8A OPINION SUNDAY, JUNE 7, 2015 | WEST HAWAII TODAY EDITORIAL | BLOOMBERG NEWS GEORGE WILL | THE WASHINGTON POST WASHINGTON — Campaign finance “reformers” think America would be better governed if the government could thoroughly regulate campaign speech, which is speech about the composition and comportment of the government. Reformers scold the Supreme Court for construing the First Amendment as though it says “Congress shall make no law … abridging the freedom of speech.” Reformers say government can limit campaign money without limiting what most such money funds — political speech. And since the Supreme Court’s 2010 Citizens United decision, reformers have been lamenting a predictable consequence of their success in imposing limits on contributions to candidates and campaigns. The consequence is the rise of super PACs dedicated to the support of single candidates. So now, reformers insist that super PACs’ spending is not really “independent” because it is, in effect, “coordinated.” Well. Since 1976, the court has held that the only legitimate purpose for limits on political contributions is to prevent quid pro quo corruption or the appearance thereof. Citizens United left undisturbed the 1907 proscription on corporate contributions to candidates’ campaigns. Citizens United said only, and unremarkably, that citizens do not forfeit their First Amendment rights when they come together in corporations — usually nonprofit corporations, e.g., the Sierra Club, the NAACP, Planned Parenthood — for the shared purpose of advocacy independent of (not coordinated with) any candidate’s campaign. The court said independent advocacy expenditures “do not give rise to” corruption or its appearance. Two months later, the nation’s secondmost important court, the D.C. Circuit Court of Appeals, ruled 9-0 against Federal Election Commission limits on the size of contributions to independent advocacy committees, including single-candidate super PACs that make no contributions to campaigns and operate independent of candidates and parties. Super PACs are the result of these decisions — and of the reformers’ success in limiting giving to parties and candidates. Reformers, who think “independent” should be a synonym for “disinterested,” are appalled by super PACs working to facilitate the election of particular candidates. The Supreme Court, however, has held that limits on the amount an individual can contribute to a candidate or campaign organization are minor restrictions on a person’s political expression because the person can spend elsewhere “to discuss candidates and issues” through independent expenditures. Thus former FEC Chairman Bradley Smith, in “Super PACs and the Role of ‘Coordination’ in Campaign Finance Law” (Willamette Law Review, Summer 2013), notes that “without the escape valve of independent expenditures, contribution limits would constitute a much greater infringement on speech.” The court’s focus on quid pro quo corruption clearly demonstrates, Smith says, that the court is not allowing limitations on speech. Rather, it is sanctioning “regulation of a particular type of conduct — the overt exchange of campaign contributions for legislative favors that may not extend to the level of bribery.” The court has consistently held that regulation of campaign financing is constitutional when it regulates conduct rather than speech. The court has implicitly rejected, as a reason for regulating contributions to independent groups, the supposition that large donations distort the political process. It has explicitly said that it “is wholly foreign to the First Amendment” for government to “restrict the speech of some elements of our society in order to enhance the relative voice of others.” While rejecting direct limits on speech, the court allows limits on contacts between speakers (contributors) and candidates or their campaigns. But as Smith writes, contacts will be unnecessary: ”Of course super PACs will be started and run by friends, associates and former staffers of candidates; of course they will be funded by supporters, who are likely to have also donated to the campaign … ; of course super PACs will attempt to harmonize their strategy with that of their favored candidates, for maximum effect.” Casual observers of politics, including most voters, are understandably puzzled by the process of contributing to super PACs independent of (not “coordinated with”) the candidates the super PACs are created to help. Perhaps this prompts cynicism among voters who see soon-to-be presidential candidates feign indecision about running while they solicit large contributions to their super PACs. Voters might wonder: Why have this misleading minuet? Smith’s answer is that “anti-coordination” rules are required if limits on contributions to candidates are to have even today’s minimal effects. The limits the reformers hoped would decrease cynicism about politics is increasing it, which is just another unpleasant surprise for reformers who are repeatedly surprised by their own consequences. Someday even they might understand the wisdom of choosing what the Constitution, properly construed, actually requires — unregulated politics. George Will’s email address is georgewill@washpost.com. The latest U.S. jobs report offers encouraging evidence that the world’s largest economy is bouncing back from a difficult winter. It shouldn’t be interpreted, though, as a sign that the Federal Reserve must rush to pull back on its efforts to support growth. The Labor Department estimated that nonfarm employers added 280,000 workers to their payrolls in May, bringing the three-month average to about 207,000 — more than enough to compensate for the natural expansion of the labor force. The unemployment rate rose to 5.5 percent from 5.4 percent, but for a good reason: The workforce grew as more people started looking for jobs. For all the progress made, however, the recovery remains far from complete. The number of people stuck in part-time jobs, or staying out of the labor force, still exceeds by millions the level that prevailed before the 2008 recession. If the unemployment rate took those people into account, it would be closer to 7 percent — or about 2.5 million jobs away from full employment, the point at which inflation tends to kick in. Here’s how that looks: Workers’ pay, too, leaves much to be desired. Wage growth accelerated a bit in May: The Labor Department estimated that average hourly earnings for production and nonsupervisory employees increased to $20.97, up 0.3 percent from April and 2 percent from a year earlier. That pace, however, falls far short of the pre-recession average of 3.4 percent. Given the slack in the labor market, the Fed need not be overly concerned that its monetary stimulus will trigger runaway inflation. On the contrary, it should keep doing what it can to get unemployed and underemployed Americans back to work. To that end, the International Monetary Fund has recommended that the central bank hold its interest rate target near zero into 2016, several months longer than investors currently expect. Barring any surprises, that’s an excellent idea. I have received a few telephone calls berating me for including Finance Director Deanna Sako in my Ethics Board complaint against Mayor Billy Kenoi. The jist of their opinions is that she wasn’t there long enough as director to be responsible for Kenoi’s misuse of his purchasing card. I disagree. Let me tell you why. Hawaii Penal Code Section 720-520 reads: “A person is guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a crime: (1) He agrees with one or more persons that they or one or more of them will engage in or solicit the result specified by the definition of the offense; and (2) he or another person with whom he conspired commits an overt act in pursuance of the conspiracy.” Translated into our current (2008-2015) circumstances: Kenoi agreed with Finance Director Nancy Crawford and Deputy Finance Director Sako, and then between Kenoi and Sako, that the three of them, then the two of them, would engage in Kenoi knowingly violating state and county statutes and ordinances regarding the misuse of Kenoi’s purchasing card for personal purchases. The overt act was that at the end of the (monthly) reporting period, they would state falsehoods in the official records or just not file, as required by law and code. The specific criminal conduct that was being engaged in was violation of Hawaii Revised Statutes Section 708-830(5) (Theft) and HRS Section 708-874 (Misapplication of entrusted property). As purchasing card administrators for the county, it was the responsibility of Crawford, then of Sako, to stop Kenoi from misusing his pCard. They not only refused to do so, they actively aided and abetted his misuse of the card — his ongoing commission of the misdemeanor offenses of misapplication of entrusted property and theft — over a period of years, from December 2008 through March. Sako’s culpability — whether it was ongoing for the years she was deputy director or for the couple of months when she was finance director — was a continuing violation of the ethical standards required of her. She was responsible, and she did not fulfill that responsibility. And when one considers her culpability, I urge you to keep in mind that Hawaii County Code Section 2-80 requires promoting “high standards of ethical conduct in County government.” According to Hawaii County Charter Section 14-1(b), the requirement that “appointed officers and employees shall demonstrate the highest standard of ethical conduct” is “so that the public may have trust and confidence in the integrity of the government.” It is hardly an understatement that the conduct of Kenoi has shaken the confidence of many citizens in the integrity of county government, and Sako must accept her share of responsibility for that loss of confidence. Of course, ultimately the County Council will have to accept ownership of this issue. Sako violated Hawaii County Code Section 2-83(a)(1) by permitting Kenoi to misuse his pCard for personal purchases, when she had an obligation as purchasing card administrator to simply cancel his card. This also violates Hawaii County Charter Section 14-2(b) and Section 14-4(a), which forbids using her position to grant another person special privileges not available to all citizens. She allowed Kenoi to keep misusing his pCard for personal purchases; she should have revoked the card as her first act after being appointed finance director by Kenoi. Sako violated HCC Section 2-83(a)(3) by stonewalling West Hawaii Today in its request for Kenoi’s pCard expenditures under the Uniform Information Practices Act, HRS Section 92 and Section 92F. This also violates Hawaii County Charter Section 14-4(c), requiring that all persons shall be treated in a fair and courteous manner. It is vital that openness and transparency of government records are accessible to all citizens and the media. Finally, Sako violated HCC Section 2-83(b) (2) when she granted unwarranted privileges of personal use of his pCard (i.e., “compensation or other consideration”) to Kenoi. This also violates Hawaii County Charter Section 14-4(a), which requires that all public funds are to be treated as a public trust and are not to be used “for personal purposes without proper consent.” Billy giving himself consent is hardly “proper” consent. I appreciate that Sako was unfairly put in an untenable position by her superiors. That is an uncomfortable position for any employee to be in. But as the saying goes, “That’s why they pay me the big bucks.” At her salary it is not unreasonable for the citizens of Hawaii County to demand that a person of such trust and responsibility be required to live up to the highest ethical standards, even if it comes at great personal cost to Sako. But there is a price to be paid for being an ostrich, too, and deliberately ignoring misconduct that goes on around you. (I just hope the Ethics Board does not make the same mistake Sako did As Peter Risely so well asked: Who will watch the Watchers?) Lanric Hyland is a resident of Kapaau. Viewpoint articles are the opinion of the writer and not necessarily the opinion of West Hawaii Today. Great job growth, America! Just another 2.5 million to go The super PAC minuet LANRIC HYLAND | VIEWPOINT Sako must be included in complaint against Kenoi
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