Legislature(2009 - 2010)BELTZ 105 (TSBldg)
03/17/2010 01:30 PM Senate JUDICIARY
Audio | Topic |
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Start | |
SB284 | |
Confirmations | |
SB284 | |
SB297 | |
SB202 | |
SB284 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+ | TELECONFERENCED | ||
+= | SB 202 | TELECONFERENCED | |
*+ | SB 297 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
= | SB 284 | ||
SB 284-CAMPAIGN EXPENDITURES 1:38:59 PM CHAIR FRENCH announced the consideration of SB 284 and asked for a motion to adopt the committee substitute (CS) that incorporates the amendments that were adopted at the 3/15/10 hearing. 1:39:34 PM SENATOR WIELECHOWSKI moved to adopt CS for SB 284, labeled 26- LS1448\E, as the working document. There being no objection, version E was before the committee. CHAIR FRENCH moved to adopt Amendment 1, labeled 26-LS1448\E.1, and objected for discussion purposes. He explained that the drafter suggested that it would be helpful to the Alaska Public Offices Commission (APOC) to include definitions for "director" and "officer" for this new subsection. AMENDMENT 1 OFFERED IN THE SENATE BY SENATOR FRENCH TO: CSSB 284(JUD), Draft Version "E" Page 4, following line 5: Insert a new bill section to read: "* Sec. 7. AS 15.13.040 is amended by adding a new subsection to read: (q) For purposes of (e) of this section, (1) "director" means a member of the board of directors of a corporation or any person performing a similar function with respect to any organization; (2) "officer" means a president, vice president, secretary, or treasurer, principal financial officer, or comptroller of a corporation, or any person routinely performing functions similar to those of a president, vice president, secretary, or treasurer, principal financial officer, or comptroller with respect to any organization." Renumber the following bill sections accordingly. SENATOR WIELECHOWSKI asked if APOC requested the definitions. CHAIR FRENCH replied he wouldn't make that representation, but the definitions will probably help APOC now that directors and officers must be identified in campaign advertisements. He noted that John Ptacin with the Department of Law (DOL) also suggested that this would be helpful to APOC. SENATOR WIELECHOWSKI asked if there was any rationale for adding this in Section 7 as opposed to the end of the bill where definitions usually are found. 1:42:08 PM CHAIR FRENCH pointed out that it would fall at the end of the lengthy disclosure statute, AS 15.13.040. It refers to bill Section 4, which amends AS 15.13.040(e). Much of this section is new language and page 3, lines 22-23, talks about officers and directors. The definitions will probably help APOC understand who is supposed to report, he said. SENATOR WIELECHOWSKI said he had no objection to the amendment. 1:44:10 PM CHAIR FRENCH withdrew his objection to Amendment 1. Finding no further objection, he announced that Amendment 1 is adopted. 1:44:20 PM CHAIR FRENCH moved to adopt Amendment 2, labeled 26-LS1448\E.3, and objected for discussion purposes. AMENDMENT 2 OFFERED IN THE SENATE BY SENATORS FRENCH AND COGHILL TO: CSSB 284(JUD), Draft Version "E" Page 5, line 17, through page 6, line 4: Delete all material and insert: "Sec. 15.13.090. Identification of communication. (a) All communications shall be clearly identified by the words "paid for by" followed by the name and address of the person [CANDIDATE, GROUP, NONGROUP ENTITY, OR INDIVIDUAL] paying for the communication. In addition, a person shall clearly (1) provide the person's address or the person's principal place of business; (2) for a person other than an individual or candidate, include (A) the name and title of the person's principal officer; (B) a statement from the principal officer approving the communication; and (C) identification of the name and city and state of residence or principal place of business, as applicable, of each of the person's five largest contributors under AS 15.13.040(e)(5), if any, during the 12-month period before the date of the communication [CANDIDATES AND GROUPS MAY IDENTIFY THE NAME OF THEIR CAMPAIGN CHAIRPERSON]." Page 6, line 16: Delete "(a)(2)(C)" Insert "(a)(1)" Page 6, line 17: Delete "(a)(2)(D)" Insert "(a)(2)(C)" Page 6, line 26: Delete "AS 15.13.090(a)(2)(D)" Insert "AS 15.13.090(a)(2)(C)" CHAIR FRENCH explained that Amendment 2 is about disclaimer to the public, identifying the communications that are advertised. It addresses much of an amendment to version R that Senator Coghill offered and withdrew during the 3/15/10 hearing. Basically, it rewrites the language in Section 11 of the current draft removing the idea that candidates and groups may identify persons associated with their campaign and clearly stating that every person shall provide that identifying information. Candidates do this now, he said. He pointed out that the amendment further says that persons other than an individual candidate must provide the name and title of the principal officer; a statement from that officer approving the communication; and the name, city, and state of the principal residence or place of business of each of the person's five largest contributors during the 12-month period before the communication. The balance of the amendment makes conforming changes. 1:46:25 PM SENATOR COGHILL opined that this makes it easier to understand and it puts parity between candidates and persons. He said he still objects to reading aloud the five largest contributors because it will be awkward, but he'll work with it in this committee. CHAIR FRENCH removed his objection to Amendment 2. Finding no further objection, he announced that Amendment 2 is adopted. CHAIR FRENCH set SB 284 aside for the time being. SB 284-CAMPAIGN EXPENDITURES 2:14:06 PM CHAIR FRENCH returned attention to SB 284. He moved to adopt Amendment 3, labeled 26-LS1448\E.2, and objected for discussion purposes. AMENDMENT 3 OFFERED IN THE SENATE BY SENATOR FRENCH TO: CSSB 284(JUD), Draft Version "E" Page 5, line 24, following "(2)": Insert "except as provided by (d) of this section," Page 6, line 15: Delete "a new subsection" Insert "new subsections" Page 6, line 17, following "section,": Insert "a communication that includes a print or video component must have" Page 6, lines 17 - 18: Delete "must be read, in a manner that is easily heard, or" Page 6, lines 19 - 21: Delete ", or, in a communication that is transmitted by a method that includes both audio and video components, be read in a manner that is easily heard and placed in the communication so as to be easily discernable" Page 6, following line 26: Insert a new subsection to read: "(d) Notwithstanding the requirements of (a)(2)(A) - (D) of this section, in a communication transmitted through radio or other audio media and in the communication that includes an audio component, the following statement or statements, as applicable, must be read in a manner that is easily heard: This communication was paid for by (person's name). I am (name and, if applicable, title of the principal officer of the person) and I approve this message. The top contributors of (person's name) are (the name of the largest contributors to the person under AS 15.13.090(a)(2)(D))." CHAIR FRENCH explained that this amendment separates the different disclaimers to the public that are required when an advertisement is in print versus either the radio or television. The idea is to reduce the amount of speaking in an audio advertisement so that it isn't onerous. He clarified that this pertains to ads by corporations or unions, not individual candidates. SENATOR EGAN said he appreciates the amendment and if it needs tweaking after the next election cycle it can be addressed next year. CHAIR FRENCH said that's a good point for the entire bill. We'll make it as strong as possible, but I have no doubt we'll revisit this topic in the near future, he said. 2:17:20 PM CHAIR FRENCH removed his objection to Amendment 3. Finding no further objection, he announced that Amendment 3 is adopted. CHAIR FRENCH set SB 284 aside for the time being. SB 284-CAMPAIGN EXPENDITURES 2:34:41 PM CHAIR FRENCH returned attention to SB 284. SENATOR WIELECHOWSKI moved to adopt Amendment 4, labeled 26- LS1448\E.4. AMENDMENT 4 OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI TO: CSSB 284(JUD), Draft Version "E" Page 1, line 4, following "campaigns;": Insert "prohibiting expenditures and contributions by foreign nations in state elections;" Page 4, following line 28: Insert a new bill section to read: "* Sec. 9. AS 15.13 is amended by adding a new section to read: Sec. 15.13.068. Expenditures and contributions by foreign nationals. (a) A foreign national may not, directly or indirectly, in connection with an election under this chapter, make a contribution or expenditure or make an express or implied promise to make a contribution or expenditure. (b) In this section, "foreign national" includes (1) an individual who is not a United States citizen or lawfully admitted for permanent residence under 8 U.S.C. 1101(a)(20); (2) a foreign government, every political subdivision of a foreign government, every official, agent, or representative of a foreign government, and every agency, corporation, or instrumentality of the foreign government or of a political subdivision of a foreign government; (3) a person outside of the United States, unless it is established that the person is an individual and a citizen of and domiciled in the United States, or that the person is not an individual and is organized under or created by the laws of the United States or of any state or other place subject to the jurisdiction of the United States and has its principal place of business in the United States; (4) a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country; or (5) a domestic subsidiary of an entity described in (2) - (4) of this subsection or a domestic corporation controlled by an entity described in (2) - (4) of this subsection, if that entity finances, participates in, or selects a person who participates in the making of a contribution or an expenditure of the domestic subsidiary or domestic corporation. (c) The provisions of this section apply only to the extent permitted by federal law." Renumber the following bill sections accordingly. CHAIR FRENCH objected for discussion purposes. SENATOR WIELECHOWSKI explained that the contents of this amendment appear in the House version of SB 284 and it seems like a reasonable provision that will help bring some parity between the two bills. It expressly prohibits foreign nationals from participating in Alaska elections and includes a definition of "foreign national." This is similar to the federal law and the drafter didn't believe it would present constitutional problems. CHAIR FRENCH noted that he and Senator Wielechowski each received legal opinions on this amendment raising the issue of preemption. He read the following from Mr. Bullard's 3/17/10 memorandum: The Federal Election Campaign Act (FECA) prohibits any foreign national from contributing, donating, or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly. Because [2 U.S.C. 441e] already clearly prohibits foreign nationals from making campaign contributions, expenditures, and independent expenditures in federal, state, and local elections, a state effort to legislate in this area may face a preemption challenge. 2:37:55 PM SENATOR COGHILL said it sounds as though a corporation like Ford Motor Company would be prohibited under this. SENATOR WIELECHOWSKI said he doesn't believe that's the case. CHAIR FRENCH called a point of order to say that those concerns would be addressed by what will be Amendment 5. Amendment 4 says a foreign national and it's directly to that individual not so much the corporation. SENATOR WIELECHOWSKI added that Ford Motor Company or Exxon Corporation could participate because the definition of foreign national doesn't exclude them. However, an Indonesian branch of Ford could not contribute to an Alaska election. He said he believes that this amendment tracks federal law and he understands legislative legal to say that based on the Supreme Court case, it's a bit unclear the extent to which foreign nationals can participate in elections. Legislative legal believes that a federal law is in place and the question is if it applies to state or local elections. This amendment tries to extend it to state or local elections, he said. CHAIR FRENCH asked Mr. Ptacin his thoughts on Amendment 4. 2:40:39 PM JOHN PTACIN, Assistant Attorney General, Department of Law (DOL), stated that he doesn't believe that preemption is a great concern here. Field preemption is the only variation of federal preemption that possibly could apply and that occurs only when there is a pervasive scheme showing that Congress intends to be the exclusive regulator in an area. It doesn't seem to be the case that the federal government is the only entity that would be regulating participation by a foreign national in a state or municipal election, he said. CHAIR FRENCH asked Mr. Bullard if he had anything to add on the issue of preemption. 2:42:17 PM ALPHEUS BULLARD, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, said he believes that there may be some preemption risk. He explained that the amendment was drafted in a manner to make it applicable to the extent that it is permitted by federal law and to mitigate preemption concerns. He cautioned that he doesn't know if it's ironclad proof. CHAIR FRENCH withdrew his objection to Amendment 4. Finding no further objection, he announced that Amendment 4 is adopted. SENATOR WIELECHOWSKI moved to adopt Amendment 5, labeled 26- LS1448\E.5. AMENDMENT 5 OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI TO: CSSB 284(JUD), Draft Version "E" Page 1, line 4, following "campaigns;": Insert "prohibiting certain expenditures in state election campaigns;" Page 5, following line 16: Insert a new bill section to read: "* Sec. 11. AS 15.13.084 is amended by adding a new subsection to read: (b) A person that is owned or controlled, in any part, by a foreign national may not make an expenditure. In this subsection, "foreign national" includes (1) an individual who is not a United States citizen or lawfully admitted for permanent residence under 8 U.S.C. 1101(a)(20); (2) a foreign government, a political subdivision of a foreign government, a official, agent, or representative of a foreign government, and an agency, corporation, or instrumentality of a foreign government or of a political subdivision of a foreign government; (3) a person outside of the United States, unless it is established that the person is an individual and a citizen of and domiciled in the United States, or that the person is not an individual and is organized under or created by the laws of the United States or of any state or other place subject to the jurisdiction of the United States and that the person's principal place of business is in the United States; (4) a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country; or (5) a domestic subsidiary of an entity described in (2) - (4) of this subsection or a domestic corporation controlled by an entity described in (2) - (4) of this subsection, if that entity finances, participates in, or selects a person who participates in the making of a contribution or an expenditure of the domestic subsidiary or domestic corporation." Renumber the following bill sections accordingly. CHAIR FRENCH objected for discussion purposes. SENATOR WIELECHOWSKI said this amendment addresses a concern he's had about foreign nationals that have ownership interests in Alaskan corporations. It would prohibit any corporation, union, or foreign national from making an expenditure in an Alaska election. If a corporation had stockholders that are not Americans, those stockholders would not be able to participate in making expenditures, he said. 2:45:25 PM SENATOR COGHILL questioned whether a corporation that had a subsidiary that was incorporated in Alaska and a director that was a foreign national would be able to make internal changes so that Alaska citizen within the corporation would be put in as principals under Alaska reporting laws. He said his belief is that they will trade people even if they are wholly owned or partially owned. SENATOR WIELECHOWSKI said if a corporation is owned or controlled in part by a foreign national then they would not be entitled to make an expenditure under this amendment. SENATOR COGHILL said he's trying to figure out if this means the corporation itself or the individuals within the corporation because it seems that this is now driving into a separation. SENATOR WIELECHOWSKI confirmed that the intent is that if a corporation is foreign owned or controlled, then they would not be able to make an expenditure. CHAIR FRENCH said the operative language is on line 7. It says "a person" - meaning a corporation or group or nongroup or union - that is owned or controlled in any part. That language will attract a lot of attention, he said. CHAIR FRENCH thanked Mr. Bullard for the extensive amount of work he'd done on this legislation and asked him to comment on the concerns he expressed in two separate memorandums regarding Amendment 5. 2:47:59 PM MR. BULLARD said this amendment raises First Amendment and associational and equal protection issues. First, it paints with a broad brush, he said. Because any large, publicly traded corporation is likely to have some foreign shareholders, a court would likely interpret this provision, if it were enacted, as an indirect prohibition against independent expenditures made by large corporations or anyone so affected. He said he also believes that there are equal protection issues. For example, if a large corporation like AT&T had one foreign shareholder with whatever percentage ownership interest, that domestic corporation would be treated differently than a domestic corporation that had no foreign shareholders. 2:50:04 PM SENATOR WIELECHOWSKI withdrew Amendment 5. He said that this was an attempt to address his concerns about opening the doors to foreign nationals influencing Alaska elections, but he understood the constitutional warnings. CHAIR FRENCH said we had a Supreme Court decision to deal with and we've been trying to craft a bill that would stand up to the beating it may get in other committees. Finding no further amendments or committee discussion, and noting that public testimony had been taken, he asked for a motion. 2:51:33 PM SENATOR WIELECHOWSKI moved to report CS for SB 284, version E as amended, from committee with individual recommendations and attached fiscal note(s). 2:51:55 PM SENATOR COGHILL objected to make a comment. He said he agreed with the concept of the last amendment and he would continue to look for a solution to the top five contributors because it's still a concern. He then expressed appreciation for the diligence with which Senator French put this must-pass piece of legislation forward. I have no further objection, he said. CHAIR FRENCH announced that without objection CSSB 284(JUD) moved from the Senate Judiciary Standing Committee.
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