Hawaiʻi Constitution amendment proposed as protest of unlimited campaign spending

A proposed Hawaiʻi Constitution amendment that would be at odds with the controversial 2010 Citizens United Supreme Court decision that took the brakes off campaign spending limits has passed unanimously out of the Hawaiʻi Senate Judiciary Committee on Thursday.

Senate Bill 311 would advance a proposed amendment to the Hawaiʻi State Constitution to provide that its freedom of speech protection does not include the expenditure of money to influence elections.

In a legislative finding, the bill says that the US Supreme Court’s decision in Citizens United v. Federal Election Commission reversed long-standing campaign finance restrictions and designated corporate spending on elections as free speech protected under the First Amendment of the US Constitution.

“The decision removed any limits on the amount of money that corporations, special interest groups, and political action committees (PACs) could spend on an election,” the bill says. “The legislature further finds that the decision in Citizens United is a serious threat to our democracy.”

“Corporations enjoy various advantages, including limited liability, perpetual life and favorable treatment in the accumulation and distribution of assets, which allow them to amass and spend an extraordinary amount of money on political messages that often have far greater reach and influence than messages from individuals,” the bill says.

The measure notes that there has been a “massive increase in political spending by corporations, special interest groups, and PACs, dramatically expanding their already outsized political influence on election outcomes and policy decisions.”

The bill maintains that the people of each state have the power to amend their state constitutions, and “the Legislature believes it is critical that the state express its disapproval of the Citizens United decision.”

According to the bill, at least 20 states, including Hawaiʻi in 2016, have taken legislative action to urge Congress to pass a constitutional amendment to overturn the decision. However, “Congress has failed to take any action and appears unlikely to do so.”

The bill was introduced by Senate Judiciary Chairman Karl Rhoads of urban Honolulu. He was joined in introducing the measure by South and West Maui Sen. Angus McKelvey; Oʻahu Sens. Stanley Chang, Carol Fukunaga, Michelle Kidani, Sharon Moriwaki and Mike Gabbard (vice chair); and Hawaiʻi Island Sens. Lorraine Inouye of Hilo, Joy San Buenaventura of Puna and Herbert Richards III of North Hilo.

Rhoads said the bill was amended Thursday to add language about the Buckley v. Valeo case, which also addressed political speech. The case is a landmark 1976 Supreme Court decision that, among other things, upheld the limitations of contributions to candidates for federal office.

Senate Bill 311 is symbolic, Rhoads said, “in the sense it likely won’t have any immediate effect on campaign spending.”

“It would be an important statement of what Hawaiʻi residents believe the role of money in politics should be and it is no more symbolic than all the anti-choice states leaving their anti-abortion statutes on the books even after the Supreme Court ruled that a woman’s right to choose was constitutional in the Roe decision. Playing the long game,” he said.

Written public testimony submitted on the bill was mostly in support of its passage.

Michael EKM Olderr said: “Citizens United’s damage to our country and our state cannot be understated. Time and time again, that ruling has undermined policy-making and real change in this country. It shifted the focus of elected officials from their constituents to special interests, which has led to the Oligarchs who now whisper in our president’s ears. It has eliminated trust in our democracy and the value of our institution and created an air of legal bribery.”

Olderr suggested amendments to the bill; for example, tweaking the words “to influence elections” to make them less broad.

Victor Ramos opposed the bill, saying that the US Supreme Court has already ruled, and “therefore, any justification to propose a change (amend) to our State of Hawaii Constitution must be more than just a ceremonial gesture.”

Andrew Crossland also opposed the bill, saying it would curtail free speech protected by the US Constitution.

Stephen Munkelt supported the measure. He said that while it could not have any immediate effect on federal elections, “it may well play a role in state political contests and return some measure of power to the people.”

Honolulu resident Josh Frost said the Citizens United decision “can arguably be pointed to as the beginning of an accelerated unravelling of basic democratic principles and systems in our country.

“We are becoming an oligarchy. A terrifying drift that has been accelerated by the Supreme Court’s ruling on Citizens United,” Frost said. “The notion that money is speech and that ‘corporations are people’ are equally offensive and maddening. Corporations don’t breathe. They don’t feel pain, don’t need sleep nor sustenance. They have no need for health care and, perhaps most importantly, corporations do not vote. Yet their ‘voice’ drowns out those of ordinary Americans who are actually people. Real people who have no money for campaign contributions or campaign advertising.”

Editor’s note: This post was updated from an original version with the addition of comments from Senate Judiciary Chairman Karl Rhoads.