[11-302] Definitions. When used in this part:

"Advertisement" means any communication, excluding sundry items such as bumper stickers, that:

(1) Identifies a candidate directly or by implication, or identifies an issue or question that will appear on the ballot at the next applicable election; and

(2) Advocates or supports the nomination, opposition, or election of the candidate, or advocates the passage or defeat of the issue or question on the ballot.

"Ballot issue committee" means a noncandidate committee that has the exclusive purpose of making or receiving contributions, making expenditures, or incurring financial obligations for or against any question or issue appearing on the ballot at the next applicable election.

"Campaign funds" means contributions, interest, rebates, refunds, loans, or advances received by a candidate committee or noncandidate committee.

"Candidate" means an individual who seeks nomination for election or seeks election to office. An individual remains a candidate until the individual's candidate committee terminates registration with the commission. An individual is a candidate if the individual does any of the following:

(1) Files nomination papers for an office for the individual with the county clerk's office or with the chief election officer's office, whichever is applicable;

(2) Receives contributions, makes expenditures, or incurs financial obligations of more than $100 to bring about the individual's nomination for election, or to bring about the individual's election to office;

(3) Gives consent for any other person to receive contributions, make expenditures, or incur financial obligations to aid the individual's nomination for election, or the individual's election, to office; or

(4) Is certified to be a candidate by the chief election officer or county clerk.

"Candidate committee" means an organization, association, or individual that receives campaign funds, makes expenditures, or incurs financial obligations on behalf of a candidate with the candidate's authorization.

"Clearly identified" means the inclusion of name, photograph or other similar image, or other unambiguous identification of a candidate.

"Commission" means the campaign spending commission.

"Commissioner" means any person appointed to the commission.

"Contribution" means:

(1) A gift, subscription, deposit of money or anything of value, or cancellation of a debt or legal obligation and includes the purchase of tickets to fundraisers, for the purpose of:

(A) Influencing the nomination for election, or the election, of any person to office;

(B) Influencing the outcome of any question or issue that has been certified to appear on the ballot at the next applicable election; or

(C) Use by any candidate committee or noncandidate committee for the purpose of subparagraph (A) or (B);

(2) The payment, by any person or party other than a candidate, candidate committee, or noncandidate committee, of compensation for the services of another person that are rendered to the candidate, candidate committee, or noncandidate committee without charge or at an unreasonably low charge for a purpose listed in paragraph (1);

(3) A contract, promise, or agreement to make a contribution; or

(4) Any loans or advances that are not documented or disclosed to the commission as provided in section 11-372;

"Contribution" does not include:

(1) Services voluntarily provided without compensation by individuals to or on behalf of a candidate, candidate committee, or noncandidate committee;

(2) A candidate's expenditure of the candidate's own funds; provided that this expenditure shall be reportable as other receipts and expenditures;

(3) Any loans or advances to the candidate committee; provided that these loans or advances shall be reported as loans; or

(4) An individual, candidate committee, or noncandidate committee engaging in internet activities for the purpose of influencing an election if:

(A) The individual, candidate committee, or noncandidate committee is uncompensated for the internet activities; or

(B) The individual, candidate committee, or noncandidate committee uses equipment or services for uncompensated internet activities, regardless of who owns the equipment and services.

"Earmarked funds" means contributions received by a candidate committee or noncandidate committee on the condition that the funds be contributed to or expended on certain candidates, issues, or questions.

"Election" means any election for office or for determining a question or issue provided by law or ordinance.

"Election period" means:

(1) The two-year time period between the day after the general election through the day of the next general election, if a candidate is seeking nomination or election to a two-year office;

(2) The four-year time period between the day after the general election through the day of the next general election, if a candidate is seeking nomination or election to a four-year office; or

(3) For a special election, the period between the day after the general election for that office through the day of the special election.

"Equipment and services" includes computers, software, internet domain names, internet service providers, and any other technology that is used to provide access to or use of the Internet.

"Expenditure" means:

(1) Any purchase or transfer of money or anything of value, or promise or agreement to purchase or transfer money or anything of value, or payment incurred or made, or the use or consumption of a nonmonetary contribution for the purpose of:

(A) Influencing the nomination for election, or the election, of any person seeking nomination for election or election to office, whether or not the person has filed the person's nomination papers;

(B) Influencing the outcome of any question or issue that has been certified to appear on the ballot at the next applicable election; or

(C) Use by any party for the purposes set out in subparagraph (A) or (B);

(2) Any payment, by any person other than a candidate, candidate committee, or noncandidate committee, of compensation for the services of another person that are rendered to the candidate, candidate committee, or noncandidate committee for any of the purposes mentioned in paragraph (1)(A); provided that payment under this paragraph shall include provision of services without charge; or

(3) The expenditure by a candidate of the candidate's own funds for the purposes set out in paragraph (1)(A).

"Expenditure" does not include:

(1) Services voluntarily provided without compensation by individuals to or on behalf of a candidate, candidate committee, or noncandidate committee;

(2) Voter registration efforts that are nonpartisan; or

(3) An individual, candidate committee, or noncandidate committee engaging in internet activities for the purpose of influencing an election if:

(A) The individual, candidate committee, or noncandidate committee is uncompensated for internet activities; or

(B) The individual, candidate committee, or noncandidate committee uses equipment or services for uncompensated internet activities, regardless of who owns the equipment and services;

provided that the internet activity exclusion does not apply to any payment for an advertisement other than a nominal fee; the purchase or rental of an electronic address list made at the direction of a candidate committee or noncandidate committee; or an electronic mail address list that is transferred to a candidate committee or noncandidate committee.

"House bulletin" means a communication sponsored by any person in the regular course of publication for limited distribution primarily to its employees or members.

"Immediate family" means a candidate's spouse or reciprocal beneficiary, as defined in section 572C-3, and any child, parent, grandparent, brother, or sister of the candidate, and the spouses or reciprocal beneficiaries of such persons.

"Independent expenditure" means an expenditure by a person expressly advocating the election or defeat of a clearly identified candidate that is not made in concert or cooperation with or at the request or suggestion of the candidate, the candidate committee, a party, or their agents.

"Individual" means a natural person.

"Internet activities" include:

(1) Sending or forwarding electronic messages;

(2) Providing a hyperlink or other direct access to another person's website;

(3) Blogging;

(4) Creating, maintaining, or hosting a website;

(5) Paying a nominal fee for the use of another person's website; and

(6) Any other form of communication distributed over the Internet.

"Limited liability company" means a business entity that is recognized as a limited liability company under the laws of the state in which it is established.

"Loan" means an advance of money, goods, or services, with a promise to repay in full or in part within a specified period of time. A loan does not include expenditures made on behalf of a candidate committee or noncandidate committee by a candidate, volunteer, or employee if:

(1) The candidate, volunteer, or employee's aggregate expenditures do not exceed $1,500 within a thirty-day period;

(2) A dated receipt and a written description of the name and address of each payee and the amount, date, and purpose of each expenditure is provided to the candidate committee or noncandidate committee before the candidate committee or noncandidate committee reimburses the candidate, volunteer, or employee; and

(3) The candidate committee or noncandidate committee reimburses the candidate, volunteer, or employee within forty-five days of the expenditure being made.

"Newspaper" means a publication of general distribution in the State issued once or more per month, which is written and published in the State.

"Noncandidate committee" means an organization, association, party, or individual that has the purpose of making or receiving contributions, making expenditures, or incurring financial obligations to influence the nomination for election, or the election, of any candidate to office, or for or against any question or issue on the ballot; provided that a noncandidate committee does not include:

(1) A candidate committee;

(2) Any individual making a contribution or making an expenditure of the individual's own funds or anything of value that the individual originally acquired for the individual's own use and not for the purpose of evading any provision of this part; or

(3) Any organization that raises or expends funds for the sole purpose of producing and disseminating informational or educational communications that are not made to influence the outcome of an election, question, or issue on a ballot.

"Office" means any Hawaii elective public or constitutional office, excluding county neighborhood board and federal elective offices.

"Other receipts" means the candidate's own funds, interest, rebates, refunds, and any other funds received by a candidate committee or noncandidate committee, but does not include contributions received from other persons or loans.

"Party" means any political party that satisfies the requirements of section 11-61.

"Person" means an individual, a partnership, a candidate committee or noncandidate committee, a party, an association, a corporation, a business entity, an organization, or a labor union and its auxiliary committees.

"Political committees established and maintained by a national political party" means:

(1) The National Committee;

(2) The House Campaign Committee; and

(3) The Senate Campaign Committee.

"Qualifying contribution" means an aggregate monetary contribution of $100 or less by an individual Hawaii resident during a matching payment period that is received after a candidate files a statement of intent to seek public funds. A qualifying contribution does not include a loan, an in-kind contribution, or the candidate's own funds.

"Special election" means any election other than a primary or general election.

"Treasurer" means a person appointed under section 11-324 and unless expressly indicated otherwise, includes deputy treasurers. [L 2010, c 211, pt of 2]

 

Case Notes

 

The definition of "advertisement" was not unconstitutionally vague, where the court agreed with the campaign spending commission that the definition was sufficiently precise without a limiting construction and therefore declined to adopt one. 786 F.3d 1182 (2015).

The definitions of "expenditure" and "noncandidate committee" were not unconstitutionally vague, where the court adopted the campaign spending commission's proffered construction of the term "influence" in the definitions to refer only to "communications or activities that constitute express advocacy or its functional equivalent". 786 F.3d 1182 (2015).

The "noncandidate committee" definition and accompanying reporting and disclosure 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. Because the burden of complying with the disclosure scheme was modest compared to the significance of the interests being served, the court upheld the noncandidate committee reporting and disclosure requirements, as applied to plaintiff, a for-profit corporation. 786 F.3d 1182 (2015).

It was "reasonable and readily apparent" that the court narrowly construed relevant Hawaii campaign provisions and interpreted the terms "to influence" and "for the purpose of influencing" in the definitions of "noncandidate committee" and "expenditure" in this section as referring to express advocacy or its functional equivalent; so construed, the meaning of "influence" was "considerably more precise", and "ensur[ed] that persons of average intelligence will have reasonable notice of the provisions' coverage" so as not to offend due process. 872 F. Supp. 2d 1023 (2012).

Plaintiff noncandidate committee and government contractor had standing to challenge the "noncandidate committee" and "expenditure" definitions in this section, where plaintiff had a good faith basis for believing it should not have to register as a noncandidate committee, giving rise to an actual controversy; if plaintiff ceased registration, but engaged in campaign related activities, it could have subjected itself to possible fines or actions; moreover, a favorable ruling would have allowed plaintiff to cease registration without violating the law. 872 F. Supp. 2d 1023 (2012).

Plaintiff noncandidate committee and government contractor's as-applied challenge to the definition of "noncandidate committee" in this section failed; plaintiff actively participated in our democracy; it was not unconstitutional to require it to comply with campaign finance laws that are substantially related to important government interests; Hawaii has a substantial interest in imposing noncandidate committee disclosure requirements on an organization--like plaintiff--that actively engages in political activity. 872 F. Supp. 2d 1023 (2012).

Plaintiff noncandidate committee and government contractor's as-applied challenge to the disclaimer requirement in 11-391(a)(2)(B) and the corresponding definition of "advertisement" in this section, which included the "electioneering communications" definitions in 11-341(c), rejected; the court concluded that the plaintiff's advertisements fit within the regulatory "safe harbor"--they were an "advertisement" that was an "electioneering communication" and was the functional equivalent of express advocacy under 11-341(c). 872 F. Supp. 2d 1023 (2012).

Plaintiff noncandidate committee and government contractor's challenge to the definition of "noncandidate committee" in this section failed; the statute was substantially related to important governmental interests as "[i]ts coverage vindicates the government's interest in an informed electorate without imposing on nonpolitical organizations unnecessarily" and was square with the U.S. Supreme Court in Citizens United; thus, Hawaii's noncandidate committee requirements did not facially violate the First Amendment. 872 F. Supp. 2d 1023 (2012).

The definition of "advertisement" in this section, which was narrowly construed by the court and used the wording "advocates or supports the nomination, opposition, or election of the candidate", was not unconstitutionally vague. 872 F. Supp. 2d 1023 (2012).

Cited: 744 F. Supp. 2d 1075 (2010).

 

 

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