Wednesday, May 20, 2015
9th Circuit rules Hawaii’s campaign spending disclosure laws not unconstitutional
by Larry Geller
On Wednesday, October 9, 2013, the 9th Circuit Court of Appeals, meeting at the Moot Courtroom at the William S. Richardson School of Law at the University of Hawaii, heard two appeals from the original Hawaii cases. Today (yes, it’s now May, 2015) the Court published an opinion (see below).
There are details and background on the appeal here.
The opinion addresses both plaintiff’s claims on appeal and the allocation of legal fees and costs for the claims.
I want to thank attorney Randy Elf, who argued the question of the constitutionality of four provisions of Hawaii’s campaign finance laws in the aftermath of Citizens United, for his clarification of the summary contained in the opinion. The summary of the opinion appears on pages 3-5
The court basically upheld the constitutionality of Hawaii’s campaign finance laws with regard to the disclosure requirements. Please read at least the summary in full, it’s pretty straightforward. A snip:
The panel held that the requirements were substantially
related to Hawaii’s important interests in informing the
electorate, preventing corruption or its appearance, and
avoiding the circumvention of valid campaign finance laws.
The panel also held that Hawaii’s requirement that political
advertising include a disclaimer as to the affiliation of the
advertiser with a candidate or candidate committee did not
violate the First Amendment as applied to A-1’s political
Mr. Elf emailed one clarification. I think a reader not familiar with the details of these cases would not catch this anomaly in the summary, and so it is probably best that I not attempt to paraphrase or summarize here. You’re not going to see this anywhere else, so for the record:
After digesting the Ninth Circuit’s 2010 decision in Human Life of Washington v. Brumsickle – which you may recall the Ninth Circuit issued after A-1 filed its complaint and after the 2010 preliminary-injunction hearing – A-1 sought to make only multiple contributions of $250, but because it is a government contractor, it may not make any contributions. Since the Ninth Circuit upheld the government-contractor-contribution ban as applied to A-1, A-1 – being a government contractor – may not make any contributions. The only speech in which it seeks to engage are its three newspaper ads.
With regard to the second part of the case, the 9th Circuit reversed Judge Seabright on his denial of part of the attorneys fees, and referred the matter to the 9th Circuit Appellate Commissioner to determine the amount of fees that will be awarded.
[Postscript: I don’t know if there will be further appeals, but I do want to credit and thank Randy Elf for his patience in explaining to me what an attorney would understand as a matter of course. In fact, at the time, I did check out Human Life of Washington v. Brumsickle, for example, though by now I’ve forgotten the details. I find it amazing that attorneys can keep these things in their heads… And keep in mind also, as you read this case, that it is an appeal of only those parts of the original case that plaintiffs did not succeed with at the district court level.
The Hawaii district court permanently enjoined the $1,000 contribution limit, HRS § 11-358, as applied to Yamada’s and Stewart’s contributions to a PAC, invalidating that statute with regard to their contribution.]