Legislature(1997 - 1998)
03/19/1998 08:02 AM House STA
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 307 - U.S. SENATE VACANCIES Number 0643 CHAIR JAMES announced the next order of business is SB 307 am, "An Act relating to conditions for filling vacancies in the office of United States senator; and providing for an effective date," sponsored by Senator Halford. CHAIR JAMES made reference to HB 377, which was previously heard in committee and is the companion to SB 307. [HB 377 is currently in the House Rules Committee]. Number 0651 BILL STOLTZE, Legislative Assistant to Senator Rick Halford, Alaska State Legislature presented SB 307. He explained SB 307 makes a simple change to our statute regarding the appointment of U.S. senators by requiring the person appointed by the governor to fill a vacancy shall be a member of the same party as the predecessor and that the appointment be confirmed by the legislature. Mr. Stoltze indicated it's a fairly straightforward policy call. Number 0664 REPRESENTATIVE BERKOWITZ said he believes the primary thrust is to ensure that the will of the voters is upheld as best as possible. MR. STOLTZE acknowledged that's the primary thrust. REPRESENTATIVE BERKOWITZ asked Mr. Stoltze, "You don't have any particular (indisc.) of either one of our senators right now." MR. STOLTZE indicated this really isn't about any particular individuals or who happens to be governor. He said, "I think you want to fix a leaky roof while it's sunny rather than wait until it's raining." Number 0674 JIM BALDWIN, Assistant Attorney General, Civil Division, Office of the Attorney General, Department of Law, said this bill differs slightly from Representative Hodgins' bill in that it would add the confirmation requirement by the majority of the members of the legislature in joint session. He said he thinks the House bill makes it a caucus confirmation question. MR. BALDWIN reported that as SB 307 went through the Senate committees, it merely had the requirement on it that the appointee be from the same political party as the predecessor in office; however, that was changed on the floor of the Senate to add the confirmation requirement. Therefore, the department did not get to testify in any committee about the confirmation issue so the Department of Law wanted to make the record today of their position on the legal issue involving confirmation. He said, "We made it here in connection with Representative Hodgins' bill, but it's a slightly different approach." Number 0693 MR. BALDWIN said Article 17 of the U.S. Constitution provides for how U.S. senators are to be appointed or elected and it states that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. There's no mention in the U.S. Constitution about a confirmation requirement. In Alaska, the power of appointment is viewed as an executive power and that confirmation is a sharing of that executive power. Under the Alaska Supreme Court case of Bradner v. Hammond, our supreme court said that the legislature may participate in the executive's power of appointment only in situations where it is specifically authorized under our constitution. MR. BALDWIN said he believes there is a very clear legal issue about the validity of the confirmation requirement and that it should be carefully considered. He said this a point which he has often been in disagreement with the legislature about - because the legislature as an institution often is fond of a confirmation requirement to share in the power of the appointment and that seems to be the policy that's expressed here. However, it can complicate the appointment situation. As we look down the road, if there is a disagreement between the governor and the legislature over a particular appointment, he thinks history has shown us that this can become a difficult situation, not only for the governor but also for the legislature. For example, in the early days of the state, Governor Egan had a disagreement with the legislature about an appointment to fill a state office, and this went on for some time because of the confirmation requirement that we have in existing law for filling vacancies. He indicated it complicated the timeliness within which the position could be filled and that harms everyone when it cannot be done expeditiously. Mr. Baldwin said, "There can be some difficult situations presented to the legislature in the appointment process if there cannot be, in the confirmation process, the governor can present the legislature with difficult choices which is exactly what happened between Governor Egan and the legislature in those days. So it's a two-edge sword here, by wanting to participate in the process, it not only slows it down, but it..." TAPE 98-39, SIDE A Number 0001 MR. BALDWIN continued. ...future felt that the legislature's participation was not appropriate and that the matter should be litigated before an appointment is made to fill the vacancy. Or a particular appointment could be - the validity of it could be under a cloud until litigation is resolved. Mr. Baldwin said he believes it's a very important issue for consideration. He urged the committee to return the bill back to its original version, as it was considered in the Senate committees, and not as it was amended on the floor [where it didn't have the confirmation requirement by the legislature]. CHAIR JAMES noted she only has one version of SB 307 amended, Version E. She pointed out there is no provision for confirmation in this bill. CHAIR JAMES asked what if we didn't have the confirmation. She said she can understand his argument on the confirmation and that she has a tendency of not wanting to going through process either. The way the current process works, as she understands it, is that when a replacement from a particular political party needs to be made, that the political party submits at least three names, the governor then would have the choice of selecting one of those three names. Chair James asked Mr. Baldwin, in the current system, what if the governor doesn't like any of those three names as a replacement, what does he do. Number 0058 MR. BALDWIN replied the current process is one that Representative Hodgins' bill was intended to remedy, it's silent as to what you do with a U.S. senator, it just says the governor shall appoint. It's for state offices that there's a difference in treatment when you have a vacancy. And that's where you get the recommendation of the district committees when you have a vacancy between the primary and the general, but that custom of obtaining the recommendations of the district committees is also carried forward to vacancies that occur after a general election as well. But (indisc. - noise) Representative Hodgins' bill [HB 377] is seeking to formalize that custom in the law. But as to U.S. senators, it's been silent about participation by party members, and it even has been silent as to whether it be from the same party or not. Mr. Baldwin said, "In fact, in one instance in our history, there was an appointment of, I believe a Republican when there was a vacancy from a..." CHAIR JAMES interjected, she noted we currently have that senator. She said, "I understand that if we're assuming that whichever political party that this senator or congressman is from has been elected by that party in the state, and that there was a philosophy that goes along with that, and so it stands to reason that if something happens to that person then there is a replacement that it should be of the same party. And I'm very very supportive of that issue. What I'm not clear about, what we should do is, how do those nominations get to the governor. And you know, one of the things that we have a problem with here, we have this problem with playing political games and that's the part of this job that I don't like, but I like to make rational decisions. Well, it would seem to me, if I was a Democrat or a Republican and I had a Democrat - or my party person in there and they left, I would certainly want that appointment to be by somebody who could be elected next time out. And it is very possible that if there isn't some participation from the party to put up the names of potential people to do that, that the governor - may be of a different party could choose somebody who met just the party requirements but actually wouldn't put in somebody that could be reelected. So I think that the next election tells the story when the public goes to vote that's the issue, and if it's early in a term, that's something else. But are you saying it's only temporary until we have a vote anyway." MR. BALDWIN replied that's right. CHAIR JAMES continued. She said so it really doesn't make any difference, as long as they qualify as a party member and that the confirmation, or the other thing, doesn't apply in this case. MR. BALDWIN replied under this bill it would. CHAIR JAMES stated she understands that, but in the reality of it, is agreeing with him that it doesn't have a place in this because we are only talking about a temporary assignment until an election can be held. MR. BALDWIN replied right. Number 0134 CHAIR JAMES asked, "If there's a certain length of time left in that period would they not go to election until the new one..." MR. BALDWIN interjected. He said he believes that's right, but he would have to look at the statute. CHAIR JAMES asked but if it's longer, then that person has to go up for election. MR. BALDWIN replied there's minimum period, if there's more time left in the term then you take it to a special election and fill the vacancy that way. He also noted, from a brief survey of what happens in other states, it's pretty common for there to be a statutory requirement that the appointment made be filled from the same party. He said he advised the governor that there really isn't much they can say about this part of it, saying that it be from the same political party, that's a policy call for the legislature to make that a requirement and that's perfectly valid. CHAIR JAMES said she would like to go a little further and say that the process of putting the names forward from the party, because the whole thing could be persuaded to be going in a different direction if the governor would put in the wrong name for whichever party it was. Chair James noted Alaska has more people who are not of a party then we do of a party, so if we were a party state, where everyone had to vote their party, it might be easier to choose. She said, "But in this case, where we have half the people who don't necessarily vote by party, and of course, I'm a strong party person, I was when I was a Democrat, and I am now - I'm a Republican. I really believe in the party structure and I think it does make a difference and so I would like to have something in here, maybe to do that." Number 0170 REPRESENTATIVE BERKOWITZ made a motion to adopt proposed Amendment LS1574\EA.1, Glover, 3/18/98 [Amendment 1]. He explained it provides that the governor should call a special election to determine (interrupted)... Representative Berkowitz said, "It seems to me, that if we're worried about the will of the people, the best thing is go to the people and allow the choice to come from them as to who they feel ought to represent them in that important post in D.C. Say the governor gets to pick, and the parties get to put the names before him, then in a way we put ourselves in the box of either, (Indisc.) someone with all the advantages of an incumbency, or else having the governor of an opposite party draw someone out who might not be capable of winning that election." Page 1, lines 5 - 13: Delete all material and insert: Sec. 15.40.010. Condition [CONDITIONS] and time of calling special election [FILLING VACANCY BY APPOINTMENT]. When a vacancy occurs in the office of United States senator, the governor [, WITHIN 30 DAYS,] shall, by proclamation and subject to AS 15.40.050, call a special election to be held on a date not less than 60 nor more than 90 days after the date the vacancy occurs [APPOINT A QUALIFIED PERSON TO FILL THE VACANCY]. However, if the [REMAINDER OF THE TERM OF THE PREDECESSOR IN OFFICE WILL EXPIRE OR IF THE] vacancy occurs on a date that is less than 180 but more than 60 days before the date of the primary election for the office [WILL BE FILLED BY A SPECIAL ELECTION BEFORE THE SENATE WILL NEST MEET, CONVENE, OR RECONVENE], the governor may not call a special election {FILL THE VACANCY]. Sec 2. AS 15.40.050 is amended to read: Sec. 15.40.050. Date of special election. The special election to fill the vacancy shall be held on the date of the first [GENERAL] election, whether primary or general, [WHICH IS HELD MORE THAN THREE FULL CALENDAR MONTHS] after the vacancy occurs if the vacancy occurs on a date that is less than 180 but more than 60 days before (1) a primary election, other than the primary election for the office; or (2) a general election. Sec. 3. AS 15.40.060 is amended to read: Sec. 15.40.060. Proclamation of special election. The governor shall issue the proclamation calling the special election at least 50 [80] days before the election. Sec. 4. AS 15.40 is amended by adding a new section to read: Sec. 15.40.075. Date of nominations. Candidates for the special election shall be nominated by petition transmitted to the director before the 21st day after the vacancy occurs by (1) the actual physical delivery of the petition in person; (2) mail postmarked not later than midnight of that date; or (3) telegram of a copy in substance of the statements made in the petition. Sec. 5. AS 15.40.030, 15.40.040, 15.40.080, and 15.40.090 are repealed. Renumber the following bill section accordingly. Number 0198 CHAIR JAMES asked Mr. Baldwin how long a temporary appointee can fill a vacancy. MR. BALDWIN referenced the language on lines 10 - 13, Version E: However, if the remainder of the term of the predecessor in office will expire or if the vacancy will be filled by a special election before the United States senate will next meet, convene, or reconvene, the governor may not fill the vacancy. MR. BALDWIN explained how he reads it is, if you don't have a naturally occurring election in that period left of the term, then you appoint. But if there's an election that comes up, then you'd do it by election. CHAIR JAMES asked what do we do currently. MR. BALDWIN replied that's in existing law, you're not changing that. Number 0223 CHAIR JAMES remarked, "It's interesting that you would come up with this, Representative Berkowitz (laughter). It seems to me like I've just been seeing pieces of paper go by here in this committee all year taking power away from the governor from the Republicans, and here you are, a Democrat and now you want to take power away from the governor." REPRESENTATIVE BERKOWITZ joking replied, it's infectious. Number 0237 REPRESENTATIVE HODGINS objected to Amendment 1. REPRESENTATIVE ELTON, speaking in support of the amendment, said if we're going to tinker with the way things are right now and contemplate the change in the way we appoint a senator, should a vacancy occur, then this would be the appropriate way of doing it. Instead of shifting controls to the legislature, why don't we shift it back to the people who are going to be served by the person who is going to be in the U.S. senate. This is the logical step to take, this is the step that ensures the process that we have now, when we select a senator it's maintained, it lets the people choose rather than a politician, or as contemplated in this bill, a small set of politicians choosing. CHAIR JAMES indicated they still have quite a lot more work to do on this bill. She asked if the objection to the amendment is maintained. She was informed there is no one on teleconference. REPRESENTATIVE HODGINS maintained his objection. CHAIR JAMES asked for a roll call vote. Representatives Elton, Berkowitz and James voted in support of it. Representatives Hodgins, Dyson and Ivan opposed it. Therefore Amendment 1 failed by a vote of 3-3. Number 0280 REPRESENTATIVE ELTON suggested it may be appropriate to ask for a fiscal note from the legislature because the bill contemplates the confirmation could happen by a majority of members in a joint session of the legislature and that could mean that we're going to need to have an interim meeting that we wouldn't otherwise have. CHAIR JAMES said she didn't think that is necessarily true, she mentioned she needs to talk to the sponsor of the bill. Chair James announced SB 307 would be held in the House State Affairs Standing Committee for further consideration.
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