03/17/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB284 | |
| Confirmations | |
| SB284 | |
| SB297 | |
| SB202 | |
| SB284 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 202 | TELECONFERENCED | |
| *+ | SB 297 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 284 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 17, 2010
1:38 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Dennis Egan
Senator Lesil McGuire
Senator John Coghill
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 284
"An Act relating to state election campaigns, the duties of the
Alaska Public Offices Commission, the reporting and disclosure
of expenditures and independent expenditures, the filing of
reports, and the identification of certain communications in
state election campaigns; and providing for an effective date."
- MOVED CSSB 284(JUD) OUT OF COMMITTEE
CONFIRMATIONS:
Alaska Public Offices Commission
Elizabeth Johnston Hickerson
Kathleen J. King
CONFIRMATIONS ADVANCED
Violent Crimes Compensation Board
Nora G Barlow
Gerad G. Godfrey
CONFIRMATIONS ADVANCED
Board of Governors of the Alaska Bar
Donald McLean, D.D.S.
CONFIRMATION ADVANCED
Board of Parole
Richard O. Larson
CONFIRMATION ADVANCED
Public Defender
Quinlan Steiner
CONFIRMATION ADVANCED
SENATE BILL NO. 202
"An Act relating to the commission of a crime when the defendant
directed the conduct constituting the crime at the victim based
on the victim's race, sex, color, creed, physical or mental
disability, sexual orientation, ancestry, or national origin."
- CSSB 202(JUD) OUT OF COMMITTEE
SENATE BILL NO. 297
"An Act providing for the release of property in the custody of
a law enforcement agency to the owner under certain conditions."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 284
SHORT TITLE: CAMPAIGN EXPENDITURES
SPONSOR(s): JUDICIARY
02/19/10 (S) READ THE FIRST TIME - REFERRALS
02/19/10 (S) STA, JUD
03/02/10 (S) STA RPT 5DP
03/02/10 (S) DP: MENARD, FRENCH, MEYER, PASKVAN,
KOOKESH
03/02/10 (S) FIN REFERRAL ADDED
03/02/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg)
03/02/10 (S) Moved SB 284 Out of Committee
03/02/10 (S) MINUTE(STA)
03/08/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/08/10 (S) Heard & Held
03/08/10 (S) MINUTE(JUD)
03/12/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/12/10 (S) Heard & Held
03/12/10 (S) MINUTE(JUD)
03/15/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/15/10 (S) Heard & Held
03/15/10 (S) MINUTE(JUD)
03/17/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 202
SHORT TITLE: HATE CRIMES
SPONSOR(s): DAVIS
01/19/10 (S) PREFILE RELEASED 1/8/10
01/19/10 (S) READ THE FIRST TIME - REFERRALS
01/19/10 (S) JUD, FIN
03/08/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/08/10 (S) Heard & Held
03/08/10 (S) MINUTE(JUD)
03/17/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 297
SHORT TITLE: RETURN OF SEIZED PROPERTY
SPONSOR(s): DYSON
02/24/10 (S) READ THE FIRST TIME - REFERRALS
02/24/10 (S) JUD, FIN
03/17/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
QUINLAN STEINER, Appointee
Public Defender for the State of Alaska
POSITION STATEMENT: Testified as appointee to the position of
public defender for the State of Alaska.
GERAD G. GODFREY, Appointee
Violent Crimes Compensation Board
POSITION STATEMENT: Testified as appointee to the Violent
Crimes Compensation Board.
ELIZABETH JOHNSTON HICKERSON, Appointee
Alaska Public Offices Commission
POSITION STATEMENT: Testified as appointee to the Alaska Public
Offices Commission.
KATHLEEN J. KING, Appointee
Alaska Public Offices Commission
POSITION STATEMENT: Testified as appointee to the Alaska Public
Offices Commission.
DONALD McLean, D.D.S., Appointee
Board of Governors of the Alaska Bar
POSITION STATEMENT: Testified as appointee to the Board of
Governors of the Alaska Bar.
RICHARD O. LARSON, Appointee
State Board of Parole
POSITION STATEMENT: Testified as appointee to the State Board
of Parole.
SENATOR FRED DYSON
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of SB 297.
CHUCK KOPP, Staff
to Senator Dyson
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Presented information and responded to
questions related to SB 297 on behalf of the sponsor.
ANNE CARPENETI, Attorney
Criminal Division
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Testified that DOL supports SB 297 in
concept but it has some practical concerns.
JOHN PTACIN, Assistant Attorney General
Department of Law (DOL), stated that he doesn't believe that
preemption is a great concern here.
POSITION STATEMENT: Testified that Amendment 4 to SB 284,
version E, would not present much preemption risk.
ALPHEUS BULLARD, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, AK
POSITION STATEMENT: Provided information related to the
amendments to SB 284, version E, which he had drafted.
ACTION NARRATIVE
1:38:11 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:38 p.m. Senators Wielechowski,
Coghill, and French were present at the call to order.
SB 284-CAMPAIGN EXPENDITURES
1:38:59 PM
CHAIR FRENCH announced the consideration of SB 284 and asked for
a motion to adopt the committee substitute (CS) that
incorporates the amendments that were adopted at the 3/15/10
hearing.
1:39:34 PM
SENATOR WIELECHOWSKI moved to adopt CS for SB 284, labeled 26-
LS1448\E, as the working document. There being no objection,
version E was before the committee.
CHAIR FRENCH moved to adopt Amendment 1, labeled 26-LS1448\E.1,
and objected for discussion purposes. He explained that the
drafter suggested that it would be helpful to the Alaska Public
Offices Commission (APOC) to include definitions for "director"
and "officer" for this new subsection.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 284(JUD), Draft Version "E"
Page 4, following line 5:
Insert a new bill section to read:
"* Sec. 7. AS 15.13.040 is amended by adding a new
subsection to read:
(q) For purposes of (e) of this section,
(1) "director" means a member of the
board of directors of a corporation or
any person performing a similar
function with respect to any
organization;
(2) "officer" means a president, vice
president, secretary, or treasurer,
principal financial officer, or
comptroller of a corporation, or any
person routinely performing functions
similar to those of a president, vice
president, secretary, or treasurer,
principal financial officer, or
comptroller with respect to any
organization."
Renumber the following bill sections accordingly.
SENATOR WIELECHOWSKI asked if APOC requested the definitions.
CHAIR FRENCH replied he wouldn't make that representation, but
the definitions will probably help APOC now that directors and
officers must be identified in campaign advertisements. He noted
that John Ptacin with the Department of Law (DOL) also suggested
that this would be helpful to APOC.
SENATOR WIELECHOWSKI asked if there was any rationale for adding
this in Section 7 as opposed to the end of the bill where
definitions usually are found.
1:42:08 PM
CHAIR FRENCH pointed out that it would fall at the end of the
lengthy disclosure statute, AS 15.13.040. It refers to bill
Section 4, which amends AS 15.13.040(e). Much of this section is
new language and page 3, lines 22-23, talks about officers and
directors. The definitions will probably help APOC understand
who is supposed to report, he said.
SENATOR WIELECHOWSKI said he had no objection to the amendment.
1:44:10 PM
CHAIR FRENCH withdrew his objection to Amendment 1. Finding no
further objection, he announced that Amendment 1 is adopted.
1:44:20 PM
CHAIR FRENCH moved to adopt Amendment 2, labeled 26-LS1448\E.3,
and objected for discussion purposes.
AMENDMENT 2
OFFERED IN THE SENATE BY SENATORS FRENCH AND COGHILL
TO: CSSB 284(JUD), Draft Version "E"
Page 5, line 17, through page 6, line 4:
Delete all material and insert:
"Sec. 15.13.090. Identification of
communication. (a) All communications shall be
clearly identified by the words "paid for by"
followed by the name and address of the person
[CANDIDATE, GROUP, NONGROUP ENTITY, OR
INDIVIDUAL] paying for the communication. In
addition, a person shall clearly
(1) provide the person's address or
the person's principal place of business;
(2) for a person other than an
individual or candidate, include
(A) the name and title of the
person's principal officer;
(B) a statement from the
principal officer approving the communication;
and
(C) identification of the name
and city and state of residence or principal
place of business, as applicable, of each of the
person's five largest contributors under
AS 15.13.040(e)(5), if any, during the 12-month
period before the date of the communication
[CANDIDATES AND GROUPS MAY IDENTIFY THE NAME OF
THEIR CAMPAIGN CHAIRPERSON]."
Page 6, line 16:
Delete "(a)(2)(C)"
Insert "(a)(1)"
Page 6, line 17:
Delete "(a)(2)(D)"
Insert "(a)(2)(C)"
Page 6, line 26:
Delete "AS 15.13.090(a)(2)(D)"
Insert "AS 15.13.090(a)(2)(C)"
CHAIR FRENCH explained that Amendment 2 is about disclaimer to
the public, identifying the communications that are advertised.
It addresses much of an amendment to version R that Senator
Coghill offered and withdrew during the 3/15/10 hearing.
Basically, it rewrites the language in Section 11 of the current
draft removing the idea that candidates and groups may identify
persons associated with their campaign and clearly stating that
every person shall provide that identifying information.
Candidates do this now, he said. He pointed out that the
amendment further says that persons other than an individual
candidate must provide the name and title of the principal
officer; a statement from that officer approving the
communication; and the name, city, and state of the principal
residence or place of business of each of the person's five
largest contributors during the 12-month period before the
communication. The balance of the amendment makes conforming
changes.
1:46:25 PM
SENATOR COGHILL opined that this makes it easier to understand
and it puts parity between candidates and persons. He said he
still objects to reading aloud the five largest contributors
because it will be awkward, but he'll work with it in this
committee.
CHAIR FRENCH removed his objection to Amendment 2. Finding no
further objection, he announced that Amendment 2 is adopted.
CHAIR FRENCH set SB 284 aside for the time being.
^CONFIRMATIONS
CHAIR FRENCH announced the next order of business would be
confirmation hearings.
1:48:49 PM
KATHLEEN KING, Appointee, Alaska Public Offices Commission, said
she was appointed to the commission about a year ago and during
that time she has worked on mitigation criteria and rewriting
some APOC practices and procedures. The Citizens United ruling
brings some problems and a great deal of work, and she looks
forward to being an effective tool in helping to surmount some
of this.
CHAIR FRENCH mentioned the Pebble Mine case and asked if she has
enjoyed sitting in judgment on large cases like that.
MS. KING replied she has enjoyed it. She added that she's not an
attorney but she's been involved in the legal field for about 25
years, sometimes sitting as an arbiter and judge. This adds to
that experience, she said.
CHAIR FRENCH and Senator Coghill thanked Ms. King for her
service.
1:51:31 PM
Dr. DONALD MCLEAN, D.D.S., Appointee, Board of Governors of the
Alaska Bar, said he had been in practice as a dentist since 1981
and had served as a public member on the Board of Governors of
the Alaska Bar for the past three years. He opined that his
reappointment would provide continuity to the board, and that he
is well suited for the position because he's willing to speak up
and say what appears to be important at the time.
CHAIR FRENCH and Senator Coghill thanked Dr. McLean for his
service.
1:54:52 PM
ELIZABETH JOHNSTON HICKERSON, Appointee, Alaska Public Offices
Commission, said she has served on the commission since 2006 and
it's been a very good experience. She would like to continue to
serve because she wants to finish some things that she helped
start.
1:56:54 PM
SENATOR EGAN joined the committee.
CHAIR FRENCH asked if the APOC work leaves time to pursue
another livelihood.
MS. HICKERSON replied the APOC meetings represent just a
fraction of what the commissioners are asked to do so it's very
time consuming, but she does have time to volunteer at her son's
school and to do work for the church.
CHAIR FRENCH thanked Ms. Hickerson and noted that the other
members indicated their appreciation for her continued service.
1:58:50 PM
GERAD G. GODFREY, Appointee, Violent Crimes Compensation Board,
said he has been serving since 2003. At first his purpose in
serving was personal having had family members who were victims
of violent crime. It was somewhat cathartic to be able to make
something good come of his family tragedy, he said. Since that
time he has learned a lot and feels that the board has made a
difference for other innocent victims of violent crimes. The
board has had a good relationship with the Legislature and has
worked hand-in-hand on a number of policy issues. Senators
French and Coghill have been particularly helpful and welcoming,
he said. Having the Legislature as a willing partner is in large
part why he is willing to serve another term.
CHAIR FRENCH, Senator Coghill, and Senator Egan each thanked Mr.
Godfrey and expressed gratitude that he was willing to serve
another term.
2:03:26 PM
RICHARD O. LARSON, Appointee, Parole Board, related that he
served 29 years for the Alaska Department of Corrections (DOC)
and he believes that experience and training could be useful to
the Parole Board. He currently serves on the Matanuska School
Board and he can see that this would be a good combination. He
said he hoped to be a positive influence.
CHAIR FRENCH asked if he had occasion to attend any Parole Board
hearings when he worked with DOC.
MR. LARSON replied he did not; he oversaw probation and parole
and prepared information for the Parole Board.
CHAIR FRENCH noted that Mr. Larson had been involved in
corrections since 1976.
MR. LARSON said that's correct; he started working at McLaughlin
Youth Center in 1976 and retired as the superintendant of Mat-Su
Pretrial in 2005.
CHAIR FRENCH expressed confidence that he would bring an
excellent perspective to the Parole Board and wished him good
luck in his service.
2:06:31 PM
QUINLAN STEINER, Appointee, Public Defender for the State of
Alaska, said this is his fifth year as public defender. He came
to the position with an idea about changes that could make the
agency stronger and more efficient. These plans have been
successfully implemented, but they are ongoing and he would like
to continue to work on them.
He recounted the work he's done to boost the recruiting and
training programs in an effort to have better trained attorneys;
to decrease the turnover rate and increase experience levels;
and to restructure the agency to promote better supervision of
the cases. The latter included breaking the agency into regional
sections with three separate divisions, which gives supervisors
more direct control over case management. All of these changes
have helped clients, improved the quality of the representation,
and been more efficient, he said.
MR. STEINER said the agency is also focused on information
management. Now paralegals do more discovery and document
management, which is more efficient and the outcomes for the
cases are better. The process is still paper-oriented but he
would like to see that shift to electronic transfer of
information. He related that he is working on that initiative
through the criminal justice working group. The PDA has procured
and implemented a new case management system to help accommodate
that, he said.
2:09:57 PM
CHAIR FRENCH noted that his resume indicated that in 1992 he
served as a loan officer for a bank in Juneau.
MR. STEINER related that after he graduated from college he
worked in the National Bank of Alaska (NBA) training program
eventually becoming a loan officer in Juneau. Although he
enjoyed the experience he decided he would prefer a legal
career. He became a public defender immediately after graduation
and has been one since.
CHAIR FRENCH said he knew Mr. Steiner privately and
professionally and was happy he was willing to serve again.
SENATOR COGHILL thanked Mr. Steiner for his work and for helping
him understand more about public defending.
CHAIR FRENCH said that concludes the interviews and stated the
following:
In accordance with AS 39.05.080 and AS 18.85.030, the
Senate Judiciary Standing Committee reviewed the
following and recommends the appointments be forwarded
to a joint session for consideration: Board of
Governors of the Alaska Bar - Donald McLean; Public
Defender - Quinlan Steiner; Alaska Public Offices
Commission - Elisabeth Hickerson; Alaska Public
Offices Commission - Kathleen King; Violent Crimes
Compensation Board - Gerad Godfred; [and Parole Board
- Richard Larson]. This does not reflect an intent by
any members to vote for or against the confirmation of
the individuals during any other sessions.
CHAIR FRENCH found no objection and announced that the names
would be forwarded.
SB 284-CAMPAIGN EXPENDITURES
2:14:06 PM
CHAIR FRENCH returned attention to SB 284. He moved to adopt
Amendment 3, labeled 26-LS1448\E.2, and objected for discussion
purposes.
AMENDMENT 3
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 284(JUD), Draft Version "E"
Page 5, line 24, following "(2)":
Insert "except as provided by (d) of this
section,"
Page 6, line 15:
Delete "a new subsection"
Insert "new subsections"
Page 6, line 17, following "section,":
Insert "a communication that includes a print or
video component must have"
Page 6, lines 17 - 18:
Delete "must be read, in a manner that is easily
heard, or"
Page 6, lines 19 - 21:
Delete ", or, in a communication that is
transmitted by a method that includes both audio and
video components, be read in a manner that is easily
heard and placed in the communication so as to be
easily discernable"
Page 6, following line 26:
Insert a new subsection to read:
"(d) Notwithstanding the requirements of
(a)(2)(A) - (D) of this section, in a
communication transmitted through radio or other
audio media and in the communication that
includes an audio component, the following
statement or statements, as applicable, must be
read in a manner that is easily heard:
This communication was paid for by (person's
name).
I am (name and, if applicable, title of the
principal officer of the person) and I
approve this message.
The top contributors of (person's name) are
(the name of the largest contributors to the
person under AS 15.13.090(a)(2)(D))."
CHAIR FRENCH explained that this amendment separates the
different disclaimers to the public that are required when an
advertisement is in print versus either the radio or television.
The idea is to reduce the amount of speaking in an audio
advertisement so that it isn't onerous. He clarified that this
pertains to ads by corporations or unions, not individual
candidates.
SENATOR EGAN said he appreciates the amendment and if it needs
tweaking after the next election cycle it can be addressed next
year.
CHAIR FRENCH said that's a good point for the entire bill. We'll
make it as strong as possible, but I have no doubt we'll revisit
this topic in the near future, he said.
2:17:20 PM
CHAIR FRENCH removed his objection to Amendment 3. Finding no
further objection, he announced that Amendment 3 is adopted.
CHAIR FRENCH set SB 284 aside for the time being.
SB 297-RETURN OF SEIZED PROPERTY
2:17:57 PM
CHAIR FRENCH announced the consideration of SB 297.
SENATOR FRED DYSON, sponsor of SB 297, noted that he has a
committee substitute (CS) to propose.
2:18:46 PM
CHUCK KOPP, Staff to Senator Dyson, said SB 297 ensures that
seized property is held only as long as is necessary so as to
not jeopardize the case. The bill provides in Title 12 an
identifiable process for an individual to petition the court for
the recovery of their property in circumstances where they are
not otherwise able to reach agreement with interested parties.
MR. KOPP related that prosecutors statewide have indicated that
the current process could use refinement, particularly when the
property is of significant value. The Alaska Peace Officers'
Association has endorsed the proposed CS, which additionally
states that within 10 days of a request for return of property
and upon reasonable notice to interested parties, the agency
shall request a hearing before the court.
CHAIR FRENCH asked for a motion to adopt the CS.
2:21:49 PM
SENATOR COGHILL moved to adopt the judiciary work draft CS for
SB 297, labeled 26-LS1536\R, as the working document. There
being no objection, version R was before the committee.
CHAIR FRENCH noted the letter of support from law enforcement
and asked the sponsor if he had anything else to say about the
bill.
SENATOR DYSON related anecdotal stories to demonstrate the need
and noted that some heavy equipment operators don't call the
police when their equipment is stolen because the return time is
too long.
2:24:53 PM
ANNE CARPENETI, Attorney, Criminal Division, Department of Law
(DOL), said getting property back to victims of crime is very
important, but the problem is that the state sometimes needs to
hold the seized property as evidence in a criminal procedure.
The defense often has an interest in that too. She said she is
concerned and would like to talk to the sponsor about the 10-day
limit for retaining the property after a request and the
provision that allows both the defense bar and the prosecution
to weigh in. If the police have to give the evidence back it
breaks the chain of custody. She also suggested the possibility
of cross referencing this with other bills. For example, a bill
under consideration now pertains to retention of evidence for a
long period of time. She summarized that the bill is generally a
good idea and DOL could support the concept but it has concerns.
2:27:19 PM
SENATOR MCGUIRE joined the committee.
CHAIR FRENCH asked Ms. Carpeneti at the next hearing to provide
concrete ideas about how to address the concerns she articulated
and announced he would hold SB 297 in committee.
SB 202-HATE CRIMES
2:28:06 PM
CHAIR FRENCH announced the consideration of SB 202 and asked for
a motion to adopt the proposed committee substitute (CS).
SENATOR WIELECHOWSKI moved to adopt the judiciary work draft CS
for SB 202, labeled 26-LS1097\E, as the working document. There
being no objection, version E was before the committee.
CHAIR FRENCH explained that the CS was prepared at his request
to add "gender identity" to the list of improper objects of
crime. It provides a definition of gender identity and adds it
to the aggravator statute for the same reason that sexual
orientation was added.
2:29:29 PM
THOMAS OBERMEYER, Staff to Senator Bettye Davis, sponsor of SB
202, said the CS is appropriate.
CHAIR FRENCH asked for committee discussion or a motion.
SENATOR EGAN moved to report CS for SB 202 from committee [with
individual recommendations and attached fiscal note(s).]
SENATOR COGHILL objected. He expressed the view that the crimes
that are currently on the books already include these crimes
that are based on motivation of prejudice, bias or hatred. He
said he agrees that if it were law it should be in the
aggravator statute, but he isn't ready to go there yet.
2:31:50 PM
CHAIR FRENCH said that as a former prosecutor he is very
familiar with the idea of proving an individual's intent to a
jury and it is not easy. Because it is so difficult to prove
intent, he believes that this statute would be used extremely
infrequently should this become law. He pointed out that before
anyone would be convicted of this crime, a jury would have to
decide unanimously and beyond a reasonable doubt that the
individual's conduct was directed at the victim for the reasons
listed in the statute.
A roll call vote was taken and the motion passed 3:2 with
Senators Wielechowski, Egan, and French voting yea and Senators
Coghill and McGuire voting nay. Therefore, CSSB 202(JUD) moved
from the Senate Judiciary Standing Committee.
At ease from 2:33 p.m. to 2:34 p.m.
SB 284-CAMPAIGN EXPENDITURES
2:34:41 PM
CHAIR FRENCH returned attention to SB 284.
SENATOR WIELECHOWSKI moved to adopt Amendment 4, labeled 26-
LS1448\E.4.
AMENDMENT 4
OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI
TO: CSSB 284(JUD), Draft Version "E"
Page 1, line 4, following "campaigns;":
Insert "prohibiting expenditures and
contributions by foreign nations in state elections;"
Page 4, following line 28:
Insert a new bill section to read:
"* Sec. 9. AS 15.13 is amended by adding a new
section to read:
Sec. 15.13.068. Expenditures and
contributions by foreign nationals. (a) A foreign
national may not, directly or indirectly, in
connection with an election under this chapter,
make a contribution or expenditure or make an
express or implied promise to make a contribution
or expenditure.
(b) In this section, "foreign national"
includes
(1) an individual who is not a United
States citizen or lawfully admitted for permanent
residence under 8 U.S.C. 1101(a)(20);
(2) a foreign government, every
political subdivision of a foreign government,
every official, agent, or representative of a
foreign government, and every agency,
corporation, or instrumentality of the foreign
government or of a political subdivision of a
foreign government;
(3) a person outside of the United
States, unless it is established that the person
is an individual and a citizen of and domiciled
in the United States, or that the person is not
an individual and is organized under or created
by the laws of the United States or of any state
or other place subject to the jurisdiction of the
United States and has its principal place of
business in the United States;
(4) a partnership, association,
corporation, organization, or other combination
of persons organized under the laws of or having
its principal place of business in a foreign
country; or
(5) a domestic subsidiary of an entity
described in (2) - (4) of this subsection or a
domestic corporation controlled by an entity
described in (2) - (4) of this subsection, if
that entity finances, participates in, or selects
a person who participates in the making of a
contribution or an expenditure of the domestic
subsidiary or domestic corporation.
(c) The provisions of this section apply
only to the extent permitted by federal law."
Renumber the following bill sections accordingly.
CHAIR FRENCH objected for discussion purposes.
SENATOR WIELECHOWSKI explained that the contents of this
amendment appear in the House version of SB 284 and it seems
like a reasonable provision that will help bring some parity
between the two bills. It expressly prohibits foreign nationals
from participating in Alaska elections and includes a definition
of "foreign national." This is similar to the federal law and
the drafter didn't believe it would present constitutional
problems.
CHAIR FRENCH noted that he and Senator Wielechowski each
received legal opinions on this amendment raising the issue of
preemption. He read the following from Mr. Bullard's 3/17/10
memorandum:
The Federal Election Campaign Act (FECA) prohibits any
foreign national from contributing, donating, or
spending funds in connection with any federal, state,
or local election in the United States, either
directly or indirectly. Because [2 U.S.C. 441e]
already clearly prohibits foreign nationals from
making campaign contributions, expenditures, and
independent expenditures in federal, state, and local
elections, a state effort to legislate in this area
may face a preemption challenge.
2:37:55 PM
SENATOR COGHILL said it sounds as though a corporation like Ford
Motor Company would be prohibited under this.
SENATOR WIELECHOWSKI said he doesn't believe that's the case.
CHAIR FRENCH called a point of order to say that those concerns
would be addressed by what will be Amendment 5. Amendment 4 says
a foreign national and it's directly to that individual not so
much the corporation.
SENATOR WIELECHOWSKI added that Ford Motor Company or Exxon
Corporation could participate because the definition of foreign
national doesn't exclude them. However, an Indonesian branch of
Ford could not contribute to an Alaska election. He said he
believes that this amendment tracks federal law and he
understands legislative legal to say that based on the Supreme
Court case, it's a bit unclear the extent to which foreign
nationals can participate in elections. Legislative legal
believes that a federal law is in place and the question is if
it applies to state or local elections. This amendment tries to
extend it to state or local elections, he said.
CHAIR FRENCH asked Mr. Ptacin his thoughts on Amendment 4.
2:40:39 PM
JOHN PTACIN, Assistant Attorney General, Department of Law
(DOL), stated that he doesn't believe that preemption is a great
concern here. Field preemption is the only variation of federal
preemption that possibly could apply and that occurs only when
there is a pervasive scheme showing that Congress intends to be
the exclusive regulator in an area. It doesn't seem to be the
case that the federal government is the only entity that would
be regulating participation by a foreign national in a state or
municipal election, he said.
CHAIR FRENCH asked Mr. Bullard if he had anything to add on the
issue of preemption.
2:42:17 PM
ALPHEUS BULLARD, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, said he believes that
there may be some preemption risk. He explained that the
amendment was drafted in a manner to make it applicable to the
extent that it is permitted by federal law and to mitigate
preemption concerns. He cautioned that he doesn't know if it's
ironclad proof.
CHAIR FRENCH withdrew his objection to Amendment 4. Finding no
further objection, he announced that Amendment 4 is adopted.
SENATOR WIELECHOWSKI moved to adopt Amendment 5, labeled 26-
LS1448\E.5.
AMENDMENT 5
OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI
TO: CSSB 284(JUD), Draft Version "E"
Page 1, line 4, following "campaigns;":
Insert "prohibiting certain expenditures in state
election campaigns;"
Page 5, following line 16:
Insert a new bill section to read:
"* Sec. 11. AS 15.13.084 is amended by adding a new
subsection to read:
(b) A person that is owned or controlled,
in any part, by a foreign national may not make
an expenditure. In this subsection, "foreign
national" includes
(1) an individual who is not a United
States citizen or lawfully admitted for permanent
residence under 8 U.S.C. 1101(a)(20);
(2) a foreign government, a political
subdivision of a foreign government, a official,
agent, or representative of a foreign government,
and an agency, corporation, or instrumentality of
a foreign government or of a political
subdivision of a foreign government;
(3) a person outside of the United
States, unless it is established that the person
is an individual and a citizen of and domiciled
in the United States, or that the person is not
an individual and is organized under or created
by the laws of the United States or of any state
or other place subject to the jurisdiction of the
United States and that the person's principal
place of business is in the United States;
(4) a partnership, association,
corporation, organization, or other combination
of persons organized under the laws of or having
its principal place of business in a foreign
country; or
(5) a domestic subsidiary of an entity
described in (2) - (4) of this subsection or a
domestic corporation controlled by an entity
described in (2) - (4) of this subsection, if
that entity finances, participates in, or selects
a person who participates in the making of a
contribution or an expenditure of the domestic
subsidiary or domestic corporation."
Renumber the following bill sections accordingly.
CHAIR FRENCH objected for discussion purposes.
SENATOR WIELECHOWSKI said this amendment addresses a concern
he's had about foreign nationals that have ownership interests
in Alaskan corporations. It would prohibit any corporation,
union, or foreign national from making an expenditure in an
Alaska election. If a corporation had stockholders that are not
Americans, those stockholders would not be able to participate
in making expenditures, he said.
2:45:25 PM
SENATOR COGHILL questioned whether a corporation that had a
subsidiary that was incorporated in Alaska and a director that
was a foreign national would be able to make internal changes so
that Alaska citizen within the corporation would be put in as
principals under Alaska reporting laws. He said his belief is
that they will trade people even if they are wholly owned or
partially owned.
SENATOR WIELECHOWSKI said if a corporation is owned or
controlled in part by a foreign national then they would not be
entitled to make an expenditure under this amendment.
SENATOR COGHILL said he's trying to figure out if this means the
corporation itself or the individuals within the corporation
because it seems that this is now driving into a separation.
SENATOR WIELECHOWSKI confirmed that the intent is that if a
corporation is foreign owned or controlled, then they would not
be able to make an expenditure.
CHAIR FRENCH said the operative language is on line 7. It says
"a person" - meaning a corporation or group or nongroup or union
- that is owned or controlled in any part. That language will
attract a lot of attention, he said.
CHAIR FRENCH thanked Mr. Bullard for the extensive amount of
work he'd done on this legislation and asked him to comment on
the concerns he expressed in two separate memorandums regarding
Amendment 5.
2:47:59 PM
MR. BULLARD said this amendment raises First Amendment and
associational and equal protection issues. First, it paints with
a broad brush, he said. Because any large, publicly traded
corporation is likely to have some foreign shareholders, a court
would likely interpret this provision, if it were enacted, as an
indirect prohibition against independent expenditures made by
large corporations or anyone so affected. He said he also
believes that there are equal protection issues. For example, if
a large corporation like AT&T had one foreign shareholder with
whatever percentage ownership interest, that domestic
corporation would be treated differently than a domestic
corporation that had no foreign shareholders.
2:50:04 PM
SENATOR WIELECHOWSKI withdrew Amendment 5. He said that this was
an attempt to address his concerns about opening the doors to
foreign nationals influencing Alaska elections, but he
understood the constitutional warnings.
CHAIR FRENCH said we had a Supreme Court decision to deal with
and we've been trying to craft a bill that would stand up to the
beating it may get in other committees. Finding no further
amendments or committee discussion, and noting that public
testimony had been taken, he asked for a motion.
2:51:33 PM
SENATOR WIELECHOWSKI moved to report CS for SB 284, version E as
amended, from committee with individual recommendations and
attached fiscal note(s).
2:51:55 PM
SENATOR COGHILL objected to make a comment. He said he agreed
with the concept of the last amendment and he would continue to
look for a solution to the top five contributors because it's
still a concern. He then expressed appreciation for the
diligence with which Senator French put this must-pass piece of
legislation forward. I have no further objection, he said.
CHAIR FRENCH announced that without objection CSSB 284(JUD)
moved from the Senate Judiciary Standing Committee.
2:52:49 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:52 p.m.
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