Legislature(2001 - 2002)

05/10/2002 01:58 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                          May 10, 2002                                                                                          
                           1:58 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Representative Norman Rokeberg, Chair                                                                                           
Representative Scott Ogan, Vice Chair                                                                                           
Representative Jeannette James                                                                                                  
Representative John Coghill                                                                                                     
Representative Kevin Meyer                                                                                                      
Representative Ethan Berkowitz                                                                                                  
Representative Albert Kookesh                                                                                                   
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
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                                                               
     - MOVED HCS CSSB 363(JUD) OUT OF COMMITTEE                                                                                 
SENATE BILL NO. 364                                                                                                             
"An Act relating to medical services under the state Medicaid                                                                   
     - MOVED SB 364 OUT OF COMMITTEE                                                                                            
PREVIOUS ACTION                                                                                                               
BILL: SB 363                                                                                                                  
SHORT TITLE:CAMPAIGN COMMUNICATIONS & DISCLOSURES                                                                               
SPONSOR(S): RLS                                                                                                                 
Jrn-Date   Jrn-Page                     Action                                                                                  
04/18/02     2840       (S)        READ THE FIRST TIME -                                                                        
04/18/02     2840       (S)        STA                                                                                          
04/23/02                (S)        STA AT 3:30 PM BELTZ 211                                                                     
04/23/02                (S)        Heard & Held                                                                                 
04/23/02                (S)        MINUTE(STA)                                                                                  
05/04/02                (S)        STA AT 1:30 PM BELTZ 211                                                                     
05/04/02                (S)        Moved CS(STA) Out of                                                                         
                                   Committee -- Time Change --                                                                  
05/04/02                (S)        MINUTE(STA)                                                                                  
05/06/02     3175       (S)        STA RPT CS 4DP NEW TITLE                                                                     
05/06/02     3175       (S)        DP: THERRIAULT, PHILLIPS,                                                                    
05/06/02     3175       (S)        DAVIS                                                                                        
05/06/02     3175       (S)        FN1: (ADM)                                                                                   
05/06/02     3175       (S)        FN2: ZERO(GOV)                                                                               
05/06/02     3175       (S)        FIN REFERRAL ADDED AFTER STA                                                                 
05/07/02                (S)        FIN AT 9:30 AM SENATE FINANCE                                                                
05/07/02                (S)        Moved Out of Committee --                                                                    
                                   Time Change --                                                                               
05/07/02                (S)        MINUTE(FIN)                                                                                  
05/07/02     3198       (S)        FIN RPT CS(STA) 5DP 1NR                                                                      
05/07/02     3198       (S)        DP: DONLEY, KELLY, GREEN,                                                                    
05/07/02     3198       (S)        LEMAN; NR: AUSTERMAN                                                                         
05/07/02     3198       (S)        FN3: (ADM)                                                                                   
05/07/02     3199       (S)        FN2: ZERO(GOV)                                                                               
05/07/02                (S)        RLS AT 11:45 AM FAHRENKAMP                                                                   
05/07/02                (S)        MINUTE(RLS)                                                                                  
05/07/02     3202       (S)        RULES TO CALENDAR 5/7/02                                                                     
05/07/02     3202       (S)        READ THE SECOND TIME                                                                         
05/07/02     3203       (S)        STA CS ADOPTED UNAN CONSENT                                                                  
05/07/02     3203       (S)        ADVANCED TO 3RD READING FLD                                                                  
                                   Y14 N5 E1                                                                                    
05/07/02     3203       (S)        ADVANCED TO THIRD READING 5/8                                                                
05/08/02     3237       (S)        READ THE THIRD TIME CSSB
05/08/02     3237       (S)        RETURN TO SECOND FOR AM 1                                                                    
                                   UNAN CONSENT                                                                                 
05/08/02     3238       (S)        AM NO 1 ADOPTED UNAN CONSENT                                                                 
05/08/02     3238       (S)        AUTOMATICALLY IN THIRD                                                                       
05/08/02     3238       (S)        PASSED Y19 N- E1                                                                             
05/08/02     3238       (S)        EFFECTIVE DATE(S) SAME AS                                                                    
05/08/02     3244       (S)        TRANSMITTED TO (H)                                                                           
05/08/02     3244       (S)        VERSION: CSSB 363(STA) AM                                                                    
05/09/02     3460       (H)        READ THE FIRST TIME -                                                                        
05/09/02     3460       (H)        JUD                                                                                          
05/10/02                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
BILL: SB 364                                                                                                                  
SHORT TITLE: MEDICAID PAYMENTS FOR ABORTIONS                                                                                    
SPONSOR(S): RLS BY REQUEST                                                                                                      
Jrn-Date   Jrn-Page                     Action                                                                                  
04/18/02     2840       (S)        READ THE FIRST TIME -                                                                        
04/18/02     2841       (S)        FIN                                                                                          
04/23/02                (S)        FIN AT 9:00 AM SENATE FINANCE                                                                
04/23/02                (S)        -- Meeting Canceled --                                                                       
04/23/02                (S)        FIN AT 4:00 PM SENATE FINANCE                                                                
04/23/02                (S)        Moved Out of Committee                                                                       
04/23/02                (S)        MINUTE(FIN)                                                                                  
04/24/02     2920       (S)        FIN RPT 5DP 2DNP 1NR                                                                         
04/24/02     2920       (S)        DP: KELLY, GREEN, OLSON,                                                                     
                                   LEMAN, WARD;                                                                                 
04/24/02     2920       (S)        DNP: DONLEY, AUSTERMAN; NR:                                                                  
04/24/02     2920       (S)        FN1: INDETERMINATE(HSS)                                                                      
05/01/02                (S)        RLS AT 10:30 AM BELTZ 211                                                                    
05/01/02                (S)        -- Location Change --                                                                        
05/01/02                (S)        MINUTE(RLS)                                                                                  
05/06/02     3182       (S)        RULES TO CALENDAR 1OR 5/6/02                                                                 
05/06/02     3185       (S)        READ THE SECOND TIME                                                                         
05/06/02     3186       (S)        ADVANCED TO 3RD READING FLD                                                                  
                                   Y13 N6 E1                                                                                    
05/06/02     3186       (S)        ADVANCED TO THIRD READING 5/7                                                                
05/07/02     3208       (S)        READ THE THIRD TIME SB 364                                                                   
05/07/02     3208       (S)        PASSED Y12 N7 E1                                                                             
05/07/02     3208       (S)        ELLIS NOTICE OF                                                                              
05/08/02     3221       (S)        RECON TAKEN UP - IN THIRD                                                                    
05/08/02     3221       (S)        PASSED ON RECONSIDERATION Y12                                                                
05/08/02     3244       (S)        TRANSMITTED TO (H)                                                                           
05/08/02     3244       (S)        VERSION: SB 364                                                                              
05/09/02     3460       (H)        READ THE FIRST TIME -                                                                        
05/09/02     3460       (H)        JUD, FIN                                                                                     
05/09/02                (H)        JUD AT 4:00 PM CAPITOL 120                                                                   
05/09/02                (H)        Heard & Held                                                                                 
05/10/02                (H)        JUD AT 1:00 PM CAPITOL 120                                                                   
WITNESS REGISTER                                                                                                              
JOE BALASH, Staff                                                                                                               
to Senator Gene Therriault                                                                                                      
Alaska State Legislature                                                                                                        
Capitol Building, Room 121                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION  STATEMENT:   As  committee aide  for  the Senate  State                                                               
Affairs Committee,  which had  rewritten the  bill substantially,                                                               
presented  SB  363  on  behalf of  the  Senate  Rules  Committee,                                                               
KAREN VOSBURGH, Executive Director                                                                                              
Alaska Right to Life, Inc.                                                                                                      
PO Box 1847                                                                                                                     
Palmer, Alaska  99645                                                                                                           
POSITION STATEMENT:  Testified in support of SB 364.                                                                            
SENATOR DONNY OLSON                                                                                                             
Alaska State Legislature                                                                                                        
Capitol Building, Room 510                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Testified in support of SB 364.                                                                            
REPRESENTATIVE FRED DYSON                                                                                                       
Alaska State Legislature                                                                                                        
Capitol Building, Room 104                                                                                                      
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Testified in support of SB 364.                                                                            
GEORGE UTERMOHLE, Attorney                                                                                                      
Legislative Legal Counsel                                                                                                       
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency                                                                                                      
Terry Miller Building, Room 329                                                                                                 
Juneau, Alaska  99801                                                                                                           
POSITION STATEMENT:  Responded to questions as the drafter of                                                                   
SB 364.                                                                                                                         
ACTION NARRATIVE                                                                                                              
TAPE 02-63, SIDE A                                                                                                              
Number 0001                                                                                                                     
CHAIR  NORMAN  ROKEBERG  called   the  House  Judiciary  Standing                                                               
Committee  meeting  to  order  at   1:58  p.m.    Representatives                                                               
Rokeberg, James, Coghill,  and Meyer were present at  the call to                                                               
order.   Representatives Ogan, Berkowitz, and  Kookesh arrived as                                                               
the meeting was in progress.                                                                                                    
SB 363 - CAMPAIGN COMMUNICATIONS & DISCLOSURES                                                                                
Number 0043                                                                                                                     
CHAIR ROKEBERG announced  that the first order  of business would                                                               
be  CS FOR  SENATE  BILL NO.  363(STA) am,  "An  Act relating  to                                                               
communications and  elections, to reporting of  contributions and                                                               
expenditures, and  to campaign misconduct  in the  second degree;                                                               
relating  to  disclosure  by   individuals  of  contributions  to                                                               
candidates; and providing for an effective date."                                                                               
Number 0067                                                                                                                     
JOE  BALASH,  Staff  to Senator  Gene  Therriault,  Alaska  State                                                               
Legislature,  committee   aide  for  the  Senate   State  Affairs                                                               
Committee, which had rewritten  the bill substantially, presented                                                               
SB 363  on behalf  of the  Senate Rules  Committee, sponsor.   He                                                               
explained  that the  bill  is an  attempt to  get  "some kind  of                                                               
disclosure on  'issue ads.'"   He relayed that the  Alaska Public                                                               
Offices Commission (APOC) has predicted  that issue ads will play                                                               
a very large  role in the upcoming fall campaign.   He noted that                                                               
according  to Legislative  Legal  and  Research Services,  "there                                                               
really isn't  anything you  can compel on  a communication  or ad                                                               
that  is purely  issues-based."   If  there is  no  mention of  a                                                               
candidate,  "basically  you can't  touch  it"  because the  First                                                               
Amendment protects it, he opined.  He continued:                                                                                
     So what we  decided to do then was take  a look around;                                                                    
     we took a  look at McCain-Feingold -  or Shays-Mehan is                                                                    
     actually  the version  that  passed  and the  President                                                                    
     signed into  law - and looked  to see how they  kind of                                                                    
     took a crack at this, and  [we] came up with what's now                                                                    
     in the  bill in Sections 8  and 9.  And  basically what                                                                    
     we've come up  with is a bright-line test,  so that the                                                                    
     public  will know,  when ...  they are  speaking purely                                                                    
     about issues,  ... that they're  ... out of  bounds, if                                                                    
     you  will;  they're not  covered  by  any of  the  APOC                                                                    
     regulations.    And if  you  expressly  advocate for  a                                                                    
     candidate, you clearly are under the limits.                                                                               
     And we  created this  other kind  of middle  part, this                                                                    
     gray  area ...  in between  express advocacy  and issue                                                                    
     advocacy, and  tried to  carve out  this electioneering                                                                    
     definition.  And so if  anybody mentions or ... if they                                                                    
     identify  a  candidate,  [and]   discuss  an  issue  of                                                                    
     national,  state,  or   local  political  concern,  and                                                                    
     attribute  a position  on that  issue to  the candidate                                                                    
     identified, and it  occurs 30 days before  a primary or                                                                    
     municipal  election,  or  60   days  before  a  general                                                                    
     election, then  it must come  from allowable  sources -                                                                    
     the funds used to pay for  that - subject to all of the                                                                    
     same  restrictions  that  you as  candidates  would  be                                                                    
     required to abide by.                                                                                                      
     So,  the other  parts of  the bill  -- in  [the Senate]                                                                    
     State Affairs  [Committee] we heard from  APOC ... that                                                                    
     this year  the commission  ... [is]  going to  begin to                                                                    
     assess  the civil  penalties for  failure to  provide a                                                                    
     contributor's statement  - a  15-5 [form].   And  so we                                                                    
     discussed  ...  with  APOC  the  history  of  the  15-5                                                                    
     [form], and really  what it provides is a  tool ... for                                                                    
     the public to know what's going on....                                                                                     
Number 0349                                                                                                                     
MR. BALASH concluded:                                                                                                           
     As candidates, when you file  your reports, you have to                                                                    
     disclose  not only  your expenditures  but all  of your                                                                    
     contributors.     So  it's  almost  a   duplication  of                                                                    
     efforts, or I  guess it really is a  duplication when a                                                                    
     contributor's forced  to send  in a  form.   So, bottom                                                                    
     line  was,  the  commission  didn't appear  to  have  a                                                                    
     problem  with going  ahead and  just removing  the 15-5                                                                    
     [form] altogether, ... as long  as we retained a way to                                                                    
     track  ... large  contributions  to ballot  proposition                                                                    
MR. BALASH, in response to a question, noted that Section 11 of                                                                 
SB 363 repeals the statute pertaining to the 15-5 form.  In                                                                     
response to another question, he said:                                                                                          
     The case  law on  the First  Amendment ...  relating to                                                                    
     elections,  the  most  prominent decision  is  the  ...                                                                    
     Buckley  v. Valeo  [424, U.S.  1 (1976)]  decision, and                                                                  
     what the  [United States Supreme]  Court said  was that                                                                    
     if  you're going  to  place  any kind  of  a burden  on                                                                    
     speech,  whether  it be  ...  disclosure  of where  the                                                                    
     money came  from, whether it's  ... simply a  "paid for                                                                    
     by" statement,  anything, there has to  be a compelling                                                                    
     state  interest.   Now,  when  you're  talking about  a                                                                    
     candidate for  election who will  be going  into office                                                                    
     and making decisions that affect  the public, there's a                                                                    
     concern that the money used  to pay for those ads might                                                                    
     influence  that person's  decision making  once they're                                                                    
     in office, and  so there's a threat of  corruption - or                                                                    
     at least ... the appearance of a threat of corruption.                                                                     
     And so,  because there's that compelling  interest, the                                                                    
     [United  States Supreme]  Court said  it's okay  to put                                                                    
     burdens  on  speech  in those  situations.    But  when                                                                    
     you're simply out speaking on  an issue - income taxes,                                                                    
     for an  example - and  ... all  you want to  talk about                                                                    
     are the  pros and the  cons of  an income tax,  and you                                                                    
     don't mention  a candidate, you don't  mention a ballot                                                                    
     proposition,  you  don't  mention political  actors  at                                                                    
     all, you're  just simply talking  about an  income tax,                                                                    
     there's no  threat of corruption, there's  not even the                                                                    
     appearance of  a threat of  corruption.  So,  without a                                                                    
     compelling interest,  you can't place a  burden on that                                                                    
     speech.  And  that's my understanding of  the case law,                                                                    
     at any rate.                                                                                                               
REPRESENTATIVE JAMES  suggested that for some  issues, the public                                                               
ought to know  what group is speaking.  She  said that would then                                                               
be the compelling state interest.                                                                                               
MR. BALASH said:  "That was  the ... desired goal of the original                                                               
version of the  bill.  I'm not  up to speed on  the specific case                                                               
law, but  you may not  be able to get  there; we weren't  able to                                                               
find a way."                                                                                                                    
REPRESENTATIVE JAMES noted  that she has no  problem with freedom                                                               
of speech, but wants to know who is doing the speaking.                                                                         
Number 0770                                                                                                                     
REPRESENTATIVE BERKOWITZ turned  to Section 9.  He  said that the                                                               
definition  of "communication"  seems rather  sweeping and  might                                                               
suffer some  criticism as being  overbroad from  a constitutional                                                               
perspective.  He  asked Mr. Balash, "Where  is communication used                                                               
that would require this definition to apply?"                                                                                   
MR. BALASH said,  "It's used in the 'paid for  by' section of the                                                               
statutes; I think the cite is  [AS] 15.13.090, and that's page 2,                                                               
Section 5, of the bill."                                                                                                        
REPRESENTATIVE  BERKOWITZ  asked  whether any  thought  had  been                                                               
given  to "adding  mass  phone  calls, which  is  a new  campaign                                                               
technique, to that  list."  He added that now  that he knows that                                                               
the definition  in Section  9 applies to  one discrete  area, "it                                                               
might  be appropriate  to transfer  this definition  to that  one                                                               
discrete section."                                                                                                              
MR. BALASH said  although SB 363 is not intended  to be either an                                                               
exhaustive or  exclusive list, if "'direct  dialing' is something                                                               
the committee wanted to add ..."                                                                                                
CHAIR  ROKEBERG  interjected  to  say,  "I  hope  this  was  [an]                                                               
exclusive list because,  being a politician that has  to read the                                                               
statutes every  election, I  would like to  make sure  there's no                                                               
loose ends out there."                                                                                                          
MR. BALASH said,  "When we were coming up with  a list, we didn't                                                               
pretend  to  have  everything  in  mind, and  would  be  open  to                                                               
suggestions for additions or even subtractions."                                                                                
CHAIR   ROKEBERG  asked   whether  "telephonic   campaigning"  is                                                               
addressed elsewhere.                                                                                                            
MR. BALASH said that there  is a prohibition on making "factually                                                               
false statements"  over the phone.   He also mentioned  that APOC                                                               
treats  a "push  poll"  differently  from "a  poll"  in terms  of                                                               
defining and treating it as an expenditure.                                                                                     
Number 1078                                                                                                                     
REPRESENTATIVE  BERKOWITZ  made  a  motion  to  adopt  Conceptual                                                               
Amendment  1:     on   page  4,  line   24,  add   "or  automatic                                                               
telemarketing".   There being no objection,  Conceptual Amendment                                                               
1 was adopted.                                                                                                                  
Number 1218                                                                                                                     
REPRESENTATIVE BERKOWITZ made a motion  to adopt Amendment 2:  on                                                               
page  2, line  25, delete  "and address".   He  said, "It  always                                                               
strikes me as  being a peculiar component of a  television ... or                                                               
radio ad  - 'Paid for by  Ethan Berkowitz for State  House' - and                                                               
then ... listing the entire address."                                                                                           
REPRESENTATIVE  JAMES  posited that  the  purpose  of listing  an                                                               
address on  such an  ad is so  that the public  will know  how to                                                               
contact the individual or group paying for that ad.                                                                             
REPRESENTATIVE BERKOWITZ  said, "It's been sort  of my experience                                                               
in  observing campaigns  that usually  what  happens is,  someone                                                               
makes a mistake - they'll  transpose numbers or the numbers won't                                                               
be the right size - and that becomes an APOC issue."                                                                            
CHAIR ROKEBERG said he agrees  with Representative James, adding,                                                               
"If you have a straw group or a  group that was put together as a                                                               
subterfuge, and  if they  don't have an  address, you  don't know                                                               
who you're talking about."                                                                                                      
Number 1319                                                                                                                     
REPRESENTATIVE  BERKOWITZ acknowledged  that  point and  withdrew                                                               
Amendment 2.                                                                                                                    
NUMBER 1320                                                                                                                     
REPRESENTATIVE BERKOWITZ made  a motion to adopt  a new Amendment                                                               
2:   on page  2, line 27,  change "must" to  "may".   He remarked                                                               
that having timed  several radio ads, he doesn't  have a campaign                                                               
chairperson because having to identify  that person would take up                                                               
a lot of [airtime].                                                                                                             
REPRESENTATIVE JAMES and CHAIR ROKEBERG agreed.                                                                                 
Number 1363                                                                                                                     
CHAIR ROKEBERG  noted that  there were no  objections to  the new                                                               
Amendment 2; therefore, Amendment 2 was adopted.                                                                                
MR.  BALASH  noted  that  the adoption  of  any  amendments  will                                                               
trigger a concurrence vote.                                                                                                     
REPRESENTATIVE  BERKOWITZ referred  to Section  4, and  asked why                                                               
the  amount  listed  is  $500  instead of  the  $100  it  is  for                                                               
individual  candidate campaigns.   "Why  are we  not making  this                                                               
exactly parallel?" he asked.                                                                                                    
MR. BALASH replied:                                                                                                             
     The  ballot proposition  group will  have  to submit  a                                                                    
     report prior to the election  - I think that the timing                                                                    
     is 7  days, maybe  30 days  - and they  will go  in and                                                                    
     identify  sources of  contributions ...  that are  over                                                                    
     $100.    However,  this  provision  is  a  way  to  get                                                                    
     information out  to the public  ... so that  the public                                                                    
     knows when large  sources of funding are  coming into a                                                                    
     ballot proposition  group, sooner  than the ...  the 30                                                                    
     days before  an election.   If there were  a particular                                                                    
     item  on the  ballot, going  to appear  on the  ballot,                                                                    
     nobody would  know how  much money  had been  raised by                                                                    
     the particular group supporting  or opposing that item,                                                                    
     and this  is a tool  to help ... track  that throughout                                                                    
     the course of the year.                                                                                                    
CHAIR   ROKEBERG   asked   whether  there   are   any   reporting                                                               
requirements for these groups now.                                                                                              
MR. BALASH said yes.                                                                                                            
CHAIR ROKEBERG asked, "Then what  are we doing differently ... in                                                               
adding this subsection?"                                                                                                        
MR.   BALASH  said,   "We're  adding   a   requirement  ...   for                                                               
contributions to be reported."                                                                                                  
CHAIR ROKEBERG responded:   "But they're not now?   You just said                                                               
they were."                                                                                                                     
REPRESENTATIVE JAMES added, "More than  $500 to a group ...; this                                                               
is not the group, but it's to the group."                                                                                       
CHAIR   ROKEBERG  asked:     "Well,   what   are  the   reporting                                                               
requirements  for  a  group now?    This  is  for  an issue?    A                                                               
noncandidate?  Don't  they have the 7- and 10-day  report and 30-                                                               
day report requirement?"                                                                                                        
Number 1497                                                                                                                     
MR. BALASH  said:  "Yes  ..., that's  correct.  The  first report                                                               
they will  submit to APOC  will be 30  days prior to  the general                                                               
election.  And  if somebody were to send a  check for $600,000 in                                                               
June,  nobody  would know  until  30  days before  the  election.                                                               
[Section 4]  is requiring  the contribution  itself to  trigger a                                                               
REPRESENTATIVE  BERKOWITZ mentioned  that  the  amount listed  in                                                               
Section  4 does  not  appear  to be  cumulative  like  it is  for                                                               
MR. BALASH  referred to page  2, line  13, and said  according to                                                               
that language,  "once they've gone  over $500, it is  intended to                                                               
be a cumulative report."                                                                                                        
REPRESENTATIVE BERKOWITZ  disagreed.  He  said, "It could  be two                                                               
$500 contributions  within a  single period:   there's  more than                                                               
one $500 contribution."                                                                                                         
REPRESENTATIVE JAMES pointed  out that it would be  "30 days from                                                               
the time  it went over  $500, though, so  ... the date  that it's                                                               
due is 30 days after it went over $500."                                                                                        
REPRESENTATIVE  BERKOWITZ remarked,  however,  that according  to                                                               
the way Section 4 is written:                                                                                                   
     You could give  a check on the first of  the month, and                                                                    
     another on  the second  of the month,  and then  do the                                                                    
     same reporting on  the beginning of the  next month for                                                                    
     two checks for $500 each,  [whereas] if you give a $250                                                                    
     check  and  a  $250  check aggregating  to  $500,  that                                                                    
     arguably wouldn't have to be reported.                                                                                     
MR. BALASH,  in response  to a  question, acknowledged  that "you                                                               
can't put  a limit on  ... contributions to a  ballot proposition                                                               
REPRESENTATIVE  BERKOWITZ   noted  that  according  to   the  way                                                               
Section 4 is written,  "you could contribute $500 and  not make a                                                               
declaration; if  you make a  contribution of $501, then  you have                                                               
to make the declaration."                                                                                                       
Number 1759                                                                                                                     
CHAIR ROKEBERG  made a  motion to  adopt Conceptual  Amendment 3:                                                               
"on  page 2,  line 11,  after  'contributing' add  '$500 or  more                                                               
calculated on  a cumulative basis'  or words to that  effect, and                                                               
deleting  'more   than  $500'."     There  being   no  objection,                                                               
Conceptual Amendment 3 was adopted.                                                                                             
Number 1793                                                                                                                     
REPRESENTATIVE  JAMES  moved  to  report  CSSB  363(STA)  am,  as                                                               
amended,  out of  committee with  individual recommendations  and                                                               
the [accompanying] fiscal notes.  There being no objection,                                                                     
HCS CSSB 363(JUD) was reported from the House Judiciary Standing                                                                
CHAIR ROKEBERG called an at-ease from 2:31 p.m. to 2:34 p.m.                                                                    
SB 364 - MEDICAID PAYMENTS FOR ABORTIONS                                                                                      
Number 1819                                                                                                                     
CHAIR ROKEBERG announced that the last order of business would                                                                  
be SENATE BILL NO. 364, "An Act relating to medical services                                                                    
under the state Medicaid program."                                                                                              
Number 1839                                                                                                                     
KAREN VOSBURGH, Executive Director, Alaska Right to Life, Inc.,                                                                 
testified via teleconference in support of SB 364.  She said:                                                                   
     This  is a  very  good  bill, and  it  is necessary  to                                                                    
     restrict the  Medicaid funding to cover  ... only those                                                                    
     abortions  that  are  medically necessary,  instead  of                                                                    
     using abortion as form of  birth control, which is - as                                                                    
     everybody knows here, I'm sure  - that about 95 percent                                                                    
     of all abortions  are for birth control only.   So, I'm                                                                    
     not only speaking for myself  and for the Right to Life                                                                    
     board,  but there  are almost  60,000 in  our Right  to                                                                    
     Life database, too,  that are right behind  me on this.                                                                    
     So  I just  want  you to  know that  there  are --  and                                                                    
     there's  more  than that,  this  is  just only  in  our                                                                    
     database, there are many more  people that are pro-life                                                                    
     that aren't in our database.                                                                                               
     So people, for the most  part, do not want abortion for                                                                    
     any reason such  as what was laid down -  you know, ...                                                                    
     the  term "health  of  the mother"  when  it was  first                                                                    
     brought down with  Roe v. Wade and Doe v.  Bolton.  You                                                                
     know, everybody  knows that, too,  that the  "health of                                                                    
     the  mother"  refers  to  physical,  or  emotional,  or                                                                    
     psychological,  a  woman's  age, familial,  social,  or                                                                    
     economic  reasons,   and  so  this  cannot   be  deemed                                                                    
     "medically necessary."   "Medically necessary"  is what                                                                    
     this bill says  it is, and I think it's  [a] good bill,                                                                    
     so please do hear it and pass it out.                                                                                      
Number 1974                                                                                                                     
SENATOR  DONNY  OLSON,  Alaska State  Legislature,  testified  in                                                               
support of SB 364.   After noting that he has  been licensed as a                                                               
medical doctor  since 1984  and had served  on the  State Medical                                                               
Board for  six years, he  said that SB  364 does not  address the                                                               
issue  of whether  abortion is  permitted; instead,  it addresses                                                               
the  issue  of  which  abortions  will be  paid  for  with  state                                                               
funding.  He  indicated that he, along with others  opposed to SB
364, is  opposed to having his  tax dollars used for  a procedure                                                               
that he feels is inappropriate.                                                                                                 
REPRESENTATIVE BERKOWITZ asked:   "Would you think that pacifists                                                               
shouldn't pay federal  income tax because part of  the money goes                                                               
to  the Department  of Defense?   Would  you think  that atheists                                                               
shouldn't  use money  if, say,  the  faith-based initiative  goes                                                               
SENATOR  OLSON   opined  that  issues  involving   pacifists  and                                                               
atheists  are  far  different  than  an  issue  that  involves  a                                                               
therapeutic procedure which requires a physician.                                                                               
CHAIR ROKEBERG  asked Senator  Olson to comment  on the  issue of                                                               
whether  to  include  situations involving  fetal  anomalies  and                                                               
nonviable fetuses in  the category of an allowable  reason to use                                                               
Medicaid funding for an abortion.                                                                                               
SENATOR OLSON remarked  that in addition to the  serious types of                                                               
cases  that were  given as  examples in  previous testimony,  the                                                               
term fetal  anomaly can also be  applied to instances in  which a                                                               
fetus simply  has an extra  digit.  He  suggested that if  such a                                                               
concept  were to  be included  in SB  364, a  more specific  term                                                               
should be used.                                                                                                                 
CHAIR ROKEBERG suggested the language,  "abort a fetus that would                                                               
not survive until live birth".                                                                                                  
SENATOR OLSON  said that the  problem with that language  is that                                                               
it  is very  difficult for  a physician  to determine  whether "a                                                               
fetus will survive a live birth."                                                                                               
TAPE 02-63, SIDE B                                                                                                              
Number 2370                                                                                                                     
SENATOR OLSON,  in response to a  question, said that if  a fetus                                                               
dies intrautero  (ph), normally it  results in a stillbirth.   In                                                               
response to  another question, he  indicated, however,  that that                                                               
does  not occur  all the  time.   He reiterated  that it  is very                                                               
difficult to determine whether a fetus  will make it to term.  He                                                               
noted that if an obstetrician  makes such a determination, he/she                                                               
will be doing so according to his/her "best opinion."                                                                           
REPRESENTATIVE JAMES  relayed that when  her own fetus  died, the                                                               
doctor  informed her  that the  fetus  was no  longer viable  and                                                               
recommended  that it  would be  better for  her to  "let it  come                                                               
naturally."  She  said that while that may not  be the "right way                                                               
to  go" in  all situations,  for her  it proved  to be  the right                                                               
choice and she  suffered no ill effects to her  health for having                                                               
gone that  route.  She indicated  that such a decision  has to be                                                               
between the individual woman and her physician.                                                                                 
CHAIR ROKEBERG  asked Senator  Olson whether  the language  in SB
364 would  hinder him  in his  medical practice  or cause  him to                                                               
alter  his medical  decisions regarding  situations  in which  an                                                               
abortion might be an appropriate procedure.                                                                                     
SENATOR  OLSON  said  he  does  not have  any  problem  with  the                                                               
language in SB 364.                                                                                                             
REPRESENTATIVE BERKOWITZ asked Senator  Olson how he would define                                                               
"seriously endanger the physical health of the woman".                                                                          
SENATOR OLSON  said, "I  would say  that if  ... a  lady's health                                                               
obviously -  physical constitution -  was in some  way seriously,                                                               
in a quite severe manner, was jeopardized."                                                                                     
REPRESENTATIVE  BERKOWITZ  asked, "Do  you  think  that would  be                                                               
subjective from doctor to doctor?"                                                                                              
SENATOR OLSON said:   "Oh, for sure.   And I think  that's one of                                                               
the major reasons  for this bill, here, is  that the subjectivity                                                               
is  what has  incensed  a  number of  people."    In response  to                                                               
further questions,  he opined that removing  the word "seriously"                                                               
would cause  the language to  become vague, and  that legislation                                                               
on  this issue  needs  to have  language that  gets  away from  a                                                               
"vague and loose interpretation."                                                                                               
REPRESENTATIVE BERKOWITZ  opined that  as currently  written, the                                                               
language in SB 364 is not clear or instructive.                                                                                 
REPRESENTATIVE  COGHILL reminded  members that  the issue  before                                                               
the committee revolves around public funding for abortions.                                                                     
Number 1648                                                                                                                     
REPRESENTATIVE  FRED DYSON,  Alaska State  Legislature, testified                                                               
in support of  SB 364.  He relayed that  with regard to abortion,                                                               
the  principal  issue for  many  people  is  the issue  of  human                                                               
rights, adding  that in the act  of an abortion, a  human life is                                                               
at stake.   He opined that when the patient  is a pregnant woman,                                                               
ethical  doctors realize  that they  have two  patients and  must                                                               
consider  the  well being  of  both.    On  the issue  raised  in                                                               
previous  testimony  that  nothing  can be  determined  with  100                                                               
percent certainty, he  opined that in cases where  someone is not                                                               
absolutely sure,  he/she should choose  life.  He  then recounted                                                               
some cases of failed abortions.                                                                                                 
REPRESENTATIVE DYSON  opined that the committee  should leave the                                                               
word "seriously" in  SB 364, indicating that it  will ensure that                                                               
abortions  paid  for  with  state funds  are  not  performed  for                                                               
trivial reasons.   He surmised that people intent  upon having an                                                               
abortion will  be able to  find some  other method of  paying for                                                               
it.  He  said that according to his interpretation  of every vote                                                               
or poll taken  on this issue, people do not  favor public funding                                                               
of "nonessential abortions."  He said:                                                                                          
     What you have  here before you is a very  good piece of                                                                    
     legislation [and]  I encourage you  to let it  stand as                                                                    
     it  is;  it is  exactly  the  will  of the  people,  it                                                                    
     protects human  rights, and [it]  avoids us being  in a                                                                    
     position of  financing the termination of  the lives of                                                                    
     children  whose  only sin  is  that  their presence  is                                                                    
     inconvenient and untimely.                                                                                                 
REPRESENTATIVE  DYSON,  in  response   to  a  question  regarding                                                               
nonviable  fetuses, indicated  that  an abortion  should only  be                                                               
performed in  those circumstances where it  is absolutely certain                                                               
that the fetus is dead.                                                                                                         
REPRESENTATIVE JAMES  reiterated that  sometimes it is  better to                                                               
let a  dead fetus  come out naturally,  rather than  performing a                                                               
medical procedure.   In response to questions,  she remarked that                                                               
"medically  necessary"  as  defined by  "seriously  endanger"  is                                                               
something  that  will  be  determined by  the  doctors  in  those                                                               
situations,  and   that  those   determinations  should   not  be                                                               
questioned; she  acknowledged that  different doctors  could come                                                               
to different  conclusions, and noted  that a woman has  the right                                                               
to go see a different doctor for a second opinion.                                                                              
Number 1035                                                                                                                     
CHAIR  ROKEBERG turned  to language  on page  2, lines  5 and  6:                                                               
"the medication  required to  treat the  illness would  be highly                                                               
dangerous  to the  fetus".    He asked:    "if,  in fact,  you're                                                               
endeavoring to protect the fetus, why  do we have to have it [be]                                                               
"highly dangerous"?  Why not just "dangerous"?                                                                                  
REPRESENTATIVE   DYSON  suggested   using   the  term   "slightly                                                               
CHAIR ROKEBERG opined  that "slightly" poses the  same problem as                                                               
"highly" in that they and some of  the other words used in SB 364                                                               
are setting subjective standards.   "We're raising the bar with a                                                               
subjective standard," he warned, adding,  "I think it's very poor                                                               
legal drafting."  He again  suggested that just "dangerous to the                                                               
fetus" is sufficient.                                                                                                           
REPRESENTATIVE DYSON said  he agrees with Chair  Rokeberg on that                                                               
CHAIR  ROKEBERG,  turning to  language  in  [subsection] (b),  he                                                               
noted that the  word "serious" is already used as  a qualifier on                                                               
page 1,  line 12; therefore, including  the terms "significantly"                                                               
and  "seriously" in  [subparagraphs] (A)  and (B),  respectively,                                                               
would be redundant and would raise the issue of subjectivity.                                                                   
REPRESENTATIVE JAMES  remarked that every single  possible set of                                                               
specific  conditions cannot  be  listed in  statute, adding  that                                                               
some measure  has to  be set, after  which it will  be up  to the                                                               
individual  woman and  her physician  to make  the determination.                                                               
She  also remarked  that  the  goal of  SB  364  is to  eliminate                                                               
[public  funding for]  unnecessary abortions,  adding that  "when                                                               
you try  to determine what's  necessary, you  have to have  a bar                                                               
somewhere, [and] I  don't know that this gets us  there, but it's                                                               
better than what we have."                                                                                                      
CHAIR  ROKEBERG  opined that  the  legislature  has the  duty  of                                                               
determining what  constitutes "medically  necessary" and  must do                                                               
so  by  defining it  with  language  that  is clear  rather  than                                                               
subjective.   He then  referred to  the words  "significantly" on                                                               
page 1, line  14; "seriously" on page 2, line  1; and "highly" on                                                               
page 2, line  5.  He asked the drafter  whether using those words                                                               
as  qualifiers  was intended  to  raise  the  bar, and  what  his                                                               
interpretation of that language is.                                                                                             
Number 0813                                                                                                                     
GEORGE   UTERMOHLE,   Attorney,    Legislative   Legal   Counsel,                                                               
Legislative  Legal  and  Research Services,  Legislative  Affairs                                                               
Agency, acknowledged that using those  words does have the effect                                                               
of raising the bar.                                                                                                             
CHAIR ROKEBERG  turned to  the word  "serious" as  it is  used on                                                               
page 1, line 12.  He asked,  "It sets up each of the [paragraphs]                                                               
underneath it as having to be of a serious nature, does it not?"                                                                
MR.  UTERMOHLE  said,  "The   term  "serious"  modifies  "serious                                                               
adverse physical condition" and "serious psychological illness".                                                                
CHAIR ROKEBERG surmised, then, that  statutorily, the bill speaks                                                               
of  a  "serious  adverse  physical   condition"  and  a  "serious                                                               
psychological illness"  before "we even add  the other provisions                                                               
of the bill to the interpretation."                                                                                             
MR. UTERMOHLE  said, "Yes,  Mr. Chairman,  that is  your starting                                                               
CHAIR ROKEBERG  asked Mr. Utermohle  what would be the  impact of                                                               
removing "seriously" from page 2, line 1.                                                                                       
MR. UTERMOHLE said  that doing so would  "reduce the restrictions                                                               
on [a physician's] determination as  to what endangers the health                                                               
of a  woman."  In response  to a question, he  indicated that the                                                               
same could  be said regarding  the removal of "highly"  from page                                                               
2, line 5.                                                                                                                      
REPRESENTATIVE BERKOWITZ  asked, "Could  you in any  way quantify                                                               
what  'seriously  endanger'  or   'highly  dangerous',  what  the                                                               
distinction  is, or  ... if  there's  a numerical  quantification                                                               
that would apply?"                                                                                                              
MR.  UTERMOHLE said,  "Most certainly  not;  we're talking  about                                                               
subjective terms here."                                                                                                         
REPRESENTATIVE BERKOWITZ  asked, "Is there a  distinction between                                                               
'seriously endanger'  on page 2,  line 1, and  'highly dangerous'                                                               
on page 2, lines 5 and 6?"                                                                                                      
MR.  UTERMOHLE said,  "Those relate  to two  different standards,                                                               
one  related  to  'seriously  endanger'  as  opposed  to  'highly                                                               
Number 0579                                                                                                                     
REPRESENTATIVE BERKOWITZ asked:   "Which is higher?   Or which is                                                               
more serious?"                                                                                                                  
MR. UTERMOHLE  said, "They're applied  to different  contexts and                                                               
rely upon the expertise of the doctor to apply those terms."                                                                    
REPRESENTATIVE BERKOWITZ said, "So you  couldn't say, if you were                                                               
to  do  a  risk  assessment,   ...  that  'highly  dangerous'  is                                                               
aggravated above 'seriously endanger', or the other way around?"                                                                
MR. UTERMOHLE said, "No, I could not."                                                                                          
REPRESENTATIVE  BERKOWITZ observed  that [paragraphs]  (1)(B) and                                                               
(2) (B) are  not parallel in that paragraph (1)(B)  uses the term                                                               
"seriously  endanger", whereas  paragraph (2)(B)  refers only  to                                                               
REPRESENTATIVE DYSON said that he  has no objection to adding the                                                               
word "seriously" to  paragraph (2)(B) on line 7.   In response to                                                               
a question, he  agreed that he feels that  the language currently                                                               
in   SB   364   gives   physicians  enough   latitude   to   make                                                               
determinations based on their independent  judgment.  He surmised                                                               
that  if a  physician makes  the determination,  in a  particular                                                               
case,  that the  woman is  better served  by having  an abortion,                                                               
he/she  will probably  go ahead  and perform  that abortion;  the                                                               
question  then  becomes  one  of  "who  gets  billed"  for  those                                                               
CHAIR ROKEBERG, after noting that  no one else wished to testify,                                                               
closed the public hearing on SB 364.                                                                                            
Number 0139                                                                                                                     
CHAIR ROKEBERG  made a  motion to adopt  Amendment 1,  which read                                                               
[original punctuation provided]:                                                                                                
     Page 1, line 12, through page 2, line 8:                                                                                   
          Delete all material and insert:                                                                                       
           "physician that the abortion is medically                                                                            
          necessary to                                                                                                          
                    (1) treat a serious                                                                                         
                         (A) adverse physical condition of                                                                      
               a pregnant woman that                                                                                            
                              (i) either is caused by the                                                                       
                    pregnancy or would be significantly                                                                         
                    aggravated by continuation of the                                                                           
                    pregnancy; and                                                                                              
                 (ii) would seriously endanger                                                                                  
            the physical health of the woman if the                                                                             
                    pregnancy were not terminated by an                                                                         
                    abortion; or                                                                                                
                         (B) psychological illness of a                                                                         
               pregnant woman who requires medication for                                                                       
               treatment of the illness if                                                                                      
                              (i) the medication required                                                                       
                    to treat the illness would be highly                                                                        
                    dangerous to the fetus; and                                                                                 
                              (ii) the health of the woman                                                                      
                    would be endangered if the medication                                                                       
                    was not taken during the pregnancy; or                                                                      
                    (2) abort a fetus that would not                                                                            
          survive until live birth."                                                                                            
     Page 2, line 13, following "(3)":                                                                                          
        Insert ""live birth" has the meaning given in AS                                                                        
Number 0138                                                                                                                     
REPRESENTATIVE JAMES objected.                                                                                                  
CHAIR ROKEBERG remarked that Amendment  1 basically just adds the                                                               
phrase "abort a fetus that would not survive until live birth".                                                                 
REPRESENTATIVE  OGAN surmised  that making  such a  determination                                                               
would  be  difficult  to  do,  and remarked  that  he  finds  the                                                               
addition of that term objectionable.                                                                                            
REPRESENTATIVE  JAMES  said  that  although  there  may  be  some                                                               
circumstances in  which aborting a  fetus that would  not survive                                                               
until live birth would be  appropriate, she objects to paying for                                                               
such a procedure with state funds.                                                                                              
TAPE 02-64, SIDE A                                                                                                              
Number 0072                                                                                                                     
A roll call vote was  taken.  Representatives Berkowitz, Kookesh,                                                               
James,  Ogan,  Coghill,  and James  voted  against  Amendment  1.                                                               
Representative  Rokeberg  abstained   from  voting.    Therefore,                                                               
Amendment 1 failed by a vote of 0-6.                                                                                            
Number 0104                                                                                                                     
REPRESENTATIVE COGHILL  moved to report  SB 364 out  of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
Number 0124                                                                                                                     
REPRESENTATIVE  BERKOWITZ  objected.    He said,  "This  bill  is                                                               
severely  constitutionally  flawed,  for  the  reasons  that  are                                                               
outlined in the  ... [State Dept. of Health &  Social Services v.                                                             
Planned Parenthood of Alaska, et  al. (07/27/2001) sp-5443] case,                                                             
and also because,  based on the testimony I've  heard here today,                                                               
it's  clearly vague  beyond any  sort of  (indisc. -  voice faded                                                               
Number 0190                                                                                                                     
A  roll  call  vote  was taken.    Representatives  James,  Ogan,                                                               
Coghill,  Meyer,  and Rokeberg  voted  to  report the  bill  from                                                               
committee.   Representatives Kookesh and Berkowitz  voted against                                                               
it.   Therefore, SB 364 was  reported out of the  House Judiciary                                                               
Standing Committee by a vote of 5-2.                                                                                            
Number 0202                                                                                                                     
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 3:40 p.m.                                                                 

Document Name Date/Time Subjects