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Ben Cayetano said he always knew he’d be fighting big money in the race for the Honolulu Mayor’s Office.
On Monday, the former two-term Democratic governor put the weight of the law behind that claim, filing a lawsuit against the Pacific Resource Partnership for libel and slander in a case that experts say will be closely watched nationally.
The U.S. Supreme Court has allowed unlimited amounts of money to be used to attack and support candidates saying it is a First Amendment right. Since that ruling, Cayetano’s lawsuit could be one of the first in the country to challenge whether free speech trumps the truth in political campaigns.
He’s now seeking monetary damages that his attorneys say could be worth even more than the millions of dollars that PRP has spent trying to keep Cayetano out of office.
While the lawsuit comes near the close of what’s been a close race with former Honolulu Managing Director Kirk Caldwell, Cayetano and his attorneys, James Bickerton and Michael Green, say its not about politics, but about principle.
“This is a much bigger matter than who wins this election,” Bickerton said during a press conference. “This is even bigger than rail. This is about the future for Hawaii’s electoral system and whether we’re going to allow it to be dominated by big money and whether or not we have the Citizens United problem of having big money coming in and saying whatever they want on the television and the radio waves.”
It’s difficult for public officials to prove they’re the victims of slander or libel. It’s also uncommon for candidates to pursue a case when it involves potentially defamatory statements made during a campaign.
Part of the reason is that it can take years to go through the litigation. In that case, what’s the point?
But Cayetano has said that win or lose, he plans to pursue the case until the end. Although his feelings are hurt, he said, it’s more important to smoke out the people behind PRP’s efforts and let voters know who is running its operations.
That’s an unusual move in an election season dominated by super PACs and other groups that by law can spend unlimited amounts of money and keep secret the identities of their donors.
It also raises questions about who is culpable in such cases. Cayetano not only names PRP and its executive director John White in the lawsuit, but also Barbara Tanabe and Jim McCoy of the public relations firm Hoakea Communications, and 14 of PRP’s trustees.
White did not respond to calls seeking comment for this story. A spokeswoman for PRP also said the group would have no comment.
More people may be added to that list. Media outlets, such as the local radio and television stations, could also be named as defendants in the lawsuit for running potentially defamatory advertisements, Cayetano’s legal team said.
“What’s important is for the people to recognize that since the Supreme Court’s ruling, this may be a new era in politics,” Cayetano said. “The people of this city have to decide whether they want to allow these kinds of things to go on or put a stop to it, and that’s what this lawsuit is all about.”
Should Cayetano succeed in his lawsuit, it could ripple throughout the country.
Kathleen Hall Jamieson is the director of the Annenberg Public Policy Center at the University of Pennsylvania and a co-founder of FactCheck.org. She also works on another project, FlackCheck.org, that aims to get TV stations to refrain from airing advertising that is deemed inaccurate.
There aren’t many instances of candidates suing over slanderous or libelous statements that were made during an election, she said. There’s little upside to suing for defamation, especially in a post-Citizens United world where a group could have unlimited amounts of resources to fight off an attack.
Hall Jamieson said Cayetano’s lawsuit could potentially attract a great deal of attention, especially if he wins.
“The lesson will be a function of outcome,” Hall Jamison said. “If he wins it will increase the number of people who will use the same redress. If he loses it will probably embolden the third-party groups.”
She added that if the television and radio stations are also on the losing side the impact could have further ramifications for media outlets running political ads.
Cayetano’s lawsuit highlights just how much influence PRP is having on the mayor’s race. The group has become as much of a focal point as the two candidates and their positions on the $5.26 billion rail project.
PRP is a consortium of union carpenters and contractors. It formed an independent expenditure committee to allow it to raise and spend an unlimited amount of money on making rail a reality. This essentially made it Hawaii’s version of a super PAC.
Much of PRP’s financial effort has gone toward attacking Cayetano through advertising, push polls and a website, readbensrecord.com. PRP now has dozens of paid canvassers traveling across the island to spread its message to undecided voters.
Part of this message has been to tell people about $540,000 in illegal campaign contributions Cayetano received while running for his second term as governor. The campaign also has attempted to link Cayetano to a pay-to-play culture it says existed while he was in office and that resulted in political donors getting lucrative government contracts.
But according to the lawsuit, PRP crossed the line with these attacks when the group insinuated that one was the result of the other, in effect saying he was taking bribes.
“Everyone who looks at these ads and hears them understands that they’re intended to say that Ben Cayetano is corrupt, that’s he’s a crook, and that he broke the law,” Bickerton said. “That was what they intended and that they know is not true.”
In fact, Cayetano was never found to have done anything wrong by the Hawaii Campaign Spending Commission even though his campaign accepted contributions in excess of state limits. It was the contributors, not the candidate, who were found to be at fault. The former director of that agency, Bob Watada, even came to his defense to say so and is now appearing in new TV ads sponsored by the Cayetano campaign.
But Watada also gave PRP ammunition during his visit by saying that a pay-to-play culture did appear to take place while Cayetano was governor. He noted, however, that nothing was ever proven and that the practice was commonplace even after Cayetano left office.
PRP declined to comment on Cayetano’s lawsuit. But the group has continued to press its claims. Whenever a new PRP ad comes out, it’s usually accompanied by a press release and fact sheet with links to supporting documents and past media coverage.
But local pundits and news outlets, including Civil Beat, have debunked the ads as misleading or untrue. The lawsuit relies on some of this commentary to make its point, and quotes the work of Honolulu Star-Advertiser columnist Richard Borreca, PBS Insights host Dan Boylan and investigative journalist Ian Lind, among others.
Bickerton said he’s hoping to be able to measure how much of an impact PRP actually had in its campaign against Cayetano. The plan is to use polling figures that have been gathered throughout the course of the election.
After the Aug. 11 primary, Cayetano said an internal poll showed that PRP’s ads were enough to give about 5 percent of voters a negative opinion of him. His goal during the primary was to win more than 50 percent of the vote and avoid a runoff.
He received just over 44 percent of the vote.
Read the full lawsuit here: