Legislature(2015 - 2016)GRUENBERG 120
04/01/2016 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB236 | |
| Confirmation Hearing(s): | |
| HJR29 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HJR 29 | TELECONFERENCED | |
| *+ | HB 339 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 236 | TELECONFERENCED | |
HJR 29-CALL FED. CONSTITUTIONAL CONV: TERM LIMITS
3:19:58 PM
CHAIR LEDOUX announced that the final order of business would be
HOUSE JOINT RESOLUTION NO. 29, Requesting the United States
Congress to call a convention of the states to propose an
amendment to the Constitution of the United States to set a
limit on the number of terms that a person may be elected as a
member of the United States House of Representatives and as a
member of the United States Senate; and urging the legislatures
of the other 49 states to request the United States Congress to
call a convention of the states.
3:24:20 PM
REPRESENTATIVE KELLER presented HJR 29 and advised it is a
resolution that makes an appeal to Congress to call for a
convention for an amendment to have term limits on the United
States Senate and United State House of Representatives.
Representative Keller referred to the Constitution of the United
States, Article V, which read as follows:
The Congress, whenever two thirds of both houses shall
deem it necessary, shall propose amendments to this
Constitution, or, on the application of the
legislatures of two thirds of the several states,
shall call a convention for proposing amendments,
which, in either case, shall be valid to all intents
and purposes, as part of this Constitution, when
ratified by the legislatures of three fourths of the
several states, or by conventions in three fourths
thereof, as the one or the other mode of ratification
may be proposed by the Congress; provided that no
amendment which may be made prior to the year one
thousand eight hundred and eight shall in any manner
affect the first and fourth clauses in the ninth
section of the first article; and that no state,
without its consent, shall be deprived of its equal
suffrage in the Senate.
REPRESENTATIVE KELLER commented that Article V is part of the
original Constitution of the United States, and the founders,
foreseeing a time there may be a need for adjustments, included
Article V, and provided two ways to make an amendment to change
the constitution. One of the methods is that the U.S. Congress
must have a two-thirds vote and, he opined, that 33 of those
have been put forward. He then referred HJR 29, and advised it
is the second Article V process in which to have a convention of
the states. Two-thirds of the states make an application to the
U.S. Congress to have a convention, Congress calls the
convention, and three-fourths of the states must ratify. He
noted that it is sometimes forgotten that is a high bar because
only 27 of the 33 offered by Congress were ratified by three-
fourths of the states. He pointed to the growing interest to
get two-thirds of the states to put forward language to
Congress, and advised the U.S. Term Limits group is coordinating
this effort.
3:27:45 PM
NICK TOMBULETES, Executive Director, U.S. Term Limits, said that
U.S. Term Limits is the only full-time organization dedicated to
placing term limits on the U.S. Congress. He offered testimony
as follows:
In the 1990s our organization helped citizens in 23
states put term limits on their members of Congress
using a ballot measures, including right here in
Alaska, and it passed in 23 states at that point it
was just shy of 50 percent of the entire Congress that
would have had a term limit. And it looked like it
was going to be inevitable that that would impel the
Congress itself to propose an amendment that would
apply to everyone. But, it was not to be because the
Supreme Court stepped in in the decision U.S. Term
Limits v. Thornton of which our organization was a
part, and ruled that the list of qualifications for
office to the Congress in the Constitution is
exhaustive. That the states cannot utilize the ballot
measure, state statutes, or state constitutional
amendments to add onto it. So, while they foreclosed
on that possibility, I guess you could say the silver
lining was that they opened up the possibility to get
this done using a constitutional amendment. And so,
the U.S. Constitution says, as Representative Keller
mentioned, that upon application from two-thirds of
the states, so that would be 34 at this point,
Congress shall call a convention for the purpose of
proposing amendments. And so, the convention that
Alaska would call for in this resolution is exclusive
to the subject of Congressional term limits, and it
would not go active until 33 other states have passed
similar or the same resolution. So far my home state
of Florida was the first to pass the resolution back
in February.
Now, we think that HJR 29 should be adopted because
there is a very real concern that members of Congress
are removed from their constituents and they rely too
heavily on incumbency to deflect challenges at the
ballot box. And the latest average from
"RealClearPolitics", Congress had a 13 percent
approval rating but a 95 percent re-election rating
for the incumbents. And I think that evidence
suggests that you have a broken system. There was
also a study done by Princeton and Northwestern
Universities in 2014 where they analyzed over 2,000
public opinion surveys on almost all national issues.
And they compared those public opinions to the
policies that became law from Congress and the
researchers concluded that the preferences of the
average American have a meniscal near zero,
statistically non-significant impact upon
Congressional policy. But when they looked at, you
know, the perceptions and views of the upper 10
percent of voters in the country, the ones that were
funding the packs and the re-elections of the
Congressmen, there was a correlation. So, I think
most people feel disconnected from Congress in this
way, they feel that their voices are not being heard
at the federal level. And that's part of what term
limits are intended to address.
Congress was not intended to be a -- Congress was
intended to be citizen legislature whose members were
very close to their constituents and would come home
to spend time around them, much in the way you all do
it here in Alaska. But, the mentality was lost as the
population grew, the size and the complexity of
government grew and so did the needs that it had to
address. You know, Alaska is noted for having a small
state legislature, but in terms of the actual
representation ratio and the size of the districts,
you know how powerful each individual voters and
constituent of yours is, you're one of the best in the
country. And when you compare that to Congress with
an average House district size of 700,000 people, you
are looking at great difficulty in holding members of
Congress accountable. And, that's when special
interests tend to step into the vacuum and really
decide who can get elected because the cost of
unseating a U.S. House incumbent is pegged at $2.5
million by the Foundation for Government
Accountability. And so, we view that as sort of a
barrier to entry for the average person, you know, the
farmer, the school teacher, the union member who wants
to get elected and have their voice heard in
Washington.
So, term limits would reduce those barriers to entry
and it's important to note the amendment is not aimed
at any one member of Congress, nor is it guaranteed to
affect the current membership. In fact, at a
convention the delegates that you all select, and that
the other states select, would be in charge of
deciding how long and what the appropriate term limit
is, whether the current members are grandfathered in,
whether it is prospective or retro-active. That's not
something that comes mandated from this resolution.
And the most important thing, I think, is that this
would really honor the views of a vast majority of
Alaskans. In 1994 the vote from the people of Alaska
for Congressional term limits was 63 percent in favor
of a statute limiting Congressional terms and that's
actually still on the books today in Title 15, Chapter
30 of Alaska Statutes. Of course, this was nullified
by the Supreme Court in the Thornton case, but that's
what left the door open to do it with constitutional
amendments. And then, recent polling done by
McLaughlin & Associates, which is a respected polling
firm, found that 78 percent of Alaskans today now
support an Article V Amendment Convention to put term
limits on Congress. And you can slice that every age,
race, gender, party demographic group, and they're all
equally supportive of it.
So, you know, in closing as the Vice-Chair said, the
history of Article V really makes it the perfect tool
for the states to use at a time like this. It was
written into the Constitution specifically so that the
states could bypass Congress and obtain amendments
that might not be in Congress's best interests. And
there's never been a better moment for the states to
take action and kind of re-establish this balance with
Congress. Give Congress back to the American people
who are obviously disillusioned by the performance.
So thank you for your time and I'll be happy to answer
any questions you have.
3:34:37 PM
REPRESENTATIVE KELLER asked why term limits were not included in
the original Constitution, the provision for amendment is there
but no term limits.
MR. TOMBULETES explained that the founding fathers were divided
on the issue of term limits and obviously they had greater
concerns of preserving the union at that point and making sure
there was a new constitution that could endure. The issue did
come up and several of the founders were in favor of a term
limit. He said, it was Benjamin Franklin who wrote a term limit
into the Constitution of Pennsylvania, Thomas Jefferson was not
at the Philadelphia convention but upon seeing it for the first
time after coming back from France, he noted that the absence of
rotation in office which was a term limit would end in abuse for
the U.S. Senate and for the President of the United States. He
opined that a reason why it wasn't included was that they didn't
think it would be necessary because the average tenure in
Congress did not rise above two terms until the beginning of the
Twentieth Century. There was rapid turnover and Washington
D.C., was not so much a place of profit and power as it is today
and, he noted, people actually wanted to leave Washington rather
than go there.
3:36:28 PM
REPRESENTATIVE KREISS-TOMKINS asked whether it is accurate that
each state would determine its own election process for
delegates attending the convention.
MR. TOMBULETES answered that he was correct.
REPRESENTATIVE KREISS-TOMKINS asked how active is an application
for a constitutional convention, how much time is the window
open to get to the two-thirds of states threshold.
MR. TOMBULETES explained that if there is no termination date
within the applying resolution, then it is indefinitely active.
It is recommended that if an application goes too long without
being renewed, it should be renewed due to the way the language
has to conform to resolutions coming from other states across
the country. He added that it could present a problem for this
effort because at the end, while Congress has very limited
authority in this process, it does decide whether the
applications are on the same subject and can choose to decline a
convention on that basis.
REPRESENTATIVE KREISS-TOMKINS inquired as to whether there is a
possible scenario that if every resolution from every state
calling for an Article V Constitutional Convention is not
verbatim identical that Congress theoretically could strike down
or decline to call the convention on the basis of those
technical and trivial differentiations.
3:38:31 PM
MR. TOMBULETES answered that it is theoretically possible, some
of the case law suggests that the courts would be empowered to
step in and resolve Article V disputes. It could step in and
compel Congress to call the convention if the court deems the
applications are on the same subject. He offered that it is
critically important for the states not to give Congress excuses
to deny the convention, so the greater variation a state has in
the resolution, the more likely Congress will simply ignore
them. In fact, he pointed out, there have been 400 plus
applications sent by the states to Congress for an Article V
convention, but it has still never been done because they are
not on the same topic. He reiterated that it is critically
important that they are similar in language which is part of
what U.S. Term Limits does in going around the country to work
with legislatures for that level of conformity.
3:39:31 PM
REPRESENTATIVE KREISS-TOMKINS referred to the last point and
asked how many states thus far have called for a convention on
this subject, and what is the closest the United States has come
to an Article V convention on another subject with the largest
amount of states.
MR. TOMBULETES responded that Florida is the only state that has
passed the applying resolution for this particular convention
thus far. Although, he offered, U.S. Term Limits has only
recently begun canvassing the country to generate support from
the grassroots. Consequently, in the current year session is
upwards of ten states that are considering similar resolutions.
He turned to Representative Kreiss-Tomkins' second question and
advised it was the 1913 amendment for direct election of
senators in that they were one state short of the two-thirds
states when Congress pre-empted the states and the Senate
finally caved in after years of trying and proposed that
amendment on its own. Historically, Article V has worked to
endeavor to get to a convention but also to put pressure on
Congress to propose amendments it wouldn't otherwise propose.
He commented that that is how the Bill of Rights was actually
proposed, with the threat of a second convention, James Madison
promised a Bill of Rights and that threat went away.
3:41:25 PM
REPRESENTATIVE KREISS-TOMKINS commented that he finds this
process fascinating and there is merit to this because the
federal system is broken. He remarked that state legislatures,
in a roundabout way, have their hands on the levers which
frightens him somewhat but in this instance he is pleased to see
it coming through.
3:42:20 PM
REPRESENTATIVE KELLER offered to Representative Kreiss-Tompkins
that Rob Natelson of "Conventional Studies," is a respected
constitutional law attorney who prepared a fascinating
"Legislative Compendium" and he would provide a copy if desired.
He pointed out that the in compendium discusses the level that
conventions have held as part of the history of the United
States of America. It has only been in the last 40-60 years
that conventions have been diminished and, he advised, there is
good case law, good history, and viable policy.
3:43:27 PM
REPRESENTATIVE CLAMAN pointed to the death of United States
Supreme Court Justice Antonin Scalia and noted that the framers
originally rejected the idea of term limits as part of their
original intent allows one to change the intent of the
constitution by amending it.
MR. TOMBULETES surmised that Representative was asking him to
affirm his statement.
MR. TOMBULETES explained that the framers knew they were
crafting a document they intended to endure for a long time. It
was not for one particular period in history, but hopefully to
last as long as this Republic could last. The framers knew that
a constitution like ours needed an assessable means of
amendment, and in reading the writing of the framers they were
open about the fact that some of their work might need
correcting and expressed no shame over that fact.
3:44:38 PM
CHAIR LEDOUX turned to Representative Claman and asked whether
he was suggesting that because the founders allowed for a
mechanism for change of the constitution that that somehow is at
odds with Justice Scalia's reading of the strict
constructionist. She opined that the strict constructionist
would say that the constitution isn't supposed to be changed
through judicial interpretation, but there is a difference
between judicial interpretation and an actual amendment to
change something.
3:45:35 PM
REPRESENTATIVE CLAMAN agreed, and noted that after reading
Justice Scalia's opinion and places where he thought original
intent had a place, and when it wasn't convenient it didn't seem
to be part of his analysis, he said. It was more of an
observation to the extent one looks at the constitution, he
noted that one could easily say that the original intent was to
not have term limits, but because ...
3:46:11 PM
CHAIR LEDOUX expressed that of course the original intent was
not to have term limits, but the Constitution of the United
States also allowed for changes through the amendment process.
3:46:23 PM
REPRESENTATIVE KELLER opined that the part about the states
making the call for Congress was added after they changed the
Article V to include that. He could not recall the name of the
person insisting.
MR. TOMBULETES offered that it was George Mason who insisted on
this approach, and Mr. Tombuletes paraphrased Mr. Mason to say,
"No amendments of the proper kind would ever be obtained, you
know, if only Congress had the sole authority of proposing."
3:47:09 PM
REPRESENTATIVE KREISS-TOMKINS commented that it strikes him as
analogous to the Alaska State Constitution's safety valve where
you have entrenched self-interest. He referred to the
referendum process allowed in the Alaska State Constitution, of
which there have been four instances of referenda, and two were
successful. He pointed to the 1980 a referenda that was
"wildly" successful was when the legislature decided to create
its own Cadillac retirement system for legislators. The people
of Alaska were not excited about that idea and it was repealed
by a four to one margin. In this case, where there are people
in Congress who have entrenched self-interest, which is to keep
their seats and be protected by the overwhelming and prolific
power of incumbency. Just with the direct election of senators
and that history must be fascinating for 100 years ago and this
seems like another example, he said.
3:48:22 PM
CHAIR LEDOUX surmised that this makes a lot of sense on a
national level but wondered how it would affect a small state,
such as Alaska, wherein the power it has comes from seniority
and if a person can only have a couple of terms there is not
much seniority. She queried whether Alaska ends up on the
losing end of this bill.
MR. TOMBULETES opined that Alaska does not end up on the losing
end of the deal because the seniority question cuts both ways.
In that, it is advantageous in the seniority driven current
system when a person is a long term member of Congress.
Although, he pointed out, the moment that member decides to
retire that state is immediately at a counter-acting
disadvantage in that the state has to jump back to the front of
the line. It depends upon which point you are on, but it's not
always a positive thing for a small state, and it would be good
for Alaska if Congress were made less about seniority and more
about the merits of the issues because the arguments Alaska has
with the federal government are sound. He argued that seniority
should not be necessary to be able to push back against the
federal government, it should just be common sense for the
majority of Congress.
CHAIR LEDOUX argued that if the bill abolishes the seniority
system wouldn't there be a tendency for a small state like
Alaska to get lost if everyone from New York, or everyone from
California voted their regional ways and there would be no way
to counter balance that.
MR. TOMBULETES opined that there is not much of a dispute over
the fact that most members of Congress under the status quo are
voting primarily for their region and primarily voting for power
to be more concentrated in Washington D.C. He related that
under a term limit system, with a larger portion of the
citizenry sent to Washington, there would be more skepticism to
Washington being the solution to every problem. He was unsure,
he said, whether it would create a regional bend but it would
certainly create a bend in favor of the citizens, which is
rather than those of the Washington political climate.
3:50:36 PM
CHAIR LEDOUX agreed that people are voting on a regional basis,
but the seniority system in which a member from a small state
can rise up in seniority and chair a powerful committee based
upon seniority, that can be sometimes used to counter-balance
the regionalism.
3:51:02 PM
MR. TOMBULETES asked her to restate the question.
CHAIR LEDOUX suggested that even though people tend to vote on a
regional basis, that that can be countered by a member from a
small state rising through the seniority system to be in a
powerful position to counter the regional votes.
MR. TOMBULETES opined that is accurate to an extent in the
current system but, he asked whether Chair LeDoux wants them
being on an island of that view even if they have a powerful
spot on a committee. He questioned whether it is necessarily a
good thing that the rest of Congress is not so sympathetic to
the interests of an individual state because the rest of
Congress has become so rooted in Washington that every solution
needs to be solved in Washington. He opined that if there were
term limits, the members from other states even though they
would subscribe to a regionalist view which can never be
disposed of, they would be more sympathetic to Alaska's position
as a sovereign with regard to the federal government. The other
states would be more respecting and deferring to Alaska's rights
to control its own land and kind of push back against what
Washington is doing, he commented.
3:53:56 PM
CHAIR LEDOUX asked what evidence he has of that. She questioned
why, without the power of a member from a small state to hold a
bill or to otherwise make members who are antithetical to the
interests of the state, other states would just decide to be
nice.
MR. TOMBULETES related his belief that if term limits are
implemented on Congress it would automatically make elections
more competitive and level the playing field for these
districts. There would be a Congress that is more responsive to
the needs of the people of Alaska and to the entire country. He
opined that the people of the country are smarter than the
permanent political class in Washington. Therefore, he pointed
to the Princeton and Northwestern Universities' study and said
that the bottom 90 percent of people in the country do not have
their public policy opinions reflected in Congress at all. He
described that as greatly damaging to the Republic, and the
ideas, the public would generate if it was able to have better
access to Congress, would be good ideas.
3:55:25 PM
REPRESENTATIVE KREISS-TOMKINS referred to the discussion of
small states being disenfranchised through term limits, and said
there are two responses: the U.S. Senate and small states are
already enfranchised with proportionate power; and this state
would only be disenfranchised, when discussing a proportionality
of power in Congress, if there is a correlation between greater
seniority and a small state. He related that while it is true
that Don Young has been a Congressmen for Alaska for many years.
States such as Montana, Hawaii, or Maine have had a lot of
turnover in Congress and have had disproportionally less power
due to their high turnover within their congressional
delegation. He said, on the bigger perspective, he was
uncertain whether this would have a prejudicial effect on the
amount of power that small states have in Congress.
3:57:21 PM
CHAIR LEDOUX responded that it might not have a lot of impact on
other small states, but it might have on our small state.
REPRESENTATIVE CLAMAN noted that in theory, if term limits were
in effect it would benefit states that were electing the more
qualified and skilled people to start serving in Congress and if
the states made a wise choice of those they picked, then those
states with terms limits would do better than those that gain
from seniority. He pointed out that Senator Ted Stevens was
effective early in his career and stayed that way for many
years, and with term limits his power would not have been able
to grow.
4:00:00 PM
CHAIR LEDOUX opened public testimony and, after ascertaining no
one wised to testify, closed public testimony.
CHAIR LEDOUX advised her intention is not to move the bill today
and asked for committee comments. She remarked that she has not
had a session on constitutional law like this since she finished
constitutional law in law school when dinosaurs roamed the
earth.
[HJR 29 was held over.]