In light of the recent lawsuit challenging Act 11, Aloha State Daily reached out to some of the principal state personalities involved in the legislation.
Act 11 redefines the powers that the state of Hawai‘i grants to corporations — including for profit businesses, nonprofit organizations, limited liability partnerships and more — to specifically exclude the power to give "anything of value" that could be construed as speech for or against candidates and for or against ballot initiatives.
The suit argues that this violates U.S. Constitution guarantees of free speech, freedom of association and more.
"When we passed Act 11, we built this law specifically to withstand litigation,” state Sen. Jarrett Keohokalole told ASD in a written statement. “A court has never had to rule on whether a state can define the limits of the corporate powers it creates. Clearly it can."
Keohokalole was a principal author of SB2471. See ASD's interview with him on the bill here.
"Act 11 does not touch the First Amendment," Keohokalole said. "It operates on an entirely different legal foundation: the authority Hawai‘i has always had over the corporations it creates. Corporations are not people. Their powers flow from the state, not from the Creator. What the state creates, the state can define.
"We have always been transparent: Act 11 applies to corporations and nonprofits alike. This is about corporate-chartered entities using state-granted powers to influence our elections, not about silencing anyone's individual voice. Let the courts engage with this argument. That is exactly what we built this for."
Act 11 was signed into law by Gov. Josh Green on May 14 as the first legislation in 16 years to challenge the Citizens United decision "on legal ground the Supreme Court has never addressed," the statement said. "Rather than disputing the ruling on First Amendment grounds, the law draws on Hawai‘i's authority as the state that created and chartered the corporations operating within its borders."
Montana is pursuing the same legal theory — one advanced nationwide by the Center for American Progress, see an interview between state Rep. Della Au Belatti and CAP's Senior Fellow Tom Moore here — with a ballot initiative for the November election.
Gov. Green's office referred ASD to the Attorney General's office, as the Attorney General was specifically named in the suit.
"The Department of the Attorney General is aware of the lawsuit and is reviewing the complaint," replied public information officer Toni E. Schwartz. "Because this is pending litigation, we will not comment on the specific allegations or legal claims asserted by the plaintiffs. Act 11 was enacted by the Legislature and signed into law by the Governor. Questions regarding the policy rationale underlying the legislation are best directed to the Legislature. The State will review the allegations raised in the complaint and respond through the judicial process."
ASD also reached out to former state Sen. Karl Rhoads — see ASD's interview with him on SB2471 here — through his office email, but had not received a reply by the time of publishing.
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A. Kam Napier can be reached at kam@alohastatedaily.com.
