Legislature(1997 - 1998)
02/12/1998 08:02 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 105 - ETHICS/LOBBYING/CAMPAIGN FINANCE Number 0027 VICE CHAIRMAN IVAN said the next order of business is CSSB 105(FIN) amended, "An Act relating to legislative and executive branch ethics; relating to campaign finances for candidates for state office; relating to the conduct and regulation of lobbyists with respect to public officials; relating to the filing of disclosures by certain state employees and officials; making a conforming amendment to the definition of 'public official' for employment security statutes; and providing for an effective date," Rules by request of the Legislative Ethics Committee. Number 0049 BEN BROWN, Legislative Administrative Assistant to Senator Kelly, sponsor of SB 105, testified before the committee. He said SB 105 is a comprehensive piece of legislation, executive branch ethics, and to a lesser extent campaign finance reform. He reminded the members a brief overview was provided to them last week. REPRESENTATIVE ETHAN BERKOWITZ asked what version was being addressed. MR. BROWN replied LS0074\K.a. [0-LS0074\K amended by finance]. VICE CHAIRMAN IVAN noted for the record, Representatives Berkowitz and Elton were present. MR. BROWN referred to the first section of SB 105. He said it is an expansion of the ban on fund-raising during legislative sessions. The campaign finance law was passed, a couple years ago, in response to a voter initiative. An oversight on the part of Mike Frank continued to allow the governor and lieutenant governor to raise money during legislative sessions, legislators cannot do that anymore. He indicated the easiest way to solve that problem, in Title 15.13 the Campaign Finance Act, is to create a definition of state office that includes the governor, lieutenant governor, and all legislators. If there was an elected attorney general - it would probably include anyone who was running as a delegate to a constitutional convention. MR. BROWN stressed all of those offices are state offices. He believes the intent was to prevent money from being raised, for their offices, while the legislature was in session. SB 105 creates a definition of state office, it includes the governor and lieutenant governor, and it will not allow anyone to give money to those persons during the session or to anyone who has declared candidacy for those positions. It will not allow persons who are declared candidates to receive money. He said, "The way campaign finance is written, we ban the giving and we ban the taking." Number 0127 REPRESENTATIVE BERKOWITZ asked, "Are we going to be discussing the sections of the bill as we go through them, or are we going to let this all wash over us and then come back and address it." VICE CHAIRMAN IVAN indicated SB 105 would not move out of committee today. REPRESENTATIVE BERKOWITZ said, "It seems to me what you're trying to do here is there's someone in the other body, he's running for governor and is unable to raise funds at this point in his campaign. And one of the options is to prohibit the governor from raising funds at the same time, ignoring that there's someone else whose not in the legislature or a sitting governor. But one of the options is just to say that anyone whose sitting in the legislature can raise funds for any other office. There is also, the Senate majority leader is running for a federal office and there is no prohibition against him raising funds. So, the fix that you are proposing here seems narrowly targeted to an individual race rather than to the (indisc.) best interests of campaign reform." MR. BROWN responded a candidate, or individual, who has filed with the commission the documents necessary to permit that individual to incur election rated expenses would include Mr. Lindauer. REPRESENTATIVE BERKOWITZ said but it would not include Mr. Duncan [Senator]. MR. BROWN replied, "Not if he is running for congress, no. Or if he's running for school board it would not, state office is state office and if it's the wisdom of the legislature to ban fund- raising for any office, a dogcatcher up to - if we ever elected a secretary general to the U.N. [United Nations], we could do that. I think the approach in Title 15 is to create a category of state offices and state offices are those things that the legislature -- well those who hold state office are going to be most interested in legislative activity and therefore would have the greatest conflict of interest in raising money during a legislative session. It's entirely possible to argue that the same could be true for people with having to leave the level of state office and bump up to the congressional level. That's not the way campaign finance reform was written and that's not the way this bill is written. But to say that it does this - this (indisc.) is narrowly targeted toward a specific current candidate for governor, is that you could just as easily say that Mike Frank was writing special interest legislation when he wrote the voter passed initiative for the current sitting governor? You could say that his goal was to allow the current governor to raise funds during this session. I don't think that's the case any more than I think it's the case this is targeted toward a specific candidate in the current race who is a member of the legislature. I don't know if there is a lot of value in speculating about that, the ban is going to be pretty rigorous in terms of banning persons who have filed their documents to raise money. (Indisc.) ...Mr. Lindauer as well. If that bans Joe Q. Public, it just shuts down fund-raising during session." Number 0182 REPRESENTATIVE BERKOWITZ stated the current situation provides great hypothetical. You have a wealthy individual who does not need to raise money, you also have a sitting member of the legislature who is unable to raise money in the race for governor. You have a sitting governor who needs to compete either against a wealthy individual, in which case it will be fair for the governor to be allowed to raise money. He said, "It seems the one who is suffering an inequity here is Mr. Taylor [Senator], and now he'll be surprised to hear me advocating on his behalf, but it seems the fair solution, and the best solution here is to say, if you're running for statewide office, while you're holding a legislative seat, you raise funds for that office." MR. BROWN responded that is not the way SB 105 is written. He did not believe it was best to put an (indisc.) definition in Title 15.13 that takes too much into account - the circumstances of the current governor's race - this was not a contention at that time. He noted SB 105 passed the Senate 17 to 2. MR. BROWN said if we expand the definition of state office to include our congressional delegation, that's a policy call, but at the current time it's not. Number 0218 REPRESENTATIVE VEZEY asked Mr. Brown to explain what the consensus of creating SB 105, why would this make democracy in Alaska better. MR. BROWN responded SB 105 is not a main issue of change for the campaign finance law, it is a targeted fix to language that was put into the campaign finance law by the legislature in response to a voter initiative. REPRESENTATIVE VEZEY stated this has been law since 1974. MR. BROWN replied not the ban during session, fund-raising giving and taking. It was his understanding that this provision was inserted during the campaign finance reform. Number 0238 REPRESENTATIVE VEZEY noted it dates back to the 1976 campaign finance laws. Legislators have not been able to collect funds during legislative sessions. MR. BROWN replied if they were running for governor they could. REPRESENTATIVE VEZEY said, "I know we had attorney general rulings back as recently as 1994 that that was not true. I think it applied before then. The biggest problem I have here, and I don't think this would withstand (indisc.) court for five seconds, you're telling challengers, people who are not in public office that they can't campaign when the legislature is sitting. That gives the power, that is the entities that are in power, the ability to have complete control over when we have campaigns. That you really think the Supreme Court of the State of Alaska, much less the Supreme Court of the United States, is going to uphold that. Could you imagine the legislature being faced with an onslaught of unpopular opposition to staying in session year-round, it could happen." MR. BROWN stated that has been considered, the committee would be reviewing an amendment in the coming weeks. The best way to withstand constitutional challenges for a campaign fund-raising ban is to make it apply to people equally and to make it apply for a reasonable amount of time. A period, right before an election, when it's most necessary that the fund-raising activity is protected by free speech - mandates be allowed. Number 0261 REPRESENTATIVE VEZEY asked how do you keep from interfering with first amendment rights under the State of Alaska Constitution and the federal constitution by telling them they cannot campaign. MR. BROWN responded, "It's not campaigning, they're allowed to campaign, they're just not allowed to raise money and accept donations. Now the two are obviously very closely aligned." REPRESENTATIVE VEZEY said, "They are independently wealthy, they have their own funds, they can campaign, but if they are at poverty level (indisc.)." MR. BROWN interjected, "Or with whatever they raise between the first of January and the beginning of the session." Number 0273 REPRESENTATIVE VEZEY said, "We have a clever legislature, they just stay in session all the time to keep opponents from coming into the system." MR. BROWN stated he could not answer that question. He said, "... We've strengthened our campaign finance laws in Alaska. We do a lot of things that limit people's ability to express themselves by giving money. We've allowed them to give less money, we allow lobbyists to give money only to persons in whose district they reside. These are things that may be challenged, they may go to the courts, so I can't resolve all those issues right here. I can simply speak for the way the bill is currently written and some of the rationale behind it. And I apologize if that's not adequate." Number 0284 REPRESENTATIVE VEZEY said, "I just think we're being extremely short sighted here, that if we want to create parody, then we need to make the door bigger rather than smaller. What comes in mind is the way we modified the requirements for definition of political party last year. We did not in any way shrink the opportunities to be a political party, we created another avenue, we expanded. ... I draw the line when we start telling challengers, people who are trying get into office for the first time, or after being out of office, that they can't campaign. ... It's impossible to separate money from the ability to communicate. So I have some serious problems." Number 0305 REPRESENTATIVE KIM ELTON said, "If I understand this section, the philosophical under (indisc.) are you don't want to make a sitting legislature happy by giving them money while they have their hands on the reigns of state government. ... Is that a fair statement of why you want to prohibit the exchange of money during the legislative session." MR. BROWN responded, "Since that preexisted, and this is simply an attempt to whom that applies, I can't necessarily embrace that wholeheartedly. I think that sounds pretty ballpark, that's what we're all thinking here." REPRESENTATIVE ELTON said, if that's the case, why is it okay to give money for a federal race. Another example would be, since the Municipality of Anchorage has changed their city elections to April, why not include any elective office. He said, "You can make a person -- I'm not saying that Representative Berkowitz is ever going to run for mayor, or that Representative Dyson is ever going to run for mayor, but you could make them happy I'm sure if they weren't covered in this and they had the ability to raise money for an expensive mayoral race in Anchorage. Why are you just doing it to elected state offices?" MR. BROWN replied our elections are in November, our sessions are at the beginning of the year. A possible amendment will be brought forward to have this ban not apply, and the run up to an election. If the Municipality of Anchorage is going to have their elections in April, it is not going to be possible for the local races - contacts there to shut down fund-raising. Number 0333 MR. BROWN said a line was drawn, state offices is where it was drawn around. It is everything above municipal and below congressional. He continued, "I also believe - and obviously for the lower level offices, the local offices, state law can just govern how they're run, how money is raised, that sort of thing. But for the congressional offices, I think we get into some federal issues, and it's something I haven't looked at. ... It's not something that has been proposed in a concrete way. So I've had to look at what the ramifications would be of expanding this ban to that higher level. I think it might be legally hard to defend, and so it just hasn't been looked at. It's certainly a policy call like I said. If it's a good idea to ban it for state offices during the session, then maybe it's a good idea to ban it for everyone. It's not the way it's currently written, it's something that could be put into the bill but then again what that does, it probably makes a whole host of people who don't like it the way it's currently written for state office like it even less for the municipal office and congressional office." Number 0349 REPRESENTATIVE ELTON said if you apply the same logic, then clearly this body does have the ability to control the conduct of some of the municipal elections. He said, "We do it with APOC [Alaska Public Offices Commission], we do it in a lot of other ways. If we apply that same logic, it would be easy to say we ought to ban fund-raising by legislators for municipal offices also because, especially since Anchorage is doing it in April. I guess that gets back to the point that I think Representative Berkowitz was making and that is you have two ways of solving this situation. One of the ways is to apply it equally across the board to everybody for any office that is not necessarily a legislative office. Or the other is to say, 'No, a legislator can't raise money during the session for a run for office or reelection of a legislator.' You can either open it up a little bit or you can close the door more fully than you're trying to close the door here." Number 0366 REPRESENTATIVE HODGINS said if you were really going to do a level playing field you would put a moratorium on press announcements for incumbents. He said, "There's a lot of power in that, that does not cost, that somebody challenging for office does not have the opportunity for. That in itself is a tremendous, tremendous, tool, not that it's ever been used that way or ever would [laughter]. But there is a possibility of being able to make a press conference or a speech such as this [laughter], to come forward." REPRESENTATIVE HODGINS continued. "As far as the municipal elections in Anchorage, I don't think it does government any good to preclude somebody from the opportunity of running for an office and I would hate to see Representative Berkowitz not being able to run for borough assembly in Anchorage simply because he was a legislator of even worse, he had to resign being a legislator in order to run for another office. And I don't think that does government any good, I think what we're trying to do is get as many people into the fray to run for office with as level a playing field as possible. I don't know how we're going to approach the power of the incumbency." Number 0388 VICE CHAIRMAN IVAN said this was the most exciting subject that was discussed in committee [laughter]. He mentioned people were waiting on teleconference. REPRESENTATIVE DYSON said, "Mr. Brown, you are a delight, and I would appreciate it if you city boys in general, and you particularly would speak a little s-l-o-w-e-r so that those of us, with an old central processing chip could do better keeping up." [Laughter]. REPRESENTATIVE VEZEY said, "I guess we're not going to hear from the governor's office on this, but does anybody really think the governor cares if we allow him to collect money under a campaign law or not." MR. BROWN replied he did not know. He indicated the chairwoman of the Democratic party of Alaska has expressed her concerns about whether or not the law is changed in that regard. VICE CHAIRMAN IVAN opened the meeting up to public testimony. Number 0423 GARY BADER, citizen and Chairman of the State Personnel Board testified via teleconference from Anchorage, his comments would pertain to the executive branch ethics. He said, "We, the board members, are still unclear as to why such sweeping legislation is required. Quite frankly we at a loss as to what you're trying to fix, again that pertains to executive branch ethics. My second point is we're a citizen board, and we work approximately 20 days a year on behalf of the state and that's not a problem to us. ... We believe that with passage of the bill [SB 105] as it's structured, if we could end up working 40 to 50 days a year. We didn't buy into that, that doesn't mean we won't do it, but we didn't buy into that." MR. BADER continued. "I would like you to consider some level of compensation for this citizen board to the extent that we will end up working that amount of time and I'd suggest something in the area of $150 a day per board member." MR. BADER said, "The second thing I'd like to request if the legislation progress, is an independent council to the board. Currently we are required to use attorneys for a board council. It comes from the AG's office [Office of the Attorney General]. Although I understand there is not a legal conflict of interest, there is certainly perceived public conflict of interest when, in fact, the state is party to most of our business." MR. BADER concluded, "The last thing I'd like you to consider is to include ... the opportunity for the board to either hear the complaints for the appeals or to appoint a hearing officer. Currently we only have the opportunity to appoint a hearing officer. And quite frankly we believe that it would be a much better business and perhaps less costly if we have the option to do either. I presume you have my letter which I wrote to the Senate committee last year, so I'll conclude my comments with those." Number 0464 MR. BROWN replied they were not any where near that section. He indicated he has been working with Neil Slotnick, Department of Law, some of his concerns would be addressed. He said, "We will be happy to look at things to make sure that this doesn't create an unworkable situation for you and does what it's intended, which is to improve the executive branch ethics and makes you as an independent authority as a personnel board a good overseer of executive branch ethics." SUZIE BARNETT, Professional Assistant to the Legislative Ethics Committee, Anchorage, said she was available to answer questions concerning Amendment 2460. JOE DONAHUE, member of the Legislative Ethics Committee, Kenai, said he would give any of the Ethics Committee's perspective on those issues that affect the Ethics Committee's operation. He indicated the Ethics Committee does not have any input on the executive branch ethics portion or on the campaign reform portion. Number 0502 MIKE MCMULLEN, Manager, Division of Personnel, Department of Administration said he was present as staff to the division, which houses the personnel board. He said our discussion would be (indisc.) when we get those sections in the Executive Branch Ethics Act. Number 0506 STEVEN (NEIL) SLOTNICK, Assistant Attorney General, Commercial Section, Department of Law came before the committee, said he was also available to testify on the executive branch portion. REPRESENTATIVE HODGINS referred to page 5, line 8. He said it seems to be in conflict with line 21. While that is an existing law he thought Mr. Brown might offer an amendment. MR. BROWN replied line 8 is to office accounts for legislators, they are allowed $5 thousand per year in their term. The reference on line 21 is for municipal office accounts. Campaign finance law allows candidates for municipal office to dispose of unused campaign assets up to $5 thousand for their whole term of office. The assumption is you do not need as much money to be a municipal office holder as you do to be a state office holder. Number 0523 REPRESENTATIVE HODGINS said, "I find that it says anything under this paragraph, and I'm not sure if that means all the things in Section 10, or if it just means Section (indisc.), that's what I'm referring to." MR. BROWN replied it is suppose to refer to ten. Number 0528 REPRESENTATIVE BERKOWITZ said, "Going back to Section 1, ...You look at a candidate or individual who has filed, now someone who hasn't filed can accept all kinds of contributions and later transfer those funds in, is that fair to say." MR. BROWN replied, "That is a loophole that I don't know how we can ever go about closing. I guess we could try to put a definition into statute of someone who is considering filing and ban that person's behavior, I think that's obviously ridiculous. If someone wants to raise money, and say it's a gift, and just go around saying 'I'm your friend give me money,' and then after that money has been received by that person decides to file a letter of intent." Number 0537 REPRESENTATIVE BERKOWITZ interjected, "Actually it would seem to me it's better to do that from a fund-raising point of view. You don't file, you go around -- I believe you can get $10 thousand tax-free gifts from all kinds of people and then after you accumulate a huge war chest you can say, 'Now I'm going to take all of my personal money, which is a vast sum at this point, and I'm going to declare for election." MR. BROWN replied he did not know how to solve that problem. REPRESENTATIVE BERKOWITZ said, "I do know how to solve that problem. And part of the problem is, is when you put together a laundry list like this, it's a huge document - a huge laundry list of how to behave - people are going to find loopholes like this. The way to preclude people from using laundry lists like this is to make a very simple ethical rule because there is no way we're going to compel ethical behavior from people who are intent on looking for loopholes. You look at something like the Judicial Code of Ethics, which is one or two pages long, and it seems for the most part to work, and it's not a laundry list by any stretch of the imagination. But, what it says is basically is you've got to avoid the appearance of impropriety. Now, collecting $10 thousand checks from your buddies, before you declare for office, there is an appearance impropriety to it. It sort of violates the spirit of law but it's not against the letter of the law. Now we do something simple like that, as opposed to a laundry list, then I think we've gone some place in terms of establishing ethics. If it works for the judicial branch, I think it can work for other branches as well." Number 0556 MR. BROWN replied that it is a policy call. He said, "I don't know that the public will be comfortable with legislation that repeals vast portions of AS 24.60 and replaced them with gentle, yet far- reaching language that said everyone is going to behave well." He said Representative Finkelstein and Senator Collins, when they worked on the ethics law, unavoidably steered in the direction of listing things, being specific, and enumerating what could be done and what could not be done because the larger general honorable approach had not worked in the past or was perceived as not having worked in the past. MR. BROWN said, "I think when you look at the body of persons who are covered under judicial ethics, those persons for the most part have gone through a special set of educational regors to get to where they are and hopefully in the process of that have learned something about having higher standards than, not to say everyone in the executive and legislative branches does not have, but those persons are not required to have special education to have gotten there in the first place. Lord knows it's far beyond me assessing how judicial ethics work in addition to the few branches of government we've already started looking at. So, I can only go so far that direction without becoming a little alarmed." REPRESENTATIVE BERKOWITZ said, "My comment to that would be, maybe if people expected higher ethics in the legislative branch they'd get it." Number 0573 REPRESENTATIVE VEZEY referred to the appearance of impropriety. He said, "I would beg to differ because there would be no appearance because the only person you have to report against, up to $10 thousand is to the IRS [Internal Revenue Service], and they're prohibited by law from disclosing that information. This is what we're getting down to is disclosure and when you drive people out of the system, which is we've done a good job of that now. The majority of campaign spending in this country today I would submit it done out of the system and is not disclosed to the public. We have destroyed through all our legislation the one legitimate purpose of campaign finance reform and that's the public's right to know." VICE CHAIRMAN IVAN indicated the meeting would adjourn in five minutes. MR. BROWN asked if the meeting could run until 10:00. VICE CHAIRMAN IVAN told Mr. Brown to proceed. Number 0595 MR. BROWN said Sections 3 and 4 deals with disposal of unused assets after a campaign. When Campaign Finance Reform was passed by the legislature, a number of options were given to candidates for what to do with the extra money they had in their accounts, and they have to do with the 90 days of the elections ending. He said, "You can't just keep your account open now, year after year, ... like you use to be able to." MR. BROWN said, "One of the options of creating an office account, thereby using some of the funds raised for your candidacy for office related expenses during your term of office. Senator Donley inserted language to create office account reserves and that is what you see in Sections 3 and 4 of the bill [SB 105]. And I don't know if there is anything particularly controversial about this. There is an amendment that has already been distributed to you that solves a problem in terms of rollover of assets that were kept in an office account reserve and then not put into an office account and that amendment will be taken up when we get to amendments next week. And, all of you should have a copy of that on the committee." VICE CHAIRMAN IVAN asked how much is a proposed reserve amount (indisc. - coughing) account. Number 0610 MR. BROWN replied the amendment won't change the account. The amount is proposed is $5 thousand for each year of your term of office if you are a state office holder. He said, "Except it's more for the governor and lieutenant governor. So, it's $50 thousand, now that's for future campaigns, and its legislative accounts only. Excuse me, it's not for the governor and lieutenant governor. So, it's $5 thousand for each year for a representative that would be $10 thousand and it would be $20 thousand for a senator. And it would be $5 thousand only for a municipal office holder regardless of the length of that office of that term. As I said, there is an amendment that deals with this that we can look at next week." Number 0617 REPRESENTATIVE BERKOWITZ said, "So I can take $5 thousand if I get that lucky and put that in my next campaign." MR. BROWN replied yes you can. You are allowed to transfer money to your next campaign, that is one option. REPRESENTATIVE BERKOWITZ asked, "Am I also precluded from taking say a second $5 thousand and putting that in an office account." MR. BROWN replied, "No, if you have $10 thousand you can do both." REPRESENTATIVE BERKOWITZ said, "So I can squirrel away a good chunk of money in office accounts." Number 0622 MR. BROWN replied, "Yes, but if you don't spend the money on office account expenses. Under the amendment that we're going to look at next week, ... you'll have to donate that money. You will not be able to roll it back over into your campaign at the end of the term of office. That's the problem that exists in the current office account reserve language." REPRESENTATIVE BERKOWITZ stated, "But I could for example use the power of the incumbency to send out a lot of mailers." MR. BROWN replied certainly. REPRESENTATIVE BERKOWITZ said, "And the thin line between...." MR. BROWN inerjected, "You can use your legislative office account for that. ..." REPRESENTATIVE BERKOWITZ jokingly replied, "It never occured to me, but thank you for pointing that out." Number 0631 MR. BROWN said Section 5 creates a definition of state office in the campaign finance statutes that include governor, lieutenant governor, and legislator, or similar state office. He said, "And presumably that is meant to include delegates for constitutional conventions, if we ever have an election to elect those. And, if we ever elect any of our other offices if we change the law so that we elect our attorney general that would certainly, I would think be a state office. Although the legislation that effected that change would need to make sure that it did it here in Title 15. So that's a pretty simple section." Number 0639 MR. BROWN said Section 6 does not look simple but it really is. He indicated it is a technical amendment, recommended by the drafter, and it changes the employment security statutes to make sure that persons who are not eligible for unemployment insurance remain ineligible. UNIDENTIFIED SPEAKER said, "It's the scary ones." MR. BROWN agreed they are the scariest ones. He said, "We'd definitely have to rely on the advice of legal counsel." MR. BROWN said Section 7 are the Legislative Ethics provisions of the bill. Number 0649 REPRESENTATIVE VEZEY said, "... I'm looking at Section 6, and did we not amend Section 6 in 1997, Alaska Statute 23.25.26. Is this something totally new? They changed the English language at some point in the history of the state legislature and we're going through and putting 'thats,' and 'whiches,' and 'what nots' ... I'm really puzzled by what's happened to the English language, that the people apparently a number of years ago didn't know how to use it an now we're correcting it." MR. BROWN said the changes from "which" to "that" are stylistic. REPRESENTATIVE VEZEY said he thought this chapter was amended in 1997. MR. BROWN replied, "I'm unaware that it had been done. The substance of component of the chapter starts on line 11, on page 7 though. And it numerates a specific number of persons who work in the executive branch to make sure that those persons are not going to become eligible for unemployment insurance because we're changing the executive branch ethics law. That's not the intent here, and so it's to make sure that we don't expand to the pool of eligibility for unemployment benefits ..." VICE CHAIRMAN IVAN asked for a brief summary of Section 6. Number 0668 MR. BROWN said Section 6 specifically enumerates the number of higher level persons who work in the executive branch, in a way that is necessary to prevent them from becoming eligible for unemployment insurance upon the cessation of employment in these positions. He concluded, "And, which is how it currently works but because we're changing reference to these persons in [Alaska Statute] 39.50 and 39.52 we have to make a conforming change here, in 23.20." REPRESENTATIVE BERKOWITZ indicated Mr. Slotnick has a concern with this section. MR. SLOTNICK replied he is not familiar with this section at all. He said, "I don't work in employment security, I believe there is someone in law who can look into this and I can get back to you on that." MR. BROWN said that he will try to provide something in writing. Number 0684 MR. BROWN referred to Section 7. He said, "This is where Joe [Donahue] and Suzie [Barnett] may decide they might want to chime in and answer questions if you have them. This enables the Legislative Ethics Committee to issue subpoenas without the concurrence of a presiding officer. I believe it was an oversight in the ethics bill as it was passed by the legislature several years ago, that this independent subpoenaing power was not given to the committee. Other permanent interim committees of the legislature, Legislative Council and Legislative Budget and Audit have that power. The problem that would exist in having to get the concurrence of the senate president or the speaker of the house for the issuance of a subpoena by the ethics committee is what if they were the target of the investigation or what if one of their staff were, or one of their majority were for that matter. It's just not appropriate to have to have that signing off by the president or the speaker and so this section of the bill will take care of that and enable the ethics committee to subpoena people independently as the Leg. [Legislative] Council can." Number 0696 REPRESENTATIVE VEZEY noted there is a major difference between Leg. [Legislative] Council and Legislative Budget and Audit. Those are elected officials, we are talking here about appointed officials. MR. BROWN replied, "It's actually a highbred on the ethics committee of course, Representative Vezey." REPRESENTATIVE VEZEY said, "There are some minority. I'm not sure that I see apples and oranges comparison there." TAPE 98-17, SIDE B Number 0001 MR. DONAHUE said, " ...power to subpoena witnesses. This is really just a clerical or technical change so that there aren't too inconsistent sections of the law. And this will just make [AS] 24.25 consistent with [AS] 24.60." Number 0012 MR. BROWN said, "Section 8 bans out the lobbying. It's been a very contentious issue in the legislature for a number of years. It is what prevented this bill from moving through House Finance, I believe, in the last legislature when it was SB 141. And it got all the way over to the House and it got solved there. This was not put in by the ethics committee, the members of the ethics committee I don't believe felt comfortable banning spousal lobbying, they did want a disclosure requirement in there, but the Senate decided to put a ban in and so therefore, it's now in the bill. It will prevent persons who are married to legislators, who are engaged in a relationship that resembles marriage with a legislator from being lobbyists." Number 0032 REPRESENTATIVE BERKOWITZ asked Mr. Brown to define conjugal. MR. BROWN replied, "Persons cohabiting with, I don't know if we have a definition of conjugal in statute, but I assume it would mean having physical relations similar to marital relations... I think we might have to rely on Webster, if you will. It's a policy call right now, whether or not it would be fair to ban only spouses who were married in the eyes of the state and God and not ban law being for those who are in a similar relationship. So I think the policy call here is to try to treat married couples and unmarried couples that are couples equally. If that requires defining conjugal statutorily, it's something we can certainly do." Number 0061 MR. BROWN referred to an amendment that was distributed last week. He said, "The oversight here is we ban spousal lobbying, we have a disclosure requirement for lobbying by spouses, or spousal equivalent of staff, but if this ban on spousal lobbying is struck down, we'll have an inconsistency in the law. It will be perfectly all right for legislator's spouses to lobby, the legislative staff will have to disclose it and the legislator's spouses won't even have to disclose it. So the contingency language will provide for disclosure by legislative spouse lobbyists if the outright ban is struck down. And there's a good chance that it might be, I guess it's the conventional legal wisdom on that..." Number 0082 REPRESENTATIVE VEZEY asked what is the (indisc.) against spousal lobbying. MR. BROWN indicated Senator Phillips is the one who offered the amendments. He said, "Basically I can kind of guess where the argument is coming from, it's that if you're making policy, and your spouse, or spousal equivalent, is receiving money to influence public policy, it's an appearance of impropriety of the highest order I guess is what people think. They're not trusting persons in these relationships to leave the office at the office when they go home I guess." REPRESENTATIVE VEZEY made an observation, he has not seen any sign that the public sees this as a problem. Number 0105 REPRESENTATIVE ELTON said, "I can't let a comment pass, Ben [Mr. Brown] - It's probably illegal but nobody may challenge it. That kind of logic, I think kind of diminishes the efforts that we do. I guess I'm a little bit concerned by the fact that you're kind of giving testimony that this probably isn't legal but let's go ahead and do it anyway." MR. BROWN said, "I didn't mean to diminish the gravity or the importance of the legislation before us. It's a difficulty policy call to attempt to ban spousal lobbying and many red flags have been raised about its potential unconstitutionality. Therefore, the amendment that was distributed to you last week attempts to address that problem by putting in contingency language so that the bill does put in a disclosure requirement if the outright ban has been struck down. I didn't mean to sound flippant or irreverent about it, and I apologize if I did. It's an important issue, it's a difficult policy call to make and the House may one again find itself disagreeing with the wisdom of the Senate on it. And, if the House doesn't find that persons covered by the bill may decide that they find themselves uncomfortable with having to live with the provisions of the law." Number 0135 VICE CHAIRMAN IVAN stated Section 8 will be brought up at the next hearing. REPRESENTATIVE HODGINS indicated he was going to make a motion to remove Section 8, but it could be discussed further. REPRESENTATIVE BERKOWITZ objected for the purpose of keeping it on the table and giving the committee a good stopping point.
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