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Perk of incumbency: Unequal time

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The cynic might say that elected officials are candidates every day of their working lives. Attorney Robert Thomas, who admits to a little cynicism, observes this frequently these days when the bus he’s riding to work rumbles past the mayor’s campaign headquarters.

"When we pass the ‘Mufi for Governor’ signs, I think, ‘It must be nice having your campaign office there and not be a candidate yet,’" he said. "I can see why people are confused."

Despite recent complaints about unofficial candidates maintaining a high profile, especially through their regular radio spots, this confusion is unlikely to lift anytime soon.

Thanks to the enormous — and still growing — cost of running for office, politicians spend a big chunk of time in the trappings of campaigning: raising money, thinking about raising money and responding to people who donate.

But the state Constitution applies a stricter rule to define when someone becomes eligible to run: It’s when they resign their seat to seek another office. And however each state defines an eligible candidate, that’s the definition used by the Federal Communications Commission, which governs the intersect of broadcasting and politics. So it is possible that someone who looks like a candidate and acts like a candidate might not actually be a candidate, at least as far as the FCC is concerned.

The FCC enforces the "equal time" provision of federal regulations, compelling broadcasters to give the same amount of air time to any official candidate seeking the same office. There are exceptions to equal time enabling news coverage that’s warranted of a particular candidate, but generally candidates can’t corral air time they might have had as officeholders.

All of this has become very topical in Hawaii because two of the three declared candidates for governor still have regular spots on Honolulu radio on the basis that they — Democrat Mufi Hannemann and Republican James "Duke" Aiona — are, respectively, the sitting mayor of Honolulu and lieutenant governor of the state. The third, Neil Abercrombie, lost his claim on any of his radio spotlights because he gave up his seat in Congress to run for governor.

To say Abercrombie is unhappy, particularly about the relative advantage of his primary rival Hannemann, is an understatement. The mayor has now declared his intent to seek the governor’s job but won’t have to resign his Honolulu Hale seat, with all its publicity perks, until the July 20 deadline to file his nomination papers. That’s when, according to the courts, he becomes "eligible" for the seat.

As for the lieutenant governor: Aiona won’t have to resign at all. The "resign to run" provision in the state Constitution only requires resignation if the term of office being sought starts before the candidate’s current job ends.

That seemed enough of a safeguard back in 1978, when the state Constitutional Convention tried to rein in electioneering by sitting politicians, said attorney Thomas, whose specializations include election law.

"We hadn’t yet reached the days of the perpetual campaign, as we have now," he said.

The constitutional language was interpreted in 2002 when the Hawaii Supreme Court ruled in the Blair v. Harris case. This dispute arose when Russell Blair, formerly a District Court judge and state senator, sued to enforce the resign-to-run clause in the gubernatorial campaign of Mayor Jeremy Harris. On appeal, the court decided Harris, who had by then suspended his campaign, didn’t have to resign until he filed papers.

By contrast, the Campaign Spending Commission sets the bar lower for when a person becomes a candidate. Any one of the following steps qualifies someone as a candidate, according to commission rules:

» Filing nomination papers for an office.

» Receiving contributions in an aggregate amount of more than $100 or spending more than $100 toward nomination or election.

» Allowing any other person to receive contributions or make expenditures to aid nomination or election.

» Becoming certified as a candidate by the chief election officer or county clerk.

Unless the state Constitution is changed, ostensibly to bring all the state’s "candidate" definitions into alignment, this disconnect will persist, Thomas said.

Broadcasters are acutely aware of the rules, which have played out on numerous occasions. Mike Kelly, general manager of Cox Radio Hawaii, said he had to put KINE radio host Brickwood Galuteria and football color announcer Rich Miano on hiatus during their various candidacies.

At Clear Channel Radio Hawaii, general manager Chuck Cotton said the regular appearances by Gov. Linda Lingle will continue on talk station KHVH. However, citing FCC rules, he said Aiona won’t be booked 45 days before a primary or 60 days before a general election. That ban will apply across the board, including for Hannemann and state Sen. Colleen Hanabusa, who has a regular point-counterpoint with GOP Sen. Sam Slom.

"The reason they’re on is because of the office they hold," Cotton said. "But once we enter the political window, regardless of whether they hold the office or not, they won’t be on."

In any case, Thomas said, maximizing airtime may not always work to a candidate’s advantage if it leads to overexposure. And the listener can probably tell when a public official is making speeches in the course of their current job, and when they’re electioneering for the next one.

"Now voters are maybe more akamai and skeptical than they once were," he said.


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