Monday, October 07, 2013


Hawaii’s campaign spending laws go before the 9th Circuit in Honolulu on Wednesday

by Larry Geller

While the eyes of campaign spending advocates, politicians, law professors and others may be turned toward the Supreme Court in anticipation of tomorrow’s oral arguments in McCutcheon v. FEC, the 9th Circuit Court of Appeals will be hearing two cases on Wednesday, in Honolulu, that should not be overlooked in McCutcheon’s shadow.

McCutcheon v. FEC is the case challenging the $123,200 limit on contributions a single donor may make to federal candidates and political party committees during any election cycle. The Hawaii cases concern disclosure and the burden or ban on political contributions under various Hawaii laws.

Logistics for the 9th Circuit hearings on Wednesday, October 9

On Wednesday, the 9th Circuit Court of Appeals will hear two appeals from the original Hawaii case. The first addresses plaintiff’s claims. This appeal will be argued by attorney Randy Elf. The second case will address legal fees and costs for the claim on which the plaintiffs prevailed, and will be argued by attorney Justin McAdam. Honolulu attorney Jim Hockberg will also be present.

The hearing will take place in the Moot Courtroom at the William S. Richardson School of Law at the University of Hawaii.

Both cases are now titled Yamada v. Snipes.

While the cases are scheduled as #3 and #4 on the calendar, it is not unusual for there to be cancellations, so it’s best to be there at least a few minutes before the 10 a.m. scheduled start to allow for traffic, parking and security.

I hope the law school allows students to attend the hearings instead of their regular classes. Probably only dedicated students will want to read through the briefs, but to make it easier, I have posted a small library here for download, with thanks to attorney Randy Elf for kindly making these documents available.

Audio from the oral arguments will be posted as soon as the court makes it available.

Background of the two 9th Circuit cases

Hawaii’s cases derive from Citizens United. The case heard in District Court before Judge J. Michael Seabright was Yamada Et Al. v. Kuramoto Et Al, also referred to as the A-1 A-Electrician case (1:10-cv-00497-JMS-LEK).

The Hawaii defendants are members of the Campaign Spending Commission (see the 9th Circuit case discussion below for a list).

I wrote at the time of the judge’s ruling:

In the wake of the Supreme Court’s Citizens United decision, Hawaii plaintiffs Jimmy Yamada and Russell Stewart filed a challenge to the constitutionality of several Hawaii campaign spending laws. Judge Seabrook granted an injunction in part, reasoning that the government has no valid constitutional interest in regulating the contributions that plaintiffs want to make to the Aloha Family Alliance – Political Action Committee.

Specifically, Seabright held that there is no legitimate government interest in restricting contributions to organizations that engage only in independent spending, as the Aloha Family Alliance PAC does. He declined to declare the entire law unconstitutional at the preliminary injunction stage.

[Judge does not strike down Hawaii law but grants partial injunction in campaign spending limit challenge, 10/7/2010]

While few legal disputes of this import should be treated lightly, from the beginning it appeared clear that the State of Hawaii was fighting a losing battle. The arguments were clearly unbalanced in the legal briefs filed with the court, and this was reflected in how the case played out in the public courtroom. The judge and plaintiff attorney Randy Elf were already debating details of the eventual order while the state attorney appeared disengaged. See: Hawaii abandons appeal of campaign contribution case (6/13/2011).

From an earlier article:

The heart of the hearing took place at about 11:00 a.m. in a spirited back-and-forth between Judge Seabright and attorney Elf. It was clear that Seabright had studied related cases from other circuits as well as Citizens United, the Supreme Court case that blew the lid off of corporate campaign contributions. During the discussion Elf demonstrated a command of the core issues that was impressive, and which helped Seabright to clarify his own understanding.

Plaintiffs have asked the court to reimburse attorneys fees, which will be the subject of the second case to be heard on Wednesday.

As the case moves to appeal, it becomes less certain, to this inexpert observer, which part of Hawaii’s campaign spending law might be upheld and which might be struck down. As usual, the questioning of the 9th circuit judges may give hints. It’s important to understand that the judges have been briefed extensively but that the press commentators likely will not have had a chance to read through the documents.

The 9th Circuit Cases

The first case to be argued on appeal raises constitutional challenges to several of Hawaii’s campaign
finance laws. Specifically, campaign finance disclosure provisions of state law are challenged. For example:

Hawaii’s non-political-committee reporting requirements reach beyond what the Supreme Court has said government may regulate via such law,

[Doc. 67 from library]

Still at issue, if I understand correctly, is whether plaintiff A-1 may make contributions and engage in independent spending for political speech without itself being a political/noncandidate committee. This requirement would trigger Hawaii law which is at issue in this case.

The library of documents consists primarily of supplemental briefs, and so an understanding of the case would require revisiting the District Court documents. Probably the easiest way into the arguments is via the preliminary injunction order at the bottom of this article.

Plaintiffs remain Jimmy Yamada and Russell Stewart, represented by The Bopp Law Firm, P.C.. Current defendants listed in the briefs are: Michael Weaver, in his official capacity as chair and member of the Hawaii Campaign Spending Commission; Dean Robb, in his official capacity as vice chair and member of the Hawaii Campaign Spending Commission; and Tina Pedro Gomes, Mara Miller, and William Snipes, in their official capacities as members of the Hawaii Campaign Spending Commission. Deirdre Marie-Iha has been the Deputy Solicitor General filing briefs for the defendants.

I will admit to getting lost almost immediately in the arguments over the standards for “closely drawn” or “exacting” scrutiny. TLDR.

The arguments for and against the amount of attorneys fees to be awarded to plaintiffs are not unimportant, but are best left for independent research. In the document library, the heart of the issue can be found in documents D.12, D.16, D-24, and D-30. There were more afterwards, for those truly dedicated to following this issue.


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