Legislature(2009 - 2010)BELTZ 105 (TSBldg)
03/17/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB284 | |
| Confirmations | |
| SB284 | |
| SB297 | |
| SB202 | |
| SB284 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 202 | TELECONFERENCED | |
| *+ | SB 297 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 284 | ||
SB 284-CAMPAIGN EXPENDITURES
1:38:59 PM
CHAIR FRENCH announced the consideration of SB 284 and asked for
a motion to adopt the committee substitute (CS) that
incorporates the amendments that were adopted at the 3/15/10
hearing.
1:39:34 PM
SENATOR WIELECHOWSKI moved to adopt CS for SB 284, labeled 26-
LS1448\E, as the working document. There being no objection,
version E was before the committee.
CHAIR FRENCH moved to adopt Amendment 1, labeled 26-LS1448\E.1,
and objected for discussion purposes. He explained that the
drafter suggested that it would be helpful to the Alaska Public
Offices Commission (APOC) to include definitions for "director"
and "officer" for this new subsection.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 284(JUD), Draft Version "E"
Page 4, following line 5:
Insert a new bill section to read:
"* Sec. 7. AS 15.13.040 is amended by adding a new
subsection to read:
(q) For purposes of (e) of this section,
(1) "director" means a member of the
board of directors of a corporation or
any person performing a similar
function with respect to any
organization;
(2) "officer" means a president, vice
president, secretary, or treasurer,
principal financial officer, or
comptroller of a corporation, or any
person routinely performing functions
similar to those of a president, vice
president, secretary, or treasurer,
principal financial officer, or
comptroller with respect to any
organization."
Renumber the following bill sections accordingly.
SENATOR WIELECHOWSKI asked if APOC requested the definitions.
CHAIR FRENCH replied he wouldn't make that representation, but
the definitions will probably help APOC now that directors and
officers must be identified in campaign advertisements. He noted
that John Ptacin with the Department of Law (DOL) also suggested
that this would be helpful to APOC.
SENATOR WIELECHOWSKI asked if there was any rationale for adding
this in Section 7 as opposed to the end of the bill where
definitions usually are found.
1:42:08 PM
CHAIR FRENCH pointed out that it would fall at the end of the
lengthy disclosure statute, AS 15.13.040. It refers to bill
Section 4, which amends AS 15.13.040(e). Much of this section is
new language and page 3, lines 22-23, talks about officers and
directors. The definitions will probably help APOC understand
who is supposed to report, he said.
SENATOR WIELECHOWSKI said he had no objection to the amendment.
1:44:10 PM
CHAIR FRENCH withdrew his objection to Amendment 1. Finding no
further objection, he announced that Amendment 1 is adopted.
1:44:20 PM
CHAIR FRENCH moved to adopt Amendment 2, labeled 26-LS1448\E.3,
and objected for discussion purposes.
AMENDMENT 2
OFFERED IN THE SENATE BY SENATORS FRENCH AND COGHILL
TO: CSSB 284(JUD), Draft Version "E"
Page 5, line 17, through page 6, line 4:
Delete all material and insert:
"Sec. 15.13.090. Identification of
communication. (a) All communications shall be
clearly identified by the words "paid for by"
followed by the name and address of the person
[CANDIDATE, GROUP, NONGROUP ENTITY, OR
INDIVIDUAL] paying for the communication. In
addition, a person shall clearly
(1) provide the person's address or
the person's principal place of business;
(2) for a person other than an
individual or candidate, include
(A) the name and title of the
person's principal officer;
(B) a statement from the
principal officer approving the communication;
and
(C) identification of the name
and city and state of residence or principal
place of business, as applicable, of each of the
person's five largest contributors under
AS 15.13.040(e)(5), if any, during the 12-month
period before the date of the communication
[CANDIDATES AND GROUPS MAY IDENTIFY THE NAME OF
THEIR CAMPAIGN CHAIRPERSON]."
Page 6, line 16:
Delete "(a)(2)(C)"
Insert "(a)(1)"
Page 6, line 17:
Delete "(a)(2)(D)"
Insert "(a)(2)(C)"
Page 6, line 26:
Delete "AS 15.13.090(a)(2)(D)"
Insert "AS 15.13.090(a)(2)(C)"
CHAIR FRENCH explained that Amendment 2 is about disclaimer to
the public, identifying the communications that are advertised.
It addresses much of an amendment to version R that Senator
Coghill offered and withdrew during the 3/15/10 hearing.
Basically, it rewrites the language in Section 11 of the current
draft removing the idea that candidates and groups may identify
persons associated with their campaign and clearly stating that
every person shall provide that identifying information.
Candidates do this now, he said. He pointed out that the
amendment further says that persons other than an individual
candidate must provide the name and title of the principal
officer; a statement from that officer approving the
communication; and the name, city, and state of the principal
residence or place of business of each of the person's five
largest contributors during the 12-month period before the
communication. The balance of the amendment makes conforming
changes.
1:46:25 PM
SENATOR COGHILL opined that this makes it easier to understand
and it puts parity between candidates and persons. He said he
still objects to reading aloud the five largest contributors
because it will be awkward, but he'll work with it in this
committee.
CHAIR FRENCH removed his objection to Amendment 2. Finding no
further objection, he announced that Amendment 2 is adopted.
CHAIR FRENCH set SB 284 aside for the time being.
SB 284-CAMPAIGN EXPENDITURES
2:14:06 PM
CHAIR FRENCH returned attention to SB 284. He moved to adopt
Amendment 3, labeled 26-LS1448\E.2, and objected for discussion
purposes.
AMENDMENT 3
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 284(JUD), Draft Version "E"
Page 5, line 24, following "(2)":
Insert "except as provided by (d) of this
section,"
Page 6, line 15:
Delete "a new subsection"
Insert "new subsections"
Page 6, line 17, following "section,":
Insert "a communication that includes a print or
video component must have"
Page 6, lines 17 - 18:
Delete "must be read, in a manner that is easily
heard, or"
Page 6, lines 19 - 21:
Delete ", or, in a communication that is
transmitted by a method that includes both audio and
video components, be read in a manner that is easily
heard and placed in the communication so as to be
easily discernable"
Page 6, following line 26:
Insert a new subsection to read:
"(d) Notwithstanding the requirements of
(a)(2)(A) - (D) of this section, in a
communication transmitted through radio or other
audio media and in the communication that
includes an audio component, the following
statement or statements, as applicable, must be
read in a manner that is easily heard:
This communication was paid for by (person's
name).
I am (name and, if applicable, title of the
principal officer of the person) and I
approve this message.
The top contributors of (person's name) are
(the name of the largest contributors to the
person under AS 15.13.090(a)(2)(D))."
CHAIR FRENCH explained that this amendment separates the
different disclaimers to the public that are required when an
advertisement is in print versus either the radio or television.
The idea is to reduce the amount of speaking in an audio
advertisement so that it isn't onerous. He clarified that this
pertains to ads by corporations or unions, not individual
candidates.
SENATOR EGAN said he appreciates the amendment and if it needs
tweaking after the next election cycle it can be addressed next
year.
CHAIR FRENCH said that's a good point for the entire bill. We'll
make it as strong as possible, but I have no doubt we'll revisit
this topic in the near future, he said.
2:17:20 PM
CHAIR FRENCH removed his objection to Amendment 3. Finding no
further objection, he announced that Amendment 3 is adopted.
CHAIR FRENCH set SB 284 aside for the time being.
SB 284-CAMPAIGN EXPENDITURES
2:34:41 PM
CHAIR FRENCH returned attention to SB 284.
SENATOR WIELECHOWSKI moved to adopt Amendment 4, labeled 26-
LS1448\E.4.
AMENDMENT 4
OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI
TO: CSSB 284(JUD), Draft Version "E"
Page 1, line 4, following "campaigns;":
Insert "prohibiting expenditures and
contributions by foreign nations in state elections;"
Page 4, following line 28:
Insert a new bill section to read:
"* Sec. 9. AS 15.13 is amended by adding a new
section to read:
Sec. 15.13.068. Expenditures and
contributions by foreign nationals. (a) A foreign
national may not, directly or indirectly, in
connection with an election under this chapter,
make a contribution or expenditure or make an
express or implied promise to make a contribution
or expenditure.
(b) In this section, "foreign national"
includes
(1) an individual who is not a United
States citizen or lawfully admitted for permanent
residence under 8 U.S.C. 1101(a)(20);
(2) a foreign government, every
political subdivision of a foreign government,
every official, agent, or representative of a
foreign government, and every agency,
corporation, or instrumentality of the foreign
government or of a political subdivision of a
foreign government;
(3) a person outside of the United
States, unless it is established that the person
is an individual and a citizen of and domiciled
in the United States, or that the person is not
an individual and is organized under or created
by the laws of the United States or of any state
or other place subject to the jurisdiction of the
United States and has its principal place of
business in the United States;
(4) a partnership, association,
corporation, organization, or other combination
of persons organized under the laws of or having
its principal place of business in a foreign
country; or
(5) a domestic subsidiary of an entity
described in (2) - (4) of this subsection or a
domestic corporation controlled by an entity
described in (2) - (4) of this subsection, if
that entity finances, participates in, or selects
a person who participates in the making of a
contribution or an expenditure of the domestic
subsidiary or domestic corporation.
(c) The provisions of this section apply
only to the extent permitted by federal law."
Renumber the following bill sections accordingly.
CHAIR FRENCH objected for discussion purposes.
SENATOR WIELECHOWSKI explained that the contents of this
amendment appear in the House version of SB 284 and it seems
like a reasonable provision that will help bring some parity
between the two bills. It expressly prohibits foreign nationals
from participating in Alaska elections and includes a definition
of "foreign national." This is similar to the federal law and
the drafter didn't believe it would present constitutional
problems.
CHAIR FRENCH noted that he and Senator Wielechowski each
received legal opinions on this amendment raising the issue of
preemption. He read the following from Mr. Bullard's 3/17/10
memorandum:
The Federal Election Campaign Act (FECA) prohibits any
foreign national from contributing, donating, or
spending funds in connection with any federal, state,
or local election in the United States, either
directly or indirectly. Because [2 U.S.C. 441e]
already clearly prohibits foreign nationals from
making campaign contributions, expenditures, and
independent expenditures in federal, state, and local
elections, a state effort to legislate in this area
may face a preemption challenge.
2:37:55 PM
SENATOR COGHILL said it sounds as though a corporation like Ford
Motor Company would be prohibited under this.
SENATOR WIELECHOWSKI said he doesn't believe that's the case.
CHAIR FRENCH called a point of order to say that those concerns
would be addressed by what will be Amendment 5. Amendment 4 says
a foreign national and it's directly to that individual not so
much the corporation.
SENATOR WIELECHOWSKI added that Ford Motor Company or Exxon
Corporation could participate because the definition of foreign
national doesn't exclude them. However, an Indonesian branch of
Ford could not contribute to an Alaska election. He said he
believes that this amendment tracks federal law and he
understands legislative legal to say that based on the Supreme
Court case, it's a bit unclear the extent to which foreign
nationals can participate in elections. Legislative legal
believes that a federal law is in place and the question is if
it applies to state or local elections. This amendment tries to
extend it to state or local elections, he said.
CHAIR FRENCH asked Mr. Ptacin his thoughts on Amendment 4.
2:40:39 PM
JOHN PTACIN, Assistant Attorney General, Department of Law
(DOL), stated that he doesn't believe that preemption is a great
concern here. Field preemption is the only variation of federal
preemption that possibly could apply and that occurs only when
there is a pervasive scheme showing that Congress intends to be
the exclusive regulator in an area. It doesn't seem to be the
case that the federal government is the only entity that would
be regulating participation by a foreign national in a state or
municipal election, he said.
CHAIR FRENCH asked Mr. Bullard if he had anything to add on the
issue of preemption.
2:42:17 PM
ALPHEUS BULLARD, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, said he believes that
there may be some preemption risk. He explained that the
amendment was drafted in a manner to make it applicable to the
extent that it is permitted by federal law and to mitigate
preemption concerns. He cautioned that he doesn't know if it's
ironclad proof.
CHAIR FRENCH withdrew his objection to Amendment 4. Finding no
further objection, he announced that Amendment 4 is adopted.
SENATOR WIELECHOWSKI moved to adopt Amendment 5, labeled 26-
LS1448\E.5.
AMENDMENT 5
OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI
TO: CSSB 284(JUD), Draft Version "E"
Page 1, line 4, following "campaigns;":
Insert "prohibiting certain expenditures in state
election campaigns;"
Page 5, following line 16:
Insert a new bill section to read:
"* Sec. 11. AS 15.13.084 is amended by adding a new
subsection to read:
(b) A person that is owned or controlled,
in any part, by a foreign national may not make
an expenditure. In this subsection, "foreign
national" includes
(1) an individual who is not a United
States citizen or lawfully admitted for permanent
residence under 8 U.S.C. 1101(a)(20);
(2) a foreign government, a political
subdivision of a foreign government, a official,
agent, or representative of a foreign government,
and an agency, corporation, or instrumentality of
a foreign government or of a political
subdivision of a foreign government;
(3) a person outside of the United
States, unless it is established that the person
is an individual and a citizen of and domiciled
in the United States, or that the person is not
an individual and is organized under or created
by the laws of the United States or of any state
or other place subject to the jurisdiction of the
United States and that the person's principal
place of business is in the United States;
(4) a partnership, association,
corporation, organization, or other combination
of persons organized under the laws of or having
its principal place of business in a foreign
country; or
(5) a domestic subsidiary of an entity
described in (2) - (4) of this subsection or a
domestic corporation controlled by an entity
described in (2) - (4) of this subsection, if
that entity finances, participates in, or selects
a person who participates in the making of a
contribution or an expenditure of the domestic
subsidiary or domestic corporation."
Renumber the following bill sections accordingly.
CHAIR FRENCH objected for discussion purposes.
SENATOR WIELECHOWSKI said this amendment addresses a concern
he's had about foreign nationals that have ownership interests
in Alaskan corporations. It would prohibit any corporation,
union, or foreign national from making an expenditure in an
Alaska election. If a corporation had stockholders that are not
Americans, those stockholders would not be able to participate
in making expenditures, he said.
2:45:25 PM
SENATOR COGHILL questioned whether a corporation that had a
subsidiary that was incorporated in Alaska and a director that
was a foreign national would be able to make internal changes so
that Alaska citizen within the corporation would be put in as
principals under Alaska reporting laws. He said his belief is
that they will trade people even if they are wholly owned or
partially owned.
SENATOR WIELECHOWSKI said if a corporation is owned or
controlled in part by a foreign national then they would not be
entitled to make an expenditure under this amendment.
SENATOR COGHILL said he's trying to figure out if this means the
corporation itself or the individuals within the corporation
because it seems that this is now driving into a separation.
SENATOR WIELECHOWSKI confirmed that the intent is that if a
corporation is foreign owned or controlled, then they would not
be able to make an expenditure.
CHAIR FRENCH said the operative language is on line 7. It says
"a person" - meaning a corporation or group or nongroup or union
- that is owned or controlled in any part. That language will
attract a lot of attention, he said.
CHAIR FRENCH thanked Mr. Bullard for the extensive amount of
work he'd done on this legislation and asked him to comment on
the concerns he expressed in two separate memorandums regarding
Amendment 5.
2:47:59 PM
MR. BULLARD said this amendment raises First Amendment and
associational and equal protection issues. First, it paints with
a broad brush, he said. Because any large, publicly traded
corporation is likely to have some foreign shareholders, a court
would likely interpret this provision, if it were enacted, as an
indirect prohibition against independent expenditures made by
large corporations or anyone so affected. He said he also
believes that there are equal protection issues. For example, if
a large corporation like AT&T had one foreign shareholder with
whatever percentage ownership interest, that domestic
corporation would be treated differently than a domestic
corporation that had no foreign shareholders.
2:50:04 PM
SENATOR WIELECHOWSKI withdrew Amendment 5. He said that this was
an attempt to address his concerns about opening the doors to
foreign nationals influencing Alaska elections, but he
understood the constitutional warnings.
CHAIR FRENCH said we had a Supreme Court decision to deal with
and we've been trying to craft a bill that would stand up to the
beating it may get in other committees. Finding no further
amendments or committee discussion, and noting that public
testimony had been taken, he asked for a motion.
2:51:33 PM
SENATOR WIELECHOWSKI moved to report CS for SB 284, version E as
amended, from committee with individual recommendations and
attached fiscal note(s).
2:51:55 PM
SENATOR COGHILL objected to make a comment. He said he agreed
with the concept of the last amendment and he would continue to
look for a solution to the top five contributors because it's
still a concern. He then expressed appreciation for the
diligence with which Senator French put this must-pass piece of
legislation forward. I have no further objection, he said.
CHAIR FRENCH announced that without objection CSSB 284(JUD)
moved from the Senate Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|