Legislature(2015 - 2016)GRUENBERG 120
04/01/2016 01:00 PM JUDICIARY
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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.]