Legislature(1997 - 1998)
03/21/1998 10:07 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 466 - CAMPAIGN MISCONDUCT: FALSE INFORMATION Number 0345 CHAIR JAMES announced the next order of business would be HB 466, "An Act relating to violations of state election laws," sponsored by Representative Hodgins. PAT CARTER, Legislative Assistant to Representative Hodgins, Alaska State Legislature, stated HB 466 is an attempt to clean up some of the campaign tactics that have been more prevalent in past years. The practice of casting unproven dispersions in a desperate attempt to sway public opinion in the last days of an election has become pervasive in recent elections and needs to be stopped. HB 466 raises the penalty from a class A misdemeanor to a class C felony for knowingly distributing false information regarding the candidate. "We've attached some leeway on that so that if a person was so -- the person has to knowingly disseminate that information." He said for the purposes of this bill, disseminate means to convey to another person by any means. They have to disseminate that information with regard to it relating to a candidate for election and such information will provoke a reasonable person under the circumstances to a breach of the peace or to construe as damaging to the candidate's reputation for honesty, integrity, or qualification to serve if elected. Only a defeated candidate may contest the nomination or election of a person for violation of this section. Number 0376 CHAIR JAMES stated if someone knowingly distributed false information and the person was elected anyway, they cannot be charged. MR. CARTER said that's correct. They would still be able to pursue civil damages. He said the way the bill reads is only a defeated candidate may contest the nomination or election of a person for a violation of this section. CHAIR JAMES reiterated if you were a defeated candidate and there was someone on the other side, not necessarily the candidate, but someone else who was supporting that candidate, then they could contest the election based on this challenge. She asked Mr. Carter if that is what he meant. MR. CARTER said, "I believe so." Number 0401 REPRESENTATIVE BERKOWITZ stated the winning candidate obviously will not contest the election, but there might be a third party. He asked if the bill would want to preclude a third party from contesting the election. MR. CARTER replied the bill states that only a defeated candidate may contest the election, not necessarily whether they were damaged or not, but that a third party may contest the election. Mr. Carter referred to Section 2, (1), subsection (b) and read the following: "(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 only the defeated candidate may contest the actual outcome of an election; a third party could not. Number 0420 REPRESENTATIVE DYSON asked what the burden of proof is like to establish the knowing distribution of false information. "Is it a difficult one." REPRESENTATIVE BERKOWITZ replied if it is a criminal case, the burden of proof would lie on the state to prove beyond a reasonable doubt that this person knowingly committed a crime. REPRESENTATIVE DYSON asked how difficult is it to establish (indisc.) practice. MR. CARTER replied a person would have to have made statements where they had a person come in and testify that this person had actually told him that he was going to fabricate this information. REPRESENTATIVE BERKOWITZ said "knowingly" is one of the highest standards, and you can infer intent through circumstances. You might not need for a person to say, "I'm going to falsify this," but you can observe through the method that he put the information out or any of the circumstances around it that it was false. Number 0442 CHAIR JAMES interjected and said she wanted to explain what she thinks the practicality of "knowingly" is. The first measure would be, is it false. If it happens to be something that is not false, even though it's damaging, it doesn't apply. Secondly, when it's false, did the person who made this statement know that it was false. Chair James expressed the evidence of that would be if the person didn't know, where did the person get the information and then that person would have to provide proof that they had information that they believed not to be false. Number 0452 MR. CARTER stated if a person made a false statement about a candidate, whether through an advertisement on the radio, or in a newspaper publication, or whatever, and that candidate proved that it was a false statement, and if that person continued to run the false statement, then under the purposes of this legislation, each day it continued to run would constitute a separate violation. You would also have a reasonable case if a person declared publicly that they will fabricate information about a candidate. CHAIR JAMES asked what if this happened in the last few days of an election and that person doesn't have time to prove that it's their fault. MR. CARTER replied that is always going to be the problem. But what the legislature is up against is the restriction on freedom of speech and the courts have been pretty conservative with regard to how to restrict that. Number 0475 CHAIR JAMES then asked if the candidate gets elected anyway, regardless of this, could they do anything about it and yet maybe they would only have a civil case against them for damaging their character. MR. CARTER answered in the affirmative. REPRESENTATIVE DYSON remarked that truth is an ultimate defense against defamation of character. To him, another defense would be ignorance and proving the lack of ignorance must be an interesting thing to establish in court. He stated he is very intrigued about that. He also asked what the range of penalties are in a class C felony. MR. CARTER referred to Section 2, subsection (a) stating there is language which addresses knowing the information is false or with reckless disregard for whether the information is false. REPRESENTATIVE DYSON reiterated and asked Mr. Carter what the range of penalties are in a class C felony. MR. CARTER responded a typical class C felony would be similar to someone writing bad checks or a vehicle theft. REPRESENTATIVE DYSON then asked what the penalties would be. REPRESENTATIVE BERKOWITZ interjected and said the penalties would be up to five years in jail and he believes $10,000 in fines. REPRESENTATIVE DYSON asked if other political jurisdictions have passed similar legislation and what has been the history. MR. CARTER replied he has not had the chance to get the information from the Legislative Legal and Research Division (legal division) whether or not other states have passed this type of legislation. He indicated the legal division is currently working on it. The problem, to date, given that this is a class A misdemeanor, the courts have all but ignored this type of violation. People have had their reputations impugned and their integrity, as well as long-term damage to their family standing in the community. He feels the public has clearly shown that they are tired of this type of negative campaigning. The fact that someone can get away with damaging one's character with no recourse, is the purpose of this legislation. REPRESENTATIVE DYSON asked if the sponsor discussed this with the Administration and the Office of the Attorney General. Number 0516 MR. CARTER replied the attorney general's office is not weighed in. They have not formed an opinion on this legislation. REPRESENTATIVE DYSON again asked if the sponsor has talked to the Administration regarding this legislation. MR. CARTER answered no. REPRESENTATIVE KIM ELTON asked, "I'm curious, Pat, as to whether this law in its current form were -- it's a simple misdemeanor -- has ever been applied?" MR. CARTER replied, "Someone has actually -- and without mentioning names and furthering the spreading of rumor..." REPRESENTATIVE ELTON interjected and said, "For public record, have the charges been brought?" MR. CARTER said he did not know if charges were actually brought and then dropped, but he knows the likelihood of the court taking it up weighed in as to whether or not they were going to pursue it. Number 0534 REPRESENTATIVE ELTON indicated he is concerned with the issue of freedom of speech. To him it seems they are not just holding out the thread of serious consequences if someone knowingly distributes false information. They are also creating a situation if, in the last days of a campaign, someone says something "nasty" about a candidate, that candidate can go to the radio station and ask for that advertisement to be removed because it is untruthful, and the radio station could incur a penalty of up to five years in jail and a $10,000 fine. He noted that whether the statement was true or not, or whether it is misleading which is even more difficult to prove, what that candidate in this situation has done is restrict speech, specifically political speech, which is very important. MR. CARTER remarked he realizes this legislation is treading near the edge of stepping on the freedom of speech, but he doesn't believe they have crossed that edge. If you get into a debate as to whether or not a person has impugned a candidate's reputation with a false statement, certainly it's hard to disprove it. It would be a judgment call on whether it would be the radio station or a newspaper or whatever as to whether or not that information is false. But the person would have to bear the consequences as a result of the election. Number 0557 CHAIR JAMES stated it appears to her if someone purchased some advertisement and it was false, she does not feel that the radio or television station could be held liable, unless someone brought in proof and they felt it was journalistically proper to say they would not run the advertisement anymore. She indicated she would not want to set up a situation where an innocent bystander to the issue would be put in jeopardy. MR. CARTER explained the way the legislation is currently drafted is that a radio station or newspaper would not be held liable unless a journalist that was under their employee was the fabricator of the information himself. Whether or not they would pull the information would be their own decision. REPRESENTATIVE ELTON informed the committee there are two different kinds of speech that are involved in a radio station: journalistic speech and paid speech. An advertisement is paid speech. He said the way he interprets the bill is that a person commits a crime if they disseminate false or misleading information. It's not just the person who originates the information, it is also the person disseminating the information. If he went into a radio station and asserts as a victim that the information is untrue, whether the information is true or not, it puts the radio station in a very difficult position. The radio station has to decide who to believe, especially if it happens a week before an election. The candidate can inform the radio station it will take them four or five days to prove the information is untrue, but everyday they continue running the advertisement, is another day of liability they accrue if they continue to run it. CHAIR JAMES emphasized the legislature needs to do something to stop this kind of activity because it is proliferating. She said there needs to be a deterrent for this type of misconduct. It appears to her, after reading this legislation, it will probably never get to the application. Chair James' concern is that she does not want to have an application that could be misused or get to the wrong party. Number 0599 REPRESENTATIVE BERKOWITZ noted that a radio or television station could be guilty the way the legislation is currently written. MR. CARTER emphasized that a person must knowingly distribute that information. If a candidate advised the radio or television station that the information was false, that would not constitute them knowingly continuing to do it. REPRESENTATIVE BERKOWITZ asked if that would put the radio or television station on notice. MR. CARTER answered in the affirmative. REPRESENTATIVE BERKOWITZ stated if at that point, a candidate did not check it out, is there a recklessness to what they are doing. MR. CARTER said he agreed. Number 0608 REPRESENTATIVE BERKOWITZ referenced the word "misleading" stating there is no parallel structure with that word throughout Section 2, subsection (a) which reads "...if the person disseminates false or misleading information, knowing that the information is false or with reckless disregard for whether the information is false..." He noted there is no mention of the word "misleading" in the latter phrases of this section which is an ambiguity. Representative Berkowitz advised that the purpose of this legislation is to try to limit attack advertisements and get campaigns back to discussions of issues which need to be based on fact and not innuendo. REPRESENTATIVE BERKOWITZ wanted to clarify the courts have nothing to do with bringing the charge. Charges are brought by prosecuting agencies by district attorneys. He pointed out the courts are not imposing penalties because cases are not being brought forth. He expressed there is a misunderstanding of the process and referred to the sponsor statement, "the courts have all but ignored any attempt to curb this practice." He said it is not up to the courts to enforce the law. "They execute the law when it comes to them." Representative Berkowitz stated, "This is a 1996 law, as far as I understand. I'd like to see it get a chance to grow some legs and see if it works as a misdemeanor because it is a serious penalty. I'm also concerned that only a defeated -- well, I guess it's post campaign..." Number 0630 CHAIR JAMES stated she believes it means only the damaged person and they have to be damaged first. REPRESENTATIVE BERKOWITZ commented he feels there is an inequity with that because "what we're trying to do is you want to have more parallelism." It's not the winning or losing at some point that is important, it's how you play the game. "And we're saying if you win, then it doesn't matter how the other side plays the game. And if we're trying to clean up the process, I think the folks who play the game badly and still lose should still suffer consequences for that." Number 0635 CHAIR JAMES gave an example, if a particular candidate was having an affair with someone else and it was false, there is also the someone else who was misused in this case. She asked if that person were not a candidate, they could not make these charges. MR. CARTER replied that this was a suggestion put in by the legal division. He said he could get a written description of why they felt it was necessary. REPRESENTATIVE ELTON commented the way he reads the legislation is the restriction on the defeated candidate is only on whether or not you contest the election, not whether or not you committed a class C felony. MR. CARTER indicated the violation of this section is a corrupt practice. The bill would still constitute corrupt practice, but the election could not be contested. Number 0651 REPRESENTATIVE DYSON referred to page 2, line 23 and asked why "breach of the peace" is included in the legislation. MR. CARTER informed the committee that during the last election there was an incident where a candidate distributed false information about a person who was not a candidate. The person who was not the candidate went to the candidate's house and as a result, a fist fight ensued. That is what he feels would constitute a breach of the peace. REPRESENTATIVE DYSON referred to Section 2, subsection (2) of HB 466 and asked "You're guilty of campaign misconduct if what you do would be construed as provoking a reasonable person to punch somebody's lights out?" MR. CARTER answered in the affirmative. He said it would also have to include a candidate who is running for election. In non- election years, it would not be applicable. REPRESENTATIVE DYSON asked if there is language in the legislation that requires the state to prosecute the action. CHAIR JAMES expounded on Representative Dyson's point asking if the candidate whom false statements were made against loses the election, can they contest the election on that point as well as recounting the ballots. MR. CARTER answered "they could." Number 0690 CHAIR JAMES said if a candidate contested an election because false statements were made against them, she would assume the next step would be to determine whether the offense was done and that there was a direct relationship to the election. She asked, "If that candidate challenges the election, who picks up the other ball and runs with it to go to the prosecuting attorney and files a case?" MR. CARTER replied the state would pursue that as a criminal action and they would have to prove beyond a reasonable doubt that the person who knowingly distributed that false information did do that action. CHAIR JAMES stated in this situation the state would be the plaintiff. MR. CARTER said that was correct. CHAIR JAMES asked, "As a result of that person challenging the election, what if the person won anyway, then what happens?" MR. CARTER responded it's a civil case. CHAIR JAMES asked if a candidate won an election, but still wanted to file charges against the person making false statements about them, would they have to file a civil case and pay their own attorney's fees. MR. CARTER answered in the affirmative. Number 0706 CHAIR JAMES inquired if a person were found guilty in a civil case which has a different level of proof than a criminal case, would the same penalty apply or would there be a different penalty in a civil case. MR. CARTER responded the way he understands the legislation is that the penalties would be substantially different. One would be monetary damages and the other would be criminal damages. CHAIR JAMES stated a candidate already has the opportunity to go to a civil case on this. MR. CARTER responded that is correct. CHAIR JAMES inferred, "And probably what happens is that it's expensive and they don't do it. And so if we mandate it so that the state has to do it in these cases, then it will get done and it won't be at the expense of the person who was ..." REPRESENTATIVE ELTON interjected and stated if a person is convicted of a felony, they are not allowed to vote. REPRESENTATIVE ELTON asked if a person is not allowed to vote, are they allowed to serve. MR. CARTER responded no. REPRESENTATIVE ELTON commented a person would not have to be an undefeated candidate to get that person out of office. "Another person could ... TAPE 98-40, SIDE B Number 0001 REPRESENTATIVE ELTON continued, "...false or misleading information." If that person were convicted they would be out of office if, in fact, it had been the other candidate who had been responsible for distributing the information. MR. CARTER advised Representative Elton a campaign manager could not seek criminal charges. They could propose the case to the state and have the state file the criminal charges. REPRESENTATIVE ELTON stated he thought the defeated candidate is the only one who can contest the election. MR. CARTER stated that is correct. REPRESENTATIVE ELTON asked if the legislation allows only the defeated candidate to seek the felony charges. MR. CARTER responded in the negative and explained anyone could ask the state to pursue those charges, and then the state would pursue the charges, not a campaign manager or an innocent bystander. REPRESENTATIVE ELTON asked if a person wanted to file charges against someone who knowingly distributed false information about a person, the state could then pursue that case. And if the person who distributed that information was in fact the other candidate, that person would be out of office because, if they were convicted, they would be a felon. MR. CARTER stated he believes that is correct, depending on the timing of it and how long it would take to go before the court. In the meantime, the defeated candidate would be able to contest the election. The way he understands the legislation is that any person could bring information to the state and ask that this person be prosecuted given the information that is presented to them. At that point, the state would decide if there is a case or not. An innocent bystander or campaign manager would not be the people that would actually bring the charges against this person. Number 0059 CHAIR JAMES stated a number of legal questions need to be answered regarding this legislation and informed the committee they have some options. Since HB 466 has a referral to the Judiciary Committee, she feels the legal issues should be addressed there, as well as having representation from the legal division and attorney general's office. The other option would be for the sponsor to try to work through some of the issues in this committee or put in a subcommittee and deal with it. Chair James stated the committee could also decide to put a stop to this practice because it is in the best interest of the state and proceed to do some law changes. She asked the sponsor what he would prefer to do. Number 0120 MR. CARTER requested a tighter definition on the questions proposed by the committee. He said the committee just debated issues regarding this legislation and he is unclear what questions the committee wants answered. CHAIR JAMES stated the questions are quite clear to her, for example: 1) who gets to bring these charges; 2) how are the charges brought about; 3) who all is involved; 4) who has the right to do this; and 5) how does it affect the radio and television stations. She stated the committee has some concerns that need to be addressed and answered by the sponsor, not the committee. The bill could be brought up at the next meeting if that would give the sponsor enough time to investigate the concerns of the committee and it would also give the sponsor some time to contact the legal division. Number 0147 REPRESENTATIVE BERKOWITZ stated a couple of other issues need to be addressed as well. Aside from the false and misleading issues not being parallel throughout, Section 2 relates solely to candidates, not initiatives, which is a retreat from the current Section 1. Section 1 covers election propositions or questions, so he feels they are retreating. He said people can tell lies about propositions or initiatives without any consequence, which he feels is a retreat. CHAIR JAMES told Representative Berkowitz he is right on point asking, "Who are we trying to protect? Are we trying to protect the candidate or are we trying to protect the public to be able to make a good decision?" She stated she feels the public is being offended because they are given information that is not true and then are making a decision based on false information, therefore, they may not be making the decision they would be making if they had the truth. "It seems to me the public is the one we're trying to protect here." The candidate just happens to be in this process. REPRESENTATIVE BERKOWITZ referred to Section 2 stating a candidate can complain only if their honestly, integrity, or qualifications are challenged, not because someone misrepresents their position on an issue. He pointed out a candidate has no way of pursuing that under this bill. Number 0249 REPRESENTATIVE DYSON inquired what would happen if the losing candidate contested an election based on false campaign information. He asked if that would fall under the Lt. Governor's purview. MR. CARTER said he believes it does. REPRESENTATIVE DYSON asked if that would also fall under the Elections Commission. MR. CARTER answered correct. REPRESENTATIVE DYSON asked what the Election Commission process is. He stated he suspects it is all prescribed. MR. CARTER replied it is prescribed but he could not speak in regard to the actual procedure behind it. Mr. 0272 CHAIR JAMES asked Mr. Carter how he wants to proceed on this legislation. MR. CARTER said he would be happy to investigate the issues brought forth by the committee as well as discuss them with the legal division. He indicated the original intent of the bill is to protect a person on more of a personal level while they are campaigning, and also to increase the penalty to a class C felony. Number 0295 CHAIR JAMES suggested Mr. Carter contact the bill sponsor and ask if he wants HB 466 assigned to a subcommittee.
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