Legislature(2021 - 2022)BUTROVICH 205

05/10/2021 01:30 PM Senate JUDICIARY

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**Streamed live on AKL.tv**
                SB 31-PROHIBITING BINDING CAUCUSES                                                                          
1:40:05 PM                                                                                                                    
CHAIR HOLLAND reconvened the meeting and announced the                                                                          
consideration of SENATE BILL NO. 31, "An Act relating to binding                                                                
votes by or for a legislator under the Legislative Ethics Act."                                                                 
[CSSB 31(STA) was before the committee. This is the first                                                                       
hearing on the bill.]                                                                                                           
1:40:49 PM                                                                                                                    
SENATOR SHOWER, speaking as sponsor, paraphrased the sponsor                                                                    
statement [Original punctuation provided]:                                                                                      
     SB  31  addresses   the  ethics  statute  and   bans  the                                                                  
     practice  commonly  known  as  a  "binding  caucus."  The                                                                  
     tradition  of  the binding  caucus  in the  Alaska  State                                                                  
     Legislature  has been used to  suppress the voice  of the                                                                  
     people,   the  use   of  coercion   and  enticements   to                                                                  
     manipulate  the  actions   and  votes  of  their  elected                                                                  
     Representative  or  Senator.   The  caucuses  are  formed                                                                  
     with  the  enticement  of  perks   of  being  a  majority                                                                  
     member,  including but  not limited  to influence  within                                                                  
     the    organization,    chairmanships     of    important                                                                  
     committees,  better  office  space,  more staff  to  help                                                                  
     you  be effective.  All  of these  are not  nefarious  on                                                                  
     their face,  but as applied  in the binding caucus,  they                                                                  
     are  exchanged for  the participating  Representative(s)                                                                   
     or Senator(s) vote on key issues such as the budget.                                                                       
1:41:57 PM                                                                                                                    
     AS   24.60.039(g)(1)    "Caucus"   means   a   group   of                                                                  
     legislators  that share  a political  philosophy or  have                                                                  
     a  common goal  or who  organize as  a group.  Ultimately                                                                  
     it is  a caucus of ideas. Because  it does not state  the                                                                  
     use  of  coercion  or  enticements   are  not  prohibited                                                                  
     should  not  be  misconstrued  that  it  is permissible,                                                                   
     especially  since  these two  activities  are  prohibited                                                                  
     for private citizens under Alaska criminal statutes.                                                                       
1:42:23 PM                                                                                                                    
SENATOR SHOWER continued to paraphrase the sponsor                                                                              
statement [Original punctuation provided]:                                                                                      
     Where  the nefarious  intent creeps in  is the  quid-pro-                                                                  
     quo  required  to join  the  club.  In exchange  for  the                                                                  
     "enticement"  of the  associated perks,  under a  binding                                                                  
     caucus,  a legislator is expected  to blindly vote  for a                                                                  
     budget  before  it  exists  and has  never  seen  that  a                                                                  
     small  group of  "leadership"  members supports.  It  has                                                                  
     also been  used as an arbitrary  tool for supporting  any                                                                  
     floor   vote  the   presiding   officer   decides  is   a                                                                  
     "procedural vote."                                                                                                         
SENATOR SHOWER related his own experience with binding                                                                          
caucus requirements.                                                                                                            
1:44:25 PM                                                                                                                    
     Control   of  legislators   through   a  binding   caucus                                                                  
     consolidates  power  into a  tiny group  of legislators,                                                                   
     those   in  leadership,   the  presiding   officer,   the                                                                  
     majority  leader,  the  rules   chair,  the  finance  co-                                                                  
     chairs.   When  a  caucus   member  capitulates  to   the                                                                  
     pressure,  their  constituents  are compromised.  When  a                                                                  
     caucus     member    is     "disciplined,"    it     also                                                                  
     disenfranchises  that elected  official  that the  voters                                                                  
     put into the majority party.                                                                                               
     This practice  is only accepted  in the State of  Alaska.                                                                  
     The  sponsor contacted  a Senator from  49 other  states,                                                                  
     and  all but one  stated they  do not use  or permit  the                                                                  
     practice of a binding caucus in their state.                                                                               
SENATOR SHOWER related several scenarios from other states.                                                                     
1:48:11 PM                                                                                                                    
     Public  pressure has  forced the Senate  to not  organize                                                                  
     under  the  binding  caucus.  It's time  to  codify  this                                                                  
     unethical  practice   of  forcing  legislators   to  vote                                                                  
     against   their   conscience,    and  ultimately    their                                                                  
     constituents.  If the 49  other states  in the union  can                                                                  
     do  business without  a binding  caucus  and coercion  to                                                                  
     pass legislation, Alaska can too.                                                                                          
1:48:19 PM                                                                                                                    
SENATOR  SHOWER offered  his  view  that the  rest  of the  country                                                             
operates  without binding  caucuses  so he  believes  it will  work                                                             
1:49:10 PM                                                                                                                    
SENATOR  SHOWER  provided the  sectional  analysis  for  SB 31.  He                                                             
read [Original punctuation provided}:                                                                                           
     Section  1;  Adds  the  definition   of  a  "caucus"  and                                                                  
     "legislative   body   to  the  guidelines  of   the  open                                                                  
     meetings Act under the legislatures ethics code.                                                                           
     Section  2;  Creates  the  ethics  violation  of  binding                                                                  
     another  legislator to  commit their  vote on any  matter                                                                  
     that  may come  before  the legislature.  Clarifies  that                                                                  
     voting   for  selecting  an   officer  or  leader   of  a                                                                  
     legislative  body  is  an  allowable  practice.  It  also                                                                  
     clarifies  that  running  an  informal  poll,  aka  as  a                                                                  
     "chit sheet," is an allowable practice.                                                                                    
1:49:40 PM                                                                                                                    
SENATOR KIEHL  stated that forming  minority and majority  caucuses                                                             
also would  determine staff  levels. He asked  if it is  ethical to                                                             
form caucuses if members are disenfranchised.                                                                                   
SENATOR  SHOWER  pointed  out  the caucus  of  the  whole  includes                                                             
everyone.  He  acknowledged  that  members  in  the  majority  have                                                             
control,  that the  legislature has  had a  majority and  minority,                                                             
which are  formed by  ideology rather  than by  party. This  system                                                             
has  worked.  However,  Alaska  has  an  extra,  binding  rule.  He                                                             
offered   his  view  that   using  the   binding  rule  to   punish                                                             
legislators  over a vote is  not how the  power structure  has been                                                             
used.  He agreed  it  could be  argued  that minority  members  are                                                             
disenfranchised  but they  are not  punished. He  said the goal  is                                                             
to avoid the ability to influence someone's vote.                                                                               
SENATOR  HUGHES said  that  what  occurred actually  gave  majority                                                             
members  fewer committee  assignments. It  eliminated their  access                                                             
to legal advice  from majority staff,  including access to  oil and                                                             
gas staff expertise,  and a voice  at the table since  members were                                                             
ignored.  She agreed  that staff  assignments  relate to  committee                                                             
assignments.  However, minority members  were listened to,  had the                                                             
freedom  to vote and  had more  resources. She  offered her  belief                                                             
that  the retribution  went  beyond the  basics  given to  minority                                                             
1:54:16 PM                                                                                                                    
CHAIR HOLLAND  offered his  view that the  public sends a  majority                                                             
to the  legislature through  their collective  votes. The  majority                                                             
controls the  body, organizes  the body as  opposed to the  binding                                                             
caucus exerting control over its members.                                                                                       
1:54:54 PM                                                                                                                    
SENATOR SHOWER  added that  he is not  concerned about the  broader                                                             
power  structure  the  legislature   uses  via  Uniform  Rules  and                                                             
Mason's  Manual. However,  he witnessed  power being  wielded  by a                                                             
very  small group  who  used it  to coerce  others  by requiring  a                                                             
binding vote.  He said the Senate  leadership told members  on July                                                             
29,  2019, that  voting against  the  caucus would  result in  them                                                             
being   stripped   of   their   committee   chair   and   committee                                                             
membership.   He   said  the   legislature   should   not   require                                                             
representatives  of the people  to vote against  the will  of their                                                             
1:56:25 PM                                                                                                                    
SENATOR KIEHL  offered his  view that the  system he described  was                                                             
a  parliamentary  system. Voters  elect  individuals  to  represent                                                             
them.  He said  he appreciated  the  sponsor's  description of  how                                                             
the legislature  organizes.  If a  legislator does  not agree  with                                                             
the  philosophy  or  organizing  principles,  the  person  will  be                                                             
treated  as  the  sponsor  suggested.   It  has  happened  that  it                                                             
sometimes  puts the  person  in a  group that  it is  less than  25                                                             
percent  of the  body. If  so, under  the Uniform  Rules, it  would                                                             
affect  the legislator's  staffing,  office space  and  privileges,                                                             
he said.  Those legislators  would not have  access to  Legislative                                                             
Legal Services,  and their own oil  and gas person, but  he did not                                                             
think of it as coercion.                                                                                                        
1:58:04 PM                                                                                                                    
SENATOR MYERS  referred to the  bill. He related his  understanding                                                             
that a  legislator may  not commit  or bind  another legislator  to                                                             
vote.  He suggested  this language  will leave  the possibility  of                                                             
offering  perks  such  as additional  staff  or  a  bigger  office.                                                             
However,  it  does not  affect  legislators  while  organizing  the                                                             
legislature.  He asked if  the sponsor would  like to add  language                                                             
to address that timeframe.                                                                                                      
SENATOR  SHOWER said he  did not  wish to expand  the bill  to take                                                             
on  the  whole   structure.  He   did  not  have  any   issue  with                                                             
leadership  roles  or  committee  chair  agreements.  He  said  his                                                             
issue  was the  binding  caucus. He  was not  sure  how to  address                                                             
organizing  principles in this  bill. He pointed  out that it  is a                                                             
felony to  bribe a politician  to vote in  a certain way,  although                                                             
that is effectively  what happened.  He said that there  is nothing                                                             
wrong  with procedural  votes,  but  he is  opposed  to them  being                                                             
wielded as political weapons.                                                                                                   
2:01:45 PM                                                                                                                    
SENATOR KIEHL  said he is  not a fan of  binding caucuses,  that he                                                             
did not  join one. He  said that each  presiding officer  polls its                                                             
members to  determine if  the legislature  should call itself  into                                                             
special  session. He  asked if this  informal poll  was covered  in                                                             
the bill.                                                                                                                       
SENATOR  SHOWER  responded  that polling  or  informal  discussions                                                             
were acceptable  since it  allows leadership  to obtain a  sense of                                                             
support  similar  to a  legislator  using a  chit  sheet to  assess                                                             
support  for  a bill.  He  said  that  since it  would  not  affect                                                             
someone's  vote on  the  floor, it  was irrelevant.  He  maintained                                                             
his concern about binding caucus actions.                                                                                       
2:04:03 PM                                                                                                                    
SENATOR  KIEHL asked  how  to make  this  effective  and prevent  a                                                             
situation  in which  members  in  a caucus  meeting  are told  that                                                             
this  is  a  key  vote.  For  example,  leadership  could  take  an                                                             
informal poll and watch to see who votes against it.                                                                            
SENATOR SHOWER  responded that  some states  indicated they  have a                                                             
binding rule  on procedural  votes but none  included budget  votes                                                             
as procedural  ones. He envisioned  the speaker or president  might                                                             
not  like  the  vote but  they  cannot  take  away  a  legislator's                                                             
chairmanship or staff.                                                                                                          
2:06:50 PM                                                                                                                    
SENATOR  KIEHL said he  just got  lost. If a  presiding officer  or                                                             
leadership  team  develops a  reputation  for taking  some  action,                                                             
everyone will know that something will be done afterward.                                                                       
SENATOR  SHOWER said  the difference  is the binding  rule.  He was                                                             
unsure how to intervene in politics.                                                                                            
2:08:14 PM                                                                                                                    
SENATOR MYERS  recalled debating  the Open  Meetings Act by  adding                                                             
in  a  penalty  provision.  He wondered  who  will  enforce  SB  11                                                             
without a penalty provision in the bill.                                                                                        
SENATOR  SHOWER  answered  that  if  the   statutes  codified  that                                                             
binding  rules  were  prohibited,  it  would  give  the  legislator                                                             
standing  to  sue. He  suggested  it  was possible  to  change  the                                                             
Uniform Rules.  Currently, there is  not any recourse, he  said. He                                                             
said he  would like to keep  the bill simple.  SB 11 would  make it                                                             
illegal. He said that he is open to suggestions.                                                                                
2:10:38 PM                                                                                                                    
SENATOR HUGHES  referred to language  on line 8 that states  that a                                                             
legislator "may  not commit." She  said legislators may go  to town                                                             
halls  and inform  constituents  how they  will vote  on an  issue.                                                             
She asked  whether "commit" should  be defined. She wondered  if it                                                             
could be problematic, even in debate on the floor.                                                                              
SENATOR  SHOWER  answered  that  this  language  will  specifically                                                             
limit  the restrictions  to legislators  and would  not pertain  to                                                             
2:12:44 PM                                                                                                                    
SENATOR  HUGHES suggested  that  the omission  of  commas may  take                                                             
care  of  the  concern.   She  suggested  that  Legislative   Legal                                                             
Services  could clarify if  this language  could be interpreted  in                                                             
another way.                                                                                                                    
SENATOR SHOWER  stated his intent for  the bill was to  address the                                                             
binding   caucus   that  allows   legislators   to   punish   other                                                             
2:14:14 PM                                                                                                                    
CHAIR HOLLAND held SB 31 in committee.                                                                                          

Document Name Date/Time Subjects
SB 11 Legal Memo.pdf SJUD 5/10/2021 1:30:00 PM
SB 11