 Welcome back to Talk Story with John Wahe'e. We got a special show for you today about a very controversial or at least a very heavily discussed subject in Hawaii right now. And that is corruption and the appearance of corruption in our political system. And we, all of us have a challenge by continuing to make sure that we feel respected or we respect our institutions. And all of a sudden this happens right in the center. Corruption seems to be going right to the center of our political system at the state legislature. And we were worried before because we saw it as happening in our various agencies. So special guest today, I got the father of tank Hawaii, Jay Finnell, with me. And I thought this would be a subject that he and I who get a chance to talk to a whole cross section of people in Hawaii, just kind of have a discussion about this issue. So welcome Jay, how are you? Thank you, Sean. Thank you for inviting me. Well, it's president's day. And I couldn't think of a better person and I want to jump away from his holiday. So here you are. And we're gonna do something interesting today. I'd like to say we have a half an hour show and we have a break in the middle. And usually when we do this, I get to ask the questions and we get to hear from the guests. But I thought today, since Jay and I are sort of you know, part of the institutional framework of I think that came out in myself, nevertheless we have a chance to play host to each other. So I think for one half, I'm gonna do the questions and for the second half, Jay, you're gonna have a chance to do it, okay? Okay. You wanna start off or you want me to start off? How do we do this? This is gonna be a new, a first, I think that Hawaii. I'll tell you what, why don't you start off and then I'll respond and then halfway down, I'll ask you questions. Oh, terrific. Okay, Jay, you know all about what happened at the state legislature, we had two legislators actually get indicted and they look like they're gonna plead guilty to bribery. Now, that incident or those indictments followed the Kealoha case where we had a chief of police and a prosecutor end up being incarcerated for their deeds. We have these allegations of something happening with rapid transit and all the like, but for years. As far back as I can remember, and when I was in the legislature, I never thought I would ever see a day when somebody would admit that they took a bribe and an actual bribe to do the legislative work. And so here we are. And that's happened. That's the framework of what's happened. So my question to you is, what should we do about it, you know? I don't know even where to start with it. In your mind, what do you think we need to do as a society to overcome the mistrust that all of this just creates in the public mind? I wanna go back, I wanna go back to my own early days when I was just a young pup person here in the 60s, 70s practicing. I always felt that there was, it was not cash corruption. It was something else. It was high school classmates corruption. That's different. Yeah. And then I had one case that was really quite remarkable where the judge was up for reappointment and the lawyer on the other side of the case was on the Judicial Selection Commission. And the judge made a ruling that was really astounding. And I said, gee, I wonder if it has something to do with the fact that, you know, this judge is about to be reappointed or not. And the fellow on the other side of the case was on that commission that would make that decision. And nobody recused himself, neither the judge nor the lawyer, but I, you know, in retrospect, probably they should have. But this isn't cash corruption. And there were a lot of, you know, like personal entity, personal, personal style. And to a certain extent, race style, you know? You know, that entered into it. And actually Think Tech did a whole series, we call it the series of the three digit lawyers, right? Old enough to be under 1,000 in their bar number, you know? And a lot of them, local lawyers and transplant lawyers, both got up there and said, you know, there was plenty of racism back then. You know, there was, you know, in fact, I remember Wally Fujiyama talking about the fact that when the judges were appointed in the territorial days from the mainland, that the big five lawyers would actually almost win every case, you know? And if you're representing the union or somebody else, you'd have a rough time. You know, the solution though, that they seem to have come up with was to flip the system, you know? Get judges that would be more sympathetic to their point of view or get their classmates to be. And so it just, you know, it doesn't fix the situation. It just evened it out. So now everybody. You know, I mean, the whole thing was, you had to pay your dues. Now, what does that mean, pay your dues? If you paid your dues, you did better. But what does that mean? Does that mean you have to know the judge with a legislator? Well, it means that familiarity counts and that's not cash corruption. That's just what you want to call it. Familiarity corruption. It shouldn't be taking place, but it does. And I can cite various other situations where I, as a practicing lawyer, I suspected that was going on, but there was nothing you could do about it. Let me give you two cases though and tell me what you think about this. Now, I'm a lobbyist, right? I go to my, I do all the things that a lobbyist should do, which is I provide information to the legislator. I make contributions to him. I'm a supporter. I want at least access to him so that I can tell him or her what my feelings are and what's important. And that's, you know, that's what happens. And at what point does a line get crossed? I mean, at what point? I mean, all I'm doing is my job. And, you know, it might be cash involved in the sense that I bought tickets to a fundraiser. That's one person. He has a constituent. Constituent goes out and holds signs every day and then realizes that there's a stop sign in the street now that he really wishes or a street down where he really wishes there was a stop sign. And he goes to his legislature and he says, look, I hold signs for you hours. And you, you know, help me out. You're my guy. And I want this, this, I want this stop sign up. And the legislature looks at him and he knows that if he says no, he's lost the sign holder. So, and the other case, if he says no, he may lose a contribution. I mean, what's the distinction? It must really, I'm sure there's been a lot written about that, John. And, you know, my, my initial reaction is, isn't that the way democracy works? People lobby for candidates. They hold signs for candidates. They make, they make contributions for candidates. But there is a line out there. And clearly we know that what happened here recently or at least what was found here, investigated here, that crossed the line. And so the question is, where is the line? Where is the line? And definitely crossed the line. We used to, I have, I'm guilty of using this in the speech where I'm talking to an audience of people and telling them, where else, but in a democracy, can you influence public policy by sign holding? You can go out there and hold signs and therefore you elect who you want in the legislature and you can do it. I, you know, so there is a line, as you said. And I guess that's really the question I'm meeting up to. Have you got any sense of where that line is? Well, I know what these guys did was over the line. I know what K.L. Ohad did was over the line. If it shocks the conscience, it's over the line. If it involves cash that is treated as a secret payment, you know, it's over the line. At one point, Colony English hid $5,000 under the floor mat in his car. When he was stopped at a traffic stop and there was a policeman nearby, he hid it. I mean, it's a guilty knowledge. So if you have a large amount of money involved and you're hiding it and you don't report it and you act on that in terms of your legislative duty, your voting, your action as a chair of a committee, all that. That's clearly over the line. What about the situation where you've got a committee, a chairman whose wife may be employed in an agency and the agency is essentially unnoticed that if anything happens to her or him if there was a husband, bad things would happen. I mean, where's this line? Clearly Colony and Tyler, who by the way, I should say, I don't know that much about the case and I'm actually quite saddened with it because both of those gentlemen for 90% of what they've done in their careers or in my opinion did very good things for Hawaii and for their districts and if this happened. But okay, so now we got this situation where there's no money being transferred directly but there's money going into the family and the threat remains. Is that something that, is that, where's that on the line? I mean, if you make me the trier of fact to judge the regulator on that and I saw money going into one end of the family and the other end of the family is a legislator or a judge or some public official, I see that as attributable, this attribution there like in the tax law, no question. And I treat that as a violation of the criminal law. But on the other hand, it seems to me that this isn't just a matter of catching these two guys now. But by the way, my reading of the newspapers is that they were not charged with or they did not plead guilty to bribery per se. Bribery per se in the federal system is a very serious felony. They pleaded guilty to some lesser offense like I don't understand this offense. I never knew about this offense. It's called honest mail fraud. I don't know how a mail fraud can be honest but there you go, which is a lesser offense and it tells you that they're getting some kind of deal. Maybe they're talking or singing as the case may be about others. So we haven't seen the end of this and their prosecution really so far tells us there's something else under the rock. In any event, it seems to me that where we have failed is not only in the investigation and prosecution side which clearly we have failed but also in the public spectacular side because if my wife gets money and I vote in a certain way the press ought to be able to find out and there's any public record of it, of any kind. Let's say you put it in the public record. It's in the public record but it's also the agency knows that bad things could happen. I mean, it would depend on the personality but another way, first of all, as I said when those two cases occurred, I was actually saddened and then kind of angry but then on the other and then I thought about it and I said, there have been cases in the legislature where companies because it's a part-time legislature, companies would hire somebody for nine months of the year and then let them go and essentially have them be a legislator for three months but you can't sit around a company table without knowing what the company's position is on issues. And outside of the fact that one was really sneaky and the other is more accepted, what's the difference ultimately? Well, the difference is if it sounds like a real FBI-type felony or federal felony, it sounds like something you would see in a late night movie with secreted cash. Well, there was, they clearly cost the line but in terms of influencing public, influencing legislation or influencing public policy, it's perfectly legitimate for the two examples that I gave you to occur. And yet the result is the same as the person that took money and was hiding it under the map or it could be the same. So where's the ethics commission on this? I mean, if they have information that suggests there's a bad connection, if they have information that suggests that somebody is being influenced by attributed money or any kind of inappropriate influence, then they can investigate but they don't investigate. You know, John, it's like a sacred cow. You could say that they don't have time for that but the fact is if they investigated this and they made public their findings, this would affect things and it would reduce the amount of this wink and blink type corruption that we have. Which is by the way, one of the challenges of democracy is that if you make things public, then it self-corrects, you know? And yet, but certain things, you know, I don't know. Oh, lawyers, you and I both are lawyers and we have clients and we have a fiduciary duty to our client. This is, I'm not talking and so we're talking ethics now. So as a lawyer, I have a fiduciary duty to my client. I get elected to the legislature. I'm still a lawyer and what happens? What happens when I get put in between my fiduciary duty to people who elected me and my fiduciary duty to my client? That's a really good point. And, you know, all be known that a lawyer who's licensed, who can practice law, you know, maybe during or after his time in the legislature, he should be subject to discipline, don't you think, or she? Well, I think that these, I think that what we're seeing may be more systemic than we as a society wanna admit. I mean, the audience would be friends looking out for friends, but we may actually have a system that ultimately would frown on direct cash, you know, we just, that is clearly over the boundaries. But if there is this whole gray area that needs, that may be systemic, may be part of where we all are. Anyway, I think to some extent, yeah, we're gonna cross the line now. Now I'm gonna ask you questions, okay? So we're gonna take a short break so that I like to give TinkTak a chance to put on a commercial. So we're gonna do a short break. And then, Jay, when we come back, you got a chance to give me, put me under the car. Okay, thank you. Two major crises have descended upon humanity. I'm a change and the coronavirus. They may seem independent of each other. In fact, they are very closely linked. The emergence of COVID-19 on top of climate change is a spiraling crisis, and it's just the beginning. Aloha, my name is Mark Shlove. I am the host of TinkTak Hawaii's law across the C program. My program comes on every other Monday, one o'clock. And we talk about a lot of different subjects. All of them law related in some way, either life or practice. And I try to have a diversity of guests that can talk about different topics of interest. So please join us, TinkTak Hawaii, law across the C program every other Monday, one o'clock in the afternoon. Aloha. And today, at this half of the program, we got my guest host, Jay Finnell, and I become the guest. Okay, Jay, take it away. Okay, well, here's the thing, you were governor during that period, and this is a period at least, I think it was consistent with our discussion that in which the culture has changed. And right now it's at a low ebb. I think all the commentators would say that. It's a low ebb. And these crises with K. Aloha, and now these legislators and city officials and all that, this is pretty serious. We got it all around, like having a virus all over your body. And of course, the commentators, including Charles DeJew wrote an opinion piece saying, we're gonna rebuild public trust. It's pretty serious that we don't take this corruption seriously and don't do anything about it. So, what's happened over our lifetimes, John, is that it has declined. It has turned from high school friends to cash. And I never saw it. I never saw it. I kept on thinking it was high school friends. I never saw it turn to cash. Did you see it turn to cash? When can we say it turned to cash? Well, I think the whole system. I don't think it's one person. In fact, the guys who get caught are probably arrogant in a sense and unfortunate, and in my opinion, may not have the greatest intelligence, but with regard to this, but I believe the whole system is permeated with money. I mean, money, the United States Supreme Court passes a decision that allows corporations, and it's united. Can't remember the full name of the case, but it's- Citizens United. Citizens United, which allows big money to enter any campaign, period. When I was running for office years ago, we used to throw these fundraisers, for example, and it was 25 bucks because we wanted people there. We wanted a lot of people. Now people run fundraisers and you want five or six people there giving you 2,000 each. I mean, so the money becomes very important in all of this. The legislature is looking at the fact that right now, legislators, the fundraisers doing the session. So there's a bill in there saying, you can't do that because it pressures lobbies to give you money and change your votes and all of that. And that's great, except all they have to do is in their caucus say, we're not gonna do this anymore. You don't need a law. You just need people to start behaving themselves. That's true, it's leadership, isn't it? Yeah, it is, it is. And you know, well, I think, I don't think anybody had a hold of fundraisers out of their district. The only reason, the reason for holding a fundraiser doing the session, and it all begins very benignly was because neighbor island legislators went home after the session. So they needed to hold a fundraiser. And it grew and everybody noticed that that's a good time to hold it because everybody wants your vote, you know? And so it grows. So maybe they shouldn't do it doing the session. I don't think we should help, but maybe also they shouldn't do it anywhere else but in their districts. They're always the reforms. The other systematic thing, and you know, back in my time, what we proposed actually was public finance. People talk about the influence of money in our political system. And yet, if you bring up the idea of publicly financing elections so that everybody's equal and nobody needs to go and ask for a contribution from anybody. You get a lot of resistance on that. There was always a lot of resistance on that. Because somehow you're giving money to politicians, but actually there was one election. And I remember this a long time ago. I think it was in 1976. I think it was the first election that I actually was a campaign manager for. And we had expenditure ceilings and you could only spend up to $10,000. Absolutely. It didn't matter whether you took public financing or anything, you could only spend up to $10,000 and it equalized the race. If we were looking at new blood coming in, because right now obviously incumbents have tremendous advantage because they get all the money. You can throw them, they throw the fundraiser. But if you had public financing or if you had a contribution limit. Well, as usual, just like Citizens United, Supreme Court looked at this and said, now you can't have that. And so we no longer have contribution limit. I was the worst decision in the century in maybe a century and a half. That was a terrible, terrible decision. And it was visible at the time they handed that one down that it would wreck the political system and the democracy. And it is doing that right on course. But let me go to a question I mentioned during the break and I would like to ask you. And that is, what's the connection here? Because we have seen Congress go corrupt. Congress has been corrupt. And they haven't paid a penalty. I remember in Michael Morris film, Sicko, remember that was about the healthcare system 20 years ago. And he pointed out that a lot of these guys who were on the health committees in Congress would get these really sweet jobs from the health agencies immediately after their turn was up, if not before. And they would have all these fantastic, multi-hundred thousand dollar jobs out of the same companies that they were ruling on in their legislative function while they were in office. And it was really filthy. And he named names in that movie. He told you who was getting these jobs. See, we're gonna put somebody in jail because they took $5,000. And if I read the news reports correctly because they needed to pay a mortgage. And then when we are going to actually make legal the idea that if you're in Congress or in the state legislature for that matter or anyplace else, and you vote for something and the company pays you a hundred thousand dollars that's legal. You know, there used to be, when I was in law school there used to be a sign on Lindsey, my professor Lindsey Kang's a wall. And it said, you know, if you steal a loaf of bread you are a thief. If you steal a kingdom, you're a king. And that's the system. I mean, that's the kind of when the source of corruption is much bigger than somebody sneaking a few dollars in stupidity. That's why there has to be prosecution. That's why there has to be stiff sentences. That's why there has to be ethics commissions. That's why there should be a rule whether it's an ethics rule or a statute that you can have a fundraiser during the session. I have observed, I don't know if you ever saw this in the same way, but I have observed situations where these companies would come to town. They wanted something from Hawaii. They'd come to town in the middle of the session and lo and behold, and they would go to fundraisers, lo and behold, they would have what they wanted. They were here during the session and they gave contributions during the session and then they left again. Well, see, I think that we ought to look at the whole financial system. I mean, first of all, if we are really serious about removing the influence of money from our political system, then we ought to seriously go back and look at equalizing financing of elections so that people don't have to go out and get money. This is gonna be very controversial. I think we ought to pay our politicians what we want them to be. In other words, if we want people to be outstanding leaders, then we ought to give them the basis to live like that. There's this sort of myth that we are all gonna be the farmer that goes off his field, serves one term in the legislature and then goes back and plants corn. And it doesn't work like that. I mean, these guys have families they're gonna do. So the whole systematic... What do you think of term limits, John? Well, the problem with term limits is what I saw in California, which is what you just described. You know, I had the privilege of actually lobbying in Sacramento and we have strict term limits. And what was happening was legislators were just flipping. I serve one term in the house and then I go one term in the Senate. Or I got two terms limitation. I look at the healthcare company and I carry their water for four years and I come out and I got a sweet job. And so, you know, the money was kicking this incumbents out. All it meant was people were looking for more soft landings. So, yeah, maybe we should have term limits. But as long as money is the source of everything, I think the system is a serious problem. Well, yeah, let me ask you one more thing. And that is, John, so these two guys and then K.L.O.H. and then in the Corporation Council and in the city, I mean, it just seems to be... Everybody's getting so sloppy. Yeah, and it's not just that all of a sudden the prosecutors are investigating more. I think they've all been investigating for a long time. It's just happened to pop up now. And as you say, they're sloppy. I mean, these legislators and officials are sloppy and they... You know, to me, it's arrogance, you know? You get to the point where you get away with stuff, little stuff for so long. But if you make that connection, if you make that logical deduction, then aren't we saying that there's more here under the rock? John, do you feel there's more here under the rock? And then if the investigations proceed based on, you know, what is public now, maybe somebody wants to make, you know, provide some information to the prosecutors in order to improve his or her own position, that the prosecutors will be able to find much more of this because there is a culture of it. And not only the people who actually also did this sort of thing, but the people who knew that it was happening, other officials who knew that it was happening and didn't do anything about it. Well, I think it's best possible. But, you know, on the other hand, so much of what we would consider unethical or what we would consider, in my opinion, just illegal behavior is probably not. See, that's the point. The system itself is what would, if somebody wanted to build a sewage plan and hired me as the safety official and paid me the same amount of money for not throwing up to work for a month, that would be legal. See, that's the point. I mean, yeah, I mean, you might catch a few more people and it's the stupidity. I mean, why do you accuse your own family of stealing your mailbox of all things? And that's where it started. And then you cover it up and you cover it up. And the cover-up is always worse than the initial. That's true. Let me ask you about solutions that have been suggested. One solution is to have a commission with about 10 people on it, many of whom have stood for democracy and reform, some of whom have been charged with ethical issues in the past and it'd be interesting to put them on a committee like this. That's one possibility. Another possibility, as you say, is no fundraising during the session. But what is- Well, that's a law, but I don't, you know, I mean, how dumb do you think these lobbyists are? If they really want to influence you, they can give you, they can do it after the session too. So I think we need a commission. I think we need to look at the whole system, though. And the people that get caught, you know, what do you need? And this is the balance. This is the balance. The balance has something to do with we want a democracy where people can participate in making the rules. You don't want to create a political system that only somebody who's a millionaire can participate in. So I can self-fund my own elections. I mean, how many people can go out and grip themselves alone with the amount of money that it takes to run an election? See, very few. And yet, if we're not careful, that's the system will only favor people like that. I mean, if you're starting off and you're really working hard and doing things, what do we do with the system? I mean, there is, in my opinion, if we actually lined up some of these practices which we allow, I think there's very little difference between that and outright arrogance, stupid corruption. Well, shake it and bake it. At the end of the day, it does sound like over there'll be some, what do you want to call it, optical changes here, that as you say, the chances are that it will continue. Well, I think one thing, if there are more people, you know, that get caught in the web, one positive result is we'll probably improve the intelligence quotient of the legislature. That's another story. Another story for another show. Anyway, with that note, I'm sorry, Jay, you got to interrogate me today, but the time is up. So you got one last question. Okay, what is going to happen here as a result in this session and the next session? What is going to happen as a result in terms of the efficacy of the ethics organizations, the state auditor, the people running for offices? Is this going to be an ongoing plank? In other words, am I going to see people, for example, running for governor, getting up there and saying, is part of my platform going to stamp out corruption? You know, you see that happening. Is this going to be a lingering issue or an issue that just drives up and goes away? Well, you know, the thing in Hawaii, it'll become an issue because everybody wants to be on the side of the angels, you know, you just do. And you don't want to get any clothes. You don't want to get anywhere where there's any smell. But you know, we talk about this because it's important to us and it's saddening to see this happening in our state. But as you mentioned, I think the entire nation, I mean, look at what's happening in Washington. I mean, this is just insane. I mean, we came out of an era with a president who regularly broke the law. Now he didn't have to go and get a $5,000 bribe from somebody, but he did figure out how to not pay taxes, for example. And all of this type of stuff. And it goes all the way down. And if you got enough money and you know how to work it fine, you know, it's all become legal. So if you, you know, you've got a Supreme Court who says you can influence elections in a certain way, blah, blah, blah. The guy that will get caught is the guy who can't pay his mortgage on the bottom of the chain. And that probably will happen in Hawaii. You know, unless we start to actually offer systematic change. Otherwise, yeah. You know, no fundraisers doing the session. If they really get bull, no fundraisers anywhere but in your district. If they really get bull, maybe they'll talk about, you know, no employment. Well, you're outside employment. And then we got to deal with the issue that that comes with the idea that you got to pay these legislators a little bit more. But, you know. I think that's a very profound point and it reminds me of what goes on in Singapore. In Singapore, they pay legislators enormous salaries, hundreds of thousands. And as you say, it's because they want to trust them. So they're giving them a salary commensurate with what they expect. And you also gets better people. I mean, you get people who are, you know, who hopefully better people in terms of everything, you know. It just not doesn't have somebody with money or somebody who is actually working for money, you know, for another money source. So yeah, we'll see. But what will probably happen is we'll have a lot of rhetoric and everything will blow over. And then we'll see, you know, what the real thing that's gonna be interesting is not what happens this session or even next session or next election is what the conversation is gonna be five years out. Whether we even care or whether that just disappears from our psyche. See, I would say, well, it will disappear but the problem will not go away. And the conversation has to continue. And I think one of the things that you and I and think that can do is make sure the conversation does continue. This is a sacred cow. People don't wanna talk about it, but we should. Well, absolutely. So with that, I am gonna thank you so much for being sharing this program with me. I actually wish I had asked the tic-tac for another half an hour, but unfortunately, I didn't. So we are going to say aloha at this moment. Thank you very much, Jay. Thank you, John, aloha. Aloha.