What money buys.

On July 24, an Oʻahu grand jury returned a twelve-count indictment against the Lieutenant Governor of this State, along with a former state representative who later led the Department of Human Services, a state transportation official, a former public utilities commission official, and the businessman and lobbyist at the center of the alleged scheme.^{1 2} The charges include criminal conspiracy to commit bribery, bribery, and falsifying candidate committee reports.³ The allegations concern campaign contributions said to have been provided in 2022 in connection with state funding for COVID-19 testing, at a time when the Lieutenant Governor chaired the House Finance Committee.⁴ The investigation by the Attorney General grew out of the earlier federal prosecutions that sent a former state representative and a former state senator to prison.¹

Every defendant has pleaded not guilty.⁵ They are entitled to the presumption of innocence, and I do not intend to substitute public commentary for the judgment of a court. What follows is not an argument about guilt. It is an argument about design.

The question that ought to occupy this Legislature is not whether particular individuals behaved improperly. It is why our system so reliably produces the question in the first place.

The loophole we left open

Twenty years ago, Hawaiʻi enacted what was then landmark legislation prohibiting government contractors from making campaign contributions. As Aria Juliet Castillo of the Hawaiʻi Alliance for Progressive Action observed at the Capitol last week, the statute barred the contracting companies themselves — and left their owners, executives, officers, and immediate family members entirely free to give.⁶

The consequence is not merely that money continues to flow from those holding state contracts. It is that we cannot measure how much. Our disclosure laws do not capture the relationship between a contributor and a contract, which means that no one — not the Campaign Spending Commission, not this Legislature, not any citizen reading a filing — can determine the actual extent of contractor-affiliated giving.⁶ We legislated in the dark for two decades and then expressed surprise at what emerged from it.

Legislation to close this gap was before us this past session. House Bill 1519 and Senate Bill 2530 would have barred contributions from state contractors and state-funded nonprofits, reaching executives and family members as well.⁷ The House version applied only to the executive branch. The Senate version, supported by the Campaign Spending Commission, was replaced with the House language and then died when the Senate declined to appoint conferees.⁷

That is the record. A measure that would have addressed precisely the conduct now alleged was available to us, and we did not pass it.

The special session

On July 30, hours after the arraignments, I joined Representatives Kanani Souza and Della Au Belatti — the co-conveners of the Good Government Caucus, a Republican and a Democrat — along with Representatives Kim Coco Iwamoto, Terez Amato, Garner Shimizu, Joe Gedeon, and Elle Cochran, and members of the Clean Elections Coalition, in calling for a special session before the November general election to close the contractor loophole.⁶

The reasoning for acting now rather than in January is straightforward, and Representative Belatti stated it plainly: fundraising for the next cycle begins the day after the general election.⁶ A reform enacted in January governs a cycle whose money has already been raised.

A special session requires either a two-thirds vote of both chambers or a call from the Governor. Neither chamber’s leadership has responded to the request, and the Governor’s office has stated that no specific proposal has yet been presented that would warrant one.⁶ I would observe that House Bill 1519 and Senate Bill 2530 exist, that both were heard, and that the drafting work is substantially complete.

The Legislature has convened in special session for a single purpose before.⁶ Whether it does so now is a question of will rather than capacity.

Why I signed the Our Hawaiʻi Pledge

I have signed the Our Hawaiʻi Pledge, which commits a candidate to decline contributions above $100 from corporate political action committees, corporate lobbyists, and the executives of luxury and out-of-state developers, major landowners, hotel conglomerates, energy monopolies, and military contractors.⁸ Seven members of the House had signed as of earlier this year.⁹ The pledge also commits signers to a broader agenda: full public financing of elections, a ban on corporate contributions, regulation of donor bundling, a prohibition on fundraising during session, automatic voter registration, ranked choice voting, and full disclosure of gifts, expenditures, visitor logs, and lobbying clients.⁸

I want to be precise about what a pledge is and is not.

A pledge is a statement that an individual will decline what the law permits. It binds one person, for as long as that person chooses to be bound, and it does nothing whatever about the candidate in the next district who declines to sign. Polling commissioned by Our Hawaiʻi found that large majorities across party lines support prohibiting contributions from corporate PACs and lobbyists,¹⁰ which tells us the public understands the problem. It does not tell us the problem is solved.

I signed it because I believe a legislator asking colleagues to change a system should first demonstrate a willingness to run without its advantages. But voluntary abstention is not reform. It is a precondition for credibly demanding reform.

The constitutional obstacle, and a possible path through it

The reason we rely on pledges is that the ordinary legislative route has been closed since 2010. In Citizens United v. Federal Election Commission, the Supreme Court held that restricting independent corporate expenditures in elections violates the First Amendment. Every state effort framed as a regulation of corporate rights has failed against that holding.¹¹

There is, however, an approach that has not been tried.

States create corporations. States define what a corporation is and enumerate the powers it possesses. Tom Moore of the Center for American Progress has advanced the argument that a state may simply decline to grant its corporations the power to spend in elections — not regulating a right, but declining to confer a power for the right to attach to.¹¹ Senate Judiciary Chair Karl Rhoads has introduced measures taking exactly this approach, amending the provision of Hawaiʻi law that grants business entities the powers of natural persons to specify that those powers do not extend to participation in elections.¹¹ Because Hawaiʻi law provides that out-of-state entities may not exercise powers our own entities lack, the approach reaches mainland corporations and dark-money vehicles as well.¹¹

I voted for Senate Bill 2471, and I will support this approach again. I also want to state its risks honestly, because advocates who oversell an untested theory do the cause harm.

The Department of the Attorney General testified with concerns, noting that Citizens United remains binding law and that the measure carries substantial litigation risk.¹¹ That testimony is not obstruction; it is the Department doing its job. Moore himself concedes the approach is untested — his point is that it has never been rejected either, and that it rests on firmer ground than anything attempted since 2010.¹¹ Montana residents are pursuing a parallel effort by constitutional amendment.¹¹ The alternatives — a federal constitutional amendment, or the Court reversing itself — are, as Moore puts it, extremely unlikely.¹¹

A state of 1.4 million people may not be able to overturn a Supreme Court decision. It can decline to hand out a power the Constitution never required it to grant, and it can accept the litigation that follows.

What I am pursuing

Close the contractor loophole, in special session. Extend the prohibition to owners, executives, officers, and immediate family members of entities holding state contracts, and require disclosure sufficient to identify contractor-affiliated contributions in the first place. The bill exists. The session is the only missing element.

Redefine the powers we grant. Amend our corporate code so that entities chartered or registered in Hawaiʻi do not possess the power to spend in Hawaiʻi elections. Accept that this will be litigated, and fund the defense.

Reach outside money at its point of entry. I have been developing a measure establishing that a nonresident who makes substantial independent expenditures directed at Hawaiʻi elections is engaged in business in this State, with the tax, registration, and jurisdictional consequences that follow — including designation of an in-state agent for service of process. It rests on nexus principles rather than speech restrictions, and it is intended to give the Campaign Spending Commission practical reach over people who currently have none.

Disclosure that functions. Top-funder identification on the face of independent-expenditure advertising was upheld eight to one in Citizens United itself. Whatever else is contested, this is not.

Public financing. The durable answer is a system in which a candidate can run a serious campaign on small contributions and public funds. Every other measure here is a defense of a system we should be replacing.

A closing observation

I am mindful that this district has less to gain from the present arrangement than almost any other. Kalihi does not have executives at luxury developers. We are not a source of maximum-limit contributions. What we have is a large number of people whose contact with government is through a permit counter, a benefits office, or a waitlist — people for whom the difference between a government that answers and one that does not is measured in years of their lives.

When access is purchased, it is purchased from a finite supply. Every hour of a decision-maker’s attention that is allocated by contribution is an hour not allocated by need. That is the cost, and it is borne by districts like mine.

The charges announced last month will be resolved in court, as they should be. The system that made them plausible is ours to resolve, and we can begin this year.