Legislature(1997 - 1998)
04/24/1998 01:07 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 false. 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 case. 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 bill. CHAIRMAN GREEN advised the members that the bill would be held over for further discussion.