Legislature(1999 - 2000)
05/14/1999 02:48 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
May 14, 1999
2:48 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator Johnny Ellis
MEMBERS ABSENT
Senator John Torgerson
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 135(JUD) am
"An Act relating to use of eavesdropping and recording devices by
peace officers."
-MOVED SCSHB 135(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 151(JUD) am
"An Act relating to revocation and reinstatement of the driver's
license of a person at least 14 but not yet 21 years of age."
-HEARD AND HELD
CS FOR HOUSE BILL NO. 225(JUD)
"An Act relating to election campaigns and legislative ethics; and
providing for an effective date."
-HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
HB 225 - No previous Senate action.
WITNESS REGISTER
Cory Winchell
Staff to the House Judiciary Committee
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 135 and HB 151
Peter Torkelson
Staff to Representative Cowdery
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 225 for the sponsor
Chris Nelson
Staff to Senator Kelly
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Gave a sectional analysis of HB 225
Chip Wagoner, Chairman
Republican National Party
POSITION STATEMENT: Discussed amendments to HB 225
Brooke Miles
Alaska Public Offices Commission (APOC)
PO Box 110222
Juneau, AK 99811-0222
POSITION STATEMENT: Commented on proposed amendments
Susie Barnett
Select Committee on Legislative Ethics
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on Amendment 9
ACTION NARRATIVE
TAPE 99-34, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting
to order at 2:48 p.m. Present were Senators Halford, Donley,
Ellis, and Taylor.
HB 135-POLICE USE OF EAVESDROPPING DEVICES
CHAIRMAN TAYLOR informed committee members his concern with HB 135
is that he is fearful that the utilization of it may actually
preclude vital evidence from flowing into a courtroom, because none
of the evidence arrived at by having a "safety device" on an
officer can ever be used as a basis for a search warrant.
CORY WINCHELL, staff to the House Judiciary Committee, explained HB
135 is about officer safety. Alaskans enjoy a heightened degree of
privacy, a right embedded in the Alaska Constitution and laid down
in the Glass decision. HB 135 carefully carves a niche around the
Glass decision; it complies with that decision as much as possible
but it allows an officer to wear a wire for his or her own safety.
Any transmissions used or received by another officer, or anyone
else hearing the transmission, are inadmissible as evidence. In
addition, an officer cannot be forced to wear a wire, the officer
must consent. HB 135 will allow officers, when doing first-time
contacts with drug dealers, to wear safety wires.
Number 050
CHAIRMAN TAYLOR noted after watching a "cop show" on television
recently, he realized the patrol cars have built-in video cameras
and outdoor microphones that pick up conversations and road noise,
and the officers are frequently carrying a radio or tape recorder
to record conversations between the officer and the alleged
criminal. He questioned how that differs from the premise of HB
135, and why the videotape or recording should be precluded from
being used for evidentiary purposes. He noted there is no
restriction on any Alaskan from walking around with a tape recorder
and recording conversations.
MR. WINCHELL replied other jurisdictions around the United States
follow United States Supreme Court federal case law which uses an
expectation of privacy test. For example, if he and another were
discussing a drug deal, the fact that the discussion occurs lessens
the expectation of privacy because either person can tell others.
Alaska diverges from the Glass decision because Alaska's privacy
protections are a little bit different. The Department of Public
Safety (DPS) is so concerned about civil rights violations it will
not allow its officers to wear wires without a warrant, and it
wants clarification in statute. DPS was worried that if it did
violate a person's privacy rights, an action would be filed against
the Department.
CHAIRMAN TAYLOR asked whether an officer who pulls a suspected
drunk driver over can record the conversation. MR. WINCHELL said
a uniformed officer can.
CHAIRMAN TAYLOR asked if that is because of a lower expectation of
privacy.
MR. WINCHELL replied a recognized exception to the rule is that
when an officer is in uniform and engages a person in a
conversation, the general expectation is that the officer will be
taking notes or taping the conversation. He said if an undercover
officer showed a person a badge or informed a person of his/her
status, the same would apply. If an officer is undercover,
however, that is a different circumstance.
Number 105
CHAIRMAN TAYLOR repeated that his fear is that an officer cannot
communicate the conversation or use the information from the
conversation, even though it may reveal criminal activities about
to take place.
MR. WINCHELL clarified that the officer that hears the conversation
can use that information.
CHAIRMAN TAYLOR asked what would happen if that officer was killed.
MR. WINCHELL said that scenario is one that he and others are
working on, however no solution has been found yet because of the
Glass decision. He pointed out that the State of Pennsylvania
carved out an exception, but he was unaware of whether
Pennsylvania's Constitution is as stringent as Alaska's on the
matter of privacy. Pennsylvania's law allows use of the recorded
information if an officer is killed.
CHAIRMAN TAYLOR stated Alaska's Constitution is unique in that it
elevates privacy as a specific constitutional right. That right
has received numerous interpretations from Alaska's Supreme Court,
making it difficult to do all sorts of things that may infringe on
that right. He said he believes the legislation can work for the
limited purpose stated, but he is very troubled by the fact that
information may be received that cannot be used to prevent
additional or worse crimes than the crime the recording was
intended to protect the officer from.
MR. WINCHELL said Representative Kott echoes Chairman Taylor's
concern.
Number 174
CHAIRMAN TAYLOR asked whether the person listening to the wire
would not be part of the team working the case, because the sponsor
summary states that the back up officer may not testify in a
criminal proceeding involving a party to the oral communication
about the contents of the monitored conversation.
MR. WINCHELL replied they were trying to exclude the person
monitoring the conversation from a court proceeding, where they
might say, "...I heard Joe and then Fred talking about the cocaine
deal...." The wire would be for first-time encounters, and once
the relationship is established, more than sufficient probable
cause should be available to get a warrant so that officers can use
recordings from subsequent encounters. He repeated the intent of
HB 135 is to provide for officer safety to prevent an encounter
from elevating to a life-threatening situation.
SENATOR ELLIS asked for a copy of the Glass decision which Chairman
Taylor was able to provide.
SENATOR HALFORD asked if the Legislature can do anything to reverse
the Glass decision.
MR. WINCHELL thought the only thing Alaska could do is repeal the
privacy provision in the Constitution.
CHAIRMAN TAYLOR announced he would put HB 135 aside to give
committee members the chance to read the Glass decision, and HB 135
up later in the meeting.
HB 151-REVOCATION OF MINOR DRIVER'S LICENSE
CORY WINCHELL, staff to the House Judiciary Committee, made the
following comments on two work drafts before the Senate Judiciary
Committee, version B and version U. He informed committee members
an amendment will be proposed to both versions to correct an
oversight: the application of AS 11.71, which deals with drugs, was
inadvertently removed.
MR. WINCHELL explained that version B removes, from administrative
purview, the "use it-lose it" provision, and places purview in the
district courts. Violations will be a class A or B misdemeanor and
the court can issue all sorts of punishments. The "use it-lose it"
provision will be strengthened under the zero tolerance law in
which a minor's license is revoked for minor consuming for 180 days
for a first offense, and one year for a second offense.
MR. WINCHELL described version U as a hybrid that allows
administrative revocation to remain for the first two violations.
A minor's license would be revoked for 10 days for a first
violation; 30 days for a second violation; 90 days for a third
violation; and one year for a fourth violation. The third and
fourth violations would be noticed to the district court where
higher standards are applied, such as reasonable doubt. Violations
are concurrent in both versions B and U. The notice requirement for
an administrative revocation hearing has been increased from seven
to ten days.
CHAIRMAN TAYLOR informed committee members he has a proposed
amendment to address the administrative revocation versus court
revocation issue. He clarified that version U gives the minor two
chances before he/she goes to district court; version B requires
the minor to go to district court for all violations.
MR. WINCHELL stated version B recriminalizes consumption and
possession, but the "use it-lose it" provision only kicks in if a
minor is driving after drinking alcohol. MR. WINCHELL informed the
committee that a new committee substitute was being prepared that
includes the reference to the statute that deals with drug use.
CHAIRMAN TAYLOR announced the committee would take up HB 135 while
it waits for the committee substitute for HB 151 to be prepared.
Number 320
HB 135-POLICE USE OF EAVESDROPPING DEVICES
MR. WINCHELL explained a proposed amendment (Amendment 1) to HB
135, an amendment offered by Representative Kerttula on the House
floor. It clarifies that the officer doing the undercover work is
competent to testify, which was the House Judiciary Committee's
intent. Amendment 1 reads as follows.
Page 3, lines 22-23"
Delete "A peace officer monitoring a receiving unit under (a)
of this section or any other person intercepting an oral
communication transmitted under (a) of this section,"
Insert "A peace officer, or other person, who receives by any
means the transmission of an oral communication that has been
transmitted under (a) of this section"
Page 3, line 25:
Delete "intercepted"
Insert "transmitted"
CHAIRMAN TAYLOR asked if a person who picks up the transmission on
a scanner would be incompetent to testify. MR. WINCHELL said that
is correct. He explained that third parties, not privy to the
conversation but who hear it via the transmission, will become
incompetent. The original undercover officer would still be
competent to testify.
CHAIRMAN TAYLOR asked if HB 135 has to contain that provision to
comply with the Glass decision. MR. WINCHELL said yes, for the
reason that the court wants the warrant requirements for privacy
reasons. Warrants may not be obtainable for first time encounters
because probable cause may not be established.
SENATOR HALFORD moved to adopt Amendment 1. There being no
objection, Amendment 1 was adopted.
SENATOR DONLEY moved SCSHB 135(JUD) from committee with individual
recommendations. There being no objection, the motion carried.
CHAIRMAN TAYLOR announced the committee would take up HB 225 while
it continues to wait for the proposed committee substitute to HB
151.
Number 369
HB 225-CAMPAIGN FINANCE AND LEGISLATIVE ETHICS
PETER TORKELSON, legislative aide to Representative John Cowdery,
prime sponsor of HB 225, made the following comments. The House
Judiciary Committee version, CSHB 225(JUD), addresses two issues.
First, it resolves a technical error made in SB 105 last year. The
Legislature foresaw legal challenges to the original ethics law and
wisely enacted Session Law 1996, Section 12, Chapter 48, to self-
execute upon such time as the court may strike down portions of the
original ethics law. Recently the court did strike down a portion
of the ethics law. Chapter 46 is set to become law when the court
decision becomes final. Last year the Legislature passed SB 105
but inadvertently neglected to amend Chapter 46, so when it becomes
law in the next few weeks, it will repeal the actions made in SB
105. HB 225 amends Chapter 46 to allow the actions in SB 105 to
take effect. Second, HB 225 clarifies and codifies portions of the
ethics law that currently exist in ethics rulings, for example, use
of photographs and greeting cards.
Number 394
SENATOR DONLEY moved to adopt version M, dated 5/14/99, as the
proposed Senate Judiciary Committee substitute. SENATOR ELLIS
objected and noted he would voice his specific objections as
version M is discussed. The motion to adopt version M as the
proposed Senate Judiciary Committee substitute carried with
Senators Halford, Donley, and Taylor voting "yea," and Senator
Ellis voting "nay."
CHRIS NELSON, legislative aide to Senator Tim Kelly, stated two
years ago the Legislature passed a comprehensive ethics act that
was substantially similar to the initiative passed by the people.
That law has been challenged in court; parts of it have been
upheld, parts of it have not. The Legislature wants to encourage
people to run for office and to be involved in political
activities, but that process must avoid the appearance of
corruption. The contents of the proposed committee substitute are
not an attempt to overturn the current law, nor are they a major
revision of the law; the contents are a series of items that
respond to specific problem areas identified after having gone
through a complete campaign cycle. These adjustments can be made
to improve the law to encourage more individuals to participate in
the political process and to provide a system that encourages
public confidence.
MR. NELSON gave the following sectional analysis of version M. New
language was added to Section 4 that reads, "More than one group
may be registered by a candidate to support that candidate;
however, multiple groups controlled by a single candidate shall be
treated as a single group for the purposes of the contribution
limit in AS 15.13.070(b)(1)." This language allows an individual
the freedom to choose how many and which groups become active in
his or her campaign, but not for the purpose of collecting
contributions over the limit amount that was enacted and upheld by
the court.
Section 5 increases the campaign contribution limit of $1000 per
year to $2000 per year. One problem that has surfaced is that
while limits have been placed on contributions to campaigns,
corresponding limits were not placed on campaign costs.
Candidates and political activities are affected by the
marketplace; campaign costs are fixed by market factors and cannot
be limited. Providing the opportunity to spend more is a response
to market conditions, particularly when one considers the change to
Section 5, which allows campaign funds to be used for publicizing
and reporting the activities of an organized group as defined in
the statute cited. Essentially, this provision pertains to groups
formed within the Legislature, such as the Anchorage Caucus. Those
groups do not receive appropriations but travel and hold meetings
to seek constituent input and to report to constituents. When the
Anchorage Caucus last held a public meeting, funds to advertise
came from members' campaign funds.
CHAIRMAN TAYLOR questioned whether he could use his campaign funds
to purchase an airline ticket to attend a function sponsored by a
political party or a subordinate unit of a political party. He
also questioned how this provision would apply to the Governor's
use of the State Troopers' aircraft to travel to Kodiak to attend
a statewide gubernatorial debate and to hold two fundraisers. He
asked if the Governor and Lt. Governor will be limited to $2000
each, rather than the $80,000 of state funds they spent on their
campaign.
MR. NELSON claimed no expertise in that area.
Number 497
SENATOR DONLEY thought Chairman Taylor's concern was legitimate but
not within the scope of HB 225.
MR. NELSON said legislation that deals specifically with the
Governor and Lt. Governor who have access to those resources would
be unique; candidates for other offices do not have that kind of
access.
CHAIRMAN TAYLOR stated Section 5 only restricts people who are not
multimillionaires or incumbent governors.
MR. NELSON maintained Section 5 actually broadens a candidate's
ability to use campaign funds. The statute, however, does not
address other modes of transportation.
CHAIRMAN TAYLOR said he does not believe he could accept an
invitation to fly in a corporate aircraft to attend a function
because the flight would be considered a corporate contribution for
the value of the transportation. He asked if HB 225 applies to
gubernatorial candidates as well as House and Senate candidates.
MR. NELSON stated it does apply to gubernatorial candidates but
indicated that the example Chairman Taylor cited, of Governor
Knowles using state transportation to attend a political function,
would be covered under other ethics areas. HB 225 assumes that
candidates will be using commercial carriers and paying for their
travel. HB 225 enables them to do so in a more realistic way.
CHAIRMAN TAYLOR questioned whether any sections of HB 225 address
the Governor's use of state transportation as he was sure a
complete revision of the ethics law would not be drafted that
allowed such a gross abuse of state assets to continue.
MR. NELSON said perhaps an amendment could be offered that would
prohibit officeholders from using state funds to travel to
political party activities.
CHAIRMAN TAYLOR said that prohibition is in law but it is not
enforced.
Number 534
SENATOR ELLIS asked if the bill would allow members of the
Anchorage Caucus to purchase display advertising and promote a
meeting in Anchorage with campaign funds. He questioned why we
would want to allow that when government funds are an appropriate
expenditure for that sort of official government function. He
expressed concern about mixing political and government functions
too closely.
MR. NELSON asked Senator Ellis why he believes using campaign funds
would be inappropriate.
SENATOR ELLIS said it might appear that members of the Anchorage
Caucus were using campaign funds to publicize a meeting for the
name identification in the state's largest newspaper and for other
political benefits that accrue from holding those meetings. He
believes using campaign funds to advertise such meetings mixes
partisan campaign considerations with a government function.
SENATOR DONLEY maintained that would be similar to the Governor's
and Lt. Governor's use of state funds to pay for advertisements
inviting the public to talk to them during open door sessions,
which he did not find particularly offensive. He noted that
legislators do not have that sort of slush fund available, so the
provision in HB 225 provides groups of legislators with an
alternative method of financing meetings.
SENATOR ELLIS argued that legislators are given a $6,000 office
account and the Legislature has a multi-million dollar budget, so
they do have access to funds to use for Anchorage Caucus meetings.
To pool campaign funds together to pay for advertising for
Anchorage Caucus meetings mixes the political and governmental
arenas together and could increase cynicism on the part of the
public.
SENATOR DONLEY thought the public would appreciate that legislators
are not using public dollars.
MR. NELSON continued with the sectional analysis. Section 6
increases the time limit for collecting campaign contributions to
run for statewide office to accommodate the increasing costs of
campaigning in such a large state. Section 7 adds language that
allows corporations, companies, partnerships, firms, associations,
organizations, business trusts or sureties, labor unions, or
publicly funded entities to sponsor a political party event within
Alaska by paying for advertising, food, hall rentals, and other
expenses associated with the events. The costs of political party
events have traditionally been offset by groups or organizations
that support the goals of a particular party, but not to influence
a specific election.
TAPE 99-34, SIDE B
MR. NELSON explained the new language in Section 7 does not open
the door for corporate contributions to specific candidates. It
does support healthy and active political parties because they make
a positive contribution to the political process. By offsetting
the costs of party events, more individuals can afford to attend.
He noted the cost of attending a state convention has increased
dramatically as of result of the new ethics law, an unforeseen and
unintended consequence.
Number 574
CHAIRMAN TAYLOR asked whether he would be violating the law if he
made the maximum contribution allowable to the Democratic Party and
then attended a Democratic Party banquet which cost $50 per plate.
MR. NELSON said his understanding is he would not because Chairman
Taylor's limit to the party is separate from the contribution to
the campaign.
CHAIRMAN TAYLOR clarified he was referring to attending the party's
convention. He explained that every time a women's organization
held a monthly meeting in which lunch was available as a fundraiser
for $10, the women had to fill out a contribution form if they had
contributed the maximum amount. He noted people who want to be
politically active cannot contribute the maximum amount otherwise
they will be guilty of making additional contributions when buying
a hot dog at a convention and subject to criminal penalties.
MR. NELSON said he believes the criminal penalties were removed.
CHAIRMAN TAYLOR said the bill contains steep civil penalties.
MR. NELSON said, as a practical matter, there are not many
individuals in Alaska who contribute the maximum to a political
party. He suggested the parties give maximum donors a free ticket
to any party function.
CHAIRMAN TAYLOR expressed concern that these provisions spin out to
a point where they affect every political activity, such as putting
a poster in a store window.
MR. NELSON agreed, and said the store window scenario was a far
fetched interpretation that had a chilling effect on free speech
and free association in political activities. He said Section 7
differs, however, in that it is designed to look at party
activities and to allow groups who are prohibited from a direct
advocacy role in a campaign to support the building of vital,
active and productive political parties. He said his personal
opinion is that current law goes way too far in trying to restrict
free association and free speech, but without trying to change the
entire thrust of that law, major portions of which have been upheld
by the court, HB 225 is a vehicle to solve individual problems
within the existing law.
MR. NELSON explained Section 10 increases to $2,000 the amount
candidates can use from campaign contributions to pay for various
kinds of activities. Section 10 also pertains to meetings or
activities of organized groups of legislators as defined by
statute, such as the Bush or Anchorage Caucus. It allows
legislators to use campaign funds to defer the costs of
participating in those meetings.
MR. NELSON stated a new provision added to Section 11 allows
candidates to use unused campaign contributions to pay for thank
you advertisements. Section 11 also contains a provision that
repeals portions of the restrictions on transferring unused
campaign contributions into future election campaigns.
CHAIRMAN TAYLOR asked what amount a candidate can transfer.
MR. NELSON explained Section 13 establishes future election
accounts.
Number 484
SENATOR DONLEY noted Section 13 changes the structure of the
current carryovers from the particular seat a person ran for to
what seat they plan to run for. Under existing law, a
gubernatorial candidate can carryover $50,000 for any future
campaign, while a candidate for a House seat can only carryover
$5,000, even though they both may run for the same seat next time.
He thought those differing limits violate equal protection rights.
To level the playing field, the new section places a limit on the
amount of carryover allowed based on the seat the candidate plans
to run for.
MR. NELSON said Section 12 increases the limits on carry-over
property, such as computers used during a campaign, based on costs
and market factors. Subsection 1 is self-explanatory. Subsections
2, 3, and 4, address specific concerns raised and allow a candidate
to retain campaign photographs, seasonal greeting cards purchased
with campaign funds, and campaign signs prepared for a prior
election that have no monetary value.
MR. NELSON explained Section 13 addresses public office expense
accounts.
SENATOR ELLIS questioned what the term, "public office expense term
account reserve" refers to on page 10, line 12.
SENATOR DONLEY said that term is in existing law and refers to the
account from which legislators make deposits to their public office
expense accounts.
SENATOR ELLIS asked if this proposal changes the amount.
SENATOR DONLEY clarified this proposal parallels existing procedure
in current law; it increases the amount for Senate district
candidates to $10,000, and for House district candidates to $8,000.
MR. NELSON explained that voluntary accounting and legal services
were removed from the definition of "contribution" in Section 15.
Under existing law, services provided by an accountant or another
person to prepare reports and statements are not considered
contributions. Section 15 (iv) exempts services provided by legal
professionals to ensure that candidates, parties, and campaigns are
able to fully comply with the law by availing themselves of the
best legal counsel. A person who voluntarily serves as legal
counsel to the Republican Party can only offer services worth
$5,000 under existing law. MR. NELSON maintained that allowing
candidates and parties to have continuous legal advice serves a
good public purpose. Subsection (iv) also allows the accountant or
attorney to volunteer time on his/her own behalf, despite the
entity under which that individual conducts business.
CHAIRMAN TAYLOR asked if that provision applies to parties only.
MR. NELSON clarified it applies to a candidate, group, or political
party.
CHAIRMAN TAYLOR said a law school classmate of his now practices
for Boeing in Seattle. He also passed the Alaska Bar Exam. He
asked whether his friend could only contribute $5000 in services
toward Chairman Taylor's defense under current law if John Lindauer
filed a lawsuit against him.
MR. NELSON said serious questions have been raised about how much
time an individual can volunteer.
CHAIRMAN TAYLOR questioned whether that same logic was applied to
the last gubernatorial campaign when there was significant
involvement by a Chicago attorney who assisted a candidate. He
asked if those legal services were listed as a campaign
contribution or a cost. CHAIRMAN TAYLOR also questioned whether
the current law is applied to all candidates.
MR. NELSON said the enforcement of statutes is the job of the
Attorney General.
CHAIRMAN TAYLOR said he was asking whether the current law was
applied to those circumstances that Mr. Nelson indicated were a
problem and are the reason for amending the law. CHAIRMAN TAYLOR
stated," Obviously it's not a problem if it's okay to make that
kind of a monetary contribution to your own campaign if you're
wealthy, to hire whatever attorney you want in-state, out-of-state,
have two or three of them. That's not a problem. It's only a
problem if some attorney in-state wants to volunteer his time to
the Republican Party.
MR. NELSON said that is why Section 15 is being amended. He
explained the last thing added to Section 15, in response to a
question raised, is the removal from the definition of
"contributions" of the value to each candidate of mass mailings by
a political party, describing the party's slate of candidates,
which may include photographs and biographies of the party's
candidates.
CHAIRMAN TAYLOR asked if the mailing must include everyone on the
slate before it so qualifies.
MR. NELSON thought party rules would determine that. He noted one
prominent Alaska political figure refused to sign a letter on a
slate because it included a certain candidate. The decision was
made to remove the candidate from that particular mailing.
SENATOR DONLEY suggested removing the words "each of" on line 11,
page 12, to address Chairman Taylor's concern.
CHAIRMAN TAYLOR thought the removal of those words would have the
same effect. He noted a party might want to target a mailing at a
particular region and not contain all candidates.
SENATOR DONLEY said he thought a basic party function is to let
people know who its candidates are.
MR. NELSON stated Section 16 addresses questions raised about what
an office holder or staff member can do.
SENATOR DONLEY interjected that Section 16 is identical to the bill
that came from the House and that the committee has had this
language before it for about three weeks and has reviewed it.
SENATOR DONLEY also noted Section 17 clarifies, at the request of
APOC, that a particular caucus, such as the Children's Caucus,
could not be related to the individual's election campaign.
CHAIRMAN TAYLOR asked if an individual could receive a gift from
the Children's Caucus.
SENATOR DONLEY said the Children's Caucus could receive a gift to
cover the cost of meetings and other activities within the State of
Alaska.
CHAIRMAN TAYLOR asked if that could benefit legislators in some
way.
Number 290
SENATOR DONLEY said it would help them hold public meetings in
locations and it would allow the public to participate in the
public policy decision making process.
CHAIRMAN TAYLOR asked if this provision could apply to the NCSL, or
a situation in which legislators want to get together and a
corporate sponsor may want to make gifts so that the event could
occur.
SENATOR DONLEY said an organized group of legislators for caucuses
is defined in existing statute as, "other than the majority caucus,
minority caucus,...".
MR. NELSON concluded by saying the discussions about how
legislators stimulate political participation and activities in the
state are necessary. The initiative process, existing law, and
court decisions have provided the framework for the campaign
finance reform laws that people want. He said he personally finds
it troublesome and too restrictive but the framework has been put
in place. He thought this legislation is a good package for the
committee's consideration.
CHAIRMAN TAYLOR proposed an amendment (Amendment 1) to page 4,
lines 21 - 25 to read as follows.
Page 4, lines 21-25:
Delete all material and insert:
"(e) A campaign expenditure for goods or services
made by the candidate from personal funds or by cash,
personal check, or personal credit card and reimbursed to
the candidate by the campaign before the end of the
reporting period for the report due February 15 under AS
15.13. 110(a) is not a loan or contribution for purposes
of this section and shall be reported to the commission
as a campaign expenditure."
CHAIRMAN TAYLOR explained the amendment clarifies what has been a
confusing section within the law, Section 8, which said that if one
was to make an expenditure toward his/her own campaign out of
personal cash, check, credit card, or personal funds, that amount
would have to be reimbursed back to the donor within the reporting
period in which the expenditure was made. He said a candidate
would not be making that kind of expenditure in the last few days
of a campaign if he/she had the money from another source, so to
have to pay him/herself back in a few days is silly. He said this
will not affect the rules governing personal contributions.
CHAIRMAN TAYLOR moved to adopt Amendment 1. There being no
objection, Amendment 1 was adopted.
CHAIRMAN TAYLOR announced that Senator Hoffman proposed an
amendment (Amendment 2). He explained that Senator Hoffman employs
a Representative's son during the legislative session. Because of
the existing nepotism law, he cannot hire this same employee during
the interim. Amendment 2 amends the nepotism provision so that a
relative of a member from the other house could be employed during
the interim.
Amendment 2 reads as follows.
Page 5, following line 20:
Insert a new bill section to read:
"*Sec. 4. AS 24.60.090 is repealed and reenacted to read:
Sec. 24.60.090. Nepotism. (a) An individual who is
related to a member of the legislature may not be employed for
compensation
(1) during the legislative session of the house in which
the legislator is a member;
(2) by an agency of the legislature established under AS
24.20; or
(3) in either house during the interim between sessions.
(b) An individual who is related to a member of the
legislature may not be employed by the committee, whether for
compensation or not.
(c) An individual who is related to a legislative employee
may not be employed in a position over which the employee has
supervisory authority.
(d) Notwithstanding (a)(3) of this section, an individual who
is related to a member of the legislature may be employed in the
other house of the legislature during the interim between sessions
if, while the individual was disqualified from employment in either
house of the legislature during the interim under this section, the
individual worked for at least 100 days in each of four regular
legislative sessions.
(e) In this section,
(1) "an individual who is related to" means a member of
the legislator's or legislative employee's immediate family or a
person who is a legislator's or legislative employee's spousal
equivalent living together in a conjugal relationship not a legal
marriage with the legislator or legislative employee; and
(2) "interim between sessions" means the period beginning
on the eighth day after the legislature adjourns from a regular or
special session and ending eight days before the date that the
legislature next convenes in regular session under AS 24.05.090 or
in special session under AS 24.05.100;
(3) "other house of the legislature" means the house in
which the individual's relation is not a member.
Renumber the following bill sections accordingly.
Page 5, line 21:
Delete "sec. 5"
Insert "sec.6"
SENATOR DONLEY questioned the logic of the existing restriction.
SENATOR HALFORD explained the reason for the limit is that family
members of legislators are often stuck in Juneau so they were
allowed to work for the other body while in session, despite the
general prohibition against hiring relatives.
CHAIRMAN TAYLOR moved the adoption of Amendment 2. There being no
objection, the motion carried.
CHAIRMAN TAYLOR offered Amendment 3 (M.1) which reads as follows.
Page 5, line 12, following "may":
Insert
"(1) donate money, goods, or services to a political
party for the purpose of party administration, overhead,
party-building, and other uses that are not for the purpose of
influencing the nomination or election of a candidate and,
under AS 15.13.010(b), that are not for the purpose of
influencing a ballot proposition or question; and
(2)"
Page 5, line 14:
Delete "(1)"
Insert "(A)"
Page 5, line 17:
Delete "(2)"
Insert "(B) [(2)]"
Page 5, line 20:
Delete "(3)"
Insert "(C) [(3)]"
Page 5, line 22:
Delete "(4)"
Insert "(D)"
Number 172
SENATOR ELLIS objected because he believes Amendment 3 conflicts
with the spirit of the citizens' initiative. Allowing donations to
political parties for overhead will free up money parties can then
use for candidate contributions.
SENATOR DONLEY stated different versions of HB 225 have been before
the committee for three weeks, and those versions have been
consistent with the law that passed. Amendment 3 is a major
expansion of what can be directly donated to political parties, and
he is reluctant to make that change.
SENATOR HALFORD noted if the committee is looking at getting this
bill passed at this late date, it is less likely to happen with
controversial provisions.
A roll call vote was taken. The motion to adopt Amendment 3 failed
with Senators Halford and Taylor voting "yea," and Senators Donley
and Ellis voting "nay."
CHAIRMAN TAYLOR offered Amendment 4 which reads as follows.
Page 11, line 26, following "behalf of a":
Insert "political party."
Number 117
CHIP WAGONER, Republican National Committee Chairman, stated he is
the promoter of the packet of amendments before the committee. He
noted the adoption of the amendments would make APOC's and the
parties' lives a lot simpler. He explained that parties right now,
under the campaign finance law, are defined as groups, but they are
also separately defined as political parties. The Republican Party
does not have a problem with what the voters did in terms of
wanting to regulate attempts to influence an election. What the
sponsors of the initiative did not understand is that, unlike a
group, whose sole purpose may be to influence an election by
defeating a candidate or a bond issue, parties have other purposes.
The purpose of the series of amendments is to maintain the existing
prohibitions and limitations on parties with regard to their
attempts to influence anything, but to give the parties a little
bit of leeway in terms of those things that have nothing to do with
trying to influence an election, i.e. a state convention.
CHAIRMAN TAYLOR noted he thought Amendment 4 was taken care of in
the committee substitute in the provision that deals with volunteer
attorneys and others.
MR. WAGONER suggested inserting the words "political party" on
lines 1 and 2 in that section of the bill because although APOC
includes political parties in that provision, it would prefer to
have it specifically spelled out in statute.
SENATOR DONLEY asked for an opinion on Amendment 4 from an APOC
representative.
BROOKE MILES, APOC, stated APOC has no problem with including the
term "political party" on line 26.
CHAIRMAN TAYLOR clarified the second part of Amendment 4 is
included in the proposed committee substitute, therefore Amendment
4 would only add the term "political party" to page 11, line 26.
There being no objection, Amendment 4 was adopted.
MR. WAGONER informed committee members he was working off of a
different version of the proposed committee substitute. He noted
Amendment 5 is similar to Amendment 3 which previously failed. He
explained the purpose of the amendment is to allow an individual to
donate money, goods or services to a political party for the
purpose of party administration overhead, party building, and other
uses not associated with the nomination or election of a candidate.
Amendment 5 would directly take care of the problem raised by
Chairman Taylor earlier in which a person who made the maximum
contribution to a political party could not pay to attend a
convention. Mr. Wagoner said he does not believe APOC is opposed
to Amendment 5.
TAPE 99-35, SIDE A
BROOKE MILES said that APOC has been sensitive to its interaction
with the political parties since the campaign finance reform law
was enacted. For example, when issues with the most recent
Republican Party convention arose in which it could not use its
customary business support for that function, APOC wished that the
law could be interpreted to allow that. Amendment 5 would set up
a different system for the parties; they would have both an
administrative and political branch. In essence, that system would
free up a lot of money that could be used for candidate campaigns.
The Republican National Party uses this system and has segregated
funds.
CHAIRMAN TAYLOR verified the Republican National Party keeps two
sets of books; one for the administrative arm, and one for the
political arm.
SENATOR ELLIS maintained that would not be a good model for Alaska
given the large number of problems that have occurred on the
national level.
MR. WAGONER thought it would make the parties' efforts to comply
with the campaign finance laws much easier and it would make the
efforts of APOC staff to enforce those laws much easier as well.
SENATOR ELLIS noted his objection to adopting Amendment 5 was based
on the same reason he opposed Amendment 3.
The motion to adopt Amendment 5 failed with Senators Donley,
Halford, and Ellis voting "nay," and Chairman Taylor voting "yea."
Number 060
MR. WAGONER explained Amendment 6 eliminates part of the definition
of the word "expenditure" that relates to anything of value
incurred or made for the purpose of use by a political party. The
existing law makes every single dime spent by a political party
subject to APOC regulations. If a party spends money trying to
influence an election, or the outcome of a ballot proposition, that
should be regulated and the public should know about it. However,
if a party pays a bookkeeper to pay electric bills, that
expenditure should not have to be reported to APOC. Amendment 6
eliminates such expenditures from the definition.
Amendment 6 reads as follows.
Page 12, following line 11:
Insert a new bill section to read:
"Sec.16 AS 15.13.400(4) is amended to read:
(4) "expenditure"
(A) means a purchase or a transfer of money or
anything of value, or promise or agreement to purchase or
transfer money or anything of value, incurred or made for the
purpose of
(i) influencing the nomination or election of
a candidate or of any individual who files for nomination
at a later date and becomes a candidate;
(ii) [USE BY A POLITICAL PARTY;
(iii)] the payment by a person other than a
candidate or political party of compensation for the
personal services of another person that are rendered to
a candidate or political party; or
(iii) [(iv)] influencing the outcome of a
ballot proposition or question;
(B) does not include a candidate's filing fee or the
cost of preparing reports and statements required by this
chapter;"
Renumber the following bill sections accordingly.
Page 15, line 29:
Delete "sec. 21"
Insert "sec. 22"
Page 15, line 31:
Delete "sec. 20"
Insert "sec. 21"
CHAIRMAN TAYLOR moved the adoption of Amendment 6. SENATOR ELLIS
objected and stated he is aware that it is difficult for all
political parties to adjust to the realities of the new law,
however, he sees no reason to limit the amount of public
information available because all expenditures are interconnected.
The motion to adopt Amendment 6 failed with Senators Halford and
Taylor voting "yea," and Senators Donley and Ellis voting "nay."
Number 100
CHAIRMAN TAYLOR offered Amendment 7 which reads as follows.
Page 12, following line 10:
Insert a new bill section to read:
"*Sec.16 AS 15.13.400 is amended by adding a new paragraph to
read:
(12) "influence" or "influencing" means the use of
explicit words of advocacy for
(A) the nomination, election, or defeat of a
clearly identified candidate; or
(B) the adoption or defeat of a clearly
identified ballot proposition or question."
Renumber the following bill sections accordingly.
Page 15, line 29:
Delete "sec.21"
Insert "sec. 22"
Page 15, line 31:
Delete "sec. 20"
Insert "sec. 21"
MR. WAGONER explained the key word of the entire campaign finance
law is the word "influence." That word is not currently defined in
Alaska Statute, it is however defined in U.S. Supreme Court case
law, i.e., Buckley v. Vallejo. The definition in Amendment 7 meets
the express advocacy test in Buckley v. Vallejo and provides more
of a bright line test between issue advocacy versus trying to
influence or defeat a candidate.
MS. MILES agreed with Mr. Wagoner in that this definition is the
term of art in the United States Supreme Court Case, Buckley v.
Vallejo. When APOC deliberates a case involving activities
conducted to influence, it uses the definition provided in that
case.
SENATOR ELLIS objected to the adoption of Amendment 7 and stated it
appears the amendment is intended to open a door that would allow
a party to spend money in an election to endorse a candidate
without using words of advocacy.
MS. MILES noted if political parties are required to continue
disclosing expenditures to APOC, it does not make much sense to
open this area.
The motion to adopt Amendment 7 failed with Senators Donley, Ellis,
and Halford voting "nay," and Chairman Taylor voting "yea."
Number 188
CHAIRMAN TAYLOR moved to delete the words "of each" from page 12,
line 11 (Amendment 8), which relates to mass mailings by political
parties and would not require all party candidates to be included.
SENATOR ELLIS asked if one candidate is omitted from the slate,
would the fact that the others are included be considered a party
contribution.
CHAIRMAN TAYLOR clarified his intent is to prevent political
parties from having to include all candidates in mass mailings
targeted at specific zip codes.
SENATOR ELLIS said he understands Chairman Taylor's point and does
not object to it, however he does not understand why the valuable
exposure provided to certain candidates is not counted against the
party contribution limit.
SENATOR DONLEY pointed out political parties should be able to tell
people who their candidates are.
SENATOR ELLIS agreed but thought that service should count as a
contribution.
SENATOR DONLEY indicated it might be very difficult to proportion
out the percentage of each candidate's benefit from each mailing
when the pamphlet may contain a combination of candidates from
different districts. He maintained it is unnecessary and that by
putting a financial limit on it, mass mailings will become complex
and difficult to administer.
CHAIRMAN TAYLOR added it would come down to measuring the size of
the print on the page, the value of the placement on the page, the
number of people on each page, etcetera.
MR. NELSON informed committee members he has worked on several
campaigns, and this issue is a can of worms. The typical slate
contains both state and federal candidates, in which case the
federal law applies. Three years ago, he divided the slate mailer
with all state candidates on it three mailers, because of the
number of pictures that fit on a page. He agreed with Senator
Donley that this activity should be considered a basic party
function, and that constraining that activity will have a chilling
effect on party activities. He did not believe the constraint
would serve any good public purpose.
The motion to adopt Amendment 8 carried with Senators Halford,
Donley and Taylor voting "yea," and Senator Ellis voting "nay."
CHAIRMAN TAYLOR offered Amendment 9 as a conceptual amendment.
Amendment 9 would add language to Amendment 2, which was adopted,
to read:
On page 1, line 10, insert
(4) as a registered lobbyist or by a registered lobbyist.
SENATOR DONLEY cautioned that language is outside of the title of
the bill because nepotism falls under legislative ethics and
lobbying is a separate issue.
CHAIRMAN TAYLOR thought it would fall under the legislative ethics
portion of the title because the legislator would need to resign if
related to, or married to, a lobbyist.
SENATOR ELLIS said Chairman Taylor might want to make sure his
conceptual amendment covers subcontracts and other financial
arrangements that differ from direct employment.
SUSIE BARNETT, Select Committee on Legislative Ethics, noted
Section 24.60.070 relates to close economic associations and would
also need to be amended. She recounted that last year when the
bill was amended, legislators decided not to ban lobbyists, but
required disclosure under close economic association.
CHAIRMAN TAYLOR said he would include in Amendment 9 modification
of the disclosure and close economic association requirements to
make those sections consistent with the intent.
SENATOR DONLEY objected to the adoption of Amendment 9. The motion
to adopt Amendment 9 carried with Senators Ellis, Halford, and
Taylor voting "yea," and Senator Donley voting "nay."
CHAIRMAN TAYLOR stated he would have a new committee substitute
that incorporates today's amendments prepared for the meeting
tomorrow. There being no further business to come before the
committee, CHAIRMAN TAYLOR adjourned the meeting at 4:45 p.m.
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