Legislature(1997 - 1998)

03/21/1998 10:07 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
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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