The state Legislature is looking at a new, untested legal approach to curb corporate money in elections.
It's an attempt to get around the 2010 U.S. Supreme Court decision Citizens United. The case held that it was unconstitutional to regulate the right of corporations to spend independently in elections.
The bill has passed out of both chambers, and hinges on the right that states have to define what a corporation is and give it powers. States also have the ability to change that at any time.
Senate Bill 2471 goes to the section of Hawaiʻi law that grants corporations, nonprofits and other business entities the same powers as individuals — and redefines it.
Rep. Della Au Belatti, a member of the legislature's Good Government Caucus, urged her colleagues to support the measure.
“ The process to date has allowed all of us as duly elected lawmakers to consider how we as a state can rein in the undue influence of monies flowing from unlimited corporate treasuries that undermine our political process and have fueled voters' distrust and disenchantment with government,” she said.
“ We have legal experts who are lining up behind this measure, who are looking at this framework and are advising us because they have the background and the expertise to say, this is not constitutionally unsound. It is not novel," Au Belatti said. "What we are asking to do is what the states have always been allowed to do for centuries. It is, in fact our duty to define and regulate and authorize corporations to act within our state.”
The state attorney general's office opposes the measure. They wrote in their testimony on the bill that the legal theory “collapses in upon itself upon further examination.”
“The theory simply does not account for how Hawaii can regulate the speech of foreign corporations when it does not grant the powers of those corporations, and this is logically and legally fatal,” it wrote. “This bill may also face an unconstitutional conditions challenge in effectively permitting a corporation to keep certain state-granted benefits only if it refrains from engaging in election activity or ballot-issue activity, activities that a normal corporation is otherwise entitled to engage in under U.S. Supreme Court case law.”
The office raised concerns about the cost of legal fees to defend the law against challenges if the bill passes.
However, Au Bellatti pointed out that the attorney general's office did not reach out to any corporate lawyers to analyze the measure.
Hawaiʻi would be the first state in the nation to try this legal approach if the measure passes.
The bill will next be negotiated in conference committee, one of the last stages of the legislative process. It is currently awaiting House and Senate leadership to assign conferees to the measure.
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