Lexology: Hawaii faces constitutional challenge

Link >>> to original

Lexology >>> http://www.lexology.com

by Stefan C. Passantino, Amol S. Naik and Allix J. Magaziner of McKenna Long & Aldridge September 10, 2010

Hawaii has joined an ever-expanding list of states which have seen their pay-to-play laws challenged on constitutional grounds. The tension between public (and political) desire for transparency versus freedoms of speech and association has been exacerbated by the recent popularity of expanded pay-to-play legislation. Recent decisions have come down both on the side of those favoring increased disclosure and regulation and on the side of those challenging the laws as impermissible intrusions on personal liberties. With the recent filing of a legal challenge by famed first amendment  attorney James “Jim” Bopp, Hawaii will have its hands full in preserving its pay-to-play law in its present incarnation.   

At issue is Hawaii’s prohibition against campaign contributions by government contractors until “completion of the contract”. In challenging the law, the Bopp plaintiffs highlight in their complaint a little-discussed, unintended consequence of such laws that result in exorbitant expenditures of compliance time and resources (mostly in the form of legal fees): “Hawaii’s ban on candidate and noncandidate committees receiving contributions from government contractors means [contractors] must constantly keep track not only of whether it has government-construction jobs but also of whether a single . . . service technician is somewhere providing some minor service on a previous . . . job”. Complaint, p. 10-11.

The battle between regulation, practical reality and freedom of speech is thus joined.

Because Hawaii’s pay-to-play law does not limit itself, as many such state laws do, to prohibition against contribution politicians with authority to determine who receives government contracts, Jim Bopp argues that the law unreasonably impairs speech in pursuit of regulation:

Whatever the merits of banning government contractors’ contributions to candidates or officeholders who decide whether the contractors receive contracts or oversee the contracts, government has no compelling or sufficiently important interest in banning such contributions when the candidates or office holders do not decide whether the contractors receive contracts and do not oversee contracts. Id. at 48 (citations omitted).

The logic and legal foundation for such an argument would appear sound. Whether the federal district and appellate courts will agree with that logic and application of legal principle will remain to be seen. Immediate opposition to the litigation, however, such as this editorial by the Honolulu Star Advertiser editorial board, the appears content to disregard any such subtlety in declaring flatly that “direct contributions to candidates by government contractors certainly do give rise to corruption, which is why Hawaii prohibits ‘pay to play’ contributions to candidates by government contractors.”

Similar opposition by various other groups has also been reported in the media:

[O]pen-government groups -- Common Cause Hawaii, the League of Women Voters of Hawaii, Americans for Democratic Action/Hawaii and Voter Owned Hawaii -- said Bopp's intent is to dismantle campaign finance regulations nationwide. . . . "Citizens in Hawaii and across the country support strong pay-to-play laws. Our pay-to-play law was strongly supported by the people of Hawaii when it was first passed, and again when there were attempts later to water it down," Jean Aoki of the League of Women Voters of Hawaii said in a statement. "We know there is something rotten when you mix campaign donations and government contracts. Pay-to-play restrictions are fundamental to prevent corruption in government."

Bribery laws may be “fundamental to prevent corruption in government” -- even narrowly tailored prohibitions against contractor contributions to politicians with authority to award future contracts may be “fundamental to prevent corruption in government” -- but Hawaii’s law in its current incarnation may be a Bridge Too Far to make such a claim.

---30---