PUBLIC POLICY

Questions about Hawaii lobbying ethics? Call (808) 587-0460

On Nov. 13, just in time to start planning for the upcoming session of the Hawai‘i Legislature, the University of Hawai‘i William Richardson Law School presented a workshop on lobbying ethics at the State Capitol that was cosponsored by the Hawai‘i Alliance of Nonprofit Organizations and attended by more than 100 nonprofit board and staff members, lobbyists and attorneys interested in advocating for their programs and constituents at the Legislature.

The session highlighted the three rules of 501(c)(3) advocacy: 

  1. No political activity. 501(c)(3) nonprofits are absolutely banned from making campaign contributions or endorsing candidates for office. Holding candidate forums to hear from all candidates is permitted, however.
  2. Lobbying is permitted, even encouraged. “We need the public policy voice of nonprofits. If it is an insubstantial amount of an agency’s budget and is not the focus of the organization, lobbying expense needn’t be reported.
  3. General education and advocacy is permitted and 501(c)(3)s can do an unlimited amount.

Dan Mollway, executive director of the State Ethics Commission, said although they have many similarities the rules on lobbying for the state and counties are different. He encouraged nonprofits engaged in lobbying to contact his office, (808) 587-0460 or ethics@hawaiiethics.org, whenever they have questions. “The laws are so obtuse; it is hard to understand them without guidance. We’re there for that purpose,” he said.

Who is a lobbyist? A lobbyist is by definition someone who is paid to represent a client. Lobbyists are required to register with the Ethics Commission and disclose what they are doing. “It’s all about disclosure,” Mollway said.  “It isn’t bad to spend $2 million on lobbying as long as the public knows.” The pay of lobbyists cannot be based on “contingent compensation,” he said. In other words, it can’t be based on commission or on whether or not a bill is passed or defeated.

Within five days of becoming lobbyists, those doing this work must register. A professional lobbyist is someone engaged for pay who spends more than five hours in a month lobbying or who spends more than $750 within a reporting period on lobbying. There are three reporting periods: January and February, March and April, and May through December. Reports are due 30 days after the end of each reporting period.

Lobbyists can be retained from outside an organization or be employees of the organization designated to do lobbying work. In either case they must register. Registrations expire at the end of each legislative biennium, on Dec. 31 of even number years, and must be renewed. Organizations that retain lobbyists must complete the section of the form authorizing the registering lobbyist to work on their behalf and both the lobbyist and the organization represented must report lobbying expenditures. Here are links to the registration and reporting forms:

Not everyone who speaks to a legislator is a lobbyist, Mollway said. “Lobbying is about an organization spending significant amounts of money to affect decision making.” Government officials, newspapers acting as newspapers and attorneys providing legal advice to clients who are testifying and experts are exempted from the filing requirements.

Expenditures that must be reported include $25 or more per day spent on a meal with a legislator, for example, and aggregated expenses of $150 or more during a reporting period. The reports include the names and addresses of those who were lobbied and the organizations for which the lobbying was done.

Types of lobbying expenses reported include preparation and distribution of materials, advertising, phone and postage, fees, entertainment, food and drink, gifts, loans and “other disbursements.” If the lobbyist is reimbursed by the client organization, only the client would report the expenses – they aren’t reported twice.

What about gifts to public officials? The State Ethics Code prohibits gifts to public officials if there is even an appearance that the intent of the gift is to influence or reward. Legislators must report gifts that exceed $200 in value and lobbyists should become familiar with the laws on gifts, Mollway said.

Asked if it was permissible to invite a Legislator to sit at a fundraiser table purchased by your organization, Mollway said the commission has taken a “kindly attitude” to this kind of activity. Fundraiser dinner invitations haven’t been specifically prohibited, “but tickets to the ‘Lion King’ are wrong.” He advises caution. “It’s a troublesome area. There are instances when we’ll say no. Call us and ask.”

What about inviting legislators to our own fundraisers to educate them? The determining factor, Mollway said, is whether attendance benefits the Legislator. “If it is of no benefit to the Legislator, we are allowing it.” If the value of the dinner is more than $200, it still must be reported, however. Inviting the law maker’s spouse complicates matters, he said. There is no hard and fast rule, so it’s best to call his office and ask.

Can you give a lei to a legislator? In Hawai‘i, tokens of aloha are permitted as long as they aren’t intended to influence or reward official action, Mollway said. Sending flowers worth $75 or $100 to someone who is ill “is probably O.K., too, since they have no permanent value.”

Mollway wrapped up the session saying: “Lobbying law is a confusing area. There are an infinite number of variables and very broad laws. Lobbying is difficult; gifts, too. You have to call us – we bind ourselves to the advice we give,” he said. “Once we give you an opinion, we back it up.”