04/01/2016 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB236 | |
| Confirmation Hearing(s): | |
| HJR29 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HJR 29 | TELECONFERENCED | |
| *+ | HB 339 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 236 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 1, 2016
2:07 p.m.
MEMBERS PRESENT
Representative Gabrielle LeDoux, Chair
Representative Wes Keller, Vice Chair
Representative Neal Foster
Representative Bob Lynn
Representative Charisse Millett
Representative Matt Claman
Representative Jonathan Kreiss-Tomkins
MEMBERS ABSENT
Representative Kurt Olson (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 236
"An Act relating to marriage solemnization."
- MOVED HB 236 OUT OF COMMITTEE
CONFIRMATION HEARING(S):
BOARD OF GOVERNORS OF THE ALASKA BAR
Adam Trombley - Anchorage
-CONFIRMATION(S) ADVANCED
COMMISSION ON JUDICIAL CONDUCT
Amy Gurton Mead - Juneau
Robert Sheldon - Anchorage
Karla Taylor-Welch - Fairbanks
-CONFIRMATION(S) ADVANCED
ALASKA JUDICIAL COUNCIL
Loretta M. Bullard - Nome
-CONFIRMATION(S) ADVANCED
VIOLENT CRIMES COMPENSATION BOARD
Gerad Godfrey - Anchorage
-CONFIRMATION(S) ADVANCED
COMMITTEE ON LEGISLATIVE ETHICS
H. Conner Thomas - Nome
Gary J. Turner - Kenai
-CONFIRMATION(S) ADVANCED
HOUSE JOINT RESOLUTION NO. 29
Requesting the United States Congress to call a convention of
the states to propose an amendment to the Constitution of the
United States to set a limit on the number of terms that a
person may be elected as a member of the United States House of
Representatives and as a member of the United States Senate; and
urging the legislatures of the other 49 states to request the
United States Congress to call a convention of the states.
- HEARD & HELD
HOUSE BILL NO. 339
"An Act relating to arson in the third degree."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 236
SHORT TITLE: RIGHT TO REFUSE TO SOLEMNIZE MARRIAGE
SPONSOR(s): REPRESENTATIVE(s) TALERICO
01/19/16 (H) PREFILE RELEASED 1/8/16
01/19/16 (H) READ THE FIRST TIME - REFERRALS
01/19/16 (H) JUD
03/30/16 (H) JUD AT 1:00 PM GRUENBERG 120
03/30/16 (H) Scheduled but Not Heard
03/31/16 (H) JUD AT 1:00 PM GRUENBERG 120
03/31/16 (H) -- Will be Continued from 3/30/16 --
04/01/16 (H) JUD AT 1:00 PM GRUENBERG 120
BILL: HJR 29
SHORT TITLE: CALL FED. CONSTITUTIONAL CONV: TERM LIMITS
SPONSOR(s): REPRESENTATIVE(s) KELLER
01/27/16 (H) READ THE FIRST TIME - REFERRALS
01/27/16 (H) JUD
03/25/16 (H) JUD AT 1:00 PM GRUENBERG 120
03/25/16 (H) -- MEETING CANCELED --
04/01/16 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
JOSHUA DECKER, Executive Director
American Civil Liberties Union of Alaska (ACLU)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 236, testified
regarding balance.
PAMELA SAMASH
Nenana, Alaska
POSITION STATEMENT: During the hearing of HB 236, offered
support.
JOSHUA BANKS, Staff
Representative Dave Talerico
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 236, answered
questions.
ADAM TROMBLEY
Anchorage, Alaska
POSITION STATEMENT: Testified as appointee to the Board of
Governors of the Alaska State Bar.
LORETTA BULLARD
Nome, Alaska
POSITION STATEMENT: Testified as appointee to the Alaska
Judicial Council.
NICK TOMBULETES, Executive Director
U.S. Term Limits
Melburn, Florida
POSITION STATEMENT: During the hearing of HJR 29 discussed term
limits for the U.S. Congress.
ACTION NARRATIVE
2:07:56 PM
CHAIR GABRIELLE LEDOUX called the House Judiciary Standing
Committee meeting to order at 2:07 p.m. Representatives Keller,
Lynn, Claman, Kreiss-Tomkins, and LeDoux were present at the
call to order. Representatives Foster and Millett arrived as
the meeting was in progress.
HB 236-RIGHT TO REFUSE TO SOLEMNIZE MARRIAGE
2:08:46 PM
CHAIR LEDOUX announced that the first order of business would be
HOUSE BILL NO. 236, "An Act relating to marriage solemnization."
CHAIR LEDOUX opened public testimony.
2:09:11 PM
JOSHUA DECKER, Executive Director, American Civil Liberties
Union of Alaska (ACLU), said that the bill offers something good
as well as inadvertently dramatically changes the balance
between religious freedom and sex non-discrimination laws that
have existed in the country for 62 years. On the frontend, he
advised, the ACLU strongly supports the First Amendment right of
clergy to choose to solemnize or not solemnize marriages
comporting with their faith, and that the ACLU's letter
(directed to the committee) cited examples of the ACLU going to
court to vindicate one's practice of religion which it averages
approximately one lawsuit per month. He related that concerns
of the ACLU are that the bill disturbs a long-standing balance
point between the right of individuals to pray and practice
their faith with the right of the public to be treated fairly
and free from discrimination in public spaces. He explained
that since the original Civil Rights Act, society struck a
balance between private spaces and public spaces and when
organizations open themselves up to the public, it has to treat
all comers fairly, and HB 236 undoes this carefully constructed
balance. He commented that there is no less of a defender of
freedom of religion than United States Supreme Court Justice
Antonin Scalia, who 26 years ago wrote about this balance. Mr.
Decker paraphrased the following, "we want to ensure that laws
of general applicability that apply to everyone equally should
in fact apply to everyone equally -- and that we should not lose
this equilibrium point away from religious organizations." Mr.
Decker then referred to his letter pages 4-5, that its
suggestions would allow the bill to "pass muster," in clarifying
the right of clergy and religious organizations to practice
their faith when it is not open to the public, and when they are
open to the public they should treat all comers equally.
2:13:00 PM
REPRESENTATIVE LYNN requested his definition of a church being
"open to the public." Obviously, he offered people are members
of a church and it is open to membership, and he could not think
of any churches that wouldn't welcome a visitor.
2:13:45 PM
MR. DECKER, in response to Representative Lynn, said that by
open to the public, the American Civil Liberties Union of Alaska
(ACLU) means open to the public in the secular space. Churches
open to anyone who would like to participate in the religious
service are exempt from non-discrimination laws in that
capacity. He referred to yesterday's testimony regarding the
Shrine of St. Therese in Juneau wherein it rents out event space
open to the public for secular purposes. For example, a
Lutheran couple renting out part of the banquet hall space for a
secular wedding reception. He explained that that is the ACLU's
definition of "open to the public," such that being open to all
comers in the secular non-religious sphere.
2:14:53 PM
CHAIR LEDOUX referred to open to the public and offered a
scenario of a synagogue with an area it rents out to the public
for various functions, and the Klu Klux Klan or the American
Nazi Party want to have a celebration of Nazi-ism in that event
space of the Jewish community. She asked whether current law
forces the Jewish community to rent to the Klu Klux Klan or the
Nazi party.
2:16:19 PM
MR. DECKER answered no. In the event a synagogue or any
institution is opening up space to the public they are allowed
to turn away members of the Klu Klux Klan or members of the
American Nazi Party because the nation, as a society, has not
said that membership in the Klu Klux Klan or American Nazi Party
falls under what the law calls a "protected class." He
explained, there are certain categories the law has carved out
because society said "when one is open to the public, one should
not treat people on the basis of race, sex, national origin, or
physical disability, differently." Therefore, he said, it would
be within their rights to refuse to rent that space to a member
of the American Nazi Party or the Klu Klux Klan.
CHAIR LEDOUX asked whether religion is a protected category.
MR. DECKER answered that religion is a protected category and
one is not allowed ...
2:18:04 PM
CHAIR LEDOUX surmised that in other words, the Catholic Church
would have to rent out space under current law to a group that
identified themselves as witches.
2:18:23 PM
MR. DECKER answered that it would depend upon how that church
treated the space, and it would be perfectly fine if the
Catholic Church made the decision on the frontend that it will
only rent that space out to Catholics. The Catholic Church is
allowed to treat its spaces as private; however, if the church
says on certain days it will rent the to the Girl Scouts of
America and the Senior Citizens group, then the church made the
decision to treat that particular space as part of the public.
Therefore, he said, the church would have to be open to the
public. He added that churches have the ability to decide
whether it wants to be open to the public because the law gives
a church complete freedom to restrict the uses of that space in
accordance with its faith. Although, he reiterated, for the
past 62 years when religious entities have decided to open space
to the public on the frontend and be open to all comers, they
must in fact be open to all comers.
2:19:36 PM
CHAIR LEDOUX asked "including witches?"
MR. DECKER responded that if, in the hypothetical, a church has
decided to open the space to the public then it would have to be
open to the public and it could not discriminate on the basis of
religions in the same it way it cannot discriminate on the basis
of race, national origin. He explained that it is in the same
way employers cannot tell an employee they are fired based upon
their religion, and those same protected classes apply to spaces
of public accommodation. Although, in the event the church
desires to control who is able to use their spaces, "they should
make the eminently reasonable choice to keep those spaces public
and not, in fact, open to all comers," he said.
2:20:26 PM
CHAIR LEDOUX asked whether he was saying that the bill in its
current form is unconstitutional, or rather that he disagrees
with the policy.
2:20:52 PM
MR. DECKER extended there are no constitutional cases on point,
but if this bill is passed in its current form it would
dramatically rewrite the balance the country and the state
struck for 62 years ...
CHAIR LEDOUX interjected "in your opinion."
2:21:15 PM
MR. DECKER explained that it is in the opinions of the United
States Supreme Court and the Alaska Supreme Court. He offered
that their letter cites both the U.S. Supreme Court Justice
Scalia's case of Employment Div., Dept. of Human Resources of
Oregon v. Smith, 494 U.S. 872 (1990); and the Alaska Supreme
Court under Swanner v. Anchorage Equal Rights Cornmn., 874 P.2d
274 (Alaska 1994). He offered that both clearly enunciate the
principle of the equilibrium point between the public's freedom
to be free from discrimination in public spaces, and religion's
freedom to exercise its religion and define it in private
spaces.
2:22:00 PM
REPRESENTATIVE KELLER noted that under AS 18.80, [State
Commission For Human Rights], if a church makes a property
available for leasing for whatever purpose, potentially there is
a problem because someone could allege that the church is
discriminating simply for denying access to the facility, and
this bill moves toward clarifying that issue.
MR. DECKER related that he did not understand his question.
REPRESENTATIVE KELLER surmised that what Mr. Decker is saying,
under the recently enacted Alaska law, if a piece of property is
not leased, the owner becomes vulnerable due to denial for
access under the new "Human Rights Act." He asked whether he
was correct, that is what the law tries to clarify.
MR. DECKER advised that as the ACLU reads the bill in its
current form, it is trying to carve out, from existing non-
discrimination law, places of public accommodation that
religious organizations own and are renting out to the public
for wedding receptions and celebrations of marriages. He
apologized if he was not entirely following Representative
Keller's question.
MR. DECKER offered that the concern animating this bill in many
ways is a solution in search of a problem. Non-discrimination
protections are not new in Alaska or the United States. In
Anchorage, for example, in terms of protections of individuals
who are gay and transgender, Anchorage has had these protections
for the past six months, and neither for the past 62 years, or
in the past six months, the sky has not fallen, he said. The
ACLU is unaware of any churches that have been unable to
practice their religion as their faith teaches it on the basis
of civil rights, non-discrimination laws. He pointed out that
because this is a solution in search of a problem in a bill that
dramatically rewrites a balance the nation has had for over one-
half century. It is for these reasons the ACLU made
suggestions in its letter to reiterate the constitutional right
of churches to practice their faith as they see fit, as well as
to clarify that this bill should not undertake such a dramatic
change.
2:25:17 PM
REPRESENTATIVE KELLER asked Mr. Decker to abandon that question
for now and referred to the balance Mr. Decker said has existed
for 50 years, and asked whether he is using case law to form his
opinion, and asked for a list.
MR. DECKER reiterated that the ACLU's letter cites two cases,
one was authored by U.S. Supreme Court Justice Scalia in an
eight to one decision, Employment Div., Dept. of Human Resources
of Oregon v. Smith, 494 U.S. 872 (1990), and Swanner v.
Anchorage Equal Rights Cornmn., 874 P.2d 274 (Alaska 1994)].
2:26:24 PM
REPRESENTATIVE KELLER referred to Mr. Decker's statement that
the balance was to protect the rights of people that were in
that public space. He requested an illustration because it is a
balance he had never considered, and asked what the balance was
between what and what.
MR. DECKER explained that, as a first principle, the nation as a
society decided, beginning 1964, that when a place is open to
all comers they cannot turn people away because of their race,
sex, physical disability, national origin or religion. Both the
United States Supreme Court and Alaska Supreme Court, he pointed
out, decided that when there are laws of general applicability
that apply to everyone equally, the balance that society struck
is that when religious organizations want to fully practice
their faith and shield out a space that is not open to all
comers, it should keep that space private. Although, he said,
when the decision is made on the frontend to open up a banquet
hall, it should be available to all comers. He reiterated that
the balance has worked well for the public as well as the
churches for 62 years.
2:29:30 PM
REPRESENTATIVE CLAMAN referred to a question he had asked Bishop
Edward Burns, and asked whether the Catholic Church would rent
the Shrine of St. Therese to a Lutheran couple who wanted their
wedding reception there, and a Catholic priest had not performed
the ceremony. He said he was advised that unless the Lutheran
couple converted just before their wedding they couldn't get the
priest to marry them.
REPRESENTATIVE CLAMAN asked, in the context of the public
accommodations questions raised in the ACLU's letter and
proposed amendments, Mr. Decker's perspective about the Catholic
Church if it is renting to the Lutheran couple for a reception
after being married in the Lutheran Church. He further asked
whether that means they are now becoming public for purposes of
renting to a gay couple that wants to have their wedding
reception at the Shrine of St. Terese.
MR. DECKER responded that if the Catholic Church has taken the
position it will not marry this couple because they are Lutheran
that is certainly within its rights under the First Amendment.
He reiterated that separate from the religious ceremony, the
church made the decision that it is willing to rent to these
individuals, irrespective of the fact they are Lutheran and not
Catholic, then its decision to rent the secular reception space
to that couple makes it a place of public accommodation.
2:31:56 PM
REPRESENTATIVE CLAMAN surmised that on the one hand it is a
solution in search of a problem, and on the other hand even if
the legislature passes the current bill, a potential lawsuit is
lurking for the Catholic Church if it is renting the Shrine of
St. Therese to a non-member of the church for a reception.
2:32:26 PM
MR. DECKER reiterated that if the Catholic Church decided to
rent part of the Shrine of St. Therese for secular purposes,
such as secular wedding receptions, then it is open to all
comers. A problem would arise if the Catholic Church then
decided to not rent that space to someone of the protected
class. In the event the Catholic Church is concerned about
that, and it does want to maintain its ability to choose to rent
or not rent that space on the basis of protected class, the
wiser course of action would be for the Catholic Church to
decide to not make that space open to the public and keep it
private and available to Catholic individuals.
2:33:42 PM
REPRESENTATIVE CLAMAN surmised that from Mr. Decker's
perspective, even if the bill is passed as written without
either of his proposed amendments, the statute wouldn't protect
the church and he would still have the same public accommodation
arguments regardless of what the statute says.
MR. DECKER agreed, and he said, "Certainly under federal non-
discrimination law."
REPRESENTATIVE CLAMAN referred to Mr. Decker's two suggested
amendments and asked how they solve the problems he raised.
MR. DECKER pointed to the robust constitutional freedoms of
clergy and religious organizations in that they do not have to
solemnize marriages if their faith teaches that a certain type
of marriage is outside the boundary of that faith. He added,
that freedom has existed under the First Amendment for over 200
years. Mr. Decker continued that the second proposed amendment
clarifies this public/private distinction and, he reiterated, if
churches want to continue unfettered discretion, the wiser
course of action is to designate spaces as private, thereby,
making it unavailable to all comers and the non-discrimination
laws do not apply, such as private places, private clubs,
private organizations and religious organizations. He
reiterated that once the decision is made to be open to the
public, it must be open to the public. He explained that the
two amendments focus on the constitutional right to choose which
marriages to solemnize, and clarifies that it is in private
spaces that they have unfettered discretion about whom to admit
and serve.
2:36:27 PM
REPRESENTATIVE MILLETT offered a scenario of the Catholic Church
deciding to make the Shrine of St. Therese a private club, and a
person submitted an application, met all of the criteria of that
club, and was granted access for a fee, she asked whether that
would be acceptable.
MR. DECKER responded that the Catholic Church wouldn't need to
go that far because it is a religious organization and it could
simply choose to rent the space only to Catholic individuals and
there would be no administrative hoops to go through.
CHAIR LEDOUX asked whether the Catholic Church could decide to
rent the space only to Christians, such as groups similar to
Catholicism.
MR. DECKER answered that in both federal and state
constitutional law there is a well-established principle that
courts cannot interrogate the nuances of religious belief;
therefore, if the Catholic Church takes the position that
consistent with their religious faith, they only want to make
the space available to other individuals who believe that Jesus
is the Messiah they would have a strong argument that the space
is in fact private because the test in terms of public
accommodation is whether it is open to all comers. In the event
it is not open to all comers and if the reason the church
decided not to make it open to all comers is grounded in its
religious belief, it would have a strong argument that the space
is private and not public.
CHAIR LEDOUX asked why the church couldn't set out that one of
the tenets in the church is that it will rent the space to all
people who believe that marriage is between one man and one
woman.
2:39:41 PM
MR. DECKER replied that he does not want to get to the nuances
of ....
CHAIR LEDOUX expressed, that is exactly what the committee is
getting into, the nuances.
2:39:57 PM
MR. DECKER related that he does not want to get into the nuances
of Catholic doctrine because he is not an expert. The test in
terms of public accommodation is whether it is open to all
comers; therefore, if the Shrine of St. Therese is open to all
comers to rent for a secular reception space, it needs to be
open to all comers. The church can decide to open it up to the
private members of its community in which case ...
CHAIR LEDOUX interjected that she did not believe Mr. Decker was
answering her question.
CHAIR LEDOUX restated her question and asked why the church
couldn't simply say that it would rent the space out to all
people who believe that marriage is between one man and one
woman. She pointed out that Mr. Decker said that the church
could only rent to people who accepted Jesus as the Messiah, so
why couldn't the church say it would only rent to people who
believe that marriage is between one man and one woman. She
expressed that that is a fundamental doctrine of the faith, and
then asked whether the Supreme Court actually said that sexual
orientation is a protected class.
MR. DECKER responded no, the United States Supreme Court has ...
CHAIR LEDOUX said, thank you.
2:42:08 PM
REPRESENTATIVE KREISS-TOMKINS asked whether Mr. Decker is aware
of an instance in Alaska where this legislation would enable an
organization that wants to change its policies but thus far has
declined due to fear of exposing itself to liability.
MR. DECKER replied that he was not aware of any organization
that, but for the fear of liability, has been inhibited from
changing its policies. As the ACLU sees it, there are no
problems out there that this bill would solve, he said
2:43:29 PM
REPRESENTATIVE KREISS-TOMKINS referred to Mr. Decker's statement
that the United States Supreme Court has not defined sexual
orientation as a protected class, and commented that the basic
discussion here is gay marriages. With regard to the protected
class, where does a gay couple, that is getting married, fall
into this area of non-discrimination given that gay couples and
sexual orientation has not been defined as a protected class.
MR. DECKER reiterated that no couple, whether same sex or
opposite sex, has a constitutional right to have a particular
religious individual marry them, and there is nothing in Alaska
law or nationwide that obligates any religious person or clergy
to officiate any wedding. He explained that the intersection
between a same sex couple wishing to celebrate their marriage in
a secular wedding reception would interact with this law in
communities such as Anchorage, which decided to include sexual
orientation as part of its existing non-discrimination law.
That couple, if a space is open to the public, has the same
rights as everyone else to use the space, he said.
2:45:47 PM
REPRESENTATIVE KREISS-TOMKINS surmised there isn't a protected
class on the federal or state level, but this law would trump
the definition of protected classes on a municipal level in
communities, such as Anchorage, that have defined sexual
orientation as a protected class. Therefore, protections that
exist for this protected class, on a municipal level, would be
trumped by this law, he asked.
MR. DECKER said that Representative Kreiss-Tomkins was entirely
accurate as it would trump municipal protections, and it is also
accurate to say that both federally and statewide, sexual
orientation is not a protected class.
REPRESENTATIVE KREISS-TOMKINS asked whether sexual orientation
is a protected class in the City and Borough of Juneau.
MR. DECKER advised sexual orientation is not a protected class
in the City and Borough of Juneau.
REPRESENTATIVE KREISS-TOMKINS asked whether it is accurate to
say that the Catholic Church in Juneau could decline to rent out
the Shrine of St. Therese to a gay couple that is having a
secular non-religious celebration because gay couples and sexual
orientation is not a protected class.
MR. DECKER responded that Representative Kreiss-Tomkins was
correct in that sexual orientation is not a protected class in
the City and Borough of Juneau, the Catholic Church has the
legal ability to choose to rent or not rent space to individuals
based upon their sexual orientation.
2:47:37 PM
PAMELA SAMASH, asked whether she could ask questions of the
committee
CHAIR LEDOUX explained that testimony does not include
questions.
MS. SAMASH offered testimony, as follows:
Alrighty, thank you for your time and hearing our
testimonies today. Please vote yes on HB 236. I
believe this bill should pass because we as Christians
are being targeted and singled out and we need
protection. As a Christian myself, I cannot
participate in certain clubs or activities
contradicting to the Bible. And that's my right as an
American citizen to believe and serve any god I feel
is best for me. The Christian church, like me, cannot
support or participate in those organizations or
activities against the Bible either. It's important
that we have a law that keeps us from persecution and
from those who feel offended if we deny access to our
buildings or services for anti-Christian events. The
church's financial status is generally fragile and
that's because we are trying to help people in our
communities that have needs. Like those with
addictions, or single moms, homeless people, orphans
in other countries, et cetra. One lawsuit can shut
down not only the church but all of the services they
provide to those in dire need. This is America and it
makes me really sad that we need to testify to protect
our own Christian rights.
I'm asking, please, that you vote yes on HB 236 and
protect our religious freedoms. And since I can't ask
you a question, all I can respond to my interpretation
of the bill is when you were asking about ... does
people that believe in Jesus or believe in sex of one
man and one woman only allowed to use the church, you
know, like facility. And I thought that was a really
good question and I can't -- I'm not his lawyer and
I'm not Talerico, so if I'm messing this up, forgive
me. I feel like the answer to that question isn't
like everybody that walks through the door has to take
a quiz on if they believe the doctrine of church as
much as does the activity that they're participating
in support or contradict the doctrine of the church.
In other words, if you have 10 people in there that
want to participate in some homosexual event and the
doctrine says that homosexuality is wrong, you could
ask those 10 people and maybe 8 out of 10 of them
would say, we believe Jesus is the Son of God. But,
you know, the Bible says, and I'm not calling
homosexuals' demons okay, not sayin that. But the
Bible says even demons believe Jesus Christ is the Son
of God. Believing Jesus Christ is the Son of God
isn't -- is -- is not -- is wonderful, but the thing
is, does the activity support or go against the
Christian church's doctrine. That's, to me, the real
point, you know. So, I just wanna clarify that that's
my interpretation of what it means and it would be sad
to see a church, you know, that has strong religious
beliefs in certain areas, not just homosexuality but
any area, you know. Like you said Klu Klux Kan
somebody mentioned, you know. Nobody believes in
hurting somebody just cause of the color of their
skin, that's ridiculous, you know. And fer sure we
wouldn't -- I know my church wouldn't want the Klu
Klux Klan to do a ceremony because they're hurting
people no matter of their protected class or whatever,
by law or not, because they go against our doctrine of
love for each other and killing people is not love.
So, that's what I wanted to share with you. Thank
you.
2:53:25 PM
REPRESENTATIVE KREISS-TOMKIN offered a scenario of the NWACP
having a hall and it decided to open that hall in a non-private
manner beyond the functions of the NWACP chapter and rent it to
all comers. He asked whether the Klu Klux Klan could rent that
space in the category of "all comers" and would they have
grounds to do so and appeal for a non-discrimination in asking
to rent that facility.
MR. DECKER reiterated his previous testimony that the Klu Klux
Klan is not a protected class and if the NWACP does have a space
open to all comers it is still able to turn people away as long
as that decision is not based upon a protected class. The NWACP
is well within its rights to refuse to rent the space, he said.
2:55:08 PM
CHAIR LEDOUX offered a scenario of a religion and one of its
tenets was anti-miscegenation law, and she asked whether the
NWACP must rent its space to an organization with a tenet that
white people can't marry black people.
MR. DECKER related that religion is a protected class and for
over one-half century the nation decided that public spaces
cannot decline to serve people simply based on the customer's
religion. He noted that the hypothetical is interesting, and
there may be a problem if the NWACP's decision not to rent a
public space, otherwise was made available to all comers, simply
based on the religion of a specific applicant. Although, this
hypothetical is unlikely to occur, but if it does the safer
course of action for the NWACP would be to decide it will not
rent the space to all comers and keep it private, he said.
CHAIR LEDOUX, after ascertaining no one wished to testify,
closed public testimony.
2:58:15 PM
JOSHUA BANKS, Staff, Representative Dave Talerico, Alaska State
Legislature, advised he is available.
REPRESENTATIVE KREISS-TOMKINS asked the names of local
governments in Alaska that have defined sexual orientation as a
protected class.
MR. DECKER responded he was unaware of all of the communities
that have labeled sexual orientation as a protected class, but
this legislation is not targeted toward same sex marriages.
Although, the U.S. Supreme Court's ruling on same sex marriage
was the start of laws similar to HB 236, it is not identical.
The intention of the bill is not to target same sex marriage,
but to allow any religious organization to officiate weddings
based upon their religious views, he said.
3:00:21 PM
REPRESENTATIVE KREISS-TOMKINS offered that he was unsure whether
the solemnization of marriage is the crux here, but everyone
including the ACLU agreed that that is a "cumbiyah" point. He
opined that the crux of the differing perspectives is the
accommodation of a facility that could be related to the
solemnization formation or celebration of a wedding reception.
He asked, if this is not related to same sex marriage, what
class, besides sexual orientation and same sex marriages, is out
there that is creating a quandary for religious institutions.
REPRESENTATIVE KREISS-TOMKINS further asked whether there is an
institution in Anchorage that has definitively changed its
practices, such that instead of opening its facilities to the
public and all comers, has made itself private to avoid this
quandary in response to the Anchorage Assembly defining sexual
orientation as a protected class.
3:01:51 PM
MR. BANKS, in response to the first question, advised that to
his knowledge in the State of Alaska there are not any instances
of a pastor or any religious organization being forced to
officiate a wedding or have a reception at their church
facility. Although, he pointed out, Representative Talerico
received concerns from pastors and clergy that the U.S. Supreme
Court ruling would potentially put them in a position where they
would have to refuse to officiate the wedding or refuse to allow
a reception at their facility which would possibly lead to civil
litigation.
3:03:00 PM
REPRESENTATIVE KREISS-TOMKINS asked for clarification that these
are Anchorage clergy that currently make space available to rent
to the public and all comers.
MR. BANKS clarified that the pastors are constituents and live
within District 6. He added that they spoke directly to
Representative Talerico and he was unaware of their locations
and whether they do open their facilities to the public, but he
would follow up on the question.
3:03:42 PM
REPRESENTATIVE KREISS-TOMKINS asked whether any community,
within District 6, has defined sexual orientation as a protected
class; therefore, creating this problem for religious
institutions.
MR. BANKS opined that he did not believe so.
3:04:13 PM
REPRESENTATIVE CLAMAN referred to the two proposed amendments
within the letter from the American Civil Liberties Union of
Alaska and asked whether he had reviewed those amendments with
Representative Talerico prior to this hearing.
MR. BANKS responded that this bill was pre-filed in January and
the sponsor did not reach out to the ACLU of Alaska regarding
this. He added that outside of the quote from Mr. Decker in the
Alaska Dispatch News, the sponsor's office has not heard any
comments or had any contacts from the ACLU regarding this bill
and this is completely new to the sponsor.
REPRESENTATIVE CLAMAN restated his question and asked whether
Mr. Banks had an opportunity to show the sponsor this letter
prior to this hearing.
MR. BANKS responded, no.
3:05:11 PM
REPRESENTATIVE MILLETT commented that Fundamentalist Mormons
believe in polygamy and performing a marriage is something a
religious organization wouldn't have to perform, as an example
of something outside of same sex marriage, that doesn't fit into
the doctrine of the Catholic Church.
REPRESENTATIVE CLAMAN noted that before passing this bill out he
would be curious to see what Representative Talerico thinks of
either of the two proposed amendments.
3:06:12 PM
CHAIR LEDOUX advised she had reviewed the amendments and that
that issue will not hold up the bill.
REPRESENTATIVE LYNN related that this is a good bill and he
supports it because it is common sense.
3:06:30 PM
REPRESENTATIVE KELLER moved to report HB 236, labeled 29-
LS1290\A out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, HB 236
passed from the House Judiciary Standing Committee.
3:06:58 PM
The committee took an at-ease from 3:06 p.m., to 3:10 p.m.
^CONFIRMATION HEARING(S):
CONFIRMATION HEARING(S):
BOARD OF GOVERNORS OF THE ALASKA BAR
COMMISSION ON JUDICIAL CONDUCT
ALASKA JUDICIAL COUNCIL
VIOLENT CRIMES COMPENSATION BOARD
COMMITTEE ON LEGISLATIVE ETHICS
3:10:13 PM
CHAIR LEDOUX announced that the next order of business would be
the confirmation hearings on various boards, commissions, and
committees for Governor Bill Walker's eight appointees.
3:10:54 PM
CHAIR LEDOUX remarked that the committee members have had an
opportunity to review resumes from all of the appointees as
follows: Board of Governors of the Alaska Bar, Adam Trombley;
Commission on Judicial Conduct, Karla Taylor-Welch, Amy Gurton
Mead, and Robert Sheldon; Alaska Judicial Council, Loretta M.
Bullard; Violent Crimes Compensation Board, Gerad Godfrey; and
Committee on Legislative Ethics, H. Connor Thomas and Gary J.
Turner. She advised that the following appointees are online to
testify and/or answer questions: Adam Trombley, Karla Taylor-
Welch, Amy Gurton Mead, Loretta M. Bullard, Robert Sheldon,
Gerad Godfrey, and H. Connor Thomas.
REPRESENTATIVE CLAMAN noted he would like to ask Adam Trombley a
question.
3:12:03 PM
ADAM TROMBLEY, said he was available.
REPRESENTATIVE CLAMAN asked how he has found being a public
member on the Board of Governor of the Alaska State Bar because
it appears he is interested enough to continue serving on the
board.
MR. TROMBLEY responded that he has enjoyed the disciplinary
component and he is impressed with how hard attorneys are on
each other for those who break bar rules, and how stringent they
hold them to it. He described that as the best part and,
speaking as one of the public members, there are discussions
about changes to the bar rules, or how to address an issue, or
what to pass on to the Alaska Supreme Court because the Board of
Governor of the Alaska State Bar does a lot of the leg work for
the Alaska Supreme Court. He said he tries to bring it back to
how a non-attorney would view what the board is doing which is
how he views his role.
3:13:47 PM
REPRESENTATIVE CLAMAN related there are three public members and
they are outnumbered by the lawyers, and he asked whether he
ever feels his concerns as a public member are not weighed
carefully by the entire board.
MR. TROMBLEY replied no, he has never felt that way because the
attorneys are always judicious about listening to the public
members' concerns.
3:14:21 PM
REPRESENTATIVE FOSTER thanked Conner Thomas for his continued
service on the Committee on Legislative Ethics and stated that
he believes the House Judiciary Standing Committee is familiar
with Mr. Thomas. He then turned to Loretta Bullard who would be
a new member on the Alaska Judicial Council, and said he has
known her for many years. He related he is excited for someone
to bring a rural perspective and asked her to speak to her rural
experience.
3:15:18 PM
LORETTA BULLARD advised that she lives in Nome, was raised in
Alaska, and retired four years ago as president of a regional
non-profit for 21 years. She advised she was appointed to the
Alaska Judicial Council in October, 2015, and has attended
meetings since that time. During that time they have considered
applicants for the Superior Court in Anchorage and also
applicants for the Alaska Supreme Court which is a very good
process.
REPRESENTATIVE FOSTER pointed out that Ms. Bullard has been
active with many different organizations, such as the regional
Native non-profit in Nome, AFN, and other organizations both
Native and non-Native throughout the state, and that she is a
fair and smart person.
3:17:27 PM
CHAIR LEDOUX asked whether any of the appointees would like to
offer testimony themselves, there being no response she opened
public testimony. After ascertaining no one wished to testify
closed public testimony.
3:18:16 PM
REPRESENTATIVE KELLER moved to advance the confirmations of the
[eight] appointees referred to the House Judiciary Standing
Committee to a joint session of the House of Representatives and
Senate with the understanding that the committee's vote is not
approval or disapproval. It is a vote to move the names forward
to the full body as follows: Adam Trombley to the Board of
Governors of the Alaska State Bar; Amy Gurton Mead, Robert
Sheldon, and Karla Taylor-Welch to the Commission on Judicial
Conduct; Loretta M. Bullard to the Alaska Judicial Council;
Gerad Godfrey to the Violent Crimes Compensation Board; H.
Conner Thomas, and Gary J. Turner to the Committee on
Legislative Ethics.
CHAIR LEDOUX announced that there being no objection and in
accordance with AS 24.60.130 the House Judiciary Standing
Committee has reviewed the qualifications of the governor's
appointees and recommends that the names be forwarded to the
joint session for consideration. She advised that moving these
names forward does not reflect the intent of any member to vote
either for or against these individuals during any further
sessions for the purposes of ratification of their appointment.
3:19:53 PM
The committee took an at-ease from 3:19 p.m., to 3:19 p.m.
HJR 29-CALL FED. CONSTITUTIONAL CONV: TERM LIMITS
3:19:58 PM
CHAIR LEDOUX announced that the final order of business would be
HOUSE JOINT RESOLUTION NO. 29, Requesting the United States
Congress to call a convention of the states to propose an
amendment to the Constitution of the United States to set a
limit on the number of terms that a person may be elected as a
member of the United States House of Representatives and as a
member of the United States Senate; and urging the legislatures
of the other 49 states to request the United States Congress to
call a convention of the states.
3:24:20 PM
REPRESENTATIVE KELLER presented HJR 29 and advised it is a
resolution that makes an appeal to Congress to call for a
convention for an amendment to have term limits on the United
States Senate and United State House of Representatives.
Representative Keller referred to the Constitution of the United
States, Article V, which read as follows:
The Congress, whenever two thirds of both houses shall
deem it necessary, shall propose amendments to this
Constitution, or, on the application of the
legislatures of two thirds of the several states,
shall call a convention for proposing amendments,
which, in either case, shall be valid to all intents
and purposes, as part of this Constitution, when
ratified by the legislatures of three fourths of the
several states, or by conventions in three fourths
thereof, as the one or the other mode of ratification
may be proposed by the Congress; provided that no
amendment which may be made prior to the year one
thousand eight hundred and eight shall in any manner
affect the first and fourth clauses in the ninth
section of the first article; and that no state,
without its consent, shall be deprived of its equal
suffrage in the Senate.
REPRESENTATIVE KELLER commented that Article V is part of the
original Constitution of the United States, and the founders,
foreseeing a time there may be a need for adjustments, included
Article V, and provided two ways to make an amendment to change
the constitution. One of the methods is that the U.S. Congress
must have a two-thirds vote and, he opined, that 33 of those
have been put forward. He then referred HJR 29, and advised it
is the second Article V process in which to have a convention of
the states. Two-thirds of the states make an application to the
U.S. Congress to have a convention, Congress calls the
convention, and three-fourths of the states must ratify. He
noted that it is sometimes forgotten that is a high bar because
only 27 of the 33 offered by Congress were ratified by three-
fourths of the states. He pointed to the growing interest to
get two-thirds of the states to put forward language to
Congress, and advised the U.S. Term Limits group is coordinating
this effort.
3:27:45 PM
NICK TOMBULETES, Executive Director, U.S. Term Limits, said that
U.S. Term Limits is the only full-time organization dedicated to
placing term limits on the U.S. Congress. He offered testimony
as follows:
In the 1990s our organization helped citizens in 23
states put term limits on their members of Congress
using a ballot measures, including right here in
Alaska, and it passed in 23 states at that point it
was just shy of 50 percent of the entire Congress that
would have had a term limit. And it looked like it
was going to be inevitable that that would impel the
Congress itself to propose an amendment that would
apply to everyone. But, it was not to be because the
Supreme Court stepped in in the decision U.S. Term
Limits v. Thornton of which our organization was a
part, and ruled that the list of qualifications for
office to the Congress in the Constitution is
exhaustive. That the states cannot utilize the ballot
measure, state statutes, or state constitutional
amendments to add onto it. So, while they foreclosed
on that possibility, I guess you could say the silver
lining was that they opened up the possibility to get
this done using a constitutional amendment. And so,
the U.S. Constitution says, as Representative Keller
mentioned, that upon application from two-thirds of
the states, so that would be 34 at this point,
Congress shall call a convention for the purpose of
proposing amendments. And so, the convention that
Alaska would call for in this resolution is exclusive
to the subject of Congressional term limits, and it
would not go active until 33 other states have passed
similar or the same resolution. So far my home state
of Florida was the first to pass the resolution back
in February.
Now, we think that HJR 29 should be adopted because
there is a very real concern that members of Congress
are removed from their constituents and they rely too
heavily on incumbency to deflect challenges at the
ballot box. And the latest average from
"RealClearPolitics", Congress had a 13 percent
approval rating but a 95 percent re-election rating
for the incumbents. And I think that evidence
suggests that you have a broken system. There was
also a study done by Princeton and Northwestern
Universities in 2014 where they analyzed over 2,000
public opinion surveys on almost all national issues.
And they compared those public opinions to the
policies that became law from Congress and the
researchers concluded that the preferences of the
average American have a meniscal near zero,
statistically non-significant impact upon
Congressional policy. But when they looked at, you
know, the perceptions and views of the upper 10
percent of voters in the country, the ones that were
funding the packs and the re-elections of the
Congressmen, there was a correlation. So, I think
most people feel disconnected from Congress in this
way, they feel that their voices are not being heard
at the federal level. And that's part of what term
limits are intended to address.
Congress was not intended to be a -- Congress was
intended to be citizen legislature whose members were
very close to their constituents and would come home
to spend time around them, much in the way you all do
it here in Alaska. But, the mentality was lost as the
population grew, the size and the complexity of
government grew and so did the needs that it had to
address. You know, Alaska is noted for having a small
state legislature, but in terms of the actual
representation ratio and the size of the districts,
you know how powerful each individual voters and
constituent of yours is, you're one of the best in the
country. And when you compare that to Congress with
an average House district size of 700,000 people, you
are looking at great difficulty in holding members of
Congress accountable. And, that's when special
interests tend to step into the vacuum and really
decide who can get elected because the cost of
unseating a U.S. House incumbent is pegged at $2.5
million by the Foundation for Government
Accountability. And so, we view that as sort of a
barrier to entry for the average person, you know, the
farmer, the school teacher, the union member who wants
to get elected and have their voice heard in
Washington.
So, term limits would reduce those barriers to entry
and it's important to note the amendment is not aimed
at any one member of Congress, nor is it guaranteed to
affect the current membership. In fact, at a
convention the delegates that you all select, and that
the other states select, would be in charge of
deciding how long and what the appropriate term limit
is, whether the current members are grandfathered in,
whether it is prospective or retro-active. That's not
something that comes mandated from this resolution.
And the most important thing, I think, is that this
would really honor the views of a vast majority of
Alaskans. In 1994 the vote from the people of Alaska
for Congressional term limits was 63 percent in favor
of a statute limiting Congressional terms and that's
actually still on the books today in Title 15, Chapter
30 of Alaska Statutes. Of course, this was nullified
by the Supreme Court in the Thornton case, but that's
what left the door open to do it with constitutional
amendments. And then, recent polling done by
McLaughlin & Associates, which is a respected polling
firm, found that 78 percent of Alaskans today now
support an Article V Amendment Convention to put term
limits on Congress. And you can slice that every age,
race, gender, party demographic group, and they're all
equally supportive of it.
So, you know, in closing as the Vice-Chair said, the
history of Article V really makes it the perfect tool
for the states to use at a time like this. It was
written into the Constitution specifically so that the
states could bypass Congress and obtain amendments
that might not be in Congress's best interests. And
there's never been a better moment for the states to
take action and kind of re-establish this balance with
Congress. Give Congress back to the American people
who are obviously disillusioned by the performance.
So thank you for your time and I'll be happy to answer
any questions you have.
3:34:37 PM
REPRESENTATIVE KELLER asked why term limits were not included in
the original Constitution, the provision for amendment is there
but no term limits.
MR. TOMBULETES explained that the founding fathers were divided
on the issue of term limits and obviously they had greater
concerns of preserving the union at that point and making sure
there was a new constitution that could endure. The issue did
come up and several of the founders were in favor of a term
limit. He said, it was Benjamin Franklin who wrote a term limit
into the Constitution of Pennsylvania, Thomas Jefferson was not
at the Philadelphia convention but upon seeing it for the first
time after coming back from France, he noted that the absence of
rotation in office which was a term limit would end in abuse for
the U.S. Senate and for the President of the United States. He
opined that a reason why it wasn't included was that they didn't
think it would be necessary because the average tenure in
Congress did not rise above two terms until the beginning of the
Twentieth Century. There was rapid turnover and Washington
D.C., was not so much a place of profit and power as it is today
and, he noted, people actually wanted to leave Washington rather
than go there.
3:36:28 PM
REPRESENTATIVE KREISS-TOMKINS asked whether it is accurate that
each state would determine its own election process for
delegates attending the convention.
MR. TOMBULETES answered that he was correct.
REPRESENTATIVE KREISS-TOMKINS asked how active is an application
for a constitutional convention, how much time is the window
open to get to the two-thirds of states threshold.
MR. TOMBULETES explained that if there is no termination date
within the applying resolution, then it is indefinitely active.
It is recommended that if an application goes too long without
being renewed, it should be renewed due to the way the language
has to conform to resolutions coming from other states across
the country. He added that it could present a problem for this
effort because at the end, while Congress has very limited
authority in this process, it does decide whether the
applications are on the same subject and can choose to decline a
convention on that basis.
REPRESENTATIVE KREISS-TOMKINS inquired as to whether there is a
possible scenario that if every resolution from every state
calling for an Article V Constitutional Convention is not
verbatim identical that Congress theoretically could strike down
or decline to call the convention on the basis of those
technical and trivial differentiations.
3:38:31 PM
MR. TOMBULETES answered that it is theoretically possible, some
of the case law suggests that the courts would be empowered to
step in and resolve Article V disputes. It could step in and
compel Congress to call the convention if the court deems the
applications are on the same subject. He offered that it is
critically important for the states not to give Congress excuses
to deny the convention, so the greater variation a state has in
the resolution, the more likely Congress will simply ignore
them. In fact, he pointed out, there have been 400 plus
applications sent by the states to Congress for an Article V
convention, but it has still never been done because they are
not on the same topic. He reiterated that it is critically
important that they are similar in language which is part of
what U.S. Term Limits does in going around the country to work
with legislatures for that level of conformity.
3:39:31 PM
REPRESENTATIVE KREISS-TOMKINS referred to the last point and
asked how many states thus far have called for a convention on
this subject, and what is the closest the United States has come
to an Article V convention on another subject with the largest
amount of states.
MR. TOMBULETES responded that Florida is the only state that has
passed the applying resolution for this particular convention
thus far. Although, he offered, U.S. Term Limits has only
recently begun canvassing the country to generate support from
the grassroots. Consequently, in the current year session is
upwards of ten states that are considering similar resolutions.
He turned to Representative Kreiss-Tomkins' second question and
advised it was the 1913 amendment for direct election of
senators in that they were one state short of the two-thirds
states when Congress pre-empted the states and the Senate
finally caved in after years of trying and proposed that
amendment on its own. Historically, Article V has worked to
endeavor to get to a convention but also to put pressure on
Congress to propose amendments it wouldn't otherwise propose.
He commented that that is how the Bill of Rights was actually
proposed, with the threat of a second convention, James Madison
promised a Bill of Rights and that threat went away.
3:41:25 PM
REPRESENTATIVE KREISS-TOMKINS commented that he finds this
process fascinating and there is merit to this because the
federal system is broken. He remarked that state legislatures,
in a roundabout way, have their hands on the levers which
frightens him somewhat but in this instance he is pleased to see
it coming through.
3:42:20 PM
REPRESENTATIVE KELLER offered to Representative Kreiss-Tompkins
that Rob Natelson of "Conventional Studies," is a respected
constitutional law attorney who prepared a fascinating
"Legislative Compendium" and he would provide a copy if desired.
He pointed out that the in compendium discusses the level that
conventions have held as part of the history of the United
States of America. It has only been in the last 40-60 years
that conventions have been diminished and, he advised, there is
good case law, good history, and viable policy.
3:43:27 PM
REPRESENTATIVE CLAMAN pointed to the death of United States
Supreme Court Justice Antonin Scalia and noted that the framers
originally rejected the idea of term limits as part of their
original intent allows one to change the intent of the
constitution by amending it.
MR. TOMBULETES surmised that Representative was asking him to
affirm his statement.
MR. TOMBULETES explained that the framers knew they were
crafting a document they intended to endure for a long time. It
was not for one particular period in history, but hopefully to
last as long as this Republic could last. The framers knew that
a constitution like ours needed an assessable means of
amendment, and in reading the writing of the framers they were
open about the fact that some of their work might need
correcting and expressed no shame over that fact.
3:44:38 PM
CHAIR LEDOUX turned to Representative Claman and asked whether
he was suggesting that because the founders allowed for a
mechanism for change of the constitution that that somehow is at
odds with Justice Scalia's reading of the strict
constructionist. She opined that the strict constructionist
would say that the constitution isn't supposed to be changed
through judicial interpretation, but there is a difference
between judicial interpretation and an actual amendment to
change something.
3:45:35 PM
REPRESENTATIVE CLAMAN agreed, and noted that after reading
Justice Scalia's opinion and places where he thought original
intent had a place, and when it wasn't convenient it didn't seem
to be part of his analysis, he said. It was more of an
observation to the extent one looks at the constitution, he
noted that one could easily say that the original intent was to
not have term limits, but because ...
3:46:11 PM
CHAIR LEDOUX expressed that of course the original intent was
not to have term limits, but the Constitution of the United
States also allowed for changes through the amendment process.
3:46:23 PM
REPRESENTATIVE KELLER opined that the part about the states
making the call for Congress was added after they changed the
Article V to include that. He could not recall the name of the
person insisting.
MR. TOMBULETES offered that it was George Mason who insisted on
this approach, and Mr. Tombuletes paraphrased Mr. Mason to say,
"No amendments of the proper kind would ever be obtained, you
know, if only Congress had the sole authority of proposing."
3:47:09 PM
REPRESENTATIVE KREISS-TOMKINS commented that it strikes him as
analogous to the Alaska State Constitution's safety valve where
you have entrenched self-interest. He referred to the
referendum process allowed in the Alaska State Constitution, of
which there have been four instances of referenda, and two were
successful. He pointed to the 1980 a referenda that was
"wildly" successful was when the legislature decided to create
its own Cadillac retirement system for legislators. The people
of Alaska were not excited about that idea and it was repealed
by a four to one margin. In this case, where there are people
in Congress who have entrenched self-interest, which is to keep
their seats and be protected by the overwhelming and prolific
power of incumbency. Just with the direct election of senators
and that history must be fascinating for 100 years ago and this
seems like another example, he said.
3:48:22 PM
CHAIR LEDOUX surmised that this makes a lot of sense on a
national level but wondered how it would affect a small state,
such as Alaska, wherein the power it has comes from seniority
and if a person can only have a couple of terms there is not
much seniority. She queried whether Alaska ends up on the
losing end of this bill.
MR. TOMBULETES opined that Alaska does not end up on the losing
end of the deal because the seniority question cuts both ways.
In that, it is advantageous in the seniority driven current
system when a person is a long term member of Congress.
Although, he pointed out, the moment that member decides to
retire that state is immediately at a counter-acting
disadvantage in that the state has to jump back to the front of
the line. It depends upon which point you are on, but it's not
always a positive thing for a small state, and it would be good
for Alaska if Congress were made less about seniority and more
about the merits of the issues because the arguments Alaska has
with the federal government are sound. He argued that seniority
should not be necessary to be able to push back against the
federal government, it should just be common sense for the
majority of Congress.
CHAIR LEDOUX argued that if the bill abolishes the seniority
system wouldn't there be a tendency for a small state like
Alaska to get lost if everyone from New York, or everyone from
California voted their regional ways and there would be no way
to counter balance that.
MR. TOMBULETES opined that there is not much of a dispute over
the fact that most members of Congress under the status quo are
voting primarily for their region and primarily voting for power
to be more concentrated in Washington D.C. He related that
under a term limit system, with a larger portion of the
citizenry sent to Washington, there would be more skepticism to
Washington being the solution to every problem. He was unsure,
he said, whether it would create a regional bend but it would
certainly create a bend in favor of the citizens, which is
rather than those of the Washington political climate.
3:50:36 PM
CHAIR LEDOUX agreed that people are voting on a regional basis,
but the seniority system in which a member from a small state
can rise up in seniority and chair a powerful committee based
upon seniority, that can be sometimes used to counter-balance
the regionalism.
3:51:02 PM
MR. TOMBULETES asked her to restate the question.
CHAIR LEDOUX suggested that even though people tend to vote on a
regional basis, that that can be countered by a member from a
small state rising through the seniority system to be in a
powerful position to counter the regional votes.
MR. TOMBULETES opined that is accurate to an extent in the
current system but, he asked whether Chair LeDoux wants them
being on an island of that view even if they have a powerful
spot on a committee. He questioned whether it is necessarily a
good thing that the rest of Congress is not so sympathetic to
the interests of an individual state because the rest of
Congress has become so rooted in Washington that every solution
needs to be solved in Washington. He opined that if there were
term limits, the members from other states even though they
would subscribe to a regionalist view which can never be
disposed of, they would be more sympathetic to Alaska's position
as a sovereign with regard to the federal government. The other
states would be more respecting and deferring to Alaska's rights
to control its own land and kind of push back against what
Washington is doing, he commented.
3:53:56 PM
CHAIR LEDOUX asked what evidence he has of that. She questioned
why, without the power of a member from a small state to hold a
bill or to otherwise make members who are antithetical to the
interests of the state, other states would just decide to be
nice.
MR. TOMBULETES related his belief that if term limits are
implemented on Congress it would automatically make elections
more competitive and level the playing field for these
districts. There would be a Congress that is more responsive to
the needs of the people of Alaska and to the entire country. He
opined that the people of the country are smarter than the
permanent political class in Washington. Therefore, he pointed
to the Princeton and Northwestern Universities' study and said
that the bottom 90 percent of people in the country do not have
their public policy opinions reflected in Congress at all. He
described that as greatly damaging to the Republic, and the
ideas, the public would generate if it was able to have better
access to Congress, would be good ideas.
3:55:25 PM
REPRESENTATIVE KREISS-TOMKINS referred to the discussion of
small states being disenfranchised through term limits, and said
there are two responses: the U.S. Senate and small states are
already enfranchised with proportionate power; and this state
would only be disenfranchised, when discussing a proportionality
of power in Congress, if there is a correlation between greater
seniority and a small state. He related that while it is true
that Don Young has been a Congressmen for Alaska for many years.
States such as Montana, Hawaii, or Maine have had a lot of
turnover in Congress and have had disproportionally less power
due to their high turnover within their congressional
delegation. He said, on the bigger perspective, he was
uncertain whether this would have a prejudicial effect on the
amount of power that small states have in Congress.
3:57:21 PM
CHAIR LEDOUX responded that it might not have a lot of impact on
other small states, but it might have on our small state.
REPRESENTATIVE CLAMAN noted that in theory, if term limits were
in effect it would benefit states that were electing the more
qualified and skilled people to start serving in Congress and if
the states made a wise choice of those they picked, then those
states with terms limits would do better than those that gain
from seniority. He pointed out that Senator Ted Stevens was
effective early in his career and stayed that way for many
years, and with term limits his power would not have been able
to grow.
4:00:00 PM
CHAIR LEDOUX opened public testimony and, after ascertaining no
one wised to testify, closed public testimony.
CHAIR LEDOUX advised her intention is not to move the bill today
and asked for committee comments. She remarked that she has not
had a session on constitutional law like this since she finished
constitutional law in law school when dinosaurs roamed the
earth.
[HJR 29 was held over.]
4:01:08 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:01 p.m.