Legislature(2009 - 2010)CAPITOL 120
04/10/2010 10:00 AM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB284 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 284 | TELECONFERENCED | |
| + | SB 244 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 10, 2010
10:12 a.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative Carl Gatto
Representative Bob Herron
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 284(FIN)
"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; prohibiting expenditures and
contributions by foreign nationals in state elections; and
providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 244
"An Act providing that, during the governor's term of office,
the duty station of the governor is Juneau, and prohibiting
payment of certain travel allowances for use of the governor's
personal residence."
- BILL HEARING CANCELED
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 AT 9:00 AM BELTZ 105 (TSBldg)
03/02/10 (S) Moved SB 284 Out of Committee
03/02/10 (S) MINUTE(STA)
03/02/10 (S) STA RPT 5DP
03/02/10 (S) DP: MENARD, FRENCH, MEYER, PASKVAN,
KOOKESH
03/02/10 (S) FIN REFERRAL ADDED AFTER JUD
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)
03/17/10 (S) Moved CSSB 284(JUD) Out of Committee
03/17/10 (S) MINUTE(JUD)
03/18/10 (S) JUD RPT CS 3DP 1AM NEW TITLE
03/18/10 (S) DP: FRENCH, WIELECHOWSKI, MCGUIRE
03/18/10 (S) AM: COGHILL
03/23/10 (S) FIN AT 1:30 PM SENATE FINANCE 532
03/23/10 (S) Heard & Held
03/23/10 (S) MINUTE(FIN)
03/29/10 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/29/10 (S) Moved CSSB 284(FIN) Out of Committee
03/29/10 (S) MINUTE(FIN)
03/29/10 (S) FIN RPT CS 4DP 1NR NEW TITLE
03/29/10 (S) DP: HOFFMAN, STEDMAN, THOMAS, EGAN
03/29/10 (S) NR: HUGGINS
04/01/10 (S) TRANSMITTED TO (H)
04/01/10 (S) VERSION: CSSB 284(FIN)
04/05/10 (H) READ THE FIRST TIME - REFERRALS
04/05/10 (H) JUD, FIN
04/07/10 (H) JUD AT 1:00 PM CAPITOL 120
04/07/10 (H) Heard & Held
04/07/10 (H) MINUTE(JUD)
04/09/10 (H) JUD AT 1:00 PM CAPITOL 120
04/09/10 (H) Heard & Held
04/09/10 (H) MINUTE(JUD)
04/10/10 (H) JUD AT 10:00 AM CAPITOL 120
WITNESS REGISTER
LORNA SHAW, Executive Director
Council of Alaska Producers
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to a
question during discussion of SB 284.
JOHN PTACIN, Assistant Attorney General
Labor and State Affairs Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 284.
CHARLES A. DUNNAGAN, Attorney at Law
Resource Development Council for Alaska, Inc.
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 284.
SENATOR HOLLIS FRENCH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 284, spoke as chair
of the Senate Judiciary Standing Committee, sponsor.
ALPHEUS BULLARD, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Spoke as the drafter of SB 284.
ACTION NARRATIVE
10:12:16 AM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 10:12 a.m. Representatives Ramras, Lynn
Holmes, Dahlstrom, Herron, and Gatto were present at the call to
order. Representative Gruenberg arrived as the meeting was in
progress.
SB 284 - CAMPAIGN EXPENDITURES
10:12:39 AM
CHAIR RAMRAS announced that the only order of business would be
CS FOR SENATE BILL NO. 284(FIN), "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; prohibiting expenditures and contributions by foreign
nationals in state elections; and providing for an effective
date."
10:14:37 AM
LORNA SHAW, Executive Director, Council of Alaska Producers,
pointed out that in Alaska, the mining industry spends hundreds
of millions of dollars in Alaska for general operations every
year, employs thousands of Alaskans, and pays significant state
and local taxes; and that most of the mines and projects in
Alaska are owned by foreign corporations. When the mining
industry in Alaska is attacked by a ballot initiative, it must
have the right to defend itself. For example, the mining
industry were targeted by a ballot initiative in 2008, and it's
likely that that initiative would have passed had foreign
contributions been prohibited. It is therefore imperative that
foreign corporations doing business in Alaska have the ability
to protect themselves by engaging in ballot initiative
campaigns, particularly given that similar initiatives could be
brought forth in the future. The Council of Alaska Producers
supports disclosure and transparency in election campaigns, and
does not support limiting discourse. In conclusion, she
reiterated that foreign corporations must retain the ability to
participate in campaigns.
CHAIR RAMRAS, remarking on some of the benefits that result from
foreign corporations doing business in Alaska, indicated that
the committee would be addressing Section 10, which pertains to
expenditures and contributions by foreign nationals.
CHAIR RAMRAS then relayed that public testimony on SB 284 was
closed.
10:22:47 AM
CHAIR RAMRAS [made a motion to adopt] Amendment 1, labeled 26-
LS1448\P.19, Bullard, 4/9/10, which read:
Page 5, line 25, following ";":
Insert "or"
Page 5, line 28:
Delete "; or"
Insert "."
Page 5, line 29, through page 6, line 2:
Delete all material.
REPRESENTATIVE HOLMES objected for the purpose of discussion,
and offered her understanding that Amendment 1 would delete
proposed AS 15.13.068(b)(5) from Section 10 of the bill.
CHAIR RAMRAS concurred. He noted, however, that proposed
AS 15.13.068(c) would remain unchanged.
10:24:53 AM
JOHN PTACIN, Assistant Attorney General, Labor and State Affairs
Section, Civil Division (Anchorage), Department of Law (DOL), in
response to questions, indicated that even with the adoption of
Amendment 1, proposed AS 15.13.068 would still prohibit foreign
nationals from making contributions or expenditures in
connection with elections, just as federal law currently does;
and that Section 10 does not address the issue of disclosure.
CHAIR RAMRAS said that although he doesn't have a problem with
proposed AS 15.13.068(b)(1)-(4), he feels that proposed AS
15.13.068(b)(5) creates an ambiguity. In response to other
questions, he offered his understanding that proposed subsection
(c) specifies that proposed AS 15.13.068 conform to federal law,
and posited that Amendment 1 provides a reasonable compromise
and addresses the concerns of those currently opposed to
Section 10.
10:28:31 AM
CHARLES A. DUNNAGAN, Attorney at Law, Resource Development
Council for Alaska, Inc., in response to a question, opined that
proposed paragraph (5) would present commerce problems, and is
facially unconstitutional under case law - including that
resulting from the recent U.S. Supreme Court case, Citizens
United, Appellant v. Federal Election Commission - because it
would treat domestic corporations differently depending on
whether they were subsidiaries of a foreign national. He
expressed support for Amendment 1, and concurred that Section 10
would conform state law to federal law. He surmised that the
goal of Section 10 is to prevent foreign money from being
funneled into Alaska's elections in order to affect the outcome.
In response to another question, he offered his understanding
that as currently written, proposed paragraph (5), because it
doesn't include a reference to proposed AS 15.13.068(b)(1),
would not apply to a domestic subsidiary of a foreign national
who is an individual.
REPRESENTATIVE GATTO said he was troubled by that discrepancy as
well.
REPRESENTATIVE HOLMES indicated acceptance of Amendment 1.
MS. SHAW, in response to a question, indicated that Amendment 1
would address her organization's concern as well.
REPRESENTATIVE HOLMES removed her objection.
REPRESENTATIVE LYNN objected.
MR. PTACIN, in response to comments and questions, clarified
that Section 10 would amend state statute such that it would
mirror current federal regulation; surmised that the question is
whether proposed paragraph (5) is really necessary or adds
anything of value, particularly given that the remainder of
[Section 10] already provides sufficient enforcement authority;
and explained that Section 10 only prohibits expenditures and
contributions by foreign nationals in connection with an
election.
A roll call vote was taken. Representatives Holmes, Dahlstrom,
Herron, Gatto, and Ramras voted in favor of Amendment 1.
Representative Lynn voted against it. Therefore, Amendment 1
was adopted by a vote of 5-1.
REPRESENTATIVE GATTO indicated an interest in reviewing the
remainder of proposed AS 15.13.068(b) further at a later time.
10:38:47 AM
CHAIR RAMRAS made a motion to adopt Amendment 2, labeled 26-
LS1448\P.18, Bullard, 4/9/10, which read:
Page 8, line 4, following "transmitted":
Insert "solely"
Page 8, lines 4 - 5:
Delete "and in the communication that includes an
audio component"
REPRESENTATIVE HOLMES objected for the purpose of discussion.
CHAIR RAMRAS - citing the expense of television advertisements
and remarking on the large amount of information that the bill
requires to be disclosed in certain situations - explained that
Amendment 2 would alter proposed AS 15.13.090(d) such that the
information that must be read aloud would only apply to
communications transmitted solely via audio such as radio
advertisements. He also expressed disfavor with the concept of
requiring small entities/groups to disclose as much information
as large entities/groups, due to the high cost of advertising in
general.
MR. PTACIN, in response to questions, explained that that which
must be read aloud must be clearly discernable, and whether it
ultimately proves to be discernable must be determined on a
case-by-case basis.
10:45:32 AM
SENATOR HOLLIS FRENCH, Alaska State Legislature, as chair of the
Senate Judiciary Standing Committee, sponsor of SB 284, in
response to questions, noted that under proposed AS 15.13.090(d)
as currently written, the disclosure that must be read aloud
applies to all forms of communications; reiterated that under
Amendment 2, proposed AS 15.13.090(d) would only apply to
communications transmitted solely via audio; and explained that
currently under proposed AS 15.13.090(c)-(d), television
advertisements must include both written disclosure and audio
disclosure. On the latter point, he added that oftentimes, for
various reasons, people only listen to television
advertisements, and so any written disclosure they contain
wouldn't be seen, and therefore his preference would be to
require both radio and television advertisements to include an
audio disclosure, at least for a couple of election cycles in
order to ensure that those whom he termed "these new players in
Alaska elections, unions and corporations" [provide full
disclosure].
REPRESENTATIVE GATTO remarked that depending on the size of
one's television screen, even a written disclosure could become
indiscernible.
SENATOR FRENCH acknowledged that point.
CHAIR RAMRAS, in response to a comment, again remarked on the
expense of television advertisements, and opined that without
the adoption of Amendment 2, only large entities/groups will be
able to afford television advertising if they have to include a
lengthy audio disclosure whereas small entities/groups are going
to find the current requirements of proposed AS 15.13.090(d) too
burdensome financially.
REPRESENTATIVE LYNN expressed objection to Amendment 2.
SENATOR FRENCH mentioned that according to information he'd
received from the APOC, small entities/groups typically don't
purchase television advertising in support of or in opposition
to ballot measures because it's much too costly to begin with;
such entities/groups tend to spend their advertizing dollars on
less expensive forms of communication.
REPRESENTATIVE GATTO questioned whether the term "easily heard"
as used in proposed AS 15.13.090(d) provides a sufficient
standard.
SENATOR FRENCH indicated that he was amenable to leaving the
determination of whether a particular audio disclosure could be
"easily heard" up to the APOC.
A roll call vote was taken. Representatives Dahlstrom, Herron,
Gatto, and Ramras voted in favor of Amendment 2.
Representatives Holmes and Lynn voted against it. Therefore,
Amendment 2 was adopted by a vote of 4-2.
10:55:23 AM
CHAIR RAMRAS [made a motion to adopt] Amendment 3, labeled 26-
LS1448\P.9, Bullard, 4/5/10, which read:
Page 7, line 10:
Delete "five"
Insert "three"
REPRESENTATIVE HOLMES objected for the purpose of discussion.
SENATOR FRENCH said he doesn't have a strong view either way,
but added that in light of the adoption of Amendment 2, he also
doesn't see the harm in requiring the name of the top five
contributors to be included in the written disclosures.
MR. PTACIN, in response to a question, relayed that the state of
Washington requires communications to disclose the top five
contributors, but ventured that although thus far there haven't
been any challenges to that requirement, the more modest a
burden of disclosure is, the better chance it has of being
considered constitutional. In response to a further question,
he explained that in situations where an entity/group has more
than five top contributors and all contribute an equal amount,
the state of Washington allows the entity/group to pick which
five of its top contributors to disclose. He indicated that
forthcoming APOC regulations might address that point further.
CHAIR RAMRAS asked Mr. Ptacin to suggest language that would
provide the APOC with statutory guidelines on this issue.
MR. PTACIN indicated that that might be difficult, and surmised
that that's why Washington chose to address the issue via
regulation.
CHAIR RAMRAS expressed disfavor with doing so in Alaska.
11:00:45 AM
REPRESENTATIVE LYNN suggested amending Amendment 3 such that the
word, "five", on page 7, line 10, of the bill, would be changed
to the word, "four".
CHAIR RAMRAS said he would object to such an amendment.
The committee took an at-ease from 11:01 a.m. to 11:02 a.m.
SENATOR FRENCH, in response to comments on the issue of how to
determine which of several equally-top contributors should be
disclosed in a communication, expressed a preference for leaving
it up to the APOC to address that issue via regulation.
CHAIR RAMRAS expressed a preference for providing the APOC with
statutory guidelines instead.
MR. PTACIN mentioned that allowing the entity/group to choose
which of several equally-top contributors should be disclosed in
a communication would be less burdensome from a legal
standpoint.
REPRESENTATIVE GATTO suggested that entities/groups could simply
address it internally by returning a portion of some of their
top contributors' contributions.
CHAIR RAMRAS characterized that as cumbersome, and again
expressed disfavor with leaving the statutes ambiguous on this
point.
11:07:33 AM
ALPHEUS BULLARD, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency (LAA), said he could draft an amendment to address that
point statutorily, [one that would specify that it is the
entity/group itself that gets to choose which of its equally-top
contributors to disclose in a communication.
SENATOR FRENCH, in response to questions, explained that
currently under the bill, audio communications need only include
the names of the top five contributors, whereas written and
video communications must include the names of the top five
contributors and their addresses.
MR. PTACIN, in response to questions, confirmed that the
provision Amendment 3 is proposing to change applies to all
forms of communication.
11:13:00 AM
REPRESENTATIVE LYNN made a motion to amend Amendment 3 such that
the word, "five", on page 7, line 10, of the bill, would be
changed to the word, "four".
CHAIR RAMRAS objected.
A roll call vote was taken. Representatives Lynn, Gruenberg,
and Holmes voted in favor of the amendment to Amendment 3.
Representatives Dahlstrom, Herron, Gatto, and Ramras voted
against it. Therefore, the amendment to Amendment 3 failed by a
vote of 3-4.
A roll call vote was taken. Representatives Herron, Gatto,
Dahlstrom, and Ramras voted in favor of Amendment 3.
Representatives Lynn, Gruenberg, and Holmes voted against it.
Therefore, Amendment 3 was adopted by a vote of 4-3.
11:14:45 AM
REPRESENTATIVE LYNN made a motion to adopt Amendment 4, labeled
26-LS1448\P.11, Bullard, 4/6/10, which read:
Page 8, following line 11:
Insert a new subsection to read:
"(e) The provisions of this subsection apply to
a person who makes an independent expenditure for a
communication described in (a) of this section. If the
person paying for the communication is not a natural
person, the provisions also apply to the responsible
officer or officers of the corporation, company,
partnership, firm, association, organization, labor
organization, business trust, or society who approves
the independent expenditure for the communication. A
person who makes a communication under this subsection
may not, with actual malice, include within or as a
part of the communication a false statement of
material fact about a candidate for election to public
office that constitutes defamation of the candidate.
For purposes of this subsection, a statement
constitutes defamation of the candidate if the
statement
(1) exposes the candidate to strong
disapproval, contempt, ridicule, or reproach; or
(2) tends to deprive the candidate of the
benefit of public confidence."
REPRESENTATIVE HOLMES objected for the purpose of discussion.
REPRESENTATIVE LYNN indicated that [Amendment 4 would add a new
subsection (e) to proposed AS 15.13.090, and this subsection
would prohibit a person from, with actual malice, including a
false statement of material fact about a candidate in a
communication the person pays for if the false statement
constitutes defamation of the candidate].
REPRESENTATIVE GRUENBERG - referring to Amendment 4's use of the
phrase, "with actual malice" - offered his recollection that in
the 1964 U.S. Supreme Court case New York Times Company v. L. B.
Sullivan, the standard used was, "with actual malice or reckless
disregard for the truth".
REPRESENTATIVE GRUENBERG suggested amending Amendment 4
conceptually such that the words, "or with reckless disregard of
the truth" be added after the phrase "with actual malice". He
clarified that his intent would be for the drafter to use the
exact wording from Sullivan.
11:17:43 AM
MR. BULLARD explained that the concept of, "with reckless
disregard of the truth" was already one of the elements of the
definition of the phrase, "with actual malice".
REPRESENTATIVE GRUENBERG surmised, then, that Amendment 4 need
not be amended.
MR. PTACIN, in response to a question, offered his belief that
Amendment 4 would make defamation of a candidate via a
communication a violation of APOC law, and noted that in
instances where the violator is not a natural person, the
provision would apply to the entity's responsible officers -
those who approved the expenditure for the communication.
REPRESENTATIVE LYNN added that Amendment 4 would put those who
purchase communications [and those who approve of their
purchase] on notice that they need to be careful with regard to
what's included in the communications or they could be held
liable.
MR. DUNNAGAN, in response to a question, indicated disapproval
of Amendment 4 - in terms of it being pertinent to the goals of
the bill - and mistrust that its proposed language would be
inserted into the correct place in statute.
CHAIR RAMRAS characterized Amendment 4 as superfluous.
11:21:05 AM
SENATOR FRENCH expressed support for Amendment 4, opining that
it would be a good idea to put those whom he'd previously termed
the "new players in Alaska elections" - corporations and unions
- on notice that Alaska's election laws apply to them as well.
REPRESENTATIVE GRUENBERG opined that as a matter of good policy,
it's important for the legislature to stand firmly behind the
principle that one shouldn't be allowed to "slander and liable"
another person. He expressed his hope that any objections to
Amendment 4 would be removed.
MR. PTACIN, in response to questions, indicated that the
statutes governing the APOC don't currently include a
prohibition against defamation, with actual malice, of a
candidate; reiterated his understanding of what Amendment 4 does
and who it would apply to; noted that the idea that a candidate
can seek redress from someone who defames the candidate is an
aspect of tort law; and relayed that he doesn't find the
language of Amendment 4 to be either wide open or ambiguous.
REPRESENTATIVE GRUENBERG pointed out that the same standard
contained in Amendment 4 is already used when holding a
corporation criminally liable.
CHAIR RAMRAS opined that Amendment 4 would invite ambiguity.
REPRESENTATIVE HOLMES removed her objection to the motion to
adopt Amendment 4.
CHAIR RAMRAS objected.
11:25:18 AM
A roll call vote was taken. Representatives Gatto, Lynn,
Gruenberg, and Holmes voted in favor of Amendment 4.
Representatives Dahlstrom, Herron, and Ramras voted against it.
Therefore, Amendment 4 was adopted by a vote of 4-3.
[CSSB 284(FIN), as amended, was held over.]
11:25:42 AM
ADJOURNMENT
The House Judiciary Standing Committee meeting was recessed at
11:25 a.m. to a call of the chair. [The meeting was reconvened
April 11, 2010.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| Proposed amendments 4.10.10.pdf |
HJUD 4/10/2010 10:00:00 AM |
|
| SB284 amendments p.20 and P.21.pdf |
HJUD 4/10/2010 10:00:00 AM |
SB 284 |
| SB284 amendment P.22.pdf |
HJUD 4/10/2010 10:00:00 AM |
SB 284 |