On the contrary, participation actually increased over the previous two elections. In the 1992 elections, only 16 candidates participated in the program, in the 1994 elections only 13 candidates participated, but in 1996, 22 candidates participated, the third highest level since the program’s inception in 1980.

     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 2-14.1, Hawaii Administrative Rules. The Commission may adopt, revise or revoke this Advisory Opinion upon the enactment of amendments to the Hawaii revised statutes or the adoption of administrative rules by the Commission.

Dated: Honolulu, Hawaii, June 9, 1998.

CAMPAIGN SPENDING COMMISSION

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A. Duane Black
Chairperson

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Della Au
Commissioner

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Clifford Muraoka
Commissioner

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May Oshiro
Commissioner

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Andrea Low
Commissioner