Legislature(2021 - 2022)BUTROVICH 205
05/04/2021 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB126 | |
| HB3 | |
| SB39 | |
| SB118 | |
| SB31 | |
| SB120 | |
| SJR12 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 39 | TELECONFERENCED | |
| += | SB 118 | TELECONFERENCED | |
| += | SB 120 | TELECONFERENCED | |
| += | SB 31 | TELECONFERENCED | |
| *+ | HB 3 | TELECONFERENCED | |
| *+ | SB 126 | TELECONFERENCED | |
| *+ | SJR 12 | TELECONFERENCED | |
| *+ | SB 108 | TELECONFERENCED | |
| *+ | SB 109 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 31-PROHIBITING BINDING CAUCUSES
4:28:28 PM
CHAIR SHOWER announced the consideration of SENATE BILL NO. 31
"An Act relating to binding votes by or for a legislator under
the Legislative Ethics Act."
He noted that he was the sponsor.
4:28:48 PM
SENATOR COSTELLO moved Amendment [1], work order [32-
LS0303\A.1].
32-LS0303\A.1
Wayne
3/25/21
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR MYERS
TO: SB 31
Page 1, lines 8-9
Delete ", through a vote in a caucus,"
CHAIR SHOWER objected for discussion purposes.
SENATOR COSTELLO suggested that when the bill was drafted, there
was some misunderstanding about how a caucus comes together. She
read the first part of the sentence without the phrase. It read
as follows:
(k) A legislator may not commit or bind another
legislator to commit to vote for or against a bill,
appointment, veto, or other measure that may come to a
vote before a legislative body.
She related that a caucus is a group of people who coalesce
around certain ideas. There is no vote to join and it would be
inaccurate to leave the phrase in the sentence. This does not
change the intent of the legislation; it adds clarity and
accuracy.
CHAIR SHOWER, speaking as sponsor of SB 31, said the amendment
sounds good but he would like Mr. Ogan to speak to the
Legislative Legal Services opinion on the amendment.
4:31:15 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, Alaska, stated it is the legislature's
prerogative whether or not to agree with legal opinions from the
Legislative Legal Services. He offered his belief that the
amendment makes the intent of the legislature more succinct.
4:32:28 PM
CHAIR SHOWER read the March 25, 2021 Legal Services' memorandum
from Legislative Counsel, Daniel C. Wayne for the record:
Transmitted herewith is the amendment you requested.
If adopted, the amendment would probably make the bill
unconstitutional. The U.S. Supreme Court has found
that :"restrictions upon legislators' voting are not
1
restrictions upon legislators' protected speech." The
Court explained:
[A} legislator's vote is the commitment of
his apportioned share of the legislature's
power to the passage or defeat of a
particular proposal. The legislative power
thus committed is not personal to the
legislator but belongs to the people; the
legislator has no personal right to it....
{T]he legislator casts his vote as trustee
for his constituents, not as a prerogative
of personal power. In this respect, voting
by a legislator is different from voting by
a citizen. While a voter's franchise is a
personal right, the procedures for voting in
legislative assemblies pertain to
legislators not as individuals but as
political representatives executing the
2
legislative process.
Notwithstanding this finding, the Court also
recognized a general rule that "the First Amendment
prohibits laws abridging the freedom of speech, which,
as a general matter means that government has no power
to restrict expression because of its message, its
3
ideas its subject matter or its content." If the
proposed amendment is adopted it will prohibit a
legislator from committing to vote a certain way on a
piece of legislation - not just in a legislative
caucus, hallway, or office, but anywhere. For that
reason, if the bill is challenged in litigation a
court will probably find that it violates the First
Amendment, depending on specific facts. For example,
at present a legislator running for reelection may in
some instances lawfully make a public pledge to vote a
certain way on a pending bill in order to gain support
from the electorate. If amended as proposed, SB [31]
would prohibit a legislator (but not the legislator's
election opponents) from making that promise in any
instance. "The First Amendment has its fullest and
most urgent application to speech uttered during a
4
campaign for political office."
If I may be of further assistance please advise.
1
Nevada Com'n on Ethics v. Carrigan, 564 U.S. 117,
125(201).
2
Id. at 125-126(Internal quotation marks and citations
omitted).
3
Id. at 121(Internal quotation marks and citations
omitted).
4
Eu v. San Francisco County Democratic Central Comm.,
489 U.S. 214, 233 (1989) (Internal quotation marks
omitted).
4:33:29 PM
CHAIR SHOWER said he likes the proposed amendment because it
makes the intent of the bill more succinct and the foregoing was
"just a legal opinion."
4:34:06 PM
SENATOR HOLLAND offered his perspective that the amendment
"offers exceptional clarity" to the bill.
4:34:53 PM
SENATOR COSTELLO stated that the legislature follows both
Mason's Manual and the Alaska Constitution for how it conducts
voting. The Open Meetings Act requires that all votes must be
taken publicly. She said that is why legislative committees have
people who moderate and record the meeting and every vote is
taken publicly and recorded. She argued that without the
amendment, SB 31 would require caucus meetings to be recorded
and votes made publicly. She said her experience is that votes
are not cast in caucus, it is strategy that is discussed. She
maintained that the amendment clarifies what occurs in caucus.
CHAIR SHOWER said he agrees and he appreciates the
clarification.
4:37:58 PM
SENATOR KAWASAKI noted the exception relating to the selection
of an officer of a caucus or legislative body and offered his
understanding that this generally does happen in both majority
and minority caucuses, sometimes through secret ballot. He asked
if this was incorrect.
CHAIR SHOWER deferred the question to Senator Costello.
SENATOR COSTELLO said the Senate majority caucus does not vote,
but when she was in the House the caucus had a secret ballot to
select the presiding office and other organizing. The exception
language would allow the House to continue that practice. She
clarified that the exception had nothing to do with legislation
or an issue and said she believes that language should stay in
the bill.
SENATOR KAWASAKI said he appreciated the comments.
SENATOR REINBOLD offered her perspective that the exception
language in paragraph (1) on lines 12 and 13 was "kind of a big
deal." She asked if the "selection of an officer" phrase meant a
chairmanship or leadership.
CHAIR SHOWER asked Senator Costello if she wanted to respond and
added that he would like to hear from Mr. Ogan because of the
discussion with Legal Services.
4:41:47 PM
SENATOR COSTELLO responded that this was not her bill and the
questions were beyond the scope of the amendment.
SENATOR REINBOLD said her question was not directed to anybody
in particular. She just wanted to know whether the phrase meant
selection of a chair.
4:43:09 PM
CHAIR SHOWER responded that the answer is "yes" at the top
level, but he could see the difference in a caucus. He said his
vision was that there would be discussions about who would be in
leadership and chair positions and that goes out in a Committee
on Committees report for the open public vote. He asked Mr. Ogan
to comment.
SENATOR REINBOLD stated support for the bill and the amendment.
4:45:40 PM
MR. OGAN said the discussion is important to establish the
legislative intent. He recalled that Legislative Ethics laws
allow voting for the selection of officers, including chairs,
for the purpose of organizing. The law also says that votes on
legislation and amendments should be done in the open. He
reported that no other state has a binding caucus and one state
has it in their oath that legislators will not pledge their vote
to anybody. He suggested the committee consider the language in
that oath, perhaps instead of the amendment.
CHAIR SHOWER recalled that Mississippi requires legislators to
take an oath that they will not pledge their vote. He asked
Senator Reinbold if her question was answered.
SENATOR REINBOLD said yes.
4:49:37 PM
CHAIR SHOWER removed his objection. Finding no further
objection, Amendment [1] passed.
4:50:01 PM
CHAIR SHOWER opened public testimony on SB 31 and recognized
Adam Hykes.
4:50:18 PM
At ease
4:50:36 PM
CHAIR SHOWER reconvened the meeting and noted that Mr. Hykes had
dropped offline.
4:50:51 PM
CHAIR SHOWER closed public testimony on SB 31.
4:51:23 PM
SENATOR HOLLAND stated support for the amendment and said he did
not recall taking a vote in caucus.
SENATOR COSTELLO opined that all legislators should be held
responsible for ensuring that their caucuses discuss general
strategy. If at any time a vote is required in caucus, it is
incumbent on all members of that caucus to say that is not
allowed.
SENATOR REINBOLD stated that she does not support a binding
caucus.
CHAIR SHOWER welcomed suggestions to make the bill better.
4:54:32 PM
SENATOR REINBOLD moved to report SB 31, work order 32-LS0303\A
as amended, from committee with individual recommendations and
attached fiscal note(s).
CHAIR SHOWER found no objection and CSSB 31(STA) was reported
from the Senate State Affairs Standing Committee.