It can be hard to get criminal charges to stick for some campaign finance scofflaws.

Of seven cases sent to prosecutors since 2015, only three ended up in court and those were settled with plea deals that only resulted in fines for the defendants.

The Attorney General’s Office declined to prosecute the others. Many times, there may be some difficulty in meeting the burden of proof necessary for criminal charges, so prosecutors or the Hawaii Campaign Spending Commission, a board tasked with regulating money in politics, opt for fines instead.

On Friday, the commission will decide what to do with a case involving former state lawmaker Kaniela Ing. A complaint filed against Ing by the commission’s executive director alleges that the former Maui representative failed to file a routine campaign finance disclosure earlier this year.

The commission could decide to refer the case for criminal prosecution, decline it or keep investigating. Ing was previously fined more than $15,000 in 2018 for numerous campaign finance violations. He’s been paying those fines in increments and recently finished, he said.

Regarding the recent complaint, Ing said, “It’s hard to keep track of the deadlines when it’s not part of your life anymore.”

Ing hasn’t run for office since 2018 and says he has no intention to run again. More recently, he’s been working on a super PAC supporting progressive candidates called Our Hawaii.

Burden Of Proof

Criminal referrals are rare because commission staff need to be able to demonstrate during investigations that an offender’s actions were knowing or reckless, says commission Deputy Director Tony Baldomero.

There’s been renewed interest in criminal referrals for campaign spending violations this year after two former state lawmakers — J. Kalani English and Ty Cullen — pleaded guilty to taking bribes from a wealthy donor. Federal prosecutors are also gearing up for a jury trial involving donors to former Honolulu Prosecutor Keith Kaneshiro. The feds allege that contributions to Kaneshiro’s campaign were in fact bribes.

Violations of the campaign spending law can be charged as misdemeanors punishable by up to one year in jail and financial penalties. Certain crimes under Hawaii’s campaign finance laws are classified as Class C felonies, punishable by up to five years in prison and $10,000 in fines.

Those crimes include providing false information or hiding the true source of contributions. But jail time hasn’t been levied against campaign spending violators since the early 2000s.

If the commission goes the route of referring the complaint against Ing to the Attorney General’s Office, it would be just the second it’s sent this year. Another pending case has to do with JL Capital CEO Timothy Lee, who is accused of directing employees to make contributions to Oahu candidates in 2020 and then reimbursing those employees.

The five-member commission voted unanimously to refer that case to state prosecutors earlier this year. The AG’s office did not provide an update on the case as of Wednesday evening.

Gary Kam, the commission’s general counsel, said he weighs the seriousness of each offense before deciding whether to recommend that the commissioners assess fines or refer a complaint for criminal prosecution.

“I would want to refer that one for prosecution, because of the seriousness,” Kam said, referring to the JL Capital case. “Or in cases where I believe there was an intentional act, an intentional violation.”

The commission doesn’t have the authority to prosecute cases, Kam said. Often, it chooses to levy fines instead of pursuing a more lengthy criminal process.

“Assessment of fines is something in control of the commission,” Kam said. “To the extent that fines can deter violations, that’s just as good, I think.”

Last year, the AG’s office told the commission that it declined to take up a case involving illegal payments made to Kauai Councilman Mel Rapozo’s campaign by a Kauai attorney and his associates. Instead, the commission imposed $3,000 in fines against the attorney.

Big changes are coming for how the commission handles those cases going forward. In the past, the commission had to choose between referring a case to prosecutors and assessing fines. A new law passed earlier this year allows the commission to assess fines and refer a case to prosecutors concurrently.

‘Intentional Or Reckless’

Although the new law gives the commission more options on how it handles cases, it doesn’t make it easier for the commission or prosecutors to pursue criminal charges.

“It gives us a dual option, but I don’t think it makes it easier,” Baldomero said. “We still need to determine (the conduct) was intentional or reckless.”

A complaint filed in 2015 by the commission against the carpenter union-affiliated Pacific Resource Partnership was declined in 2017 for “procedural defects.” Kam said prosecutors don’t typically provide updates on cases forwarded to them and almost never explain in detail their reasons for declining prosecution.

Even cases that the AG’s office has taken up resulted in fines akin to those levied by the commission as opposed to jail time or other penalties.

Former Attorney General Doug Chin prosecuted three of those cases between 2014 and 2016. All involved current and former lawmakers – former Rep. Richard Fale, Sen. Angus Mckelvey (then a state representative) and Rep. Jimmy Tokioka.

Fale was accused of not filing an accurate campaign report. Tokioka faced charges for not reporting money raised during a fundraiser. McKelvey also faced charges for not reporting all of his campaign contributions and allowing a relative who was not one of his campaign officers access to campaign funds.

All three lawmakers entered no contest pleas in exchange for only having to pay fines and issue written apologies on social media and in newspapers. Fale and Tokioka paid $1,000 each while McKelvey paid $2,000.

Before offering a plea agreement, Chin said his office would consider whether public officials accused of wrongdoing are willing to take responsibility for their actions. Prosecutors also need to consider how difficult it might be to prove to a jury that someone is guilty beyond a reasonable doubt, something Chin said is more difficult in white collar cases like campaign spending violations.

“It may look obvious on paper, but ultimately to prove criminal charges requires a higher standard in (proving) state of mind,” Chin said, meaning prosecutors need to prove that a defendant intentionally or knowingly committed a crime. “That can sometimes end up being a way for defendants to argue that they are not guilty because prosecutors did not prove they had the required state of mind.”