Legislature(2007 - 2008)BUTROVICH 205
04/05/2008 09:00 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB268 | |
| HB163 | |
| HB359 | |
| HB305 | |
| HB50 | |
| HB400 | |
| HJR37 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 305 | TELECONFERENCED | |
| + | HB 50 | TELECONFERENCED | |
| + | HB 400 | TELECONFERENCED | |
| + | HJR 37 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | HB 163 | ||
| = | HB 268 | ||
| = | HB 359 | ||
CSHB 305(RLS) am -CAMPAIGN FUND RAISING DURING SESSIONS
CHAIR FRENCH announced the consideration of HB 305 dealing with
campaign finance. [Before the committee was CSHB 305(RLS) am.]
9:14:57 AM
MIKE POWLOWSKI, Staff to Representative Kevin Meyer, sponsor of
HB 305, described Section 3 as the meat of the bill. It extends
to other races the prohibition against a legislator raising
money for a statewide office during a legislative session. The
current version provides a blanket prohibition against raising
money: for another candidate for municipal, state, or federal
office; to influence a ballot proposition or question; or for a
political party. When the legislature is not in session the
legislator regains the right to solicit for those activities.
9:17:16 AM
MR. POWLOWSKI said that subparagraph (A) in Section 3 is a
little different in that a legislator can solicit funds for his
or her own campaign for office as long as it is within 90 days
of that election and not in the location where the session is
being held or in the capital city.
Section 1 repeals and reenacts AS 15.13.072(d) to provide
continuity between the APOC laws and ethics laws. Subsection (d)
originally applied the prohibition to both legislators and
candidates, but the court determined that it was
unconstitutional to apply the prohibition to candidates who were
not sitting legislators, so the section was never enforced. In
working through the process they decided to repeal and reenact
the statute, meet the court order and apply the prohibition only
to legislators. The APOC laws are amended to clarify that this
applies to not only a legislative race, but also a municipal,
state, or federal races.
9:19:06 AM
CHAIR FRENCH added that Title 15 is the APOC statutes so to
contravene the statute is an APOC violation. He asked what the
penalty is for that and Mr. Powlowski said he would provide that
information later.
MR. POWLOWSKI explained that Section 2 relates to the ethics law
and applies only to legislative employees. It does not apply to
legislators. The reasoning is that Section 3 places broad
prohibitions on legislators and that section wouldn't apply in
its entirety to legislative employees since they aren't decision
makers.
MR. POWLOWSKI said he hopes there is some conversation about the
issue of federal preemption as it relates to the bill. The
sponsor recognizes that federal law preempts this bill as it
applies to federal office, but he believes that the state has a
compelling interest in governing the conduct of its legislators,
so a challenge is warranted.
9:21:11 AM
SENATOR THERRIAULT asked if the issue is that it's questionable
that this state law can preempt him from raising money for his
or someone else's federal campaign.
MR. POWLOWSKI replied he understands that it would be for a
candidate's own campaign for federal office. Candidates for
federal office fall under the federal election code, which
applies only to a candidacy. "We do believe that the bill's
prohibitions on your solicitation of funds in favor of someone
for federal office would not fall under the federal election
code."
CHAIR FRENCH asked if the federal preemption pertains in Section
3 because the bill states that "on any day when either house of
the legislature is in regular or special session, a legislator
may not solicit or accept a contribution or a promise or pledge
to make a contribution for the legislator's own campaign for
public office." The sponsor interprets "public office" to mean
local, state, or federal.
MR. POWLOWSKI said that's correct.
9:22:45 AM
CHAIR FRENCH referred to the legal opinion dated 1/25/08 on the
issue of federal preemption that cites a case from Georgia,
Tepper v. Miller. In that case the U.S. Court of Appeals
affirmed an injunction against enforcement of a Georgia law
prohibiting Georgia General Assembly members from accepting
contributions for federal election campaigns while the assembly
was in session. The court of appeals held that the statute was
preempted by the Federal Election Campaign Act of 1971.
CHAIR FRENCH said that in bald terms "preemption" means that
you're pushed out of the way. In this country U.S. federal law
is supreme and in this issue it sits on top of anything this
state might do, particularly with respect to federal election
laws. Basically, the state is powerless to tell the federal
government how to run federal elections. The last paragraph of
that opinion says: "The express language of the federal election
laws preemption provision, the provision's legislative history,
and the FEC's interpretation make plain that a state law
operating to regulate the period in which a category of citizens
can accept contributions for a campaign for federal office is
preempted."
CHAIR FRENCH observed that the foregoing doesn't leave much
wiggle room and it makes him nervous to set up a statute that
invites a challenge and legal proceedings that would require the
state to defend the law. Ultimately he said he feels that the
district attorney who tries to defend this law will lose.
9:25:32 AM
MR. POWLOWSKI responded that the sponsor appreciates the issue
and did take pause when he received the opinion from legislative
legal. The packets also contain a research report pointing to
three other states that have a similar provision that either
have not been struck down or have not been challenged. When the
sponsor saw that, he decided to go forward with that provision.
SENATOR THERRIAULT asked if the similar provision in other
states hadn't been struck down or hadn't been challenged.
MR. POWLOWSKI said the Tepper v. Miller challenge in Georgia was
overturned and in another state the attorney general decided
that the provision would not be enforced. "It's the same way the
state currently operates under the way the existing APOC law
applies to candidates." The law says one thing and the state
court says it won't be enforced. The other three states have
similar provisions in law, but a challenge has never been
brought so they remain in effect.
CHAIR FRENCH said it's an interesting intersection of what's
right, what's legal, and what you can get away with. "It may be
that we can't stop sitting legislators from raising money for
federal office while the legislature is in session. It may be
that those individuals would think twice about the propriety of
doing so since we're all banned from raising money for our own
campaigns while we're here doing the state's business. It may be
that…the whole welter of laws is beside the point. It may be
that total and complete disclosure is really the way to go," he
said.
9:28:40 AM
CHAIR FRENCH asked if subparagraph (B) in Section 3 prohibits a
legislator from making a contribution for another candidate
MR. POWLOWSKI replied their understanding of (A), (B), (C), and
(D) is that they fall under paragraph (1). That says legislators
may not "on a day when either house of the legislature is in
regular or special session, solicit or accept a contribution or
a promise or pledge to make a contribution" so the prohibition
applies to solicitation or acceptance of funds and not the
ability to make a contribution.
CHAIR FRENCH said he couldn't, for example, raise money for an
assembly candidate in Anchorage.
MR. POWLOWSKI agreed and said the fundraising events that take
place during the campaign season provide an easy example.
Oftentimes you'll see members hosting events to solicit funds
for a candidate. That would be prohibited during a legislative
session, but a legislator would continue to have the right to
appear and endorse the candidate as long as it isn't linked to
the solicitation of funds.
CHAIR FRENCH asked about the circumstance of his going to a
fundraiser and standing up and asking folks to get their
checkbooks out because this guy is worth electing.
MR. POWLOWSKI replied that would be over the line. In governing
conduct for this section, the point is to not attend the
fundraiser in favor of that candidate. When it applies to
candidates it's a little different than ballot measures but the
principle is similar. Legislators could appear in commercials
supporting the policy of an initiative, but they could not
appear in a commercial asking to raise money for the initiative
because that is a solicitation for funds. It's separating the
act of soliciting money versus the act of supporting the policy.
9:31:34 AM
SENATOR McGUIRE expressed the view that this is an important
policy when you think about the principle behind why legislators
can't raise money while in Juneau. At heart it's so there isn't
an appearance that legislators are being influenced in their
deliberations. It could be carried a step further with poor
motive. "I think putting it into law is a great approach," she
said.
MR. POWLOWSKI added that legislators used to be prohibited from
raising money for legislative, municipal and statewide office
and HB 305 initially tried to take the law back to what it was
before. The problem was extending that prohibition to federal
law.
9:33:52 AM
SENATOR WIELECHOWSKI said he doesn't disagree with the
philosophy, but he questions whether it's any better to get a
$1,000 check the day before the session versus getting it the
day the session starts.
MR. POWLOWSKI replied we felt that when members put on hold
their role as a citizen to take up the people's business is the
defining line for saying that this is a time not to be
soliciting funds.
SENATOR WIELECHOWSKI asked if this would also apply to governor
candidates, lieutenant governor candidates and perhaps municipal
candidates.
MR. POWLOWSKI said the provision is in the Legislative Ethics
Act and it applies only to the conduct of legislators. That was
the sponsor's focus.
SENATOR WIELECHOWSKI asked if he would object to amending the
bill to include the Executive Branch Ethics Act.
MR. POWLOWSKI replied he doesn't know the sponsor's position,
but when that was discussed in previous committees his position
was that the executive branch should deal with that.
9:36:53 AM
SENATOR THERRIAULT said Mr. Pawlowski made the point that
legislators shift roles from being a citizen to being a
legislator when the session starts, and if you wanted to go
beyond that you'd have to make the prohibition year around and
that would be a complete loss of a constitutional right. As
currently drafted, the line is very bright and distinct, he
stated.
CHAIR FRENCH observed that the further you get from the core
activity you're trying to prevent, the more you'll get into
legal trouble. He can't see any court upholding a ban on the
ability to raise money for good causes during a legislative
session, even if you have a bad motive for doing so.
9:39:08 AM
SENATOR McGUIRE said she believes the distinction is that you're
in a political context asking for money as opposed to speaking
on behalf of a good cause.
CHAIR FRENCH said that's the exact tension because there is
nothing more protected than political speech. It's at the heart
of the First Amendment. The First Amendment isn't about asking
for money for the Red Cross or an advertisement for selling
soap; it's about a person's right to stand up and state their
political principles with as much vigor and enthusiasm as they
like.
MR. POWLOWSKI relayed that the next subsection, AS 24.60.030(e),
speaks to that very conduct. It talks about a legislator not
trading his or her vote and it speaks to donating or not
donating to a cause favored by the legislator. Extending it to
cover things like the Red Cross was discussed but those
individuals are not policy makers; that is a legislator role. As
long as you limit it to things that are political in nature,
you're within reasonable bounds, he said. We haven't heard
significant constitutional questions on the issue of free
speech. The legal memorandums say that the constitutional
questions are related to the federal election issues rather than
free speech.
SENATOR McGUIRE added that the courts have said that reasonable
restrictions are allowed because it's the compelling state
interest.
9:42:21 AM
CHAIR FRENCH agreed, and then set HB 305 aside for further
consideration.
| Document Name | Date/Time | Subjects |
|---|