Despite potential vulnerabilities, Hawaii’s pay-to-play law survived a significant challenge in the Ninth Circuit last week.  The matter involved an electrical-construction company, its CEO and a second individual who challenged several sections of Hawaii’s campaign finance law, including a requirement that the company register and report its activities once it crossed a $1,000 threshold, and the ban on government contractors making contributions to any candidate, candidate committee, non-candidate committee, or to “any other person for any political purpose or use.”  Yamada v. A-1 A-Lectrician, Inc. (No. 12-17845) (quoting HRS 11-335(a)).

The plaintiffs wisely chose not to challenge the pay-to-play provision as a whole.  Instead, they focused on the bar on contractors giving to lawmakers or legislative candidates who did not award or oversee contracts.  Despite this narrow assault on the part of the law with the weakest link to quid pro quo corruption, the three judge panel, consisting of Judges Kozinski, Fisher and Watford, unanimously upheld this part of the law, citing the fact it restricted contributions directly to candidates, the legislature’s interest in addressing a history of pay-to-play corruption in Hawaii, and the fact that even legislators who do not directly award or oversee contracts still play a role in appropriating funds for those contracts.  The opinion noted pointedly that it did not address the bar on state contractors giving to county and municipal officials.

While restrictions on independent political spending continue to fare poorly in post-Citizens United legal challenges, courts have been much more reluctant to strike down restrictions on government contractors giving to candidates and political committees.  Last week’s decision continues that trend, even when applied to contributions that many would see as on the outer edges of quid pro quo corruption.

Photo of Robert Lenhard Robert Lenhard

Robert Lenhard has helped guide decision makers in corporations, trade associations, and advocacy groups on complying with the laws regulating political activity for over 20 years. As a senior member of the firm’s Election and Political Law Practice Group, he provides compliance advice…

Robert Lenhard has helped guide decision makers in corporations, trade associations, and advocacy groups on complying with the laws regulating political activity for over 20 years. As a senior member of the firm’s Election and Political Law Practice Group, he provides compliance advice relating to federal and state campaign finance, lobbying, pay-to-play, and government ethics laws. As an advocate, counselor, and regulator, Mr. Lenhard brings a depth of experience on matters that involve legal as well as political risk.

Bob led Covington’s representation of the Biden for President campaign, the Super PAC supporting President Obama’s re-election, as well as several prominent professional sports leagues, pharmaceutical manufacturers, technology companies, advocacy groups, and trade associations.

Prior to joining the firm in 2008, Mr. Lenhard served as Chairman of the Federal Election Commission (FEC) in 2007 and Vice Chairman of the agency in 2006, during which time the agency handled over 10 major rulemakings, had among its most productive years in enforcement and audit, and adopted several reforms to the enforcement process. Mr. Lenhard also led the Presidential Transition Team that reviewed the FEC for the incoming Obama administration in 2008-2009.

Mr. Lenhard is frequently quoted in the press, has lectured at major law schools, and Before his service to the FEC, Mr. Lenhard provided legal advice to labor organizations active in the political process at the federal, state, and local levels. Mr. Lenhard also was involved in litigation in the Florida trial and appellate courts over the counting of absentee ballots in Seminole County, Florida in 2000.

Robert Lenhard is a member of the firm’s Election and Political Law Practice Group and advises corporations, trade associations, not-for-profit organizations, and high-net-worth individuals on compliance with federal and state campaign finance, lobbying, and government ethics laws.

Mr. Lenhard routinely assists clients in establishing and operating federal and state PACs, compliance programs associated with campaign finance and pay-to-play laws; advises advocacy groups and their donors; conducts compliance trainings and audits of federal and state lobbying and political programs; and counsels clients on compliance with congressional gift and travel rules. According to Chambers, sources report: “He is strategic and always sees the big picture. He is a great person who provides excellent non-legal counsel as well.”