(BIVN) – A bill with Maunakea-related implications was heard at the Capital on Tuesday.
The Hawaiʻi State Senate Committee on Hawaiian Affairs took up Senate Bill 42 SD 1, which proposes to prohibit the Attorney General “from investigating nonprofit organizations for exercising their constitutional right to free speech and assembly or practicing native Hawaiian traditional and customary rights expressly protected under article XII, section 7 of the state constitution, with exceptions.”
From Section 1 of the bill:
The legislature finds that private nonprofit organizations sometimes oppose governmental programs, practices, and policies and are sometimes investigated by the attorney general to insure compliance with business regulations and tax exemptions. The investigation can be intimidating and could be deemed to be retaliatory when the nonprofit engages in nonviolent civil disobedience against a government program, practice, or policy.
The legislature further finds that the constitutional right to free speech and assembly extends to nonprofit organizations and that nonprofit organizations should not be penalized for expressing their opinions, including engaging in nonviolent civil disobedience activity.
The legislature further finds that non-profits may also promote constitutionally established rights regarding traditional Hawaiian customs and practices. These rights established by article XII, section 7 of the state constitution are no less worthy of protection and preservation as the rights to free speech and to assemble for the purpose of non-violent civil disobedience.
Accordingly, the purpose of this Act is to prohibit the attorney general from investigating nonprofit organizations for exercising their constitutional right to free speech and assembly or protecting constitutional grants of rights, such as the traditional and customary Hawaiian cultural rights expressly protected under article XII, section 7 of the state constitution, with exceptions.
KAHEA, the Hawaiian-Environmental Alliance, is currently going through such a scenario. KAHEA has been an active opponent of the Thirty Meter Telescope planned for Maunakea. In written testimony, KAHEA Board Secretary Bianca Isaki explained:
In November 2019, the attorney general served a subpoena on First Hawaiian Bank for all of KAHEA’s financial records going back to 2017. The pretext was a late transmittal of KAHEA’s IRS forms, which are anyway available online, which even the judge reviewing our motion to quash found to be nothing to “get excited about.” But what SB 42 squarely addresses is the kind of government overreach that is the primary intent of the AG’s subpoena. The AG states that it’s investigating “illegal activity” consisting in “blocking a road.” Yet, “blocking the road” hugely understates what the Kia‘i Mauna movement is.
It is, amongst other things, the organization of thousands of people, led by Hawaiians and Hawaiian cultural practitioners, around the protection of Mauna Kea. And I want to pause here to admire the level of organization needed to communicate, house, book-keep, shop, order, plan, clothe, feed, transport, clean, educate, and inspire multitudes across Hawai‘i and internationally.
KAHEA can claim responsibility for but one small part of that. For instance, we paid for a giant rice cooker, that was requested by a kia‘i, shopped for and transported by another kia‘i, and used to make food for the many who are teaching, dancing, caretaking, and cleaning lua at Pu‘uhuluhulu. To focus on the solicitation and disbursement of funds misses the larger landscape of self-reliance and self-determination organized by the purpose of protecting Mauna Kea.
The kupuna who stood on Mauna Kea Access Road did not do so because they got free meals and a tent. Opposition to putting the TMT on Mauna Kea is growing out of peoples’ awareness of land use, history, and frankly, bad public administration – and also hopes for a different future. As a nonprofit corporation, KAHEA seeks to raise this kind of awareness and forward community organization around these hopes.
Yet, we cannot participate in these actions while being subjected to a government scrutiny that has as its aim shutting down the same Kia‘i Mauna movement we support. The actions, trust, and relationships that get built by and through community organization are the ways that our freedom of assembly, free speech, and Hawaiian traditional and customary rights are realized in a deeply material and resilient way. These are the practices and freedoms that SB42 would protect from government intrusions.
The Department of the Attorney General opposed the bill. In written testimony the AG stated that the bill is contrary to the public interest “because illegal conduct is not protected by the Constitution”, and that the bill unnecessarily restricts the AG’s “ability to protect charitable assets and to police charitable solicitations in the State”. The AG also had Constitutional concerns with the bill.
Samuel Wilder King II, a vocal proponent of the TMT project, also opposed the bill. He testified during Tuesday’s hearing and also wrote this:
Nonprofit organizations enjoy tax exempt status because they provide a benefit to our community. If they are breaking the law they have violated that trust and should be investigated. Claiming that lawlessness is in fact “civil disobedience” is in the eye of the beholder, making this law almost impossible to enforce. The only nobility in civil disobedience is in accepting the consequences of one’s actions. In the instant case, tax exempt non-profit organizations have been backing the Mauna Kea protesters. These protests have involved the use of force in the form of a blockade of a public road. This is an act of violence, and these non-profits are not government entities imbued by the governed with the right to use such force. Moreover, the Mauna Kea protests have involved a campaign of bullying, intimidation, lies and deceit, using Russian Internet Troll-style tactics. (…)
This bill would give carte blache to political orgaizations to sow chaos in our communities. We saw the slippery slope caused by the failure to enforce the law and arrest the Mauna Kea protesters happen in real time, culminating in a telephone pole being cut down with a chainsaw to prevent a renewable energy project from moving forward. The enforcement costs at Mauna Kea alone are over $15,000,000. Instead of providing further protection for these anarchists, the legislature should be conducting its own investigations and recouping money from the donations these non-profits have received to back the Mauna Kea protests, so that taxpayers are no longer on the hook for their block party.
The preamble is also ridiculous. Nonprofits engaging in illegal blockades of public roads should feel intimidated by the Attorney General. I want my Attorney General to be enforcing the law and investigating groups engaged in highly coordinated illegal activity. The protesters have weaponized social media and caused millions of dollars in damages to Hawaii’s people. We deserve to know how these entities are spending their tax-free money, and we should be getting $15,000,000 back.
The Hawaiʻi Alliance of Nonprofit Organizations was generally supportive of KAHEA, and provided these comments on the bill:
The Hawai`i Attorney General’s recent investigation into a nonprofit environmental group KAHEA, and their donors, raises significant questions about the strident use of government regulatory power as an immediate and reactionary tool to gain access to financial information of a private entity. It was unfortunate that KAHEA failed to file its 990 tax forms with the AG in 2017 —although it had done so in the past and its 990 forms are publicly available on the Internet. HANO encourages all qualifying nonprofits to file annually. This failure on KAHEA’s part resulted in a subpoena of its bank records, a seemingly extreme reaction by the AG, as this was information that it normally would not seek for this kind of oversight, and an action not equally applied to all nonprofits that it regulates. The Attorney General has other, less intrusive, statutory remedies for this late regulatory filing that were not used. The inconsistency in treatment and the timing of the investigation suggest that the AG is using its regulatory role to essentially target, muzzle, immobilize and intimidate perceived opponents to government initiatives like the TMT.
For many years, the nonprofit community in Hawai`i has worked alongside the AG to safeguard Hawaii’s charitable assets to foster an environment under which both charities and their regulator maintain a healthy nonprofit ecosystem. This cooperative effort has helped Hawaii’s nonprofit community to be better stewards of their charitable assets. Recent actions by the AG, however, threaten that ecosystem by casting doubt and mistrust regarding this office’s intentions and whether this office is able to be fair and impartial in its regulatory role.
Nonprofits have a long-standing history of exercising their right to free speech and assembly in acts of nonviolent, civil disobedience. Much of our social progress in this country has been hard won employing this method of advocacy for our missions. We can remember that movements like women’s rights and desegregation were achieved by groups exercising their civil liberties.
This is not a statement for or against the TMT. Regardless of how one feels about the TMT, or KAHEA, or all nonprofits for that matter, we should all be VERY concerned that a state entity is using the auspices of its office to overtly control a situation in which it has a direct stake.
To create greater transparency and a sense of impartiality at the Tax and Charities Division of the Attorney General’s office, we encourage their proactive education of the public about policies, deadlines and penalties regarding annual filings for nonprofits, including the violations and conditions under which the AG could subpoena bank records.
HANO would be happy to partner with the Attorney General’s Tax and Charities Division to provide joint training to nonprofits to ensure their complete understanding of their compliance requirements.
Following the hearing, the senate committee voted to pass the measure with amendments.