Legislature(2001 - 2002)

05/13/2002 09:10 AM RLS

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 363-CAMPAIGN FINANCE PROVISIONS                                                                                            
CHAIR KOTT announced that the next  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 1073                                                                                                                     
REPRESENTATIVE   PORTER  moved   to  adopt   22-LS1713\B,  Kurtz,                                                               
5/12/02,  as the  working document.   There  being no  objection,                                                               
Version B was before the committee.                                                                                             
SENATOR GENE  THERRIAULT, Alaska State Legislature,  testified as                                                               
the sponsor  of SB 363.   He pointed out the  changes encompassed                                                               
in  Version  B as  follows.    On  page  4, line  29,  "automatic                                                               
telemarketer" was  deleted because of concern  that parties using                                                               
automatic dialers  to call people to  urge them to vote  could be                                                               
construed as part  of party activity.  On page  5, lines 7-8, the                                                               
window for electioneering communications  was reduced to "30 days                                                               
preceding a general or municipal election".  On page 5, lines 9-                                                                
10, the  definition of "express  communication" was  tightened in                                                               
order  to reflect  the traditional  interpretation of  Buckley v.                                                             
Valeo.    The  Buckley  [case]  requires  that  communication  be                                                           
clearly advocated  for the election  or defeat of  the candidates                                                               
with the specific words "vote for" or "vote against" being used.                                                                
SENATOR  THERRIAULT pointed  out that  the majority  of the  bill                                                               
deals  with  eliminating  the  "15:5  form."    As  the  campaign                                                               
financing laws have  been modified over the last  couple of years                                                               
such that the  individual maximum contribution is  $500, then the                                                               
15:5 form  doesn't have  to be  filed until  the $500  maximum is                                                               
reached.     After  talking  with   the  Alaska   Public  Offices                                                               
Commission  (APOC), he  understood that  the 15:5  form had  been                                                               
regulated such  that it  was meaningless  paperwork.   He pointed                                                               
out that language  was included such that the 15:5  form would be                                                               
required on  ballot propositions  otherwise the  first indication                                                               
as to where  the money for a ballot  proposition originated would                                                               
be 30  days before the  election.  The APOC  is happy to  do away                                                               
with the 15:5 form.                                                                                                             
Number 1312                                                                                                                     
REPRESENTATIVE  BERKOWITZ related  his  understanding that  under                                                               
the old  reporting rules,  reports go  out for  contributions and                                                               
expenditures  to   candidates  or  groups.     However,  the  new                                                               
reporting rules don't  seem to be as stringent.   He asked if the                                                               
new  reporting  rules  require  disclosure  of  contributions  to                                                               
anything other than a group  organized with the principle purpose                                                               
of influencing the outcome of a proposition.                                                                                    
Number 1366                                                                                                                     
JOE  BALASH,  Staff  to Senator  Gene  Therriault,  Alaska  State                                                               
Legislature,  explained  that  the  [remaining  portions  of]  AS                                                               
15.13.040  maintains  the  reporting  requirements  for  parties,                                                               
groups,  and candidates.   In  the  30-, 10-,  and 7-day  reports                                                               
before  elections, all  parties, groups,  and candidates  will be                                                               
required  to disclose  the  origin  of the  money  received.   In                                                               
further   response  to   Representative  Berkowitz,   Mr.  Balash                                                               
confirmed that [a candidate's]  expenditures and groups organized                                                               
with  the  principle purpose  of  influencing  the outcome  of  a                                                               
proposition  are   covered  by  the   aforementioned  [reporting]                                                               
Number 1429                                                                                                                     
BROOKE  MILES,   Director,  Alaska  Public   Offices  Commission,                                                               
Department  of Administration,  informed the  committee that  the                                                               
15:5 form required  for contributors has been a  component of the                                                               
campaign   disclosure   law   since  its   inception   in   1974.                                                               
Originally, those giving  more than $250 to a  candidate or group                                                               
were  required  to  file  form  15:5.    Changes  connected  with                                                               
campaign  finance reform  required that  contributors would  only                                                               
file [the  15:5 form] upon  giving $500  and the time  period was                                                               
expanded to  allow the filing to  occur [within] 30 days  [of the                                                               
contribution].     Then  legislation  enacted  early   this  year                                                               
required  that  [the  15:5  form]  would also  be  filed  by  the                                                               
candidate.   Ms. Miles  said that  the 15:5 form  is no  longer a                                                               
useful audit  tool.   Furthermore, it is  more paperwork  for the                                                               
candidate who is already files  30-day and 7-day reports for each                                                               
contributor that gives more than $100.   When the change was made                                                               
that allowed the candidate to  file on behalf of the contributor,                                                               
APOC discussed  that since  1997 there has  been a  moratorium on                                                               
accessing  civil penalties  for  a 15:5  form  that was  admitted                                                               
after the  due date.   The commission  informed staff  that after                                                               
the effective  date of  the legislation,  April 16th,  APOC would                                                               
access  civil  penalties.    That   change  was  of  concern  for                                                               
Number 1570                                                                                                                     
REPRESENTATIVE  BERKOWITZ referred  to  Section 1  of Version  B,                                                               
which addresses  AS 15.13.040(d).   He related  his understanding                                                               
that reporting  contributions to  candidates are included  in the                                                               
current statute, but  aren't included in the  bill.  Furthermore,                                                               
Section 3 seems  to say that expenditures for  billboard signs or                                                               
printed materials aren't required to be reported.                                                                               
MS. MILES explained that Section 3  is the result of the McIntyre                                                             
(ph) case  in the U.S. Supreme  Court.  This requires  that those                                                               
spending less  than $250 to  print something wouldn't  be subject                                                               
to the law when related to a ballot proposition.                                                                                
REPRESENTATIVE BERKOWITZ noted that  the McIntyre (ph) case isn't                                                             
part  of the  backup  in the  committee  packet.   Representative                                                               
Berkowitz related  his understanding that the  U.S. Supreme Court                                                               
says  that one  can have  unlimited expenditures  for billboards,                                                               
signs,  or  printed  materials concerning  a  ballot  proposition                                                               
without reporting it.                                                                                                           
MS.  MILES   said,  "Without  being   subject  to   the  campaign                                                               
disclosure law,  that's correct."   The only change  from current                                                               
law is the change in the citation from (d)(2) to (d).                                                                           
MR.  BALASH clarified  that the  billboards,  signs, and  printed                                                               
materials are part two of the test  while part one of the test is                                                               
the restriction of not exceeding  a cumulative total of more than                                                               
$250 during the calendar year.                                                                                                  
REPRESENTATIVE BERKOWITZ returned to [Section 1] subsection (d).                                                                
MR. BALASH specified  that the contributor is  no longer required                                                               
to file a  report, but contributions to candidates  will still be                                                               
reported by the candidates.                                                                                                     
CHAIR KOTT,  determining there was  no further  public testimony,                                                               
closed the public testimony.                                                                                                    
Number 1727                                                                                                                     
REPRESENTATIVE  BERKOWITZ  recalled   that  the  House  Judiciary                                                               
Standing  Committee   expressly  wanted  to   include  telephonic                                                               
telecommunications,  which   has  been  dropped  in   Version  B.                                                               
Therefore,   he   moved   the  following   conceptual   amendment                                                               
[Amendment  1]  that  would   restore  the  language  ["automatic                                                               
telemarketing"] on page 4, line 29, in Version 22-LS1713\P.                                                                     
MR. BALASH recalled that in  last year's Singleton decision there                                                             
were some  inferences made  with regard to  what parties  can and                                                               
cannot  do  in  terms  of  their  expenditures.    There  is  the                                                               
implication  that party-building  activities are  off-limits from                                                               
regulation.   The automatic telemarketing  with which he  is most                                                               
familiar is  when one party  turns to its members  and encourages                                                               
them to vote  on election day.   The same could apply  to a union                                                               
communicating  to  its members.    Mr.  Balash pointed  out  that                                                               
"automatic  telemarketing"  was  in  the  middle  of  a  list  of                                                               
communications, he  didn't believe  that the  severability clause                                                               
would allow the rest of the language stand.                                                                                     
REPRESENTATIVE BERKOWITZ  said that the  aforementioned arguments                                                               
also hold true for all the other forms of communication listed.                                                                 
MR.  BALASH pointed  out that  automatic telemarketing  picks out                                                               
specific recipients of the message being communicated.                                                                          
REPRESENTATIVE  BERKOWITZ interjected  that the  same is  true of                                                               
direct mail.                                                                                                                    
MR. BALASH agreed,  and related his belief that  the term "direct                                                               
mail" wasn't used.                                                                                                              
REPRESENTATIVE BERKOWITZ said  that automatic telemarketing seems                                                               
to fit in the list of communications.                                                                                           
CHAIR  KOTT  restated  Amendment  1:   page  4,  line  29,  after                                                               
"Internet,"  insert "automatic  telemarketing".   There being  no                                                               
objection, Amendment 1 was adopted.                                                                                             
Number 1956                                                                                                                     
REPRESENTATIVE BERKOWITZ turned to the following amendment:                                                                     
     Page 1, line 2:                                                                                                            
          Delete "and"                                                                                                        
     Following "degree":                                                                                                      
            Insert ", and to repayment of prohibited                                                                          
     Page 1, line 5, through page 6, line 11:                                                                                   
          Delete all material and insert:                                                                                       
        "* Section 1.  AS 15.13.090,  as amended by secs. 18                                                                
     and 19, ch. 1, SLA 2002, is amended to read:                                                                               
          Sec. 15.13.090.  Identification of communication                                                                    
     and  disclosure  of   source  of  funds.     (a)    All                                                                
     advertisements,    billboards,   handbills,    paid-for                                                                    
     television  and   radio  announcements,  electioneering                                                                
     communications,  and other  communications intended  to                                                                
     influence the election  of a candidate or  outcome of a                                                                    
     ballot  proposition   or  question  shall   be  clearly                                                                    
     identified by the  words "paid for by"  followed by the                                                                    
     name  and address  of  the  candidate, group,  nongroup                                                                    
     entity,  or  individual  paying for  the  communication                                                                
     [ADVERTISING].    In  addition, candidates  and  groups                                                                    
     must identify the name of their campaign chairperson.                                                                      
          (b)  The provisions of (a) of this section do not                                                                     
     apply when the communication [ADVERTISEMENT]                                                                           
               (1)  is paid for by an individual acting                                                                         
     independently  of  any  group or  nongroup  entity  and                                                                    
     independently of any other individual;                                                                                     
               (2)  is made to influence the outcome of a                                                                       
     ballot  proposition   as  that   term  is   defined  by                                                                    
     AS 15.13.065(c); and                                                                                                       
               (3)  is made for                                                                                                 
               (A)  a billboard or sign; or                                                                                     
               (B)  printed material other than an                                                                              
     advertisement made in a newspaper or other periodical.                                                                     
        * Sec. 2.   AS 15.13.090 is amended by  adding a new                                                                  
     subsection to read:                                                                                                        
          (c)  A person making a communication subject to                                                                       
     (a) of this section shall  report to the commission the                                                                    
     source  of  funds used  to  pay  for the  communication                                                                    
     according    to     the    schedule     specified    in                                                                    
     AS 15.13.110(a).   If the communication is  made within                                                                    
     nine days of  an election, the source of  funds used to                                                                    
     pay  for the  communication  shall be  reported to  the                                                                    
     commission within 24 hours after the communication.                                                                        
        *  Sec. 3.   AS 15.13  is  amended by  adding a  new                                                                  
     section to read:                                                                                                           
          Sec.   15.13.382.      Repayment   of   prohibited                                                                  
     contributions.   A person receiving a  contribution any                                                                  
     portion  of   which  was  made  in   violation  of  the                                                                    
     provisions  of  this  chapter  shall  return  the  full                                                                    
     contribution to the contributor.                                                                                           
        * Sec. 4.  AS 15.13.390(a) is amended to read:                                                                        
          (a)  A person who fails to register when required                                                                     
     by  AS 15.13.050(a) or  who fails  to  file a  properly                                                                    
     completed   and  certified   report  within   the  time                                                                    
     required by AS 15.13.040(d) -  (f), 15.13.060(b) - (d),                                                                    
     [15.13.080(c),] 15.13.110(a)(1),  (3), or (4),  (e), or                                                                    
     (f) is subject to a civil  penalty of not more than $50                                                                    
     a  day  for  each  day  the  delinquency  continues  as                                                                    
     determined  by  the  commission  subject  to  right  of                                                                    
     appeal to  the superior court.   A person who  fails to                                                                    
     file a  properly completed and certified  report within                                                                    
     the    time   required    by   AS 15.13.110(a)(2)    or                                                                    
     15.13.110(b) is subject to a  civil penalty of not more                                                                    
     than $500 a day for  each day the delinquency continues                                                                    
     as  determined by  the commission  subject to  right of                                                                    
     appeal to the superior court.   A person who violates a                                                                    
     provision   of  this   chapter,   except  a   provision                                                                    
     requiring registration  or filing of a  report within a                                                                    
     time required  as otherwise specified in  this section,                                                                    
     is subject  to a civil penalty  of not more than  $50 a                                                                    
     day for each day  the violation continues as determined                                                                    
     by the  commission, subject to  right of appeal  to the                                                                    
     superior  court.     An  affidavit  stating   facts  in                                                                    
     mitigation  may be  submitted to  the  commission by  a                                                                    
     person  against  whom  a  civil  penalty  is  assessed.                                                                    
     However, the imposition of  the penalties prescribed in                                                                    
     this section  or in AS 15.13.380  does not  excuse that                                                                    
     person from  registering or filing reports  required by                                                                    
     this chapter.                                                                                                              
        * Sec.  5.  AS 15.13.400,  as amended by ch.  1, SLA                                                                  
     2002, is amended by adding a new paragraph to read:                                                                        
               (13)  "electioneering communication" means a                                                                     
     communication that                                                                                                         
               (A)  is made within the 30 days preceding a                                                                      
     primary  election or  the 60  days preceding  a general                                                                    
               (B)  is made by way of direct mail,                                                                              
     newspaper,  Internet,  broadcast, cable,  or  satellite                                                                    
     media, telephone poll, or organized  series of calls to                                                                    
     an  audience that  includes voters  who  will have  the                                                                    
     opportunity to  vote on a candidate  clearly identified                                                                    
     in  the communication  or  on a  candidate  of a  party                                                                    
     clearly identified in the communication; and                                                                               
               (C)  when read as a whole and with limited                                                                       
     reference  to external  events,  is  susceptible of  no                                                                    
     other reasonable  interpretation but as  an exhortation                                                                    
     to  vote for  or against  a specific  candidate in  the                                                                    
     general or primary election.                                                                                               
        * Sec. 6.  AS 15.56.014(a) is amended to read:                                                                        
          (a)  A person commits the crime of campaign                                                                           
     misconduct in the second degree if the person                                                                              
               (1)  knowingly circulates or has written,                                                                        
     printed,   or  circulated   a   letter,  circular,   or                                                                
     publication relating to an election,  to a candidate at                                                                    
     an election, or to  an election proposition or question                                                                
     without the  name and address  of the  author appearing                                                                    
     on its face;                                                                                                               
               (2)  except as provided by AS 15.13.090(b),                                                                      
     knowingly   prints  or   publishes  an   advertisement,                                                                    
     billboard,   placard,    poster,   handbill,   paid-for                                                                    
     television   or   radio  announcement,   electioneering                                                                
     communication as that term  is defined in AS 15.13.400,                                                                
     or  other  communication   intended  to  influence  the                                                                    
     election  of  a  candidate  or   outcome  of  a  ballot                                                                    
     proposition  or question  without the  words "paid  for                                                                    
     by" followed by the name  and address of the candidate,                                                                    
     group,  or individual  paying  for  the advertising  or                                                                    
     communication and,  if a candidate  or group,  with the                                                                    
     name of the campaign chair;                                                                                                
               (3)  knowingly writes or prints and                                                                              
     circulates, or has written,  printed, and circulated, a                                                                
     letter,   circular,    bill,   placard,    poster,   or                                                                    
     advertisement  in   a  newspaper,   on  radio,   or  on                                                            
               (A)  containing false factual information                                                                        
     relating to a candidate for an election;                                                                                   
               (B)  that the person knows to be false; and                                                                      
               (C)  that would provoke a reasonable person                                                                      
     under the  circumstances to  a breach  of the  peace or                                                                    
     that a reasonable person would  construe as damaging to                                                                    
     the   candidate's  reputation   for   honesty  or   [,]                                                                
     integrity,  or  to  the candidate's  qualifications  to                                                                
     serve if elected to office."                                                                                               
     Renumber the following bill sections accordingly.                                                                          
He explained that Section 1 in the amendment requires that all                                                                  
fund    sources   be    disclosed   and    adds   "electioneering                                                               
REPRESENTATIVE PORTER inquired as to why "electioneering                                                                        
communications" was added.                                                                                                      
REPRESENTATIVE BERKOWITZ pointed out that it works in                                                                           
conjunction    with    the    definition    of    "electioneering                                                               
communications" in the amendment, which  is found in Section 5 of                                                               
the amendment.                                                                                                                  
REPRESENTATIVE PORTER noted,  "But the bill changes  those 30 and                                                               
60 days to 30 days."                                                                                                            
REPRESENTATIVE   BERKOWITZ  agreed,   but   explained  that   "it                                                               
specifies  not   the  intent  of   the  person  taking   out  the                                                               
advertisement   but  the   consequence  of   the  advertisement."                                                               
Representative  Berkowitz  pointed  out   that  the  language  in                                                               
Section 5(C) of  the amendment has been tested in  the courts and                                                               
found to  be acceptable.   The language of the  amendment doesn't                                                               
require  an   intent  component   in  order   to  find   that  an                                                               
electioneering communication has occurred,  which Version B seems                                                               
to do.                                                                                                                          
REPRESENTATIVE  PORTER  remarked  that  this  is  something  that                                                               
should've  been   addressed  in  the  House   Judiciary  Standing                                                               
Committee.  He related his  view that the language is restrictive                                                               
to the point that there will "nine  out of ten ways to get around                                                               
it  rather   than  one  way   to  nail  it  down."     Therefore,                                                               
Representative Porter objected.                                                                                                 
SENATOR THERRIAULT  pointed out that the  amendment would require                                                               
a  title  change.   Senator  Therriault  related that  Version  B                                                               
narrows the  scope and takes  into consideration court  cases and                                                               
attempts to make the bill  as defensible as possible.  Therefore,                                                               
he preferred staying with Version B.                                                                                            
REPRESENTATIVE  BERKOWITZ commented  that  he would  like to  see                                                               
some of the changes accommodated [because] time is running out.                                                                 
REPRESENTATIVE PORTER maintained his objection to Amendment 2.                                                                  
A roll call vote was  taken.  Representatives Berkowitz and Joule                                                               
voted for the  adoption of Amendment 2.   Representatives Porter,                                                               
Kohring, Morgan, McGuire, and Kott  voted against the adoption of                                                               
Amendment 2.  Therefore, Amendment 2 failed by a vote of 2-5.                                                                   
Number 2195                                                                                                                     
REPRESENTATIVE PORTER moved  to report HCS CSSB  363, Version 22-                                                               
LS1713\B,  Kurtz,  5/12/02,  as  amended out  of  committee  with                                                               
individual  recommendations and  the  accompanying fiscal  notes.                                                               
There being  no objection,  HCS CSSB  363(RLS) was  reported from                                                               
the House Rules Standing Committee.                                                                                             

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