Legislature(1997 - 1998)

04/24/1998 01:07 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 466 - CAMPAIGN MISCONDUCT: FALSE INFORMATION                                
Number 2137                                                                    
CHAIRMAN GREEN announced that the last order of business would be              
HB 466, "An Act relating to violations of state election laws,"                
sponsored by Representative Mark Hodgins.                                      
REPRESENTATIVE MARK HODGINS explained that "HB 466 is a campaign               
bill that reforms mud slinging, that reforms bad ads, that reforms             
saying anything you want to say about another person.  You can                 
still do that under [HB] 466, but once you are shown that you have             
-- that you're saying something that is wrong or knowingly false,              
then the wrath of [HB] 466 falls upon you.  And what that does is              
that through [AS] 15.56.110 (indisc.) certain convictions, that                
means that you are not seated for office.  And under [AS] 15.56.115            
'dispositions of cases involving corrupt practice', that means that            
you go to the head of the line in the court system so that the                 
situation is taken care of very quickly.  Anybody can say anything             
they want to, but when shown proof of mistake or deception, they               
must desist or else [HB] 466 grabs them."  He said this bill will              
affect a small cadre of people directly and a very large cadre of              
people indirectly.  He informed the committee that Section 1                   
removes certain things from being a misdemeanor and makes it a                 
felony.  He explained that if a candidate says something about an              
opponent and the opponent tells the other candidate that what they             
are saying is false and has proof it is false, if that candidate               
does not stop saying those false statements, and if they are                   
convicted, they will not be seated for office.  He stated that the             
existing law makes these types of actions a misdemeanor.  He noted             
that there were cases that went to the district attorney and the               
district attorney said that they would not waste their time on                 
these types of cases because it is not a trophy.  They don't get a             
trophy out of it, they get a misdemeanor.  If it's a felony, then              
it's a trophy.  He emphasized that HB 466 will increase the penalty            
from a class A misdemeanor to a class C felony.                                
REPRESENTATIVE BERKOWITZ said he wanted more information on the                
trophy cases that were not pursued.                                            
REPRESENTATIVE HODGINS said there have been cases that were not                
pursued because they were misdemeanors and for political reasons,              
they were not pursued.                                                         
REPRESENTATIVE BERKOWITZ said he would suspect that there were                 
proof problems with the cases Representative Hodgins described and             
that is why he is curious about the cases and what the fact                    
patterns are.                                                                  
REPRESENTATIVE HODGINS replied that the district attorney makes a              
judgment everyday on whether a case has more precedence than                   
another.  They will not take a misdemeanor case if they are clogged            
up with felony cases.                                                          
REPRESENTATIVE BUNDE referred to page 2, Section 2 of HB 430 which             
reads:  "(2) would provoke a reasonable person under the                       
circumstances to a breach of the peace or that a reasonable person             
would construe as damaging to the candidate's reputation for                   
honesty, integrity, or qualification to serve if elected to                    
office."  He said if he called someone a "low-life jerk" which                 
certainly could be considered damaging to a candidate's honesty,               
integrity, or qualification to serve, and asked is he guilty under             
this provision.                                                                
REPRESENTATIVE HODGINS responded it would depend on the courts and             
the district attorney; however, he would have an option of trying              
to prove that he is not.  He told the committee that the law is in             
force now, and the only thing this bill would do is to elevate it              
from a misdemeanor to a felony.                                                
REPRESENTATIVE BUNDE said the point he is trying to make is that               
there is a lot of innuendo, there's a lot of personal opinion, and             
he doesn't believe that would fall under this.  He said the notion             
that this bill would clean up mud slinging is maybe hopeful.                   
REPRESENTATIVE HODGINS stated that HB 430 would clean up some                  
portions of mud slinging where somebody is attacking somebody on               
their record, or their criminal record, and they come forward and              
say they don't have one, that's the portion.  He said, "There's no             
magic pill for this."                                                          
Number 2384                                                                    
REPRESENTATIVE PORTER said, "I thought during your opening remarks             
you alluded to a requirement to notify the issuer of the statement             
that you have a problem with."                                                 
REPRESENTATIVE HODGINS said if a person knowingly goes forward with            
false information, anyone can go forward and say that they didn't              
know the information was false.                                                
REPRESENTATIVE BERKOWITZ referred to Section 2 of HB 430 and said              
if a person said false information about a candidate and it had                
nothing to do with their honesty or integrity and only marginally              
related to their qualifications to serve, it seems that there has              
been no violation of this statute.  He said if a person lied about             
someone's record the way this statute is set up requires an attack             
on the person's character, not on a voting record .... [ends mid-              
speech because of tape change]."                                               
TAPE 98-70, SIDE B                                                             
Number 0001                                                                    
REPRESENTATIVE PORTER referred to subsection (b) on line 26, page              
2 which reads:  "(b) violation of this section is a corrupt                    
practice.  However, notwithstanding AS 15.20.540, only a defeated              
candidate may contest the nomination or election of a person for               
violation of this section."  He said, "You would have to be the                
injured party to go forward.  This complaint driven by the person              
that you have been -- that you have either been attacked or has                
attacked you."                                                                 
REPRESENTATIVE BERKOWITZ said, "But that's not -- what you're                  
saying is you only get hurt if you lose."                                      
REPRESENTATIVE PORTER said that is not the case.  He said, "If you             
can stop a mud slinging campaign from somebody coming forward with             
false information that they know is false, you don't have to lose              
to stop them."                                                                 
REPRESENTATIVE BERKOWITZ remarked that only a defeated candidate               
may contest a nomination or election violating this section.  He               
stated, "What you're saying is if you lose an election, it doesn't             
matter how dirty you got, it's just you lost.  And we're not                   
creating a disincentive to dirty campaigns, you just don't want to             
be the last one left holding the bag, as far as this Act goes."                
Number 0055                                                                    
REPRESENTATIVE HODGINS said, "You don't have to lose to invoke                 
this.  It's a deterrent.  If you know that you are conducting                  
yourself contrary to this statute, that will be a deterrent."  He              
indicated that he has no problem with a campaign that goes forward,            
which is based on factual campaigning.  He does have a problem with            
campaigns that make false accusations that the person knows are                
REPRESENTATIVE PORTER explained that quite often the candidate or              
person representing the candidate that violates this provision                 
intentionally does it so close to an election that there is no time            
for a response and that's the game plan they have.  He believes                
that that is why the provision of "a defeated candidate may contest            
the nomination or election" because that's the disincentive for                
that last minute knowingly false smear.  The fact that so many of              
the allegations bring into play "knowing" as opposed to having been            
told, he asked if this is really an attack on their integrity or a             
personal opinion.  He said all of these things make this a very                
troublesome area in the law.  He commented he appreciates what the             
sponsor is trying to get at, but he doesn't think it rises to the              
level of a felony.                                                             
REPRESENTATIVE HODGINS said the fact that if it does change an                 
election, it seems that there wouldn't be a value that would make              
it into a felony.                                                              
CHAIRMAN GREEN told Representative Hodgins the problem he has is               
proving that actually caused the election to change.                           
REPRESENTATIVE HODGINS stated that it would have to be proved that             
a person knowingly supplied false information after they were told             
it was false information.  He said they are not changing anything              
in the bill except for elevating the offense to a felony.  It is               
already in the law.  He explained that all of the committee's                  
arguments about whether this is right or just or not, it's already             
in law.  He said the only thing that happens to a person is that               
they cannot be seated for that seat.                                           
REPRESENTATIVE BUNDE asked if the fact that a candidate is                     
convicted of a felony is what keeps them from being seated.                    
REPRESENTATIVE HODGINS said that is correct.                                   
Number 0223                                                                    
PAT CARTER, Legislative Assistant to Representative Hodgins, Alaska            
State Legislature, came before the committee to provide                        
information.  He briefed the committee on the history on defamation            
laws and explained that it had two purposes:  1) to prevent public             
unrest and 2) to preserve public order.  He said protection is                 
different for elected officials or famous persons than it is for               
private persons.  Defamation of a private individual is thought to             
cause a violent response because not only does it defame that                  
individual, but also his family and anybody else who may be in                 
association with them.  Those exact same issues apply to a public              
person with the exception if it is an elected official.  It not                
only incites concerns for the breech of peace but also the scandal             
in government.  He said, "I think that by allowing what we're                  
talking about here to go back to saying we're trying to cover this             
whole broad spectrum of preventing someone from calling someone a              
low down dirty jerk.  This law won't prevent that.  But if I take              
out a full-page ad saying that you were a child molester and I run             
it five days before the campaign before the election, and I've got             
absolutely no proof of that and I told five people that I was going            
to do it and I was going to fabricate this information, that is a              
class C felony according to this law."                                         
REPRESENTATIVE BUNDE said, "If I'm just following your analogy                 
further so I can understand.  You take out the ad that you know is             
false, but you don't tell anybody, and then the person who is                  
defeated brings this case, that person who is defeated has to prove            
that you knew that was false information.  Or if it's early enough             
before the election, if the person proves to you that's false                  
information, you have to withdraw the ad....  You have -- if a                 
person wants to do this other thing and they're all clever and they            
just don't tell anybody about it, they do it anyway, and then you              
come back and you can't prove it's knowingly and it's already after            
the election, so ..."                                                          
MR. CARTER pointed out that the opponent does not have to prove                
that someone knowingly said false information about them.  The                 
state of Alaska has to do that because it is a crime, and then the             
prosecutor has to see if there is enough information to make a                 
REPRESENTATIVE BERKOWITZ asked, "Why did you leave 'initiatives'               
out of this section?"                                                          
MR. CARTER said that was discussed in the House State Affairs                  
Committee and when he researched the origin of the defamation law,             
he found that it was to protect an individual and not the law                  
itself, and defaming an initiative is not likely to invoke a                   
violent response such as it would with an individual.                          
REPRESENTATIVE BERKOWITZ said if the intent of the bill is to                  
protect the process, he suggested including "initiatives" in the               
CHAIRMAN GREEN advised the members that the bill would be held over            
for further discussion.                                                        

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