Legislature(2003 - 2004)
02/03/2004 08:02 AM House STA
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HB 414-U.S.SENATE VACANCY/DEF OF POLITICAL PARTY [Contains brief discussion of HB 307 and SB 166.] Number 0180 CHAIR WEYHRAUCH announced that the first order of business was HOUSE BILL NO. 414, "An Act relating to filling the vacancy in the office of United States Senator, and to the definition of 'political party.'" Number 0200 REPRESENTATIVE LESIL McGUIRE, Alaska State Legislature, as sponsor, turned to page 2, [lines 4-9], which read as follows: *Sec.3. AS 15.40.200 is amended to read: Sec. 15.40.200. Requirements of party petition. Petitions for the nomination of candidates of political parties shall state in substance that the party desires and intends to support the named candidate for the office of United States senator or United States representative, as appropriate, at the special election and requests that the name of the candidate nominated be placed on the ballot. REPRESENTATIVE McGUIRE indicated this is in response to an opinion issued by Superior Court Judge John Reese on November 3, 2003. She explained that Alaska State law says that a person has to receive 3 percent in a gubernatorial election to be considered a third party, or has to have received the requisite amount of signatures that would have qualified for that percentage. REPRESENTATIVE McGUIRE noted that an "odd thing" happened in 2002: Diane Benson, a member of the Green Party, failed to gather 3 percent of the vote, and yet she was the gubernatorial candidate. Representative McGuire also noted that there were two other people running for U.S. Senate and U.S. Congress who both garnered over 6 percent [of the vote] "on the Green Party." She continued as follows: Rightfully, I think, Jim Sykes filed suit, and basically said that his party's rights were being infringed and that, because they had received 6 percent in both of the other elections, ... it seemed arbitrary to make the gubernatorial election ... [the] election by which you had to have 3 percent. So, Judge Reese agreed. And he came back and he said, "I enjoin any kind of the state law going into effect," meaning if the state law went into effect as it currently reads, Jim Sykes would not be allowed to ... file as a candidate or appear on the ballot as the United States Senate candidate for the Green Party.... And so, the court agreed, as I said before, and Judge Reese said basically, "It's enjoined until the legislature takes action, or at least through 2004." Number 0450 REPRESENTATIVE McGUIRE stated that it is obviously the job of the House Judiciary Standing Committee to respond. She named the following three ways in which the 3 percent can be garnered: a gubernatorial election, a U.S. Senate election, and a U.S. House election. REPRESENTATIVE McGUIRE said [the proposed legislation] would allow for a "snapshot in time" to be taken every two years, to decide whether or not there is still interest and still "the participation by that third party." She said: We all understand the point: we basically have a two- party system in Alaska - the same as we do in [the rest of] the United States of America - and we don't want seven, eight, nine, ten third-party candidates the way they do in England, for example, cluttering up the ballot and, in some people's opinion, incurring an extra cost. REPRESENTATIVE McGUIRE clarified that "we" want to know if there's really a coordinated effort behind [a] party - that people are still making a meaningful effort to contribute to it, to vote for it, and to be a part of it. She opined that [HB 414] is a good change to Alaska state law. She added, "I hope it stays this way forever, because I think we finally found a way to fix it." REPRESENTATIVE McGUIRE said the decision was made to stick with the 3 percent threshold the way it has always been, because "we didn't have evidence or rationale for raising it or lowering it." Number 0580 REPRESENTATIVE McGUIRE turned to how a U.S. Senator is chosen for Alaska. She paraphrased from the 17th Amendment to the United States Constitution, regarding Senate seat vacancies. She emphasized, "I think this clearly shows that the initiative is probably not going to be upheld." She mentioned an initiative with language identical to HB 414, which she said is currently under a legal challenge; the attorney general has challenged it based upon the 17th Amendment. She noted that the Trust the People group has responded, and "so we're awaiting that." REPRESENTATIVE McGUIRE said that HB 414 is an attempt to solidify the law in "this" area. She noted that there are currently over 50,000 in the state who believe that "this is the right thing to do." She added, "Those were the 50,000 that signed it, and then, of that, there were at least 28,000 that were certified - that were not duplicates, and that ... checked out." She told the committee that this bill is a product of talking to her constituents, her party members, and the "other" party members. She stated the following: I think that the public doesn't understand this method of picking a United States Senator very well. What they understand is elections; they understand democracy and the ability to get out and vote. It's interesting to note that most of them don't realize that the history of appointing a Senator has, in fact, been a precedent; it has been the way that we've done business, going back to statehood. REPRESENTATIVE McGUIRE turned to the issue of whether party affiliation comes into play. She explained that, up until 1967, a governor would appoint someone to fill a U.S. Senate vacancy who was of the same party as the person who created that vacancy. She noted that the law was changed that year, which made it possible for then Governor Walter Hickel to appoint [Republican] Ted Stevens to fill the vacancy of Democrat Bob Bartlett in 1968. Number 0929 REPRESENTATIVE McGUIRE mentioned HB 307, which stipulated that the governor could appoint somebody to fill the vacated seat only if that seat had been vacated within 2.5 years, "toward the end of that person's term." She explained, for example, that if a Senator passes away with five years left in a term, that Senate seat would require a special election to fill. She remarked that [HB 307] bifurcated the issue between a special election model and an appointment model. She indicated that Governor Knowles vetoed [the bill]; however, the legislature overrode the veto, and HB 307 became law. Number 1052 REPRESENTATIVE McGUIRE said the Twenty-Second Alaska State Legislature "came back with" SB 166, which imposed a 5-day waiting period, "which I think we all understand allowed Senator Murkowski to pick his replacement." REPRESENTATIVE McGUIRE mentioned again a group called Trust the People. She noted that both Representative Harry Crawford and Representative Eric Croft are spokespeople "on the issue." That group began gathering signatures to place an initiative on the ballot to allow for a special election in the case of a vacancy for the United States Senate seat. Representative McGuire offered her belief that [that effort] was successful, but acknowledged that there is a legal challenge that has been brought by the attorney general of the State of Alaska and "responded to by trusted people, so it's in legal flux." [In a subsequent meeting, a representative from the Division of Elections clarified that the process had not been completed and, therefore, couldn't be certified by the Lieutenant Governor.] REPRESENTATIVE McGUIRE stated that the second half of the bill has to be [addressed], because it would be "irresponsible for us not to." She opined that the judicial branch of the government is rightfully reaching out to the policy making branch of the government to ask it to reconsider "the way this is done." She told the committee members that if they know of a better way to address this issue, or if they think that responding to Judge Reese's opinion is wrong, she is willing to take suggestions. With respect to the first half of the bill, regarding [filling] a United States Senator vacancy, she said she welcomes the debate regarding whether there should be a special election for the entire amount [of the term] versus the 2.5 years now stipulated. Number 1205 REPRESENTATIVE BERKOWITZ clarified for the record that Representative David Guttenberg was also [involved with the initiative issue]. REPRESENTATIVE BERKOWITZ asked Representative McGuire why she is introducing a bill to fill the vacancy in a U.S. Senator seat, when there's already one in the legislature. REPRESENTATIVE McGUIRE replied that she doesn't think it's a secret that the majority makes the policies in the legislature, whether that majority be Republican or Democrat. "In fact," she added, "it's our obligation." She told Representative Berkowitz, "You spend a lot of time standing up on the floor criticizing that - rightfully so." She opined that the majority should be the driving engine and the policy-making body. She noted that it is often the case that a minority bill will be introduced and will "sit right where it is first referred to in a committee." She added, "And I don't think that's a secret." Number 1263 CHAIR WEYHRAUCH clarified that Representative Berkowitz has introduced a bill that is related to this issue. However, Representative McGuire had requested a hearing on [HB 414]. He told Representative Berkowitz that if he wants his bill heard in conjunction with [HB 414] that can be done. REPRESENTATIVE McGUIRE said that [being] the chair of the House Judiciary Standing Committee is a unique role, and she said she thinks there is "a place to respond to these types of things." She noted that the difference in her bill [compared to Representative Berkowitz's] is that it incorporates a response to Judge Reese's opinion. REPRESENTATIVE McGUIRE recalled another bill introduced by Representative Harry Crawford, which she collaborated on. She continued as follows: We ultimately realized that, for political reasons - particularly with respect to the other body - ... it would probably be politically expedient to have the majority person bring that bill across. [It's] no different than if the Democrats were in control on the other side, we might rethink how we do that. It's of no offense to you, and maybe I could just say great minds think alike. REPRESENTATIVE BERKOWITZ responded that he wishes Representative McGuire would have spoken with him before introducing [HB 414]. REPRESENTATIVE McGUIRE, in response to questions by Representative Berkowitz, confirmed that she has had opportunity to speak with [representatives of] Trust the People and their position on HB 414 is one of support. She noted that both Representatives Crawford and Croft have expressed concern with the bill's legal challenge. She indicated that it would require money. She said she thinks the 17th Amendment of the U.S. Constitution presents real challenges. She noted that Representative Crawford has said that he would have signed on as a co-sponsor, but the proposed legislation is a House Judiciary Standing Committee bill. REPRESENTATIVE BERKOWITZ noted that Representative McGuire had previously said that there are opinions that the challenge based on the 17th Amendment will be upheld. He asked for the sources of those opinions. REPRESENTATIVE McGUIRE, in response to that and a follow-up question by Representative Berkowitz, clarified that she had not been citing an opinion but rather was offering an informal opinion. Number 1435 REPRESENTATIVE McGUIRE, in response to a question by Representative Gruenberg, confirmed that she doesn't have any other formal legal opinion. She indicated that there is a saying regarding what a fool a person would be to predict [the rulings of a judge]. She stated that she admires that Representatives Crawford and Croft are able to look beyond the politics of [the issue] and say they really believe that "this is the right way of doing it." REPRESENTATIVE GRUENBERG asked if Representative McGuire doesn't think that Representatives Crawford and Croft also support the idea that a law like this should be able to be passed by initiative. REPRESENTATIVE McGUIRE said she has not discussed [that question with Representatives Crawford and Croft], but she stated that she would assume so. In response to a follow-up question by Representative Gruenberg, she confirmed that she supports the initiative process. She noted that it is primarily a product of the west coast and newer legislatures. For example, she remarked that Oregon has had more initiatives and referendums passed than any other state. REPRESENTATIVE GRUENBERG asked Representative McGuire if she believes that "the people" should have the right by initiative to select the methods of filling in interim vacancies in the office of the U.S. Senator. He clarified, "I'm talking about not as a judge, but as a policy maker." REPRESENTATIVE McGUIRE responded that she has to take into account the law when she makes policy. She indicated that the 17th Amendment to the U.S. Constitution couldn't be clearer with respect to who has the authority; therefore, she would not feel comfortable saying that the initiative would be "the way to do it." REPRESENTATIVE GRUENBERG asked if she believes the legislature could give the people the right to make this choice by an initiative. REPRESENTATIVE McGUIRE replied that she thinks that could be done through a constitutional amendment, and she suggested perhaps that is something that Representative Gruenberg wants to consider. REPRESENTATIVE GRUENBERG said he is talking about "a simple legislation." He asked, "Don't you agree that the legislature could simply pass a law that ... could delegate to the people the authority to fill the office by an initiative process?" Number 1263 CHAIR WEYHRAUCH interjected that he understands the philosophic debate regarding this issue. He offered his understanding that Representative Bill Williams would have some initiative-related "things" coming up on the floor soon. REPRESENTATIVE GRUENBERG explained that his questions "go to" the possibility of an amendment to the bill. REPRESENTATIVE McGUIRE said she doesn't know what powers the legislature really can delegate. She offered her understanding, for example, that [the legislature] cannot delegate the power to appropriate. Number 1800 REPRESENTATIVE SEATON said he appreciates Representative McGuire's bringing [HB 414] forward. He stated that he thinks if [the committee] agrees that it's good public policy, than it should go forward with it. REPRESENTATIVE SEATON turned to the subject of certification of third parties. He noted that the term [limits] for governor, U.S. Representative, and U.S. Senator are [not the same]. He offered an example whereby there is an election in which only the Representative is up for election and the third party does not get 3 percent at that election; however, every four years there is a gubernatorial election where "they might get 3 percent...." He asked, "What is the certification process ... either at the four-year or the six-year election for the U.S. Senate or for the governor, if the two-year election is between those and the third party does not get 3 percent at that time?" REPRESENTATIVE McGUIRE responded that the short answer is "they wouldn't be certified." She indicated that [recertification would be allowed]. She invited Representative Seaton to "envision the scenario that we had before," in which "a third party would have to wait a full four years before even being considered again." She concluded, "And so, one of the nice things is, yeah, they might not be considered, ... as a result of that election, but in the next two years, hopefully they would get it." REPRESENTATIVE SEATON asked, under the scenario "as outlined in the bill," if a third party doesn't have a candidate for the U.S. Representative election, "are they then decertified?" REPRESENTATIVE McGUIRE responded that that is an interesting question. She said she doesn't know the answer, but will find out. Number 1925 REPRESENTATIVE BERKOWITZ asked Representative McGuire if she thinks it's good public policy for the voters to be able to fill vacancies in the U.S. Senate. REPRESENTATIVE McGUIRE answered yes; however, she stated that a lot of times there are things she thinks are good public policy that are unconstitutional. REPRESENTATIVE BERKOWITZ asked Representative McGuire why, if she thinks it's good public policy, she voted against it "when the amendment was in front of the entire legislature a couple of years ago." REPRESENTATIVE McGUIRE responded that a person in the legislature is bound to grow and change his/her opinion. She said, "When it was first presented to me, I don't think I ever felt comfortable with it ... because I didn't really understand it very well." In the end, she revealed, she struggled with "how you would fill that vacancy between the time in which the person left and the special election occurred." She stated that it's something that still troubles her, and she said she thinks both the initiative and the language in [HB 414] could be improved. REPRESENTATIVE McGUIRE noted a problem is that Alaska is a small state and the U.S. Senate is the place in which Alaska derives most of its power. She warned that a very real situation could occur where Alaska could be without representation for three months while waiting for a special election. She said, "I was persuaded by that, and I'm still persuaded by it ..., but I think that there is a way that you can do both, and I'm hoping that the great minds of the legislature can come together to do that." REPRESENTATIVE McGUIRE said that her constituents let her know when she is wrong about an issue. She stated that they have said they would like the ability, through a special election, to be "able to weigh in." They feel, she related, that that is "the more democratic way of selecting [a] U.S. Senator." She indicated that [her constituents] think it's her job to figure out what to do in the mean time with the vacancy. Number 2081 REPRESENTATIVE BERKOWITZ asked Representative McGuire if she thinks the Republicans were wrong to turn down the amendment. REPRESENTATIVE McGUIRE responded that she can't speak for all Republicans. She added, "You're famous for doing that." REPRESENTATIVE BERKOWITZ interjected, "Well, you spoke for me and all Democrats...." REPRESENTATIVE McGUIRE told Representative Berkowitz that she doesn't want to quibble with him. She opined, "I think we all understand the chip that's on your shoulder today." She said she's sorry that Representative Berkowitz has not asked for a hearing for his bill from Chair Weyhrauch. She stated her assumption that if he cared that much about [his] bill, he would have done so. REPRESENTATIVE BERKOWITZ responded as follows: Representative McGuire, it's not about my bill. It's about getting you to do the right thing. It's about respecting the right of 50,000 Alaskans who attempted to go to the ballot and vote on this. It's about whether the legislature even retains the moral authority to vote on this issue now that 50,000 Alaskans have picked it up. It's about the cynical manipulation of the internal legislative political process to circumvent the will of the people. That's what my outrage is about. And I think it's a consistent pattern where this issue's concerned. Let the people vote. Quit trying to steal their authority. Number 2150 REPRESENTATIVE McGUIRE asked, "Representative Berkowitz, do you think doing the right thing is potentially allowing the whole issue to go away on account of a legal challenge?" She added, "So that the process has never, in fact, changed at all." She said what ends up happening is "we end up right back where we were before." CHAIR WEYHRAUCH intervened. Number 2170 REPRESENTATIVE GRUENBERG noted that several years ago, an initiative regarding minimum wage was going to be on the ballot. He said the legislature "trumped that" by passing a similar bill. If a law passes by initiative, there's a prohibition against the legislature changing that [law] for several years. He offered his understanding that there cannot constitutionally be such a prohibition if the legislature passes a bill, because "we" can't bind future legislature. What the legislature did, he continued, was to trump the initiative and then repeal part of the bill the next year. That, he concluded, "clearly thwarted what might have been the will of the people." He added that he doesn't think that was good public policy. REPRESENTATIVE GRUENBERG expressed his concern that if something were to happen [to Alaska's current U.S. Senator], and "we passed this law through this legislature," the next legislature could then "undo it in the next two years." Conversely, he noted that if "it were done by initiative," it would have "a much greater permanence." He said, "And I see that as being potentially a significant difference with the exact bill - but the way it's enacted. Don't you?" REPRESENTATIVE MCGUIRE responded that she thinks there are problems "with that." She said there have been instances where the legislature has incorporated the substance of an initiative into law and come back and changed [that law]. She said she thinks "you give your word and ... you stay true to it." On that note, she told the committee that Representative Crawford had asked her if she was introducing the bill so that she could come back later and change it. She said her response was to give him her word that that was not the reason she was introducing the bill and that she defends "this." REPRESENTATIVE McGUIRE opined that those who put the initiative process into the Alaska State Constitution must have envisioned a legislative role. She explained that an initiative cannot appear on a ballot until after a full legislative session has met. She explained as follows: That requirement really can only be in there for one reason, and that is the idea that we still are a representative democracy - not a direct democracy. We envision a role of direct democracy, but the representative democracy is still there. And so, that gives an opportunity for the legislature to consider those things that have been certified as initiatives. Number 2403 REPRESENTATIVE McGUIRE opined, "I think that, as a legislature, when you have that many people speaking on a subject, if you don't come back and pay attention to it and try to incorporate it into policy, you're not doing your job." Number 2424 CHAIR WEYHRAUCH remarked that he thinks the voter has the ultimate say on "who it is that is sitting here doing this." Number 2454 REPRESENTATIVE GRUENBERG asked Representative McGuire if she would support a provision in the bill stating that "this portion of the bill, at least" would not be amended for two years, for example. He noted that this legislature can't bind the next, but it can state its policy, thereby making a promise by the body. REPRESENTATIVE McGUIRE replied that she would support that. CHAIR WEYHRAUCH said he does not know whether he would support that; he said he has never heard of such a precedence. Number 2786 REPRESENTATIVE HOLM said he is confused. He offered his understanding that it has been proposed that the people who speak at the polls have less right to create policy in Alaska, by virtue of their representation, than the people who speak with an initiative. He asked for an explanation of "what road we're going down, in terms of whether or not we're trying to negate the ability of all legislatures to function at all." He offered an example of how segregation would have been affected [if it had been decided by initiative]. Number 2650 REPRESENTATIVE McGUIRE said this subject is a difficult one that many legal minds have reflected on, particularly in the last 20 years. Initiatives, she said, have been used to move the legislature in the right direction. Notwithstanding that, she remarked that any initiative process, if carried too far, could meet with disastrous results. She indicated that she thinks [the initiative process] has been used appropriately in Alaska. She said, "Where you started to see the dialogue in the beginning, I could see certain individuals trying to create this dichotomy - you're either for it or against it. I don't see it that way." Number 2786 REPRESENTATIVE HOLM stated he is still concerned with whether or not [the legislature] is making decisions because they are the right decisions to make. Number 2825 REPRESENTATIVE BERKOWITZ recalled three other instances that occurred during his time in the legislature where the Republican majority has overridden the will of the people: two wolf initiatives and a medical marijuana initiative. He said, "So you'll excuse me, Representative Holm and Representative McGuire, for being a little bit cynical about the ability of this majority to honor the direction the voters want to take it." Number 2854 REPRESENTATIVE GRUENBERG turned to "the Green Party portion of the bill." He stated, on behalf of the Democratic Party and possibly the Green Party as well, that other parties, regardless of who they are, have a right to join together in a partially open ballot. He asked Representative McGuire if she would support an amendment that would "allow that to occur." Number 2926 REPRESENTATIVE McGUIRE responded that because she wants [HB 414] to pass, she would not support adding that to the bill. She said she is not somebody who benefits from a closed primary, so she can see where it would benefit her; however, she also tries to support the opinions of the majority. She said, "From a political perspective, it would make this bill dead in the water." Number 2967 LEONARD JONES, Special Assistant, Division of Elections, Office of the Lieutenant Governor, said he was present in regard to the fiscal notes. TAPE 04-11, SIDE B Number 2982 MR. JONES [told the committee that he has held his position for just 30 days]. He offered to answer questions. Number 2966 REPRESENTATIVE SEATON referred again to page 2, regarding the issue of timing and recertification when elections are off- cycle. He clarified that he is trying to ascertain if "this is going to require every third party to have 3 percent of ... the U.S. House [of Representatives] election in all those cycles when there's not one of the other elections occurring." He added that he wants to know what the division's position would be if a third party that had garnered 3 percent in a gubernatorial election, for example, did not file or did not have a candidate run for the U.S. House [of Representatives]. MR. JONES said he would get back to the committee on that. Number 2888 REPRESENTATIVE BERKOWITZ asked Mr. Jones to let the committee know the following: The cost of primaries, with the possible intent of doing an amendment that would cause political parties to pay for their own primaries, if that's what they want to do; and the cost of collecting and maintaining records about individuals' political party affiliations. He said, "You've seen today what happens when partisan politics intrudes. I think it's hostile to the state's best interest." He noted that he has been "running a bill" for a number of years to eliminate political parties and to eliminate the state as a record keeper. He commented that perhaps Representative McGuire would join him in this effort. He said he want to know how much [the state] would save if [it no longer used the political party system]. MR. JONES agreed to accomplish that request. CHAIR WEYHRAUCH stated his understanding that that would be a research request on a separate issue, other than [HB 414]. REPRESENTATIVE BERKOWITZ responded, "That would fit within the title." Number 2805 REPRESENTATIVE COGHILL commented that he would like to see the committee [get the information requested]. He indicated that whether or not people have the right to "associate and pick their party affiliate members to represent them" is another debate. He said [HB 414] certainly is one bill that would allow those who have standing in the community to be on the ballot. He added, "So, I'd be in support of that." Number 2787 CHAIR WEYHRAUCH closed public testimony. He announced that HB 414 was heard and held.
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