i L i n d . n e t

Here’s an interesting snippet from Maui attorney Ben Lowenthal’s blog (Hawaii Legal News) in which he comments on the reasoning behind a recent Hawaii Supreme Court decision. The case has nothing to do with campaign finance, but Lowenthal’s comments that this court favors interpreting a statute by “a strict interpretation of the plain language.” This same approach clearly weighs against the Campaign Spending Commision’s appeal over the issue of the applicable limit on corporate contributions. The commission is appealing a Maui judge’s ruling that the commission was wrong to bar corporations from contributing an aggregate of more than $1,000 in any election.

Lowenthal observes:

Plain Language/Strict Interpretation Approach reigns Supreme. Both the majority and Justice Nakayama uphold the principle that the first step in interpreting a statute is a strict interpretation of the plain language. They part ways from there. Justice Nakayama believed that the language, though plain, lead to a result inconsistent with the legislative purpose. The majority, however, concluded that the statute was plain and the effect was not absurd. In fact, its interpretation prevented one part of the statute from being a nullity. In any event, the importance of a strict interpretation and the adherence to the plain meaning absent an exception like an ambiguity or an absurd result remain unquestioned. This puts the legislative history and other extrinsic aids in interpreting law in the backseat.

In the campaign spending case now pending before the Hawaii Supreme Court, the “plain language” of the law provides that “No person or any other entity shall make contributions” beyond certain stated limits. In legal terms, a “person” can be an individual or a corporation (Section 11-204 HRS). So the plain language allows contributions up to the stated limits. In the campaign spending case, the legislative history also works against the commision’s position.

In any case, that’s a bit of why I don’t think the commission has much chance of prevailing on appeal.

This isn’t the first time that the Campaign Spending Commission has gotten twisted up in tangles of language. When I first took the job of executive director of Common Cause/Hawaii back in 1983, there was intense lobbying going on over the definition of a political “committee”, and it became my first lesson in what difference a single word can make.

The fight was over this paragraph.

Notwithstanding any of the foregoing, the term “committee” shall not include any individual making a ontribution or expenditure of the individual’s own funds or anything of value that he individual originally acquired for the individual’s own use and not for the purpose of evading any provision of this subpart, or any organization, which aises or expends funds for the sole purpose of the production and dissemination of informational or educational advertising.

In a longer bill making a number of amendments to the campaign spending law, HGEA lobbyists tried to slip in a change by replacing the term “individual” with the similar but legally much broader term “person”. It would have had the effect of eliminating registration and disclosure by corporations and unions that used their own funds to make contributions.

The next year, the commission created its own version of the same tangle. As I recall, at the time, corporations, unions, and other noncandidate committees were required to report their expenditures. This had always been taken to mean that they had to disclose anything they spent to make contributions to candidates.

But out of the blue, the commission received an attorney general’s opinion which said the term “expenditure” couldn’t possibly include a “contribution” and, therefore, those committees were not required to disclose contributions. The commission followed the AG’s advice.

At the time, I simplified it by describing a typical transaction at a supermarket. When you buy a loaf of bread, you have to make an expenditure–you pay for the product–which then is counted as revenue or income by the store. The same money is both an expense and income depending on whose point of view you take.

In the same way, there was no reason for the commission to conclude that a contribution could not also be an expenditure. Well, no logical reason. The political reason, the media suggested, was that a company owned by politically connected Big Island rancher Larry Mehau was facing allegations of failing to disclose certain contributions to the campaign of Gov. George Ariyoshi. Based on the reasoning suggested by the AG, those charges were dismissed by the commission.

Here are a couple of news stories about the situation. Common Cause then sued the commission, which responded by reversing itself by a unanimous vote in a meeting characterized by a total lack of discussion of the issue.

There was a big glass ball theft in Kaaawa at the end of last week. Unknown thieves went over a fence or through a gate, up the stairs to the second floor, and cut through nets holding two large glass balls suspended from this house located just a short distance from us.  The whereabouts or reactions of the dogs of the household, a Rottweiler and a Chow, are unknown. I’m worried that this signals another round of early morning thefts. We’ve had several cycles where a string of thefts occurs over a period of a week or two before the thieves move on to another neighborhood. I’m waiting to see whether other thefts will be reported here.