Tuesday, March 8, 2016

Death of a lobbying bill LOBBYING REGULATION BILL WEAKENED, GUTTED; MOVES TO FINAL COUNCIL VOTE WEDNESDAY GIFT BAN LIFTED AT BEHEST OF LOBBYISTS DESPITE MASSIVE WRITTEN PUBLIC TESTIMONY

Death of a lobbying bill
LOBBYING REGULATION BILL WEAKENED, GUTTED; MOVES TO FINAL COUNCIL VOTE WEDNESDAY
GIFT BAN LIFTED AT BEHEST OF LOBBYISTS DESPITE MASSIVE WRITTEN PUBLIC TESTIMONY

(PNN)-- Tues., March 8 -- The corporate takeover of our American republican democracy has been pegged to the sway of "K Street" lobbyists who have more than just the ears of congress. While the final "decision-making" may rest with elected representatives massive influxes of campaign contributions and gifts often produces laws actually written by the lobbyists.


At the state level groups lobbying groups like the American Legislative Exchange Council or ALEC pass around sample bills which are passed verbatim by Republican legislatures across the nation. And local jurisdictions often have no lobbying or lobbyist gift-giving laws at all.


Kaua`i County is one of them despite the fact that the Hawai`i state constitution requires that counties have lobbyist regulation ordinances. There had been one,on Kaua`i, passed in 1975 but for some mysterious reason that remains unclear, it was repealed in 1987.


Kaua`i Councilmember Gary Hooser noted this discrepancy and drafted the "best bill" he could- a "model law" that takes the strongest measures from other counties and states in order to give Kaua`i a strict regulatory lobbyist bill- one that island could be proud of.


But guess what? If you've lived on Kaua`i for five minutes you won't be surprised that the other six councilmembers managed to amend the bill to the point where it has become a mish-mosh of weak-kneed provisions, all at the behest of- unnecessary drum roll please- the lobbyists themselves.


The new and degraded bill is up for passage at this Wednesday's (March 9 at 8:30 a.m., @ the Historic County Building on Rice St.) County Council meeting- a bill that, despite over 80 written testimonies in favor of passage of the original bill, was changed after a couple of lobbyists showed up to the Feb. 17 Committee of the Whole meeting and whined and sniveled until they got their way.


(The committee meeting can be seen at http://kauai.granicus.com/MetaViewer.php?view_id=2&clip_id=1756&meta_id=98630 beginning at the 2 hour 8 minute mark and picks up again again at the 6:30 mark or so.)


Nancy Kana, a lobbyist for the Board of Realtors was the first to testify and tried to conflate paid lobbyists with members of the public saying the council is lobbied every day when they go out to dinner and that lobbyists are just "regular people" like anyone else that have "good intentions for the island."


She made lobbyists sound like god's own gift to legislators who would be lost without the "information" she provides.


Then came former newspaper reporter Jan TenBruggencate who now runs his own "consulting" and PR firm. He was even more demanding of changes in the bill, using often outlandish and many times fallacious and unrelated "what if" scenarios to infer that anything beyond the "old way" of just letting lobbyists "sign in" at meetings before they give testimony was superfluous.


TenBruggencate has played fast and loose with his lobbying activities refusing to release a full list of his clients and how much he is paid by, among others, chemical industry giants like Dow and Monsanto who have been "growing seeds" while experimenting with Restricted Use Pesticides primarily on the West Side of Kaua`i.


The original bill could have been written for him. But now it looks more like a bill that could have been written BY him.


The final draft of the bill was changed from a strict prohibition on any gifts from lobbyists to councilmembers to the well-known mushy, mumbo-jumbo that the US Supreme Court used to justify Citizens' United and other decisions striking down limitations on campaign contributions, known as the "quid pro quo" test. It basically says that unless you can prove that an actual bribe took place, anything goes.


The original bill put the onus on both the lobbyist and the official not to give or receive gifts of any kind although Hooser was willing to accept amending the bill to exempt flower leis and "educational materials."


But the final draft amends the bill to ban only the receiving of gifts and then only if the councilmember decides that the gift constitutes a bribe, using the standard "intent to influence" language contained in other ethics and anti-bribery laws... something that makes the prohibition superfluous.


Somehow Council Chair Mel Rapozo claimed that this made the bill stronger, not weaker, admonishing the public not to use this change to say he was weakening the law.


Other major changes included eliminating a measure that prohibited registered lobbyists from serving on the Ethics and Charter Review Commission or on any commission where the subject matter on which the lobbyist focused was the focus of the commission.


The council deleted this and kept the ban only on lobbyists serving on the Board of Ethics (BOE), although some opposed even this prohibition. The BOE often rules on whether councilmembers have conflicts of interest or are violating gift-giving laws as well as in other matters.


Grove Farm Vice President and Councilmember Aaryl Kaneshiro was the most adamant about allowing lobbyists to serve anywhere and everywhere, to no one's surprise since he often denies he has any conflict of interest when discussing and voting on issues that directly effect Grove Farm, one of the biggest land owners on the island of Kaua`i.


Some critics go as far as calling Kaneshiro "Grove Farm's representative on the council" however he has never voluntarily recused himself from any matter involving Grove Farm. The county charter requires those with a conflicts-of-interest to recuse themselves from both discussion of and voting on measures that cause the conflict.


But perhaps the most surprising support for the amendment came from councilmember JoAnn Yukimura. She described as an example, when she sat on a task force representing the council to draft shoreline setback legislation along with an attorney paid to represent developers and described how she actually allowed him to help draft legislation, saying it was an important part of the process to include all "stakeholders" and claiming it didn't matter because she and the council were the "final decision-makers."


Sound familiar?


For those who want to understand the way the other six council members rationalized stripping the bill of these and other provisions go to the 7 hour 11 minute mark of the February 17 committee meeting, especially the debate between Hooser and the rest of the council on the subject of gift-giving and receiving.


"I'm not trying to be facetious but why would a lobbyist be giving us a gift (if not) to influence us" Hooser asked over and over in many ways. Citing the many "gift baskets" with nuts, honey, coffee and all sorts of "goodies" that councilmembers receive every Christmas Hooser asked "They're not giving them to the public. They're giving it to us because we're councilmembers. Why are they giving it to us (if not to) influence or reward us?"


But it was to no avail and the council resorted to the quid pro quo- literally "something for something" rule established in opinions by the late Supreme Court Justice Antonin Scalia in Citizens' United and other campaign finance law rulings saying that corruption can only occur when an actual bribe takes place.


The pervasive influence of money is politics isn't corrupting and is, in fact "free speech" the doctrine claims.


Some polls show that upwards of 80% of the public disagrees- including apparently six pf seven members of the Kaua`i County Council.


The discussion about having lobbyists serve on boards, commissions and most importantly task forces- such as the joint Fact-finding group on Pesticides formed last year- featured a plea from Yukimura as she described the task force on the shoreline setback bill (at the 7:28 mark) with community activist (and volunteer) Caren Diamond and uber land-use attorney Max Graham who would certainly be forbidden from serving under the original definition of a lobbyist and service provisions.


The original didn't forbid having diverse people serving, it just said that they should not fall under the definition of lobbyist.


"I made decisions and council did the final decision-making" Yukimura said but admitted that Graham was being paid to be there and actually helped write some of the bill. Mason Chock, usually a member of the three person progressive faction of the council along with Yukimura agreed.


But Hooser, the third member and sponsor of the bill, didn't saying there was an "inherent imbalance" between having an attorney who is being paid to be there lobbying on one side and a volunteer community member on the other.


One of the unfathomable discussions on gifts is one not unique to Kaua`i regarding the value of a gift and how much should be allowed- as if it's not a matter of IF an elected official can be bought but how much it takes to do it.


Predictably this was the case with the council discussion. Again Hooser kept essentially asking why else would they be giving them gifts if not to influence them while the rest- especially Rapozo- took offense at the notion, not that he could be bought at all but that they could be bought for as little as $25 or say the price of a meal.


In the end they just threw out any restrictions and relied on the ethic provisions in the ethics law that essentially requires a bribe take place to be covered.


There's a really old joke- sorry if you've heard or are offended by it- about a guy who asks a woman if she'd have sex with him for a million dollars. She's about to say no but then she think of her family and kids and how she lives from hand-to-mouth, paycheck-to-paycheck and how much a million dollars would do to pay off her deep debts and make life bearable.


"Well, a million dollars is a lot of money. I guess the answer is 'yes'" she tells the guy.


"Well, how about ten dollars?" he says.


"Ten dollars! What kind of girl do you think I am?" she gasped.


"Well," the guys says "we've established what kind of girl you are, Now we're just haggling over price."


The physical presence of two lobbyists and the physical absence of the over 80 people who submitted written testimony supporting the original bill says a lot about how important "showing up" is.


We'll see whether it's too late for those motivated to show up and sit there all day on Wednesday (it will probably be taken up in the afternoon but don't count on it) waiting for their six minutes of testimony to try to get the council to revert to the original bill by shaming them into it after 80 people call them crooks.


Or not. As they say half of life is showing up.

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