������Ƶ

Several weeks ago, Keith Kaneshiro and members of the Dennis Mitsunaga engineering and architectural firm were found not guilty of bribery charges under the Federal Dishonest Services statute. Due to a series of federal court rulings and a pending U.S. Supreme Court case, the government in the Kaneshiro/Mitsunaga case was required to prove beyond a reasonable doubt there was “clear and unambiguous” evidence of a bribe.

This is a very high and difficult standard to meet. It is, to my knowledge, the only federal statute that requires such proof.

To meet this burden of proof, the prosecution essentially had to have either a secret recording of the bribe and/or the testimony of a participant in the bribe. Unlike the Ty Cullen/Kalani English case where Milton Choy, the individual who gave the bribe, was prepared to testify for the prosecution, the prosecution in the Kaneshiro/Mitsunaga case had no such witness or recording.

Despite what many believed was overwhelming circumstantial evidence, the jury, following the legal instructions given to them, found the defendants not guilty. It is hard to argue with this decision given the law and the evidence presented during the trial.

Just last week the U.S. Supreme Court issued its decision in Snyder v. United States. At the time of the Kaneshiro/Mitsunaga case, the Supreme Court had heard oral arguments in Snyder and indicated its inclination to severely restrict federal authority in dishonest services/public corruption cases involving state and local public officials. Consequently, the judge in the Kaneshiro/Mitsunaga trial gave the jury instructions requiring proof by “clear and unambiguous” evidence as he did.

In Snyder, a mayor of a small town in Indiana gave two contracts to a local trucking contractor. As part of the contract, the city bought five Peterbilt trucks worth $1.1 million from the company. A year later, the truck company gave the mayor $13,000. The mayor was criminally indicted under the same federal statute charged in the Kaneshiro/Mitsunaga case. The mayor was convicted and appealed.

The Supreme Court vacated the conviction, stating that unless there is clear evidence of a bribe, which normally occurs before an official act is undertaken and is meant to influence the public official with respect to that future act, the giving of a gratuity after the fact cannot be prosecuted under the federal dishonest services statute. The Supreme Court further held that it is up to state and local governments to enact criminal and/or ethical rules prohibiting such gratuities.

Many legal scholars believe this ruling effectively guts the federal bribery statute as applied to state and local public officials. In other words, we can no longer look to the federal government to address this type of public corruption in Hawaii’s state and local government.

The Legislature Must Act

The Supreme Court’s decision to place the burden on state and local governments to regulate and address public corruption based upon the giving of suspect gratuities raises serious concerns for good government in Hawaii. Given the outright refusal of the Hawaii Legislature to enact meaningful campaign finance reform, it is doubtful we are capable of policing ourselves.

In 2006, a campaign finance reform measure was introduced which would have prohibited government contractors, their owners, employees and their immediate family members from making campaign contributions to politicians. If passed, this would have effectively prohibited the type of donations given by the Mitsunaga firm to Kaneshiro.

But at the last minute, this 2006 campaign reform measure was effectively gutted by limiting its ban solely to political donations made by the company itself, not by the owners, family members or individuals who work for the company.

More recently, the article co-authored by the New York Times and Civil Beat entitled “Inside the Late-Night Parties Where Hawaii Politicians Raked In Money” depicts in agonizingly painful detail the modern day version of these very same problems.

Civil Beat reporter Christine Jedra in her article titled “Not Guilty: Ex-Honolulu Prosecutor Keith Kaneshiro, Businessman Dennis Mitsunaga And Others Walk In Bribery Case,” reports that between 2006 and 2021 Mitsunaga and his associates donated over $1 million to local political candidates and received over $49 million in government contracts since 2011 alone. Is this a loophole in our campaign finance laws or simply a coincidence?

In 2023 and 2024, campaign finance reforms measures were reintroduced by the Foley commission (formally known as the Commission to Improve Standards of Conduct) which, again, would have banned the owners of companies with government contracts, their employees and immediate family members from making political donations.

Given the outright refusal of the Hawaii Legislature to enact meaningful campaign finance reform, it is doubtful we are capable of policing ourselves.

During the 2023 legislative session these bills, having made it through individual committee hearings, silently died during the conference committee hearings at the very end of the legislative session. They met a far worse fate during the 2024 session when they did not even get a public hearing in committee despite favorable public support and despite having made it to conference committee hearings the year before.

The effort to reform Hawaii’s porous campaign finance laws is anything but new. In 1993, over 30 years ago, attorney John McLaren in his article titled “Have we left the plantation era?” published in “The Price of Paradise Volume II,” edited by Randall Roth, describes the exact same campaign finance issues we face today:

“One of the hallmarks of a democracy is the right of any citizen to support any candidate for public office. But as documented by Star-Bulletin reporter Ian Lind, there are disturbing signs of abusive and unethical fund-raising activities in Hawaii politics. High on the list is the large amount of money donated (directly and indirectly) to incumbents … by regular recipients of large government contracts. The strong connection between who gives and who gets to feed at the government trough is shocking.”

Under current federal and Hawaii law such activity is not criminal but reflects, in my opinion, what Roth has described as “non-criminal public corruption.” Does anyone seriously believe that good government results when the awarding of state and local government contracts directly correlates to how much money a private company contributes to politicians?

Does anyone seriously believe that it makes for good government when those with the financial means to donate large sums of money to politicians not only have but expect special access to politicians because of their so-called gratuity? This lends to the appearance of pay-to-play.

Like Pavlov’s dog, politicians will learn that if certain companies are awarded government contracts, money in the form of political donations will flow into their campaign war chests without any overt agreement. This learned behavior is not illegal according to the Supreme Court, but in my opinion is a form of non-criminal corruption and does not make for good government.

It is now up to us to enact meaningful and comprehensive campaign finance regulations and, more importantly, for our Attorney General’s Office and the Prosecuting Attorney’s Office to actively investigate and prosecute transgressions. Currently, neither office has the infrastructure to prosecute these types of cases nor have shown the political will to do so.

Stand Up For The People

To be fair, public corruption cases don’t simply drop in your lap, they take months if not years of careful and determined effort and requires financial resources and long-term commitment. More importantly, such politically charged cases will entail crossing spears with the political establishment.

But first, our Legislature must have the courage to enact meaningful and comprehensive campaign finance reform, going even beyond the recommendations made by the Foley commission. It will take people like Rep. David Tarnas and Sen. Karl Rhoads, who each chair their respective chambers’ judiciary committee, to stand up for what is right and serve the interests of the people, not simply do the bidding of their party leadership.

How can this change be accomplished? Those involved in the effort to reform Hawaii’s government do not all agree on how this can be accomplished. Many insiders praise the actions taken by the Legislature in response to the Foley commission recommendations made in 2023. Others believe that, while minor reform measures were enacted, the more meaningful and impactful reforms were thwarted, stifling real reform.

State Ethics Commission executive director Robert Harris, in his recent interview with Civil Beat, noted that there is an “inside game and (an) outside game,” and that “you have to provide both the carrot and stick where there is acknowledgment when change and reform are happening. And you have to acknowledge when things are going on that are not in the public interest.”

I believe it is time for the stick, since the carrot has proven time and time again to be ineffectual. Over 30 years of futility should tell you something. For change to come from those who work within the system, it must be accompanied by pressure from those of us on the outside of the establishment.

I am advocating for nonviolent civil activism as occurred during the civil rights movement of the 1960s. Voting for public officials who support reform is one step, but the public needs to make their voices heard far beyond the polling booth. Legislators must be forced to publicly state their position on campaign reform measures and confronted when they vote against such measures.

Legislator’s offices should be flooded with phone calls, text messages and emails voicing support for campaign finance reform measures and/or our displeasure if they oppose them. We should demand legislative rule changes so that laws cannot be silently killed off behind closed legislative doors. In other words, we must demand an end to business as usual at the Legislature.

But perhaps above all else, the actions of individual legislators who oppose reform must be publicized by the press, particularly by the mainstream news organizations in Hawaii. When dealing with political figures, at least some of them, embarrassment is a powerful tool, and it is time that our politicians be held accountable by making their actions better known to the public.

Civil Beat, with an assist from Hawaii Public Radio, has done much of the rowing on its own. To get more local coverage, it will take an effort by the public to let mainstream news organizations know it is time to get off the sidelines.

History, as reflected in the recent refusal of the Legislature to enact meaningful campaign finance reform should be a lesson to us all. The time to act is now for the upcoming legislative sessions. We should not let this moment pass us by.