Legislature(2021 - 2022)GRUENBERG 120
02/10/2022 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB245 | |
| HB234 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 245 | TELECONFERENCED | |
| += | HB 234 | TELECONFERENCED | |
| += | HB 251 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 245-POLITICAL CAMPAIGN CONTRIBUTION LIMITS
3:15:56 PM
CHAIR KREISS-TOMKINS announced that the first order of business
would be HOUSE BILL NO. 245, "An Act relating to political
contribution limits; and providing for an effective date."
3:16:24 PM
REPRESENTATIVE JOSEPHSON, Alaska State Legislature, prime
sponsor, provided some historical context on HB 245. He
reminded the committee that the 9th Circuit Court of Appeals
found Alaskas contribution limits to be too low, adding that
the main concern was the lack of indexing. He explained that
the proposed legislation includes indexing for inflation every
five years; further, that HB 245 proposes a limit of $700 for
House races, $1,000 for Senate races, and $1,500 for statewide
races. He reported that 25 other states utilize graduated
limits, 14 states utilize one limit, and 10 states are without
any limits, indicating that the practice of instituting
graduated limits is a typical concept. He relayed that for a
candidate to communicate with all 18,000 citizens in a House
district via a piece of campaign literature, it costs roughly
$4,000; accordingly, it costs $8,000 to communicate with [all
36,000] citizens in a Senate District. Therefore, he reasoned
that implementing a graduated limit would make sense. He
referenced Randall v. Sorrell and suggested that HB 245 would
check all five of the tests applied by the 9th Circuit Court
of Appeals. He noted that Alaskas current laws only check
several of the tests. In conclusion, he added that the proposed
legislation speaks to the out-of-state issue, which has been a
historic concern in Alaska.
CHAIR KREISS-TOMKINS invited questions from committee members.
3:20:45 PM
REPRESENTATIVE EASTMAN asked whether the goal was to institute a
limit low enough to appease the court or whether $700 was
selected for a different reason.
REPRESENTATIVE JOSEPHSON explained that Alaskans had expressed a
desire for a limit of $500; however, the 9th Circuit Court of
Appeals opposed that limit without prescribing a favorable
option. He noted that the courts tend to offer guidance and
insist on indexing. Consequently, he said, a limit of $700 was
arrived at by indexing $500 for inflation. Further, he
acknowledged that theres an existing philosophy that campaign
limits are valuable tools to avoid quid-pro-quo corruption. He
pointed out, via a diagram [included in the committee packet],
that only 10 states dispense with campaign limits entirely.
REPRESENTATIVE EASTMAN inquired about the five-year reset in
terms of inflation rate. He asked how the new amount would be
announced, as it would appear to fall in the middle of an
election cycle. He questioned whether donations that had
already been received for that election cycle would apply
retroactively.
REPRESENTATIVE JOSEPHSON deferred to Mr. Kohn.
3:22:49 PM
MAX KOHN, Staff, Representative Andy Josephson, Alaska State
Legislature, explained the proposed indexing cycle. He stated
that the cycle would start in the first quarter of calendar year
2023, thus following the 2022 elections and presumably well
before most campaigning starts for the 2024 elections. The next
cycle would start 5 years after that in January 2028. He
suggested that if it were the will of the committee to change
the timing to avoid disrupting campaigns, a cycle of either four
or six years would remain within the scope of the bill.
3:23:47 PM
REPRESENTATIVE VANCE directed attention to Section 6 and
inquired about nonresident contributions. She believed that if
there is concern about limiting outside interest, 50 percent of
the total contributions is much more generous than the prior
graduated approach. She expressed her support for utilizing
percentages; however, she asked how 50 percent was arrived at.
REPRESENTATIVE JOSEPHSON conceded that 50 percent is not
grounded in mathematics in the same way the $700 limit is. He
concluded that after reading all the literature on the decisions
made by the 9th Circuit Court of Appeals and the Supreme Court,
no more than 50 percent seemed reasonable.
REPRESENTATIVE VANCE asked how the candidates, as well as the
Alaska Public Office Commission (APOC), would implement that
while campaign contributions come in.
REPRESENTATIVE JOSEPHSON said he was open to guidance in terms
of amendments to improve the bill. He acknowledged that it
would be something that a candidate would have to monitor.
3:27:21 PM
REPRESENTATIVE KAUFMAN opined that the bill seemed to double
down on the inherent challenges of running for election in a
district with a smaller population.
REPRESENTATIVE JOSEPHSON said he didnt understand the question.
REPRESENTATIVE KAUFMAN remarked, If its reasonable to scale
the dollar value down for the seat since the population is
already scaled down and you have fixed costs. So, lets just
say youre going to buy a radio commercial [that] would
overlap, and it cost what it cost in that marketplace, so the
House candidate is already at a numerical disadvantage because
of the population that might be interested in donating to the
race, whereas the Senate has double that population to draw
from. And if you have a dollar value reduction for that
position, as well as the smaller population, it seems like it's
challenging that process a little bit.
REPRESENTATIVE JOSEPHSON deferred to Mr. Kohn.
MR. KOHN noted that the courts are often interested in whether a
challenger has a fair chance against an incumbent. He said it
might be fair to compare two candidates within a House race;
however, comparisons between a House and a Senate race have not
been drawn.
REPRESENTATIVE KAUFMAN clarified that he wasn't comparing a
House and Senate race in terms of the challenge. He
reiterated his assertion that there are certain barriers to
entry to run for office. He stated:
If you have a sample population thats smaller and you
have a dollar value limit thats lower, but you have
certain pieces of the process that cost what they cost
no matter if youre campaigning to a House or a Senate
district, [such as] a radio commercial it just seems
like its kind of doubling down on and making it that
much more challenging for that race by limiting it.
REPRESENTATIVE JOSEPHSON pointed out that Representative Kaufman
had suggested that donations come from within the district. He
contended that donations generally come from outside a
candidates district. He said he was not fully understanding
the question.
REPRESENTATIVE KAUFMAN expressed his hope that a significant
portion of donations come from within the district. He
maintained his belief that smaller districts face larger
challenges.
3:33:50 PM
REPRESENTATIVE EASTMAN said he applauded the sponsors effort to
honor the peoples expressed will in terms of campaign limits;
however, he pointed out that when those votes were cast, the
circumstances were much different than they are today. He
referenced Citizens United v. Federal Election Commission and
Ballot Measure 2, opining that both would likely change how
people vote on the issue today. He asked whether the changing
nature of expenses going into a post [Proposal 2] election had
been modeled and whether the bill sponsor had considered how
much more those races might cost. He anticipated that general
election costs would be higher.
REPRESENTATIVE JOSEPHSON said he had not performed any modeling
and would not know how to model that scenario.
REPRESENTATIVE EASTMAN asked, How should we be looking at the
fact that you have an opportunity for almost unlimited money and
yet, were having a relatively small limit of $700?
REPRESENTATIVE JOSEPHSON pointed out that using the benefits of
Citizens United and PAC [political action committee]
contributions, an individual could generously give to those
entities. He emphasized that the prohibition is on them
coordinating with the candidate. He reiterated that both the
th
Supreme Court and the 9 Circuit have expressed that campaign
contribution limits are important to prevent quid-pro-quo
corruption.
REPRESENTATIVE EASTMAN asked whether the proposed limit would
actually solve any potential harm in the relationship between a
donor and a candidate.
REPRESENTATIVE JOSEPHSON said, with great respect, I cant make
the world perfect Im trying to make it better. He noted
that the courts have had similar conversations, to which they
said Katy bar the door when it comes to a PAC because of the
First Amendment interest; however, direct contributions are okay
to protect democracy. He indicated that the intent is to
control the amount of money coming in, as well as to emphasize
that $20 from an individual is meaningful too.
3:41:01 PM
REPRESENTATIVE CLAMAN interpreted the [9th Circuit Court of
Appeals] opinion to indicate that in terms of campaign
contributions, First Amendment rights could be restricted on the
basis of quid-pro-quo corruption or its appearance. He
expressed his concern with creating different [graduated] limits
for House versus Senate candidates because from a contributors
standpoint, his/her speech, in terms of donations to a House
candidate, should not be restricted any differently than his/her
donations to a Senate candidate or vice versa. He reiterated
that there must be findings or the appearance of corruption to
limit free speech, which was why he struggled with the
[graduated] limits.
REPRESENTATIVE JOSEPHSON pointed out that, per the NCSL, 20
states use graduated limits. He said it was a policy call
designed to create allowances for a Senate race, which in
Alaska, has 36,000 people rather than 18,000; further, it was
designed to tamp down on the system being overwhelmed by cash.
He explained that the graduated system was being proposed to
respect the 9th Circuits decision that $500 was too low, in
part, because it wasnt graduated.
REPRESENTATIVE CLAMAN maintained that [the bills] restriction
of individual rights to speech by how much money contributors
are allowed to spend lacks justification. He reiterated his
concern about the disparity between House, Senate, and governor
races. He opined that there was no connection to corruption to
justify limiting campaign contributions.
REPRESENTATIVE JOSEPHSON emphasized that the courts have said
that the seat at play matters; further, the courts expressed
concern with direct contributions impacting races because of the
threat of corruption.
3:48:25 PM
REPRESENTATIVE CLAMAN expressed additional concern with the per-
year limits, as opposed to per election. He explained that his
concern stems from the 9th Circuit Court of Appeals opinion,
which discussed factors to consider, such as the advantages of
incumbency. He opined that the annual limits would give a
substantial advantage to incumbents because traditionally,
challengers didnt sign up for elections until 30 days before
the filing deadline, putting them in a one-year campaign fund
raising cycle. He also pointed out that there is an 18-month
window on contributions under the APOC law, which applies to
municipal elections. He continued to explain that because the
Anchorage municipal election is in April, the organized
incumbent, regardless of the limits, could triple dip, as
he/she could raise money in the last few months of 2020, for
example, raise money in all of 2021, and raise money in the four
months before the election in 2022, creating a huge advantage
over any challenger. He said if the intent was to give
challengers a shot, there seems to be a fundamental flaw in
annual limits. He opined that implementing campaign limits in
every election would level the playing field and give
challengers a decent shot.
REPRESENTATIVE JOSEPHSON said he decided to stay with the annual
limits because thats what Alaska does; additionally, because
th
the 9 Circuit had no issue with it. He reasoned that the
annual limits seemed to be what Alaska was comfortable with.
3:53:19 PM
REPRESENTATIVE STORY observed that most House candidates are
running for the first time. She opined that House races should
have lower limits than Senate races. She expressed her hope
that running for office would feel accessible and approachable
to all.
CHAIR KREISS-TOMKINS asked Mr. Bullard to share Legislative
Legal Services perspective on out-of-state contribution limits.
3:56:05 PM
ALPHEUS BULLARD, Legislative Counsel, Legislative Legal
Services, Legislative Affairs Agency, spoke to the Thompson v.
th
Hebdon decision by the 9 Circuit Court of Appeals. He
indicated that the court found Alaskas aggregate limits to be a
poor fit for addressing quid-pro-quo corruption.
CHAIR KREISS-TOMKINS asked Ms. Griffin whether the Department of
Law (DOL) had a perspective on Thompson v. Hebdon and the
relative constitutionality of out-of-state contribution limits.
3:57:41 PM
MORGAN GRIFFIN, Assistant Attorney General, Department of Law,
offered to follow up with the requested information.
CHAIR KREISS-TOMKINS asked whether DOL had a perspective on what
may withstand judicial review.
MS. GRIFFIN clarified that her role is council for APOC staff;
therefore, as a more neutral body, she typically provides the
commission advice based on the law, as opposed to what DOL
wants. She understood that in terms of out-of-state
contribution, the commission had not been enforcing the statute.
She deferred to Mr. Lucas.
CHAIR KREISS-TOMKINS requested that she follow up with a
perspective from DOL on this general issue.
4:00:00 PM
REPRESENTATIVE KAUFMAN referenced the document from the National
Conference of State Legislatures (NCSL) [included in the
committee packet] pertaining to contribution limits across the
United States. He observed that the states were categorized by
those with graduated limits, those with one limit for all
candidates, and those with no limit, and asked whether there was
existing evidence that one was more corrupt than the others.
REPRESENTATIVE JOSEPHSON defined "dicta" as part of an opinion
but not the holding of the opinion, adding that there was
broad discussion on that topic. He noted that Rhode Island had
its problems with corruption, as well as Louisiana; however,
that did not provide a statistical sample.
REPRESENTATIVE KAUFMAN provided a scenario that considered two
voters: one who was elderly and disabled and had the ability to
contribute to a campaign financially but not physically; the
second voter was more physically able but lacked financial
assets to donate. He asked whether a financial limit would have
a greater imposition on the disabled voter relative to the
younger voter who could offer more dollar value in physical
efforts, thereby creating an unfairness.
REPRESENTATIVE JOSEPHSON said typically, when he thought about
disabled or elderly voters, he thought about voting access,
which related to other bills but not HB 245. He referenced
historical cases, such as Randall v. Sorrell and Thompson,
noting that although the opinions had discussed the in-kind
value of volunteering, it was not the main heart of the
decision. He opined that the question doesnt factor into the
proposed legislation at all.
REPRESENTATIVE KAUFMAN asserted that his question pertained to
the fundamental aspect of [volunteer work] being a [type of]
contribution with a financial equivalence.
4:04:43 PM
REPRESENTATIVE EASTMAN opined that a wealthy candidate had a
distinct advantage, which grew as the individual contribution
limit decreased. Alternatively, a candidate with less money
must reach out to more people. He asked whether the bill
sponsor had considered that disparity.
REPRESENTATIVE JOSEPHSON said he had not considered that
disparity. He emphasized that much like the 40 states with
contribution limits, he was a believer in those limits. He
acknowledged that it was an advantage for the affluent; however,
they sometimes pay a political price for that advantage.
REPRESENTATIVE EASTMAN guessed that many of the 40 states with
contribution limits do not have the same mechanism as Alaska
law, which allows a candidate to file for one office, and then
decide to switch to a different office and put all or most of
the money into a future campaign account, and then put it into
that new campaign and then go back to the same donors that gave
them previously and ask them to donate again to the new campaign
in the same election cycle. He surmised that the low limits
[in the proposed legislation] would encourage people to do
things like that
REPRESENTATIVE JOSEPHSON said he would have to hear the question
a second time. Nonetheless, he addressed the reference to
future campaign accounts, which is a term of art in Alaska,
adding that they are very restrictive. He understood that in
the scenario put forward by Representative Eastman, the moment a
candidate declared that he/she was running for House, they would
be stuck and could not carry it to a Senate race; further, if
the candidate had yet to declare and went back to a donor to ask
for another donation, the donor would have the discretion to say
no. For those reasons, he said he wasnt sure of the question.
REPRESENTATIVE EASTMAN acknowledged that there would be no
benefit of running for House and then running for some other
office; however, there would be a benefit to running for
governor, which had a much higher threshold for future campaign
accounts, and then running for Senate. He indicated that this
method would be a way to gain the system and avoid the $700
limit. He noted that he was not recommending it, but there was
a greater incentive to go that path with the institution of
lower limits.
REPRESENTATIVE JOSEPHSON said he had no experience with that
because Alaska had never instituted a graduated system. He
reiterated his understanding that once an individual was to
declare for governor, the funds he/she raised would be for that
race. He deferred to Mr. Lucas.
4:10:06 PM
CHAIR KREISS-TOMKINS restated question, asking whether funds
raised for a particular office must be confined to candidacy for
that office.
TOM LUCAS, Campaign Disclosure Coordinator, Alaska Public
Offices Commission, said the scenario proposed by Representative
Eastman is possible. He explained that someone could file for
governor, close out the race and put $50,000 into a future
campaign account, and then file for Senate.
REPRESENTATIVE EASTMAN clarified that the incentive would be the
ability to collect three maximum contributions from the same
donor, thus raising $2,100 as opposed to $700. He wondered
whether the low limit would create an incentive to utilize that
method.
REPRESENTATIVE JOSEPHSON suggested that Representative Eastman
offer an amendment. He remarked, I think that the donor would
say, Candidate, you have a problem with indecision, and Im
frustrated with you, and Im done with you.
CHAIR KREISS-TOMKINS asked Mr. Lucas whether anything prevented
that scenario from occurring at present or prior to Thompson v.
Hebdon.
MR. LUCAS said there was nothing to precluding that scenario in
statute.
4:13:55 PM
CHAIR KREISS-TOMKINS asked whether it had ever occurred during
Mr. Lucass tenure at APOC.
MR. LUCAS reported that people had closed out their campaigns
and put money into a future campaign account for the next one.
He could not recall it occurring in a race for governor.
CHAIR KREISS-TOMKINS surmised that this was a loophole in the
future campaign account (FCA) statutes that hadnt been
exploited. He believed it could merit an amendment. He noted
that voters might not appreciate such a blatantly cynical
maneuver, which might be further disincentive.
4:15:24 PM
MR. KOHN pointed out that there were graduating limits in Alaska
before Thompson v. Hebdon in the nonaggregate limits, so
theoretically, the loophole may have already existed.
MR. LUCAS confirmed that there was a graduated amount for the
aggregate limit in statute before it was struck down.
CHAIR KREISS-TOMKINS announced that HB 245 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 234 Supporting Doc District Court Thompson v Dauphinais.pdf |
HSTA 2/10/2022 3:00:00 PM |
HB 234 |
| HB 234 Supporting Doc U.S. Supreme Court Thompson v Hebdon 2019.pdf |
HSTA 2/10/2022 3:00:00 PM |
HB 234 |
| HB 234 Supporting Doc Ninth Circuit Thompson v Hebdon.pdf |
HSTA 2/10/2022 3:00:00 PM |
HB 234 |
| HB 234 Supporting Doc U.S. Supreme Court Randall v Sorrell.pdf |
HSTA 2/10/2022 3:00:00 PM |
HB 234 |
| HB 245 Supporting document - state-by-state limit type.pdf |
HSTA 2/10/2022 3:00:00 PM |
HB 245 |