Advisory Opinion 98-13

     Two state legislators have requested an advisory opinion regarding the use of campaign funds to supplement the production or mailing of legislative newsletters.

     Legislative newsletters are newsletters sent to constituents of elected officials to advise them of the activities of the legislature. The production of such newsletters is paid for with appropriated funds set aside as "legislative allowances" allocated to each member of the Legislature. The question raised by the legislators is whether funds from their campaign accounts can be used in connection with such mailings.

     Hawaii Revised Statutes ("HRS") section 24-1 provides for the receipt of an annual $5,000 allowance for each legislator to "cover incidental expenses connected with legislative duties." Advisory Opinion No. 93-6, of the State Ethics Commission has found that "a proper exercise of state powers would entail using the legislative allowance exclusively for the purposes reasonably related to legislative duties. If a legislator were to use the allowance for another purpose, then the legislator would likely be in violation of section 83-12."1  Thus, the legislative allowance may not be used for campaign or political purposes.

     The general rule regarding the use of campaign funds is that it must be used for campaign purposes. Section 11-200(a), HRS, prohibits a candidate, treasurer or committee from making any transfer of funds except when "directly related…to the candidate’s own campaign." Since the legislative allowance cannot be used for a legislator’s campaign, commingling would run afoul of either the campaign law’s requirement of campaigning, or the House of Representative’s prohibition of campaigning. Such commingling would thus be prohibited under ordinary circumstances.

     An exception to the general rule requiring campaign use of contributions is the law governing the use of surplus funds. "Surplus funds" defined in the rules as "contributions held by a candidate or committee after all campaign expenses have been paid for the election period." (HAR section 2-14.1-2) Surplus funds are thus the balance in a candidate’s campaign account after the election period, less any loans or unpaid expenses. Section 11-206(c), HRS permits surplus funds to be used "for any ordinary and necessary expense incurred in connection with the candidate’s duties as holder of an elected office…." Advisory Opinion No.96-03, of the Campaign Spending Commission addresses the scope of permitted use to include "costs of travel of the elected official to a function directly related to an official responsibility, and the ordinary costs of establishing or closing down an office of an elected official." However, "any other ordinary and necessary expense must be approved by the Commission on a case-by-case basis."

     The Commission views legislative newsletters and other constituent communications to constitute "ordinary and necessary expenses". It is both "ordinary" and "necessary", for elected officials to communicate with their constituents regarding legislative activities and community affairs with which the legislator is associated. Insofar as legislative allowances may legitimately be used to prepare or distribute such communications, a commingling of funds will not violate any prohibition.

     Consequently, it is the opinion of the Commission that campaign funds may be used to supplement the legislative allowance to pay for legislative newsletters and other legislative communications only to the extent that "surplus funds" are utilized. If the candidate has no surplus funds or has exhausted them, campaign funds may not be used.

     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, September 8, 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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Andrea Low
Commissioner

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1 H.R.S. 84-13 prohibits legislators and other state employees from using their "official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment for oneself or others...."