Raising Cane
By Rob Perez
Lobbying flawed by
use of public fundsHere's a perfect prescription for a flawed election: Put a controversial question before voters. Make it a proposal that would give the government greater powers. Allow the government agency that would most benefit from the measure to campaign for it, using taxpayer resources. Tell key government opponents of the proposal they can't use public resources to do their lobbying.
Lo and behold, the measure passes.
That, in a nutshell, was what happened when voters in November approved a constitutional amendment that eventually will give prosecutors a new option for pursuing felony criminal charges against a suspect.
City Prosecutor Peter Carlisle's office printed pamphlets -- a service worth several thousand dollars -- and used its Web site to urge voters to approve the amendment. But the state public defender's office, which opposed the measure at the Legislature, was told by the attorney general's office that it couldn't use state resources to lobby voters.
Even if the public defender had been able and willing to do that, it may not have made much difference: The amendment, which would allow prosecutors to bring felony charges through the filing of affidavits, was approved by a nearly 2-to-1 margin.
But whether public-defender lobbying would have made a difference isn't the point. The point is about fairness.
Was it fair to allow government workers to use public resources to solicit voter support while denying the same privilege to the other side?
And beyond that, is it appropriate to use taxpayer resources to advocate for either side on any constitutional amendment or political question?
Would it be appropriate, for instance, for government officials to produce state-funded TV commercials urging voters to authorize the creation of seven school boards?
The answers: No, no and no.
"They're certainly entitled to express their opinions, but when you're using government resources to do it, that really has a distorting effect on the political process," said Erwin Chemerinsky, a University of Southern California law professor. "It shouldn't be done."
If it is done, at least be fair and allow both sides to use government resources, Chemerinsky added.
The constitutional amendment campaign became an issue again last week when the American Civil Liberties Union of Hawaii asked new Attorney General Mark Bennett to look into the matter. The ACLU, which strongly opposed the so-called information charging amendment, questioned why the AG's office under Bennett's predecessor, Earl Anzai, advised the public defender not to use public resources to lobby but didn't do anything when Carlisle's office did so. The ACLU accused Carlisle of misusing public funds and possibly committing a criminal offense.
A city ordinance prohibits directors and other exempt employees, such as the prosecutor, from asking city workers to provide a minimum amount of campaign assistance for the purposes of approving or rejecting a ballot initiative.
Carlisle subordinates were asked if they were interested in helping the prosecutor's office lobby for the amendment's approval. But participation was strictly voluntary, and most workers did not participate, Carlisle said.
Still, the prosecutor's office provided at least $2,400 worth of printing services to a nonprofit organization formed to win approval of the amendment. The office also used its Web site to urge yes votes, and staffers held sign-wavings before and after work.
Carlisle denied the ACLU allegations of wrongdoing, suggesting they stemmed from sour grapes.
"That's all baloney," he said.
Carlisle said his office can advocate positions on criminal justice issues because the City Charter states that the office derives its authority from the state attorney general. And state law permits the attorney general to, among other things, make recommendations to the public about the criminal justice system.
By extension, the prosecutor's office was able to campaign for the amendment using city resources, Carlisle said.
"The statutory authority is so painfully clear it's unmistakable," he said.
But Brent White, an ACLU attorney, said the only power Carlisle's office derives from the attorney general is to prosecute criminal offenses.
And the state law that provides the attorney general with a wide range of powers, including making recommendations to the public, does not apply to the prosecutor's office, White said.
"Just because the attorney general can do it doesn't mean Carlisle can do it," White said. "It's disturbing that the city's chief law enforcement official would try to stretch the law to justify what he's doing."
Bennett said he would respond to the ACLU request. But he couldn't say whether he agreed or disagreed with Carlisle's position because he has yet to study the issues.
Carlisle said he didn't ask the attorney general's office whether his position was correct because "I know what my authority is."
He said he ran the matter by the state and city ethics offices because he was uncertain whether the lobbying effort was permissible under ethics regulations. Both offices told him they saw no problems from an ethics standpoint, but the state office advised him to check with the attorney general regarding certain legal issues. He didn't check.
When the issue arose with the public defender's office, Public Defender Jack Tonaki sought an AG opinion and was advised that his staff could use state time and resources to provide voters with information about the amendment but, lacking specific statutory authority, could not advocate a position.
Even if such advocating were allowed, however, Tonaki said he still wouldn't have permitted it, believing that would have been inappropriate.
Chemerinsky, the USC professor, said using public resources for political advocacy generally is not allowed because that essentially would force some taxpayers to support political positions they disagree with.
That's precisely why Carlisle, even if he stood on firm legal footing, should have stayed away from using city resources, no matter how nominal, to push the amendment.
From a public policy standpoint, that's not wise. It potentially could lead to even dicier controversies.
Picture, for instance, a local prosecutor or attorney general using public funds to produce commercials urging the adoption of the death penalty here.
That may be a stretch, but you get the point.
We pay prosecutors to be prosecutors, not political marketers.
Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at: rperez@starbulletin.com.
