Legislature(1997 - 1998)

03/19/1998 08:02 AM House STA

Audio Topic
* first hearing in first committee of referral
+ 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            
     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             
     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                
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                
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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