Imagine a sudden announcement that all existing laws providing for transparency and accountability would be repealed prior to the next statewide election.

The move would mean that all laws adopted over the past 40 years to limit and control the influence of special interest money on elections would be wiped off the books, along with those ethics laws that have applied to candidates, elected officials and those who seek to influence them.

No more laws regulating campaign spending or elections, no more ethical standards for the winning candidates, and no restrictions on the efforts of lobbyists to sway policies in favor of their special interest clients.

From the point of view of special interests, it would mean a free-for-all where anything goes.

From the public’s perspective, on the other hand, it would be a disaster, and I think most people would recognize it as such.

Manoa Elementary School voting.
None of the normal election laws will apply when delegates to a Native Hawaiian constitutional convention are selected. Brian Tseng/Civil Beat

Not likely to happen, you say? At least as far as regular state and local elections go, certainly not.

But it is precisely the case for the current election of Hawaiian delegates who will convene early in 2016 for an eight-week convention, or aha, “to decide whether or not to create a document or constitution for a nation and its governance.”

The outcome of the convention process will potentially have a profound impact not only on those of Hawaiian descent, but on all residents of Hawaii.

Unlike regular state and local elections, this election of delegates is being carried out by Nai Aupuni, a private organization set up for this specific purpose, and elected delegates will not be considered government officials. As a result, the laws that regulate election campaigns, ethics and lobbying do not apply.

There’s just too much at stake to expect everyone to be on their best behavior through the whole process.

There are no current indications that special interests have targeted the Hawaiian election or the convention to follow, any more than they have influenced Office of Hawaiian Affairs elections in the past. But as the process begins to take shape and move from theory to reality, and the risks and rewards of competing outcomes become more evident, that’s almost certain to change.

So what exactly will be missing from this election process? The short answer: Almost everything we’ve gotten used to.

Campaign Spending Commission Executive Director Kristin E. Izumi-Nitao confirmed this week that the state’s campaign spending law does not apply to the privately operated Hawaiian election.

There will be no limits on contributions to candidates from individual supporters, organizations or corporations.

Nai Aupuni says candidates will eventually have to disclose how much they spent on their campaigns and “the sources of the contributions,” but we don’t know the specifics of the disclosure requirements. And that information will not be filed or publicly available until the election is already over, so it will not help inform voters as they choose between candidates.

And how about corporations and other special interests that decide to fund candidates? Their actions will not be subject to contribution limits or public disclosure, and the public won’t have any clear way to determine whether they are playing a significant role in the process or not.

In regular elections, the law sets out procedures for handling and accounting for money that flows through each campaign. Those will not apply to the Hawaiian election.

Loans to candidates or campaigns? Unregulated. Repayment? Who knows.

State law prohibits anonymous contributions to candidates or campaigns, contributions under false names, contributions by contractors, or from foreign companies or individuals. None of those prohibitions will apply to the election for delegates charged with deciding whether or how to establish a Native Hawaiian government.

And state law prohibits candidates for public office from accepting campaign contributions and then turning around and using the money for personal expenditures. Also not applicable to the Hawaiian election.

The outcome of the convention process will potentially have a profound impact not only on those of Hawaiian descent, but on all residents of Hawaii.

A few elected officials, or former candidates who still have active campaign committees, are among those who have filed to run as Hawaiian convention delegates, and Izumi-Nitao says she will be watching to be sure they don’t try to use their existing campaign funds to fuel their convention bids.

And then there are the ethics laws, which also don’t apply.

Candidates in regular elections are required to file personal financial disclosures that are part of the public record. These disclosures include sources of income, ownership interests in businesses, positions with organizations, real property owned, and outstanding debts, and have to be filed well in advance of elections, but that’s another aid to the public that won’t be available in the Hawaiian election.

And while the Hawaii Constitution requires delegates to a state constitutional convention to adopt and enforce its own code of ethics, it doesn’t apply to the upcoming convention, although delegates could decide to comply nonetheless.

Finally, there’s the whole lobbyist law, which requires lobbyists to disclose both their clients — the organizations or businesses paying for their services — and their activities, including their spending.

But the law only applies to lobbying the Legislature or, under certain limited circumstances, the state administration. It will not apply to lobbying aimed at influencing delegates who are elected to take part in the aha, or the outcome of the convention process.

Unregulated and undisclosed lobbying, especially without clear and enforceable laws prohibiting conflicts, definitely creates tricky and dangerous terrain, both for delegates and for the public.

It may be that money won’t end up being a factor in the election, and those who are elected to serve as delegates to the Hawaiian convention will adhere to the highest standards of ethical conduct even without the whole legal framework we usually rely on.

It’s possible, but I wouldn’t bet on it. There’s just too much at stake to expect everyone to be on their best behavior through the whole process.

About the Author

  • Ian Lind
    Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for more than 20 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands. Read his blog here. Opinions are the author's own and do not necessarily reflect Civil Beat's views.