Legislature(2007 - 2008)BELTZ 211

04/09/2008 09:00 AM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Rescheduled from 04/08/08 --
+= HB 368 ETHICS: LEGISLATIVE & GOV/LT GOV TELECONFERENCED
Heard & Held
+= HB 305 CAMPAIGN FUND RAISING DURING SESSIONS TELECONFERENCED
Moved SCS CSHB 305(STA) Out of Committee
+ HB 366 PFD: EXECUTION /DISCLOSURE OF APPROPS TELECONFERENCED
Moved HB 366 am Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
          HB 305-CAMPAIGN FUND RAISING DURING SESSIONS                                                                      
                                                                                                                                
9:16:18 AM                                                                                                                    
CHAIR MCGUIRE announced the consideration  of HB 305. [Before the                                                               
committee was CSHB 305(RLS) AM.]                                                                                                
                                                                                                                                
SENATOR BUNDE  moved Version \O,  Senate CS  for CSHB 305  as the                                                               
working document. There being no objection, it was so ordered.                                                                  
                                                                                                                                
9:17:17 AM                                                                                                                    
MIKE  PAWLOWSKI,  Staff  to Representative  Kevin  Meyer,  Alaska                                                               
State Legislature,  said Section 3  is the  meat of the  bill. It                                                               
applies a  prohibition to  legislators and  extends the  logic in                                                               
current statute to say that  during a regular or special session,                                                               
legislators  may not  solicit or  accept a  campaign contribution                                                               
for their own campaign.                                                                                                         
                                                                                                                                
9:18:02 AM                                                                                                                    
MR. PAWLOWSKI  said he is speaking  about Page 3, Line  3, and it                                                               
applies to  a legislator's  own campaign  for state  or municipal                                                               
office.  "They may  not solicit  during  a session  unless it  is                                                               
within  90  days of  that  election  for that  office."  However,                                                               
during regular session or a  special session a legislator may not                                                               
solicit  for another  candidate,  for a  political  party, or  to                                                               
influence  a state  ballot proposition.  The 90-day  exception is                                                               
important for  a member's  own campaign  "to strike  that balance                                                               
between  the governor's  ability to  call a  special session  and                                                               
perhaps meddle in politics." That  is why the 90-day exception is                                                               
maintained in (A). "But really to try  and to get to the point of                                                               
eliminating  all fundraising  for political  activities during  a                                                               
session,  be it  regular or  special. So  … the  90-day exception                                                               
does  not apply  to (B),  (C),  or (D)  within this  subsection."                                                               
Section  2  only applies  to  legislative  employees and  doesn't                                                               
contain  the same  provisions in  Section 3,  because legislators                                                               
are  the  decision  makers,  and  there  is  a  compelling  state                                                               
interest to regulate a legislator's  behavior but not to get into                                                               
the  constitutional  concerns  over  free speech.  Section  1  is                                                               
conforming language with  the APOC statutes to try  to bring them                                                               
in line  with the prohibitions  in Sections  2 and 3.  The Senate                                                               
Judiciary Committee  removed application of this  bill to federal                                                               
office, which was  of great concern to many because  the bill was                                                               
preempted by federal law. The CS is better, he opined.                                                                          
                                                                                                                                
9:20:58 AM                                                                                                                    
SENATOR BUNDE  said there have  been some very  influential staff                                                               
who  have  been very  effective  gatekeepers  for access  to  the                                                               
legislature. They  basically run  some offices,  so he  asked why                                                               
the 90-day provision didn't apply to them.                                                                                      
                                                                                                                                
MR. PAWLOWSKI said it  is a good point. Section 2  is the way the                                                               
current law  is and the  bill extended  it to municipal  or state                                                               
office.  "We felt  that  the  move from  the  current statute  to                                                               
municipal or  state office  was a good  one." Getting  into staff                                                               
participation in  a ballot measure  or a political  party touches                                                               
free speech.  He noted case  law that requires  the law to  go by                                                               
the least  intrusive means. Some legislators  have concerns about                                                               
the free  speech issues  in Section  3, "and  we are  pushing the                                                               
envelope."  But Legislative  Legal Services  said the  bill isn't                                                               
crossing the  line, "but if you  did it to employees  I think you                                                               
would run into that problem."                                                                                                   
                                                                                                                                
9:23:13 AM                                                                                                                    
SENATOR FRENCH referred  to Section 1, and he  said a legislative                                                               
employee can't be a candidate for state office.                                                                                 
                                                                                                                                
MR. PAWLOWSKI  said he believes that  is correct. He or  she must                                                               
resign once  filing a letter  of intent. He believes  a municipal                                                               
office also requires a letter of intent.                                                                                        
                                                                                                                                
SENATOR FRENCH  asked if the  bill is prohibiting  something that                                                               
is already  prohibited, or  if it is  allowing something  that is                                                               
prohibited. "We  are saying  they can raise  money for  their own                                                               
election, but  there's another  provision in  law that  says they                                                               
can't be legislative employees and raise money for an election."                                                                
                                                                                                                                
MR. PAWLOWSKI said yes, that is a good point.                                                                                   
                                                                                                                                
SENATOR  FRENCH said  there are  two statutes  on the  same track                                                               
that  are  about to  collide.  He  suggested taking  "legislative                                                               
employee" out of the provision.                                                                                                 
                                                                                                                                
9:25:03 AM                                                                                                                    
JOYCE  ANDERSON, Administrator,  Select Committee  on Legislative                                                               
Ethics, said that  once a legislative employee files  a letter of                                                               
intent, they must resign.                                                                                                       
                                                                                                                                
SENATOR FRENCH asked if it is for any municipal or state office.                                                                
                                                                                                                                
SENATOR GREEN  asked if it is  just on behalf of  their employer.                                                               
Staff can't do work that the legislator is not allowed to do.                                                                   
                                                                                                                                
SENATOR FRENCH said that is right,  but Line 8, Page 1, speaks to                                                               
an election in which the employee  is a candidate. "That to me is                                                               
a legal impossibility."                                                                                                         
                                                                                                                                
MS.  ANDERSON  said  a  legislative   employee  may  not  seek  a                                                               
nomination  or become  a  candidate for  the  legislature or  any                                                               
state or national political office.                                                                                             
                                                                                                                                
SENATOR BUNDE asked about a municipal office.                                                                                   
                                                                                                                                
MS. ANDERSON  said the administrative  code states that  a letter                                                               
of  intent need  not  include  the specific  seat  for which  the                                                               
individual may file,  but must state whether  the individual will                                                               
seek state or municipal office. It  is not in the ethics code but                                                               
it is in the Administrative Code: 2AAC50.724.                                                                                   
                                                                                                                                
9:27:51 AM                                                                                                                    
MR.  PAWLOWSKI  said  AS  24.60.033   specifically  says  that  a                                                               
legislative employee  may not file a  letter of intent. So  he or                                                               
she would have to resign.                                                                                                       
                                                                                                                                
MS. ANDERSON  said an  individual is not  allowed to  raise funds                                                               
unless they have filed a letter of intent.                                                                                      
                                                                                                                                
SENATOR FRENCH suggested taking out "legislative employee".                                                                     
                                                                                                                                
The committee took a brief at-ease at 9:29:12 AM.                                                                             
                                                                                                                                
9:30:43 AM                                                                                                                    
MR. PAWLOWSKI said  he believes that this is  an important error.                                                               
The language  was written to  make it consistent with  Section 2,                                                               
which is the ethics code. Section  1 of the APOC statute probably                                                               
should not extend to an employee  since they could not be legally                                                               
raising funds for an election.                                                                                                  
                                                                                                                                
CHRIS  ELLINGSON,   Acting  Executive  Director,   Alaska  Public                                                               
Offices  Commission  (APOC),  said,  with the  exception  of  the                                                               
legislative employee,  Section 1 is  a really good fix.  It fixes                                                               
something that  has been broken  for quite a  few years. It  is a                                                               
misstatement to say that they have  to file a letter of intent to                                                               
run for municipal office because  they don't. They can wait until                                                               
the filing period opens and declare just like anyone else.                                                                      
                                                                                                                                
9:32:29 AM                                                                                                                    
SENATOR BUNDE said,  "But to raise funds they must  file a letter                                                               
of intent."                                                                                                                     
                                                                                                                                
MS. ELLINGSON  said yes, if  they are going to  start fundraising                                                               
prior  to the  filing  period.  But there  have  been cases  when                                                               
someone has waited  until the filing period opens and  just go in                                                               
and declare.                                                                                                                    
                                                                                                                                
MS. ANDERSON  said the language  needs to remain in  (d), because                                                               
an  employee  should   not  be  able  to  solicit   or  accept  a                                                               
contribution  to  be  used  for the  purpose  of  influencing  an                                                               
election. On both lines 8  and 9, "or legislative employee" needs                                                               
to be removed.                                                                                                                  
                                                                                                                                
SENATOR FRENCH  said, "The  only circumstance  under which  I can                                                               
raise money  during a regular  or special legislative  session is                                                               
if I've  somehow come  up against an  impending election  that is                                                               
about to happen. So you're going  to grant me an exception as the                                                               
most affected person  - the legislator … defending your  seat - I                                                               
can raise money if it is for  my own campaign, it's during the 90                                                               
days before  the election,  and it's away  from the  capital. But                                                               
we're going to  also let legislative employees do  that while the                                                               
session is sitting?  The finance aides, the  judiciary aides, all                                                               
the people that  run around this building … they  can raise money                                                               
as well?"                                                                                                                       
                                                                                                                                
9:34:19 AM                                                                                                                    
SENATOR  GREEN  asked  if  Senator French  is  talking  about  an                                                               
employee who has filed as a candidate.                                                                                          
                                                                                                                                
SENATOR  FRENCH said  it  has already  been  concluded that  they                                                               
can't be a candidate. But  while the legislature has bills flying                                                               
through it, should its employees  be raising money for campaigns?                                                               
He said  he could  be persuaded  either way, but  it needs  to be                                                               
discussed.                                                                                                                      
                                                                                                                                
MR. PAWLOWSKI said  Section 2 is important because  of the ethics                                                               
code that  governs the conduct  of an  employee. It says  you may                                                               
not solicit  or accept a contribution  or a promise to  pledge to                                                               
make a  contribution. So  under the  ethics code  the legislative                                                               
employee is prohibited from doing that during session.                                                                          
                                                                                                                                
9:35:27 AM                                                                                                                    
CHAIR MCGUIRE  said it should be  clear it is not  in the capital                                                               
city. "We  don't want to  muddy the water  about the fact  that a                                                               
legislative employee  cannot be  a legislative  candidate. That's                                                               
clear, so we need to remove  that reference." But Section 1 is an                                                               
attempt to reconcile through APOC  laws what is already in ethics                                                               
law, which  says that you  can't accept these contributions  in a                                                               
way that's  intended to influence.  An exception has  been carved                                                               
out for  special session. So  outside the capital city  "and it's                                                               
90 days before  - you can do  it." A similar thing  is being done                                                               
for the employee, "and I think that makes sense."                                                                               
                                                                                                                                
SENATOR FRENCH moved conceptual Amendment 1 as follows:                                                                         
                                                                                                                                
Page 1, lines 8 and 9:                                                                                                          
     Delete   "or   legislative    employee"   and   "legislative                                                               
     employees"                                                                                                                 
                                                                                                                                
Hearing no objection, conceptual Amendment 1 carried.                                                                           
                                                                                                                                
SENATOR FRENCH asked the current  rule for a legislative employee                                                               
raising money for a campaign during session.                                                                                    
                                                                                                                                
9:37:10 AM                                                                                                                    
MS. ANDERSON  said current  statute puts  the legislator  and the                                                               
employee under the same restrictions.                                                                                           
                                                                                                                                
SENATOR FRENCH said there is  an exception for a legislator's own                                                               
campaign in the  90 days before an election, and  that applies to                                                               
the employee.                                                                                                                   
                                                                                                                                
MS. ANDERSON said that is correct.                                                                                              
                                                                                                                                
SENATOR  FRENCH said  if  the  session is  pushed  up against  an                                                               
election, their  free speech rights  to participate  in elections                                                               
trumps their role as an assistant law maker.                                                                                    
                                                                                                                                
CHAIR MCGUIRE  said that is  true, but outside the  capital city.                                                               
The further you  get away from the policy making,  the better off                                                               
you are.                                                                                                                        
                                                                                                                                
SENATOR FRENCH said he has qualms, but he will let it go.                                                                       
                                                                                                                                
9:38:17 AM                                                                                                                    
SENATOR BUNDE said  he doesn't have time to fundraise,  so he can                                                               
send someone back to his district to raise money?                                                                               
                                                                                                                                
CHAIR MCGUIRE said the fix is clean elections.                                                                                  
                                                                                                                                
SENATOR FRENCH said he shares Senator Bunde's qualms.                                                                           
                                                                                                                                
CHAIR  MCGUIRE  said  this  issue  keeps  coming  back:  campaign                                                               
donations and  their influence.  It is such  a thorny  issue. The                                                               
ethics  of a  lawmaker  have  to be  relied  on.  "You put  these                                                               
structures in place and then you hope people will be honorable."                                                                
                                                                                                                                
SENATOR  FRENCH said  the prohibition  on  Page 3  says a  member                                                               
can't expend  money that was  raised on  a day where  the session                                                               
bumps   up  against   an  election.   He  asked   about  creating                                                               
subaccounts and how it will work in real life.                                                                                  
                                                                                                                                
CHAIR MCGUIRE said  it does say it doesn't apply  to money raised                                                               
in another place. So it is reconciling that principle.                                                                          
                                                                                                                                
9:40:29 AM                                                                                                                    
MR.  PAWLOWSKI  said the  prohibition  on  spending money  is  in                                                               
current  statute. In  repealing and  reenacting this  section, it                                                               
applies it to  any municipality versus the capital  city, but the                                                               
language is the same as in current statute.                                                                                     
                                                                                                                                
SENATOR FRENCH asked what money can be raised while in session.                                                                 
                                                                                                                                
MS. ANDERSON said  that is referring to Section 2,  an event held                                                               
on a  day when  the legislature  is in  session. The  Lincoln Day                                                               
dinner is a  fundraiser for the Republican Party,  and that money                                                               
goes into  their coffers. It  is later designated for  a specific                                                               
candidate. It was  raised during the session,  but not designated                                                               
for a  specific candidate, "so  you could receive that  money and                                                               
you could  expend that money …  but you cannot hold  a fundraiser                                                               
for yourself."                                                                                                                  
                                                                                                                                
9:42:15 AM                                                                                                                    
SENATOR FRENCH noted  that it is money raised by  or on behalf of                                                               
a legislator under  a declaration of candidacy, so it  is not the                                                               
Lincoln Day dinner.                                                                                                             
                                                                                                                                
MR. PAWLOWSKI  said that  is correct. The  Lincoln day  dinner is                                                               
okay,  as well  as some  other events,  because it  is not  for a                                                               
specific  candidate;  however,  if  a   party  were  to  throw  a                                                               
fundraiser  during a  session  with  specific candidates  listed,                                                               
that might run afoul of the law. That is existing language.                                                                     
                                                                                                                                
SENATOR FRENCH asked if they  would be prohibited from soliciting                                                               
or accepting that contribution.                                                                                                 
                                                                                                                                
MR. PAWLOWSKI  said there are  members of both parties  active in                                                               
fundraising  outside  of  the legislative  body.  The  Democratic                                                               
Party of  Bethel could hold  a fundraiser  as long as  it doesn't                                                               
designate it  for a specific  candidate, and that money  could go                                                               
to candidates that are running in races.                                                                                        
                                                                                                                                
9:44:00 AM                                                                                                                    
SENATOR  FRENCH said,  "So  it could  be raised  on  behalf of  a                                                               
legislator without  naming that  legislator, and  I don't  how in                                                               
the world you'd ever prove that that happened."                                                                                 
                                                                                                                                
CHAIR MCGUIRE said,  "We can't get to people who  are not already                                                               
public  servants  who are  running  for  office." It  has  really                                                               
bothered her that people who  are running against incumbents come                                                               
to Juneau  during session  and hold  fundraisers. "It  goes right                                                               
against  everything …  if you  want  to think  about intended  to                                                               
influence or  intended to intimidate  or how it makes  you feel."                                                               
She supposed  that, constitutionally,  there is nothing  that can                                                               
be done.  She suggested that APOC  filers take some sort  of oath                                                               
to incorporate  ethical principles regarding fundraising.  It may                                                               
or may not be constitutional,  but it could become something that                                                               
the public could use to judge them.                                                                                             
                                                                                                                                
9:45:40 AM                                                                                                                    
MR. PAWLOWSKI noted  the case of State v.  Alaska Civil Liberties                                                             
Union. "The problem  with candidates for office is  that that has                                                             
been ruled  unconstitutional in  the State of  Alaska -  that you                                                               
can't apply these  provisions to a candidate. You  can apply them                                                               
to incumbents."                                                                                                                 
                                                                                                                                
CHAIR MCGUIRE asked  if the legislature could ask,  as an option,                                                               
that  a person  signing  up  for office  can  make an  additional                                                               
pledge that would be in  keeping with what incumbents are already                                                               
asked to do in the compelling state interest.                                                                                   
                                                                                                                                
MR.  PAWLOWSKI said,  "I'm sure  you could."  It might  be better                                                               
done in regulation.  Perhaps APOC could draw up a  list of all of                                                               
the  prohibitions for  an incumbent.  A candidate  might want  to                                                               
know what type of ethical guidelines he or she is walking into.                                                                 
                                                                                                                                
9:47:21 AM                                                                                                                    
CHAIR MCGUIRE asked Ms. Ellingson if APOC would consider that.                                                                  
                                                                                                                                
MS. ELLINGSON said that has never been discussed.                                                                               
                                                                                                                                
CHAIR MCGUIRE  asked if APOC  would need a  legislative directive                                                               
asking  for a  document for  those filing  for office  that would                                                               
inform candidates of the ethical  guidelines of sitting lawmakers                                                               
and ask if they would like to sign to agree with that.                                                                          
                                                                                                                                
MS.  ELLINGSON  said  it  could be  done  without  a  legislative                                                               
directive. But what would the enforcement mechanism be?                                                                         
                                                                                                                                
CHAIR  MCGUIRE said  the  public would  be  the enforcement.  The                                                               
candidate can decide to follow the ethical guidelines or not.                                                                   
                                                                                                                                
MS.  ELLINGSON said  it would  probably be  better if  there were                                                               
some intent language to fall back on.                                                                                           
                                                                                                                                
9:49:12 AM                                                                                                                    
CHAIR MCGUIRE  said she  feels uncomfortable  removing candidates                                                               
from  the  bill.  We  are  starting  to  go  down  a  path  where                                                               
incumbents  are treated  disparately. She  says she  gets it  but                                                               
feels uncomfortable taking out any reference to that.                                                                           
                                                                                                                                
SENATOR  BUNDE said  they are  still  the public  until they  are                                                               
elected.  "We are  held to  a  different standard."  He once  ran                                                               
against  an incumbent.  Often people  running  for office  stress                                                               
that incumbents  have an incredible  advantage with  their access                                                               
to the press and the trappings  of office. People who are running                                                               
should have  something to balance  that perceived or  real access                                                               
to the public.                                                                                                                  
                                                                                                                                
CHAIR MCGUIRE  said a  person can  envision a  circumstance where                                                               
the reverse  occurs. If  an incumbent were  in a  hotly contested                                                               
special session  on a subject, like  a head tax on  cruise ships,                                                               
that the incumbent  supported, "you can see  a circumstance where                                                               
a candidate that was running  against you could actually leverage                                                               
that position that you were  taking and raise money in opposition                                                               
to you."                                                                                                                        
                                                                                                                                
SENATOR BUNDE  said they  already do that.  The line  is somewhat                                                               
artificial: whether  they do  it in Anchorage  or Juneau.  A non-                                                               
incumbent can  raise money during session  and legislators cannot                                                               
- and that is the balance. The public accepts that.                                                                             
                                                                                                                                
9:52:05 AM                                                                                                                    
SENATOR FRENCH said it goes  to the appearance of impropriety and                                                               
corruption. "No candidate has a vote and we do."                                                                                
                                                                                                                                
SENATOR  BUNDE  moved  to  report  Senate CS  for  CSHB  305,  as                                                               
amended,  from  committee  with  individual  recommendations  and                                                               
attached  fiscal  note(s). There  being  no  objection, SCS  CSHB
305(STA) passed out of committee.                                                                                               
                                                                                                                                

Document Name Date/Time Subjects