The public could have less transparency in elections and less insight into what political advertisements candidates are paying for under a pair of measures moving through the Hawaii Legislature.

House Bill 144 and House Bill 674 would exempt candidates for office from filing reports on ads with the state. That 20-year-old law was intended to shine a light on how much money candidates and super PACs are spending on ads during election season to sway voters. 

Wording in the ad reporting law has confounded some campaigns and led to significant fines in recent years.

The agency in charge of regulating campaign finance has tried to introduce fixes this session. But now, that agency warns that the proposed candidate exemptions would erode scrutiny of campaigns.

“Transparency in the 2022 elections, and beyond, will be dealt a huge blow,” Kristin Izumi-Nitao, executive director of the Campaign Spending Commission, said in written testimony to lawmakers.

State Capitol Building.
Candidates wouldn’t need to file political advertisement reports with the state under proposals moving through the Legislature. Cory Lum/Civil Beat

In 1999, the Legislature passed a law requiring all candidate committees and political action committees to file reports with the state whenever they spend money on advertisements.

Those reports to the state, called statements of electioneering communication, provide details on where a candidate’s political ads are running, when the ads are running, how much the candidate has spent for them and if the ad is meant to support a candidate or attack an opponent.

Federal law requires radio and television stations to make most of that information available publicly. Bills in the Legislature wouldn’t touch those provisions.

While the law that requires those reports adds a layer of transparency for local elections, it’s also created a headache for campaigns. 

Several political candidates told the Campaign Spending Commission during hearings in 2020 that reporting requirements for social media ads in particular have been difficult to keep up with. Campaign accounts aren’t typically charged for ads until individuals start scrolling past them. Some have not realized bulk mailers are also covered by the law. And still others have been caught off guard by the law itself.

Between June 2020 and February, the commission assessed more than $25,000 worth of fines through conciliation agreements against 55 campaigns, according to a review of the commission’s meeting minutes.

The law requires that the electioneering reports be filed within 24 hours from the time a contract is signed. The commission has tried for four years to clear up the law and make it easier on the candidates.

Campaign Burden

To help remedy confusion over the ad reporting law, the commission introduced HB 144 and Senate Bill 404 this year. Both would require a report within 24 hours of an ad running instead of when a contract for the ad was executed.

But in hearings this session, lawmakers have argued that the reports are a burden on campaigns, particularly small ones. Others worried that disclosing advertisements may tip off competitors as to election strategy.

House Judiciary and Hawaiian Affairs Chairman Mark Nakashima amended HB 144 to exclude candidates from having to file those electioneering reports. In 2019, the House Judiciary Committee previously tried to exempt candidates from the reporting requirements.

Nakashima doesn’t believe candidates should be subject to ad reporting requirements. 

Vice Speaker Mark Nakashima during House presser post 2020 State of the State address.
House Judiciary and Hawaiian Affairs Chairman Mark Nakashima, right, is leading efforts to repeal some ad reporting requirements. Cory Lum/Civil Beat

He says the electioneering reports law was meant to target super PACs, which are allowed to spend unlimited amounts of money to influence voters so long as they don’t coordinate with campaigns.

The candidate exemptions are also found in another bill introduced by Nakashima, HB 674.

Asked about concerns over transparency in political campaigns, Nakashima pointed to campaign finance reports candidates are required to file with the state that show, among other expenditures, how much money was spent on advertisements.

“The only thing that’s missing is the timing of when our pieces are going to drop,” Nakashima said.

But Gary Kam, the Campaign Spending Commission’s general counsel, says that understanding the timing of advertisements is important for the public.

“It’s more recency of information,” Kam said. “If you’re sitting at home and see a commercial, you can look and see who is behind it.”

Kam also takes issue with arguments made by some legislators that electioneering reports might tip off opponents on advertising strategies.

“OK. I guess that’s a concern for candidates, but when you compare it to transparency in elections, I would think the transparency side would win out,” Kam said.

Kam said only the Legislature has the power to change the ad reporting laws. The commission couldn’t deal with the issue administratively, Kam said.

Contact Key Lawmakers

HB 144 and HB 674 both await a hearing in the Senate Judiciary Committee. SB 404 still includes the commission’s language on the ad reporting changes.

Senate Judiciary Chairman Karl Rhoads and other senators advanced SB 404 unamended. But Rhoads said he doesn’t plan to hear either House bill after getting tentative agreement that lawmakers would use SB 404 to move any electioneering provisions. Rhoads said there’s a chance that the Legislature might ultimately remove ad reporting requirements for candidates.

“I’ve always been on the fence about whether candidate committees need to do it when we have all this reporting we need to do,” Rhoads said. “I’d say there’s a possibility we could get rid of it.”

The commission’s bills would also raise the threshold for filing electioneering reports from $2,000 to $5,000, a move that would have reduced the number of candidate committees filing those reports by 30% during the 2020 primary election, according to Kam.

SB 404 is scheduled for a hearing Friday in the House Government Reform Committee.

Similar measures forwarded by the commission died in the final hours of session in 2019.

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