Legislature(2003 - 2004)
02/16/2004 01:40 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
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HB 414 - U.S.SENATE VACANCY/DEF OF POLITICAL PARTY Number 0079 CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 414, "An Act relating to filling the vacancy in the office of United States senator, and to the definition of 'political party.'" [Before the committee was CSHB 414(STA).] CHAIR McGUIRE indicated that HB 414 was engendered by the overwhelming response to a ballot initiative sponsored by Trust the People regarding how Alaska fills U.S. Senate seat vacancies. She noted that over the years, changes have occurred to how those vacancies are filled; thus "tinkering" with this process is not unusual. Currently, such vacancies are filled by appointment, but the ballot initiative seeks to change the process so that vacancies would be filled via a special election. She remarked, however, that there are those who believe that changing how a U.S. Senate seat vacancy is filled via the initiative process is unconstitutional; thus HB 414 proposes to make the same change via statute instead. The Seventeenth Amendment of the U.S. Constitution governs how such vacancies are to be filled, and says in part: When Vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. CHAIR McGUIRE indicated that HB 414 also expands the types of races that the Division of Elections can look to in order to ascertain whether a political party enjoys enough popular support to merit official status. This change is in response to the court order issued by Judge Reese in the Alaska Superior Court case, Green Party of Alaska v. State, Division of Elections. She then noted that the committee would also be considering amendments to HB 414. Number 0524 DON ROBERTS said that his greatest criticism of HB 414 pertains to the definition of political party: He elaborated: It calls for a party candidate to receive 3 percent of the vote for governor, U.S. Senator, or U.S. Representative. I find this to be unacceptable. A political party is nothing more than an organization with a particular political agenda. Whether it [fields] a candidate at all is irrelevant. No party should be required to field a candidate just to retain their party status. Also, a vote for a candidate should not necessarily be considered as support for a particular party. There are a number of reasons a person would vote for a candidate, and party support may not even be a part of that decision. I'm a registered Democrat and I've, in the past, voted for Republicans because [of] the individual; I didn't realize I was supporting the entire Republican platform. The democratic process amends many perspectives. Requiring parties to use resources to field candidates before they're ready to do so could deprive Alaska of important perspectives. Democracy is about ideas, ... not people. Political parties should be free to foster ideas that will contribute to the political dialogue. I urge the committee to change the definition of political party to one that is more befitting of a democratic society. Thank you very much. CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on HB 414. Number 0656 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, labeled 23-LS1514\S.5, Kurtz, 2/16/04, which read: Page 1, line 1, following "filling": Delete "the" Insert "a" CHAIR McGUIRE asked whether there were any objections to Amendment 1. There being none, Amendment 1 was adopted. Number 0684 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, labeled 23-LS1514\S.6, Kurtz, 2/16/04, which read: Page 1, lines 6 - 7: Delete "secs. 2 - 7 and 9" Insert "secs. 2 - 8 and 10" Page 2, following line 2: Insert a new bill section to read: "* Sec. 3. AS 15.40 is amended by adding a new section to read: Sec. 15.40.145. Temporary appointment of United States senator. When a vacancy occurs in the office of United States senator, the governor may appoint a qualified individual to fill the vacancy temporarily until the results of the special election called to fill the vacancy are certified. If a special election is not called for the reasons set out in AS 15.40.140, the individual shall fill the vacancy temporarily until the results of the next general election are certified." Renumber the following bill sections accordingly. Number 0710 CHAIR McGUIRE objected for the purpose of discussion. REPRESENTATIVE GRUENBERG offered that without Amendment 2, there will be a period of time, between the time the vacancy occurs and the time the election is certified, during which Alaska would not have a U.S. Senator performing his/her duties, and which could amount to several months. Amendment 2 allows the governor to appoint someone temporarily to fill the seat, and that temporary appointment would be terminated at the time the election results, either special or general, are certified. CHAIR McGUIRE asked Representative Gruenberg whether he would be willing to consider amending Amendment 2 by adding, between "senator" and ",the governor", the words, "at least five days after the date of the vacancy but within 30 days after the date of the vacancy". She mentioned that this proposed change to Amendment 2 was suggested by the lieutenant governor's chief of staff, Annette Kreitzer, and would serve the purpose of ensuring conformity with existing law. REPRESENTATIVE GRUENBERG said he would consider that as a friendly "conceptual" amendment to Amendment 2. [Although no formal motion was made, Amendment 2 was treated as amended.] Number 0894 REPRESENTATIVE GRUENBERG noted that the reason U.S. Representatives are not included in Amendment 2 [as amended] is because the U.S. Constitution already provides that a vacancy in the U.S. House of Representatives can only be filled by election, not by gubernatorial appointment. He suggested that the House Judiciary Standing Committee introduce a joint resolution urging Congress to amend the U.S. Constitution to allow a temporary vacancy in the U.S. House of Representatives to be filled in the same manner as is being proposed via Amendment 2 [as amended] to HB 414. He added that he would be willing to have a joint resolution to that effect drafted and brought to the committee for consideration. CHAIR McGUIRE said she thought that would be a good idea, adding that the committee could consider that joint resolution at another time. CHAIR McGUIRE removed her objection to Amendment 2 [as amended]. REPRESENTATIVE GARA offered his understanding that the Seventeenth Amendment already provides the governor with the ability to appoint a temporary replacement to fill a U.S. Senate seat vacancy. CHAIR McGUIRE agreed that it does, but suggested that it does not specifically address special elections. She offered her belief that the initiative process is not the appropriate method by which to address this issue; instead, the legislature ought to address it and do so as clearly and as entirely as possible. REPRESENTATIVE GARA said that although he would not be opposing Amendment 2 [as amended], he posited that without it, if a vacancy occurs, the legislature could still grant the governor the power to fill it. "We can do it more cleanly with this amendment," he acknowledged. Number 1196 CHAIR McGUIRE asked whether there were any further objections to Amendment 2 [as amended]. There being none, Amendment 2 [as amended] was adopted. Number 1206 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 3, labeled 23-LS1514\H.2, Kurtz, 2/4/04, which read: Page 3, following line 14: Insert a new bill section to read: "* Sec. 7. AS 15.45.010 is amended to read: Sec. 15.45.010. Provision and scope for use of the initiative. The law-making powers assigned to the legislature, including the power assigned to the legislature by the Seventeenth Amendment to the Constitution of the United States to direct how vacancies in the United States Senate shall be filled, may be exercised by the people through the initiative. However, an initiative may not be proposed to dedicate revenue, to make or repeal appropriations, to create courts, to define the jurisdiction of courts or prescribe their rules, or to enact local or special legislation." Renumber the following bill sections accordingly. Number 1226 CHAIR McGUIRE objected. REPRESENTATIVE GRUENBERG offered his belief that both the Alaska State Constitution and state statutes allow for the initiative process to change how Alaska fills a vacancy in the U.S. Senate. He added: I don't want there to be any legal problem with that in the future, and [Amendment 3] simply ... makes it crystal clear that the legislature is allowing the initiative process to be utilized, under the Seventeenth Amendment, to direct how vacancies in the U.S. Senate may be filled, and it makes [it] very, very clear. CHAIR McGUIRE said that although she agrees with the concept of Amendment 3, she would be opposing it. She offered her belief that even indirectly, a U.S. constitutional provision cannot be changed by state statute, adding that that is what she believes Amendment 3 attempts to do even though that may not be intent of the amendment's sponsor. She opined that the legislature's power to direct how a vacancy in the U.S. Senate may be filled is similar to the legislature's power regarding appropriations in that it is not one that can be given away, and suggested that the courts might hold the same view. REPRESENTATIVE GRUENBERG opined that the Seventeenth Amendment allows the legislature to direct the method by which a vacancy in the U.S. Senate may be filled, and according to a report by Legislative Legal and Research Services, Wyoming, for example, has specifically directed its governor to select from a list proffered by a central committee of the political party to which the predecessor belonged. Representative Gruenberg noted that state legislatures have addressed this issue in a variety of ways, and opined that the only reason the initiative process couldn't be used would be if state [statute] specifically didn't allow it. He referred to a U.S. Supreme Court case, California Democratic Party v. Jones, as an example of the initiative process making changes to the election process, including U.S. Senate seat elections. Number 1547 REPRESENTATIVE GRUENBERG said that Amendment 3 simply allows the legislature to delegate to the voters the right, via the initiative process, to change the method of filling a U.S. Senate seat vacancy. He opined Amendment 3 meets both the spirit and the letter of the Seventeenth Amendment because, if passed, it will allow the people to change the method at the direction of the legislature via enacted legislation. He also opined that the argument could be made that voters impliedly have that power because of language in AS 15.45.010; passing Amendment 3 merely clarifies the issue. He urged members to adopt Amendment 3, and relayed that if any forthcoming legal opinion says that the language of Amendment 3 is unconstitutional, then he would join with members on the House floor in removing the language from HB 414. REPRESENTATIVE GARA said he supports Amendment 3. "What we should do is expand the people's right to place initiatives on the ballot as much as reasonably possible, and [Amendment 3] does this," he added. He offered his belief that the language in the Seventeenth Amendment allows the legislature set up the rules governing the filling of vacancies, and that Amendment 3 in turn merely allows the legislature to set up the rule that one way of governing how a vacancy is filled is via the initiative process. He stated: "Representative Gruenberg's amendment does exactly what the United States Constitution invites us to do, so really the question here is whether or not we want to give the people that power ...." He went on to say that he agrees with Chair McGuire that under current law, those challenging the initiative might be able to knock the initiative off the ballot; Amendment 3 would prevent such from occurring in the future by expanding the people's right to fill vacancies via direct elections. REPRESENTATIVE SAMUELS said he disagrees that the Seventeenth Amendment is inviting the legislature to do as Amendment 3 proposes, adding his opinion that it doesn't say anything [other] than that the legislature may empower the executive branch. REPRESENTATIVE OGG noted that from a historical perspective, in the original U.S. Constitution, U.S. Senators were not elected - they were appointed by state legislatures; the amendments to the U.S. Constitution later allowed U.S. Senators to be elected. He suggested that the current language in the Seventeenth Amendment does not address the issue of initiatives, and indicated a preference for waiting for a legal opinion on this issue before adopting the language proposed in Amendment 3. Number 1761 CHAIR McGUIRE opined that when used in the Seventeenth Amendment, the term, "legislature" does not translate into, "initiative process", and reiterated her belief that this is a legislative power that can't be delegated. She remarked, however, that if a forthcoming legal opinion says that there is no problem with adding the language proposed in Amendment 3, then she would be willing to consider a motion on the House floor. In response to a question, she indicated a preference for moving the bill from committee today rather than holding it until a legal opinion is obtained. REPRESENTATIVE GRUENBERG, in conclusion, opined that nothing in either the Alaska State Constitution or the U.S. Constitution prohibits what is being proposed via Amendment 3. CHAIR McGUIRE reiterated her belief that the term, "legislature", as used in the Seventeenth Amendment, does not translate into, "the people through initiative". REPRESENTATIVE ANDERSON called the question. CHAIR McGUIRE asked for wrap-up on the debate. Number 1962 REPRESENTATIVE GARA opined that in general, it is the House Judiciary Standing Committee's job to research and analyze legal issues before moving legislation from committee. In response to a previous comment, he reiterated his belief that Amendment 3 is merely responding to the Seventeenth Amendment's invitation for the legislature to direct the filling of a U.S. Senate seat vacancy by saying that the legislature has decided that a change to the process of filling such a vacancy can be done via the initiative process. If members are concerned that the initiative changing the current process is unconstitutional, then the committee should adopt Amendment 3 and thereby clarify that an initiative of this sort is allowed, he remarked. REPRESENTATIVE SAMUELS said he still disagrees with Representative Gara's interpretation of the Seventeenth Amendment, and opined that the legislature should be very careful to not view this issue in terms of the current situation, and should instead consider what will be good public policy 20 years in the future. He said he viewed the language in the Seventeenth Amendment as being gray rather than black and white. REPRESENTATIVE OGG opined that the Seventeenth Amendment specifies that the legislature may direct how an election to fill a vacancy takes place, but not that the method of filling such a vacancy can be changed via the initiative process. He noted that California already had an initiative process laid out in its constitution before the Seventeenth Amendment was adopted; the fact that the Seventeenth Amendment does not address that process specifically, he indicated, is perhaps evidence that it was not meant to be included. REPRESENTATIVE GRUENBERG, referring again to the Legislative Legal and Research Services report, said that what Wyoming has done is precedent for what he is attempting via Amendment 3, since - although Wyoming is not specifically using the initiative process - it is delegating authority to a central committee of a political party. CHAIR McGUIRE assured members that an opinion on the issues raised by Amendment 3 will be forthcoming. Number 2226 A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of Amendment 3. Representatives Ogg, Holm, Samuels, Anderson, and McGuire voted against it. Therefore, Amendment 3 failed by a vote of 2-5. Number 2255 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 4, labeled 23-LS1514\S.1, Kurtz, 2/13/04, which, along with an added handwritten note, read: Page 4, following line 7: Insert new bill sections to read: "* Sec. 10. The uncodified law of the State of Alaska is amended by adding a new section to read: CONTINGENT EFFECT. Sections 1 - 7 and 9 of this Act take effect only if (1) a substantially similar initiative is adopted by the voters; (2) that initiative is subsequently invalidated by a court in a final judgment that the federal constitution limits the electorate's ability to enact an initiative on this subject; and (3) the time for an appeal of the judgment has expired or, if an appeal was taken, a final order on the appeal has been entered invalidating the initiative. * Sec. 11. If secs. 1 - 7 and 9 of this Act take effect, they take effect on the date that the time for an appeal of a judgment under sec. 10(2) of this Act has expired or the court order specified in sec. 10(3) of this Act becomes final." Note: Section numbers in lines 5 and 12 of this amendment refer to the State Affairs CS unamended. If amendments are added, these references may have to be changed to reflect the new section numbers. Number 2263 REPRESENTATIVE ANDERSON objected. REPRESENTATIVE GRUENBERG, noting that he is offering Amendment 4 on behalf of himself and Representative Berkowitz, relayed that Amendment 4 proposes to have certain sections of HB 414 take effect only if the aforementioned initiative is adopted and then invalidated by a court and the time for an appeal expires. Amendment 4 will allow the initiative process to go forward, but if it is then subsequently invalidated, then the same change to the method of filling a U.S. Senate seat vacancy would be created by legislative enactment. Amendment 4 would ensure that the people are allowed to speak. He went on to say: The initiative process, I believe ..., has two benefits. Number one, it allows a bill to be enacted. But number two, it allows the people to speak. And there is something to be said [for] allowing the people the right to express themselves. Even if we all agree it's a good idea - and I think ... [the vast majority of legislators] do agree that the substance of the initiative is a good idea ... - there is something to be said for allowing the people to be heard directly. A lot of time and effort have been put into that initiative. A lot of people have signed the petition. A lot of people want to be heard, and they want to [go] out and vote. And what [HB 414 without Amendment 4] will do is deny them the right to vote on that initiative. ... If you have an election, and there is only one person running, we could have, in law, a provision that says, "Well, that person is elected - we don't hold the election." But that's not the way it works because the people have a right to vote. And the same policy is here; the people deserve the right to vote. REPRESENTATIVE GARA, noting that he would not be offering an amendment that he'd handed out earlier because it proposes the same change as Amendment 4, relayed that he would be using discussion on Amendment 4 to speak to the bill because it goes right to his biggest concern. He then said: We've all undoubtedly received e-mails from voters who are concerned about this. If we allow the people's initiative to go forward, it can't be changed by the legislature for a minimum period of two years. That's the beauty of the ... initiative process under our [Alaska State] Constitution; it says the people are allowed [to establish a law and the legislature can't mess with it for two years.] [The preceding bracketed portion was taken from the Gavel to Gavel recording on the Internet.] TAPE 04-14, SIDE B Number 2395 REPRESENTATIVE GARA continued: If we pass this bill, it can be changed the day after we pass [it]. ... The initiative process gives the people a much greater assurance that their will, will not be thwarted by the legislature. ... We all want the people to have the right to demand a direct election of their own U.S. Senator by the initiative process. The concern of this bill is that maybe the people don't have [that] right under the [Alaska State] Constitution. ... [Amendment 4] says, if the people do have the right under the [Alaska State] Constitution - when the courts review this case - then just leave the initiative on the ballot so the people can vote; if the courts determine [that] the people don't have that right, then this bill will go into effect so that we will still have the right to directly elect our own U.S. Senators. I can't see a good reason not to try, to the greatest extent possible, to allow the people to vote on this question, and that's what [Amendment 4] does. There is history, by this body, that feeds into the public's fear that the ... legislature will not respect the will of the people through the initiative process. And I personally believe that happened last year. The people ... put together a minimum-wage initiative demanding a fair minimum wage that goes up with inflation. If that initiative passed, that would have been law for two years. The legislature knocked that initiative off the ballot by passing a bill, and then changed the bill the next year so that the minimum wage does not go up with inflation any more. I believe the legislature has thwarted the will of the voter in the past, and I believe [Amendment 4] makes sure, to the maximum extent possible, that the legislature will not thwart the will of the people again. So I'm going to support it. REPRESENTATIVE SAMUELS again observed that it is important for the legislature to consider what will make good public policy 20, 40, 50 years in the future, and remarked that he would be voting against Amendment 4. REPRESENTATIVE OGG mentioned that should something happen to one of Alaska's current U.S. Senators, HB 414 would enact the change sought by the those sponsoring the initiative sooner than could the initiative because the initiative won't be voted on before the next general election. [Some discussion ensued regarding the bill's effective date and the time frame in which the Governor has to sign a bill, allow its passage without his/her signature, or veto it. It was later determined that bills without a specific effective date become effective 90 days after becoming law, and that the governor has 15 days during session and 20 during the interim in which to sign a bill, allow its passage without his/her signature, or veto it.] CHAIR McGUIRE said she would not oppose an amendment to add a specific effective date to HB 414. REPRESENTATIVE GARA indicated a preference for what Amendment 4 proposes as a possible effective date. Number 2142 A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of Amendment 4. Representatives Holm, Samuels, Anderson, Ogg, and McGuire voted against it. Therefore, Amendment 4 failed by a vote of 2-5. Number 2137 REPRESENTATIVE SAMUELS moved to report CSHB 414(STA), as amended, out of committee with individual recommendations and the accompanying fiscal note. Number 2129 REPRESENTATIVE GARA objected for the purpose of discussion. He said that he has received e-mails indicating to him that some people believe that there are legislators who won't take this bill seriously. He noted that during the 22nd legislature, Representative Berkowitz had introduced legislation similar to HB 414 but it did not pass; instead, the law was changed to allow the current governor to select his own replacement. Therefore, the view of some, he relayed, is that HB 414 will simply be overturned shortly after passage. He said that if he had his choice, he would rather let the people pass this change through the initiative process. He then removed his objection. Number 2048 CHAIR McGUIRE asked whether there were any further objections to the motion to report CSHB 414(STA), as amended, out of committee. There being none, CSHB 414(JUD) was reported from the House Judiciary Standing Committee.
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