Legislature(2001 - 2002)
05/10/2002 01:58 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 groups. 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 report." REPRESENTATIVE BERKOWITZ mentioned that the amount listed in Section 4 does not appear to be cumulative like it is for individuals. 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 group." 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 Committee.