Legislature(2001 - 2002)

05/10/2002 01:58 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 363 - CAMPAIGN COMMUNICATIONS & DISCLOSURES                                                                                
Number 0043                                                                                                                     
CHAIR ROKEBERG announced  that the first order  of business would                                                               
be  CS FOR  SENATE  BILL NO.  363(STA) am,  "An  Act relating  to                                                               
communications and  elections, to reporting of  contributions and                                                               
expenditures, and  to campaign misconduct  in the  second degree;                                                               
relating  to  disclosure  by   individuals  of  contributions  to                                                               
candidates; and providing for an effective date."                                                                               
Number 0067                                                                                                                     
JOE  BALASH,  Staff  to Senator  Gene  Therriault,  Alaska  State                                                               
Legislature,  committee   aide  for  the  Senate   State  Affairs                                                               
Committee, which had rewritten  the bill substantially, presented                                                               
SB 363  on behalf  of the  Senate Rules  Committee, sponsor.   He                                                               
explained  that the  bill  is an  attempt to  get  "some kind  of                                                               
disclosure on  'issue ads.'"   He relayed that the  Alaska Public                                                               
Offices Commission (APOC) has predicted  that issue ads will play                                                               
a very large  role in the upcoming fall campaign.   He noted that                                                               
according  to Legislative  Legal  and  Research Services,  "there                                                               
really isn't  anything you  can compel on  a communication  or ad                                                               
that  is purely  issues-based."   If  there is  no  mention of  a                                                               
candidate,  "basically  you can't  touch  it"  because the  First                                                               
Amendment protects it, he opined.  He continued:                                                                                
     So what we  decided to do then was take  a look around;                                                                    
     we took a  look at McCain-Feingold -  or Shays-Mehan is                                                                    
     actually  the version  that  passed  and the  President                                                                    
     signed into  law - and looked  to see how they  kind of                                                                    
     took a crack at this, and  [we] came up with what's now                                                                    
     in the  bill in Sections 8  and 9.  And  basically what                                                                    
     we've come up  with is a bright-line test,  so that the                                                                    
     public  will know,  when ...  they are  speaking purely                                                                    
     about issues,  ... that they're  ... out of  bounds, if                                                                    
     you  will;  they're not  covered  by  any of  the  APOC                                                                    
     regulations.    And if  you  expressly  advocate for  a                                                                    
     candidate, you clearly are under the limits.                                                                               
     And we  created this  other kind  of middle  part, this                                                                    
     gray  area ...  in between  express advocacy  and issue                                                                    
     advocacy, and  tried to  carve out  this electioneering                                                                    
     definition.  And so if  anybody mentions or ... if they                                                                    
     identify  a  candidate,  [and]   discuss  an  issue  of                                                                    
     national,  state,  or   local  political  concern,  and                                                                    
     attribute  a position  on that  issue to  the candidate                                                                    
     identified, and it  occurs 30 days before  a primary or                                                                    
     municipal  election,  or  60   days  before  a  general                                                                    
     election, then  it must come  from allowable  sources -                                                                    
     the funds used to pay for  that - subject to all of the                                                                    
     same  restrictions  that  you as  candidates  would  be                                                                    
     required to abide by.                                                                                                      
     So,  the other  parts of  the bill  -- in  [the Senate]                                                                    
     State Affairs  [Committee] we heard from  APOC ... that                                                                    
     this year  the commission  ... [is]  going to  begin to                                                                    
     assess  the civil  penalties for  failure to  provide a                                                                    
     contributor's statement  - a  15-5 [form].   And  so we                                                                    
     discussed  ...  with  APOC  the  history  of  the  15-5                                                                    
     [form], and really  what it provides is a  tool ... for                                                                    
     the public to know what's going on....                                                                                     
Number 0349                                                                                                                     
MR. BALASH concluded:                                                                                                           
     As candidates, when you file  your reports, you have to                                                                    
     disclose  not only  your expenditures  but all  of your                                                                    
     contributors.     So  it's  almost  a   duplication  of                                                                    
     efforts, or I  guess it really is a  duplication when a                                                                    
     contributor's forced  to send  in a  form.   So, bottom                                                                    
     line  was,  the  commission  didn't appear  to  have  a                                                                    
     problem  with going  ahead and  just removing  the 15-5                                                                    
     [form] altogether, ... as long  as we retained a way to                                                                    
     track  ... large  contributions  to ballot  proposition                                                                    
MR. BALASH, in response to a question, noted that Section 11 of                                                                 
SB 363 repeals the statute pertaining to the 15-5 form.  In                                                                     
response to another question, he said:                                                                                          
     The case  law on  the First  Amendment ...  relating to                                                                    
     elections,  the  most  prominent decision  is  the  ...                                                                    
     Buckley  v. Valeo  [424, U.S.  1 (1976)]  decision, and                                                                  
     what the  [United States Supreme]  Court said  was that                                                                    
     if  you're going  to  place  any kind  of  a burden  on                                                                    
     speech,  whether  it be  ...  disclosure  of where  the                                                                    
     money came  from, whether it's  ... simply a  "paid for                                                                    
     by" statement,  anything, there has to  be a compelling                                                                    
     state  interest.   Now,  when  you're  talking about  a                                                                    
     candidate for  election who will  be going  into office                                                                    
     and making decisions that affect  the public, there's a                                                                    
     concern that the money used  to pay for those ads might                                                                    
     influence  that person's  decision making  once they're                                                                    
     in office, and  so there's a threat of  corruption - or                                                                    
     at least ... the appearance of a threat of corruption.                                                                     
     And so,  because there's that compelling  interest, the                                                                    
     [United  States Supreme]  Court said  it's okay  to put                                                                    
     burdens  on  speech  in those  situations.    But  when                                                                    
     you're simply out speaking on  an issue - income taxes,                                                                    
     for an  example - and  ... all  you want to  talk about                                                                    
     are the  pros and the  cons of  an income tax,  and you                                                                    
     don't mention  a candidate, you don't  mention a ballot                                                                    
     proposition,  you  don't  mention political  actors  at                                                                    
     all, you're  just simply talking  about an  income tax,                                                                    
     there's no  threat of corruption, there's  not even the                                                                    
     appearance of  a threat of  corruption.  So,  without a                                                                    
     compelling interest,  you can't place a  burden on that                                                                    
     speech.  And  that's my understanding of  the case law,                                                                    
     at any rate.                                                                                                               
REPRESENTATIVE JAMES  suggested that for some  issues, the public                                                               
ought to know  what group is speaking.  She  said that would then                                                               
be the compelling state interest.                                                                                               
MR. BALASH said:  "That was  the ... desired goal of the original                                                               
version of the  bill.  I'm not  up to speed on  the specific case                                                               
law, but  you may not  be able to get  there; we weren't  able to                                                               
find a way."                                                                                                                    
REPRESENTATIVE JAMES noted  that she has no  problem with freedom                                                               
of speech, but wants to know who is doing the speaking.                                                                         
Number 0770                                                                                                                     
REPRESENTATIVE BERKOWITZ turned  to Section 9.  He  said that the                                                               
definition  of "communication"  seems rather  sweeping and  might                                                               
suffer some  criticism as being  overbroad from  a constitutional                                                               
perspective.  He  asked Mr. Balash, "Where  is communication used                                                               
that would require this definition to apply?"                                                                                   
MR. BALASH said,  "It's used in the 'paid for  by' section of the                                                               
statutes; I think the cite is  [AS] 15.13.090, and that's page 2,                                                               
Section 5, of the bill."                                                                                                        
REPRESENTATIVE  BERKOWITZ  asked  whether any  thought  had  been                                                               
given  to "adding  mass  phone  calls, which  is  a new  campaign                                                               
technique, to that  list."  He added that now  that he knows that                                                               
the definition  in Section  9 applies to  one discrete  area, "it                                                               
might  be appropriate  to transfer  this definition  to that  one                                                               
discrete section."                                                                                                              
MR. BALASH said  although SB 363 is not intended  to be either an                                                               
exhaustive or  exclusive list, if "'direct  dialing' is something                                                               
the committee wanted to add ..."                                                                                                
CHAIR  ROKEBERG  interjected  to  say,  "I  hope  this  was  [an]                                                               
exclusive list because,  being a politician that has  to read the                                                               
statutes every  election, I  would like to  make sure  there's no                                                               
loose ends out there."                                                                                                          
MR. BALASH said,  "When we were coming up with  a list, we didn't                                                               
pretend  to  have  everything  in  mind, and  would  be  open  to                                                               
suggestions for additions or even subtractions."                                                                                
CHAIR   ROKEBERG  asked   whether  "telephonic   campaigning"  is                                                               
addressed elsewhere.                                                                                                            
MR. BALASH said that there  is a prohibition on making "factually                                                               
false statements"  over the phone.   He also mentioned  that APOC                                                               
treats  a "push  poll"  differently  from "a  poll"  in terms  of                                                               
defining and treating it as an expenditure.                                                                                     
Number 1078                                                                                                                     
REPRESENTATIVE  BERKOWITZ  made  a  motion  to  adopt  Conceptual                                                               
Amendment  1:     on   page  4,  line   24,  add   "or  automatic                                                               
telemarketing".   There being no objection,  Conceptual Amendment                                                               
1 was adopted.                                                                                                                  
Number 1218                                                                                                                     
REPRESENTATIVE BERKOWITZ made a motion  to adopt Amendment 2:  on                                                               
page  2, line  25, delete  "and address".   He  said, "It  always                                                               
strikes me as  being a peculiar component of a  television ... or                                                               
radio ad  - 'Paid for by  Ethan Berkowitz for State  House' - and                                                               
then ... listing the entire address."                                                                                           
REPRESENTATIVE  JAMES  posited that  the  purpose  of listing  an                                                               
address on  such an  ad is so  that the public  will know  how to                                                               
contact the individual or group paying for that ad.                                                                             
REPRESENTATIVE BERKOWITZ  said, "It's been sort  of my experience                                                               
in  observing campaigns  that usually  what  happens is,  someone                                                               
makes a mistake - they'll  transpose numbers or the numbers won't                                                               
be the right size - and that becomes an APOC issue."                                                                            
CHAIR ROKEBERG said he agrees  with Representative James, adding,                                                               
"If you have a straw group or a  group that was put together as a                                                               
subterfuge, and  if they  don't have an  address, you  don't know                                                               
who you're talking about."                                                                                                      
Number 1319                                                                                                                     
REPRESENTATIVE  BERKOWITZ acknowledged  that  point and  withdrew                                                               
Amendment 2.                                                                                                                    
NUMBER 1320                                                                                                                     
REPRESENTATIVE BERKOWITZ made  a motion to adopt  a new Amendment                                                               
2:   on page  2, line 27,  change "must" to  "may".   He remarked                                                               
that having timed  several radio ads, he doesn't  have a campaign                                                               
chairperson because having to identify  that person would take up                                                               
a lot of [airtime].                                                                                                             
REPRESENTATIVE JAMES and CHAIR ROKEBERG agreed.                                                                                 
Number 1363                                                                                                                     
CHAIR ROKEBERG  noted that  there were no  objections to  the new                                                               
Amendment 2; therefore, Amendment 2 was adopted.                                                                                
MR.  BALASH  noted  that  the adoption  of  any  amendments  will                                                               
trigger a concurrence vote.                                                                                                     
REPRESENTATIVE  BERKOWITZ referred  to Section  4, and  asked why                                                               
the  amount  listed  is  $500  instead of  the  $100  it  is  for                                                               
individual  candidate campaigns.   "Why  are we  not making  this                                                               
exactly parallel?" he asked.                                                                                                    
MR. BALASH replied:                                                                                                             
     The  ballot proposition  group will  have  to submit  a                                                                    
     report prior to the election  - I think that the timing                                                                    
     is 7  days, maybe  30 days  - and they  will go  in and                                                                    
     identify  sources of  contributions ...  that are  over                                                                    
     $100.    However,  this  provision  is  a  way  to  get                                                                    
     information out  to the public  ... so that  the public                                                                    
     knows when large  sources of funding are  coming into a                                                                    
     ballot proposition  group, sooner  than the ...  the 30                                                                    
     days before  an election.   If there were  a particular                                                                    
     item  on the  ballot, going  to appear  on the  ballot,                                                                    
     nobody would  know how  much money  had been  raised by                                                                    
     the particular group supporting  or opposing that item,                                                                    
     and this  is a tool  to help ... track  that throughout                                                                    
     the course of the year.                                                                                                    
CHAIR   ROKEBERG   asked   whether  there   are   any   reporting                                                               
requirements for these groups now.                                                                                              
MR. BALASH said yes.                                                                                                            
CHAIR ROKEBERG asked, "Then what  are we doing differently ... in                                                               
adding this subsection?"                                                                                                        
MR.   BALASH  said,   "We're  adding   a   requirement  ...   for                                                               
contributions to be reported."                                                                                                  
CHAIR ROKEBERG responded:   "But they're not now?   You just said                                                               
they were."                                                                                                                     
REPRESENTATIVE JAMES added, "More than  $500 to a group ...; this                                                               
is not the group, but it's to the group."                                                                                       
CHAIR   ROKEBERG  asked:     "Well,   what   are  the   reporting                                                               
requirements  for  a  group now?    This  is  for  an issue?    A                                                               
noncandidate?  Don't  they have the 7- and 10-day  report and 30-                                                               
day report requirement?"                                                                                                        
Number 1497                                                                                                                     
MR. BALASH  said:  "Yes  ..., that's  correct.  The  first report                                                               
they will  submit to APOC  will be 30  days prior to  the general                                                               
election.  And  if somebody were to send a  check for $600,000 in                                                               
June,  nobody  would know  until  30  days before  the  election.                                                               
[Section 4]  is requiring  the contribution  itself to  trigger a                                                               
REPRESENTATIVE  BERKOWITZ mentioned  that  the  amount listed  in                                                               
Section  4 does  not  appear  to be  cumulative  like  it is  for                                                               
MR. BALASH  referred to page  2, line  13, and said  according to                                                               
that language,  "once they've gone  over $500, it is  intended to                                                               
be a cumulative report."                                                                                                        
REPRESENTATIVE BERKOWITZ  disagreed.  He  said, "It could  be two                                                               
$500 contributions  within a  single period:   there's  more than                                                               
one $500 contribution."                                                                                                         
REPRESENTATIVE JAMES pointed  out that it would be  "30 days from                                                               
the time  it went over  $500, though, so  ... the date  that it's                                                               
due is 30 days after it went over $500."                                                                                        
REPRESENTATIVE  BERKOWITZ remarked,  however,  that according  to                                                               
the way Section 4 is written:                                                                                                   
     You could give  a check on the first of  the month, and                                                                    
     another on  the second  of the month,  and then  do the                                                                    
     same reporting on  the beginning of the  next month for                                                                    
     two checks for $500 each,  [whereas] if you give a $250                                                                    
     check  and  a  $250  check aggregating  to  $500,  that                                                                    
     arguably wouldn't have to be reported.                                                                                     
MR. BALASH,  in response  to a  question, acknowledged  that "you                                                               
can't put  a limit on  ... contributions to a  ballot proposition                                                               
REPRESENTATIVE  BERKOWITZ   noted  that  according  to   the  way                                                               
Section 4 is written,  "you could contribute $500 and  not make a                                                               
declaration; if  you make a  contribution of $501, then  you have                                                               
to make the declaration."                                                                                                       
Number 1759                                                                                                                     
CHAIR ROKEBERG  made a  motion to  adopt Conceptual  Amendment 3:                                                               
"on  page 2,  line 11,  after  'contributing' add  '$500 or  more                                                               
calculated on  a cumulative basis'  or words to that  effect, and                                                               
deleting  'more   than  $500'."     There  being   no  objection,                                                               
Conceptual Amendment 3 was adopted.                                                                                             
Number 1793                                                                                                                     
REPRESENTATIVE  JAMES  moved  to  report  CSSB  363(STA)  am,  as                                                               
amended,  out of  committee with  individual recommendations  and                                                               
the [accompanying] fiscal notes.  There being no objection,                                                                     
HCS CSSB 363(JUD) was reported from the House Judiciary Standing                                                                

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