The Indiana lawyer who led the federal ban on political spending by corporations in candidate elections is challenging Hawaii’s campaign finance law. Hawaii’s law is defensible for the most part, including its safeguards banning campaign contributions to candidates in return for government contracts.
James Bopp Jr. of Terre Haute, Ind., led the assault resulting in a 5-to-4 decision by the U.S. Supreme Court in January that the government has no business regulating political speech.
He filed a lawsuit in Honolulu’s federal court last month challenging the state’s political spending restrictions, most notably the ban on direct donations to political candidates by state and county contractors.
Hawaii’s prohibition should not be affected by the high court’s opinion, which struck down the federal prohibition of corporate spending independent of candidates as an infringement of First Amendment free speech rights. That case involved a documentary called "Hillary: The Movie," produced by Citizens United, a conservative nonprofit corporation, released during the 2008 Democratic presidential primaries independently from any candidate.
Justice Anthony M. Kennedy, who wrote the majority opinion, pointed out that "by definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate." Indeed, newspapers and television stations engage in political speech independently of candidates or political parties, and the court ruled that non-media corporations should not be denied the same right.
Kennedy added that independent expenditures by corporations "do not give rise to corruption or the appearance of corruption," as do direct corporate donations to candidates.
Hawaii is among more than 20 states that prohibit direct corporate contributions to candidates. Since 1997, corporations in Hawaii have been allowed to put unlimited amounts of money into corporate political action committees, who then make donations to candidates.
But direct contributions to candidates by government contractors certainly do give rise to corruption, which is why Hawaii prohibits "pay to play" contributions to candidates by government contractors. Courts have ruled for decades that First Amendment rights can be limited by such a "compelling state interest," to which Kennedy inferred.
The need to prevent corruption in government contracts is a perfect fit to that important legal principle.