A new pilot project to provide comprehensive public financing to county council candidates in Hawai’i County is likely to be found unconstitutional following a decision of the U.S. Supreme Court issued late last month, according to an election law attorney involved in the case and at least one national expert.

James Bopp, general counsel for the James Madison Center for Free Speech in Terre Haute, Ind., said two provisions of Hawai’i’s public financing scheme appear to violate the First Amendment under the latest Supreme Court ruling.

HB 661, now awaiting Gov. Linda Lingle’s signature to become law, establishes a pilot project to provide optional public financing to candidates for the Hawai’i County Council beginning in 2010. The measure would provide a basic amount to the campaigns of qualifying candidates, with additional public funds made available if necessary to match higher campaign spending either by opponents backed by traditional private sources or by independent political groups, unions, political action committees or other special interest groups.

The bill’s passage followed years of lobbying by Voter Owned Hawai’i, a coalition of public interest groups including the League of Women Voters, Sierra Club, Life of the Land, Common Cause, AARP, Association of Hawaiian Civic Clubs and more than a dozen others. The bill also received backing from the Hawai’i County Council, whose members will be the first to test the new system.

The public financing system would be similar to those already functioning in Maine, Arizona and several other states and cities.

Five years in the making

According to Voter Owned Hawai’i, which spent five years lobbying for the so-called “clean elections bill,” public financing “levels the playing field for candidates running for office so that money isn’t the deciding factor on whether someone runs or wins.”

But Bopp said the Supreme Court decision in the case of Davis v. Federal Election Commission changes the electoral landscape.

That case involved the so-called “Millionaire’s Amendment,” part of the federal Bipartisan Campaign Reform Act of 2002. The provision aimed to reduce the advantage that wealthy candidates have over opponents who have to raise their own campaign funds. Although the specifics were different than Hawai’i’s comprehensive financing plan, it had the similar intent of reducing the advantage that money gives in elections.

When a wealthy candidate spent more than $350,000 of her or his own money, contribution limits applying to their opponents were boosted, allowing those candidates to accept three times the normal maximum from contributors, in theory balancing out the impact of personal wealth. The law also required additional disclosures by wealthy candidates in order to determine when the higher contribution limits for their opponents would be triggered.

The Supreme Court, in a 5-4 decision, ruled laws “leveling electoral opportunities” to provide more fairness or more equality between candidates do not pass constitutional scrutiny. The court also rejected unequal disclosure and reporting requirements as unconstitutional.

Bopp said Hawai’i’s public financing pilot project does not meet the requirements now spelled out by the Supreme Court.

“Triggering, the idea that the publicly funded candidate can get more money as either independent groups or privately funded candidates raise additional funds, is now clearly unconstitutional,” Bopp said.

“What the court has said is that giving more money to publicly funded candidates is a penalty either on speech or spending, and in either case you’re penalizing First Amendment rights,” Bopp said. “And that is unconstitutional.”

Bopp said the increased reporting requirements placed on privately financed candidates by Hawai’i’s comprehensive public funding system are also plainly unconstitutional under the ruling.

Immediate impact?

Richard L. Hasen, William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles, and author of Election Law Blog, agreed that aspects of public financing are endangered by the decision.

“Provisions that give additional money or increased contributions to participating candidates who face either a wealthy challenger or independent spending, that’s the part subject to challenge,” Hasen told Honolulu Weekly in a telephone interview.

Kory Payne, Field Director for Voter Owned Hawai’i, said it isn’t possible yet to make an “apples to apples” comparison between the “Millionaire’s Amendment” and Hawai’i’s public financing experiment but believes the decision could end up bolstering the clean elections movement by eliminating options other than comprehensive public financing.

Campaign Spending Commission Director Barbara Wong said the commission hasn’t had an opportunity to discuss the Supreme Court’s ruling, but it won’t have any immediate effect on the public financing pilot project unless someone steps forward to challenge its constitutionality.

Wong said the Attorney General has previously advised the commission that it must enforce the laws passed by the Legislature unless they are overruled in court.