02/27/2004 08:00 AM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 27, 2004
8:00 a.m.
TAPE(S) 04-10 & 11
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 18
Proposing amendments to the Constitution of the State of Alaska
relating to limiting appropriations from and inflation-proofing
the Alaska permanent fund by establishing a percent of market
value spending limit.
MOVED CSSJR 18(STA) OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 19
Proposing amendments to the Constitution of the State of Alaska
relating to the Alaska permanent fund.
MOVED CSSJR 19(JUD) OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 24
Proposing amendments to the Constitution of the State of Alaska
to guarantee the permanent fund dividend, establishing the
earnings reserve account, and relating to the Alaska permanent
fund; and providing for an effective date.
MOVED CSSJR 24(JUD) OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 32
Proposing amendments to the Constitution of the State of Alaska
relating to appropriations from the Alaska permanent fund to be
used for a program of dividends for all state residents and
providing a conditional effect and effective date for the
amendment.
MOVED CSSJR 32(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SJR 18
SHORT TITLE: CONST. AM: PF APPROPS/INFLATION-PROOFING
SPONSOR(s): RULES BY REQUEST OF LEG BUDGET & AUDIT BY REQUEST
04/17/03 (S) READ THE FIRST TIME - REFERRALS
04/17/03 (S) STA, JUD, FIN
05/01/03 (S) STA AT 3:30 PM BELTZ 211
05/01/03 (S) Heard & Held
05/01/03 (S) MINUTE(STA)
05/06/03 (S) STA AT 3:30 PM BELTZ 211
05/06/03 (S) Moved CSSJR 18(STA) Out of Committee
05/06/03 (S) MINUTE(STA)
05/07/03 (S) STA RPT CS 1DP 3NR NEW TITLE
05/07/03 (S) NR: STEVENS G, DYSON, GUESS;
05/07/03 (S) DP: COWDERY
05/13/03 (S) JUD AT 8:00 AM BELTZ 211
05/13/03 (S) Scheduled But Not Heard
05/14/03 (S) JUD AT 0:00 AM BELTZ 211
05/14/03 (S) -- Meeting Postponed to 5/15/03 --
05/15/03 (S) JUD AT 8:45 AM BELTZ 211
05/15/03 (S) -- Meeting Rescheduled from 5/14/03 --
10/28/03 (S) JUD AT 7:00 PM Kenai
10/28/03 (S) CONST. AM: PERMANENT FUND INCOME
10/29/03 (S) JUD AT 7:00 PM Mat-Su LIO
10/29/03 (S) CONST. AM: PERMANENT FUND INCOME
10/30/03 (S) JUD AT 7:00 PM Anch LIO
10/30/03 (S) CONST. AM: PERMANENT FUND INCOME
01/21/04 (S) JUD AT 8:00 AM BELTZ 211
01/21/04 (S) -- Meeting Canceled --
02/09/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/09/04 (S) Heard & Held
02/09/04 (S) MINUTE(JUD)
02/27/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SJR 19
SHORT TITLE: CONST. AM: PERMANENT FUND INCOME
SPONSOR(s): SENATOR(s) LINCOLN
05/02/03 (S) READ THE FIRST TIME - REFERRALS
05/02/03 (S) STA, JUD, FIN
05/13/03 (S) STA AT 3:30 PM BELTZ 211
05/13/03 (S) Moved Out of Committee
05/13/03 (S) MINUTE(STA)
05/14/03 (S) STA RPT 1DP 3NR
05/14/03 (S) NR: STEVENS G, COWDERY, DYSON;
05/14/03 (S) DP: GUESS
05/16/03 (S) JUD AT 1:00 PM BELTZ 211
05/16/03 (S) Scheduled But Not Heard
05/17/03 (S) JUD AT 10:00 AM BELTZ 211
05/17/03 (S) Heard & Held
05/17/03 (S) MINUTE(JUD)
10/28/03 (S) JUD AT 7:00 PM Kenai
10/28/03 (S) Heard & Held
10/28/03 (S) MINUTE(JUD)
10/29/03 (S) JUD AT 7:00 PM Mat-Su LIO
10/29/03 (S) Heard & Held
10/29/03 (S) MINUTE(JUD)
10/30/03 (S) JUD AT 7:00 PM Anch LIO
10/30/03 (S) Heard & Held
10/30/03 (S) MINUTE(JUD)
01/21/04 (S) JUD AT 8:00 AM BELTZ 211
01/21/04 (S) -- Meeting Canceled --
02/09/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/09/04 (S) Heard & Held
02/09/04 (S) MINUTE(JUD)
02/27/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SJR 24
SHORT TITLE: CONST AM: GUARANTEE PERM FUND DIVIDEND
SPONSOR(s): SENATOR(s) OGAN
02/04/04 (S) READ THE FIRST TIME - REFERRALS
02/04/04 (S) JUD, FIN
02/27/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SJR 32
SHORT TITLE: CONST AM: PERM FUND INCOME FOR DIVIDENDS
SPONSOR(s): SENATOR(s) ELTON
02/16/04 (S) READ THE FIRST TIME - REFERRALS
02/16/04 (S) JUD, FIN
02/27/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Mr. Robert Storer
Executive Director
Alaska Permanent Fund Corporation
PO Box 25500
Juneau AK 99802-5500
POSITION STATEMENT: Answered questions about the percent of
market value
Senator Kim Elton
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SJR 32
Mr. Mark Stopha
Staff to Senator Lincoln
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified for the sponsor of SJR 19
Mr. Mark Gnadt
Staff to Representative Croft
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about SJR 19
Ms. Mary Griswold
Homer, AK
POSITION STATEMENT: Supports SJR 18 and SJR 32 combined
Mr. Mark Newman
Big Lake, AK
POSITION STATEMENT: Supports maintaining the status quo of the
permanent fund
Mr. Roger Gay
Big Lake, AK
POSITION STATEMENT: Opposed to inflation proofing the permanent
fund
ACTION NARRATIVE
TAPE 04-10, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:03 a.m. All members were
present. Chair Seekins announced that he planned to review all
four resolutions before taking any action of them today and that
SJR 24 would be heard first.
SJR 24-CONST AM: GUARANTEE PERM FUND DIVIDEND
SENATOR OGAN, prime sponsor of SJR 24, told members he decided
to introduce this legislation because of his sincere belief that
the voters will not allow any other use of the permanent fund
until the permanent fund dividend program is protected in the
Alaska Constitution. SJR 24 contains a provision that delays its
effective date until the voters approve a constitutional
amendment related to an appropriation limit. He explained:
I feel if - even with constitutionally protecting the
permanent fund dividend that if it was protected,
let's say tomorrow, that a lot of legislators would
perceive that the rest of the money is available for
appropriation and there would be a feeding frenzy. I
have a personal belief that government generally grows
in direct proportion to the amount of money available
to spend and so I think we should protect the
dividend, put a spending cap in place and then, and
only then, discuss some of the excess earnings to be
used for some of the critical needs that we have as a
government.
As we all know, oil prices have been high but
production will continue to decline in the near and
far term and, even with the gas pipeline, we are not
going to have adequate revenues to balance the budget
in a few short years. I think this is an important
first step.
He explained that SJR 24 essentially enshrines the permanent
fund dividend program, as it exists in current statute.
SENATOR FRENCH asked if SJR 24 would put the entire earnings
reserve account inside the permanent fund itself, instead of
leaving it as a separate account.
SENATOR OGAN said it would.
SENATOR FRENCH asked if the distribution methodology for
dividends would remain the same, that being 21 percent of the
net income for the last five years.
SENATOR OGAN said it would and explained that Section 3 of SJR
24 enshrines the existing dividend formula. He said at the end
of the day, if the percent of market value (POMV) plan is
adopted, SJR 24 would have to be amended to use that approach.
He said he does not believe the POMV is a bad thing on its face,
but if it is adopted he believes the dividend should still be
protected.
SENATOR FRENCH asked how inflation proofing would work under SJR
24.
SENATOR OGAN deferred to Mr. Storer for an answer.
MR. ROBERT STORER, Executive Director of the Alaska Permanent
Fund Corporation (APFC), told members as he reads SJR 24,
inflation proofing would remain by statute. Currently, the
dividend formula takes precedence over inflation proofing,
although both are appropriated annually. He said if the existing
statute were memorialized in the Constitution, the dividend
would again take precedence over inflation proofing.
SENATOR FRENCH asked if SJR 24 requires that 50 percent of the
income available for distribution be transferred from the
earnings reserve account and used for the dividend program.
SENATOR OGAN said that is correct.
SENATOR FRENCH asked how that compares with the current dividend
program.
MR. STORER said they are the same.
SENATOR OGAN explained that SJR 24 would put the existing
statute in the Constitution, verbatim.
CHAIR SEEKINS announced that he would take testimony on all four
resolutions before the committee simultaneously. He then asked
for a motion to adopt version H [SJR 24] as the working document
before the committee.
SENATOR OGAN so moved.
CHAIR SEEKINS announced the motion carried without objection;
therefore Version H was before the committee. He then designated
a proposed amendment distributed to members as Amendment 1.
SENATOR OGAN moved to adopt Amendment 1 [for the purpose of
discussion], which reads as follows.
23-LS1543\H.1
Cook
8/19/04
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: SJR 24
Page 2, lines 14 - 15:
Delete "a new section"
Insert "new sections"
Page 2, following line 18:
Insert
"Section 31. Suspension and Repeal of amendments. (a)
Notwithstanding Section 1 of Article XIII, the 2004
amendments to Section 15 of Article IX are suspended on the
date of an initial determination by the Internal Revenue
Service that all or a portion of the permanent fund is
subject to federal taxation. The suspension is terminated
on the date the amendments are repealed under (b) of this
section or one hundred eighty days after the date of a
final, nonappealable judgment or order by a federal court
deciding that no portion of the permanent fund would be
subject to federal taxation as a result of the amendments.
During the period of suspension under this subsection,
Section 15 of Article IX shall apply as it read on
January 1, 2003.
(b) Notwithstanding Section 1 of Article XIII, the
2004 amendments to Section 15 of Article IX are repealed
one hundred eighty days after the date of a final,
nonappealable judgment or order by a federal court deciding
that all or a portion of the permanent fund is subject to
federal taxation. Upon repeal of the 2004 amendments under
this subsection, Section 15 of Article IX is amended to
read as it read on January 1, 2003."
CHAIR SEEKINS noted without objection, Amendment 1 was before
the committee.
SENATOR TOM WAGONER told members that he has had great concerns
about enshrining the permanent fund dividend in the Constitution
since before he took office because of the differing opinions on
whether or not doing so would enable the IRS to tax the
permanent fund. People knowledgeable about tax law say if the
permanent fund dividend is enshrined in the Constitution, the
IRS's ability to tax the permanent fund becomes tenuous because
that money would no longer be available for government services.
Amendment 1 contains a safety valve so that if the IRS attempts
to tax the permanent fund, the dividend would revert to a
statutory mandate, not a constitutional mandate. He said he
believes Amendment 1 should be attached to any permanent fund
dividend bill because it gives the legislature final control.
SENATOR THERRIAULT felt adopting Amendment 1 would be prudent
because the IRS will not guarantee that any interpretation of
the tax code and case history is correct. He noted, however,
that SJR 24 is structured so that the earnings reserve is still
maintained and can be used for a public purpose, which probably
mitigates the threat of taxation by the IRS.
SENATOR ELLIS raised a point of order and asked Chair Seekins to
clarify whether the motion involving Amendment 1 was to
introduce it for discussion.
CHAIR SEEKINS clarified it was to adopt Amendment 1 for the
purpose of discussion and not to incorporate it into SJR 24.
SENATOR ELLIS noted it is atypical to ask if there is objection
to introducing an amendment for discussion and wanted to affirm
that the committee did not adopt the amendment. He then asked
Senator Wagoner if he has read the legal opinion that Attorney
General Renkes solicited on the taxation issue and, if so, asked
him to comment on it. He maintained that the legislature has
spent some money to get to the heart of the taxation issue
because it has been a point of debate for years. Senator Green
introduced a bill years ago to enshrine the permanent fund
dividend but it received a lot of criticism that it would
trigger unfavorable IRS action toward the State of Alaska. He
asked if Senator Wagoner has read those materials but did not
find those opinions definitive.
SENATOR WAGONER said he has read a couple of opinions that
contradict each other or take different approaches toward what
the IRS can and cannot do. He said Amendment 1 provides him with
a higher comfort level than any of the opinions he has read.
CHAIR SEEKINS asked if the IRS has ever been constrained by the
opinion of a state attorney general.
SENATOR WAGONER said the only entity that can restrain the IRS
is Congress.
SENATOR ELLIS requested that Attorney General Renkes provide a
position on the need for Amendment 1. He said the attorney
general went through the time and expense of soliciting an
opinion from a Washington, D.C. law firm so he would appreciate
hearing his opinion.
SENATOR WAGONER said he didn't think what the attorney general
said would matter because Amendment 1 provides a comfort level
that he wants anyway for himself and a lot of other people who
distrust the IRS. He said he feels it would be a waste of
Attorney General Renkes' time.
CHAIR SEEKINS asked if Attorney General Renkes' opinion was in
writing.
SENATOR WAGONER said if it is, he would get a copy for committee
members. He repeated that he feels Amendment 1 is a prudent
safety valve.
SENATOR OGAN noted the only opinion that really counts is of
"the guys that wear the robes in the U.S. Supreme Court so
everybody else has got an opinion about it." He agreed that
Amendment 1 is a circuit breaker if an adversarial opinion kicks
in and removes the dividend program from the Constitution.
SENATOR THERRIAULT pointed out that the language contained in
Amendment 1 is identical to Section 3 of SJR 19 that Senator
Ellis cosponsored.
SENATOR ELLIS told members he was not arguing against the
inclusion of Amendment 1. He maintained, "I was asking about the
attorney general - the time and expense we went to as a state
and that might be a legitimate part of the committee record. I'd
hate for Senator Therriault to mischaracterize my...."
CHAIR SEEKINS asked Senator Wagoner to get a copy of the written
opinion to insert in the record.
SENATOR WAGONER offered to do so today.
SENATOR OGAN said one reason he introduced SJR 24 was because of
a lengthy discussion he had with constituents in the Mat-Su
Valley during the interim about the fact that the founding
fathers of Alaska decided the state should retain the subsurface
rights to land in Alaska. All residents collectively own the
subsurface mineral estate, with the exception of the lands owned
by Native corporations and lands patented before statehood.
Additionally, the Alaska Constitution declares the subsurface
rights as dominant so that a surface owner must allow access to
the subsurface. That is also included in the Statehood Compact.
According to Section (6)(i) of that Compact, the U.S. attorney
general is specifically instructed to litigate in the U.S.
district court to procure those subsurface rights for the
federal government if the state conveys the subsurface rights to
anyone else. He feels very strongly that the dividend program
needs to be protected because it represents the people's share
of the collectively owned subsurface mineral rights.
CHAIR SEEKINS announced that with no further objection,
Amendment 1 was adopted.
SENATOR FRENCH said he is curious about the language in the
appropriation limit that is currently working its way through
the legislature.
SENATOR OGAN said no one knows whether the legislature will have
an appropriation limit at the end of the day, and how it will
work, but SJR 24 will not take effect without one. He said he
believes they should all be linked. He added:
And then we get into the discussion of whether or not
it's a revision and I gotta put that on the record. I
mean - and it's a little risky, and at the end of the
day we might wish to just take that out and let it fly
on its own. It could be viewed as a revision and we
have to be honest with people that's a possibility. Of
course they may view this as a revision because this
effective date affects more than one section of the
Constitution and I think the best case to address that
and - so the committee needs to be cognizant of that.
I don't want to try to hide it from anybody.
CHAIR SEEKINS pointed out, under Bess v. Ulmer, any section of
the Constitution that affects too many other sections is no
longer an amendment; it would be a revision.
SENATOR OGAN said he is unsure whether a constitutional
amendment with an effective date contingent upon another
[constitutional amendment] has ever been put before the voters
so it is an untested section of law.
CHAIR SEEKINS noted that according to Bess v. Ulmer, an
amendment to the Constitution is a clarification; a major change
is a revision.
SENATOR ELLIS asked whether the governor has taken a position on
SJR 24.
SENATOR OGAN said he has not had a discussion with the
administration about it.
SENATOR ELLIS asked if he plans to do so.
SENATOR OGAN replied, "I don't think it's a function of the
executive branch to - it's nice when they support your work but,
frankly, the separation of powers, I think it's something we
should - it'd be nice to have but isn't required to have to
consider an amendment."
SENATOR ELLIS agreed but said the majority frequently solicits
the governor's position, as it is important to the way the
majority views various pieces of legislation.
CHAIR SEEKINS asked Senator Ellis to restrict his comments to
his own conversations with the governor. He expressed concern
that the term "you all" is inclusive and other people are not
available to defend their positions.
SENATOR ELLIS asked the chair why he wanted to restrain his
right to speak on the issue. He then clarified that he was
referring to the Republican Majority when he said "you all."
CHAIR SEEKINS said the Republican Majority was not present and
he did not want Senator Ogan to answer for him.
SENATOR ELLIS said he would ask the chair separately and was
only interested in Senator Ogan's position.
SENATOR OGAN repeated that he has not discussed SJR 24 with
anyone in the governor's office.
SENATOR THERRIAULT pointed out that SJR 24 prioritizes dividends
over inflation proofing. He cautioned that the state could pay
dividends during a down market and give the next generation a
diminished asset. He views the permanent fund as a mechanism for
taking a one-time asset and making it multi-generational so that
possibility weighs heavy on his mind.
CHAIR SEEKINS noted that with no further discussion on SJR 24,
he would set it aside until the end of the meeting.
SJR 32- CONST AM: PERM FUND INCOME FOR DIVIDENDS
SENATOR KIM ELTON, sponsor of SJR 32, described the measure as
"if POMV, then SJR 32." The intent of SJR 32 is to codify one
of the recommendations of the Conference of Alaskans: to
constitutionally protect the permanent fund dividend. He said in
response to Senator Therriault's concern about prioritizing
inflation proofing over dividends, SJR 32 follows the POMV
method, which does just that. SJR 32 also provides that 80
percent of the earnings from the POMV would be used for
dividends. He stated:
It would probably be fair to point out that the
sharpest minds at the [Alaska] Permanent Fund
Corporation have, when they look out ahead and
they compare this recipe to the existing recipe
that's in statute, they would suggest that...a
return that would probably most equal the
existing statutory dividend would be in the
neighborhood of about 60-40 - 60 percent for
dividends, 40 percent for other purposes to be
determined by the legislature. But, Mr. Chair, if
you look back to 1990 and you take a
retrospective look, the formula, if we had been
operating under a POMV, the formula that most
closely would replicate the existing statutory
language would be in the neighborhood of about
76-24 so this errs just slightly to the benefit
of the dividend program, 80-20 does.
SENATOR ELTON said he firmly believes the legislature has
been able to protect the growing pool of the permanent fund
because of the nexus between the permanent fund and the
dividend program. He repeated that SJR 32 is written so
that its enactment is contingent upon legislative and voter
approval of the POMV methodology.
SENATOR OGAN moved to adopt Version H of SJR 32 as the
working document before the committee.
CHAIR SEEKINS announced that without objection, the motion
carried.
SENATOR FRENCH said his greatest concern is inflation
proofing and that is protected fairly well under the POMV
scheme. He said he tries to work backwards from the
election in November to figure out a plan that will gain
favor with the public to provide a dividend and allow some
earnings to be used for essential government services. He
believes SJR 32 goes a long way toward doing that. He asked
Senator Elton if he has received feedback about how the
public will receive this resolution.
SENATOR ELTON said one reason he introduced SJR 32 was to
make sure the legislature had all of the pieces necessary
to accomplish the goals of the Conference of Alaskans. The
one piece he found missing was a mechanism that provides a
fairly simple and easily understood division of the earning
stream for dividends and government services. He has had a
considerable amount of discussion with people in his
district and also with people at the conference. He noted
one way to accomplish policy, especially when a revision of
the Constitution is required, is to include a market
component. The legislature must structure the
constitutional amendment so that people can understand its
benefits. He believes the POMV approach will be adopted if
the citizens understand its effect on the permanent fund
dividend.
CHAIR SEEKINS asked Senator Elton if he has any letters of
support or e-mail messages showing support that could be
inserted into the record.
SENATOR ELTON said that SJR 32 closely reflects the
Conference of Alaskans' recommendations.
CHAIR SEEKINS asked Senator Elton to show a nexus. He said
he read the Conference of Alaskans' report but the
recommendations were not supported by enough of a majority
that the legislature would have passed them as a proposed
constitutional amendment.
SENATOR ELTON said it is unusual that a bill he introduces
is heard within 10 days so he does not have letters of
support.
CHAIR SEEKINS asked how many bills he has had referred to
the Senate Judiciary Committee.
SENATOR ELTON said none. He then indicated the suggestions
from the Conference of Alaskans were not supported
unanimously but 37 of the 55 delegates suggested enshrining
the dividend in the Constitution.
CHAIR SEEKINS said he is not aware of anything in the
conference report that suggested an 80/20 split.
SENATOR ELTON said the Conference of Alaskans did not
identify an appropriate split for earnings and dividends
but SJR 32 comes closest to matching what the existing
program has provided over the last 15 years. He repeated
that despite the fact that this recommendation was not
approved unanimously by the conferees, 37 out of 55
delegates did suggest the dividend be protected in the
Constitution. He pointed out that kind of a margin in a
legislative race would be considered as overwhelming.
CHAIR SEEKINS repeated [that margin] would not suffice for
a constitutional amendment to come from the legislature.
SENATOR ELTON argued that would if the threshold is
considered to be what it would take to pass on the general
election ballot in November.
CHAIR SEEKINS asked if he believes the 55 conference
delegates were representative of the people of the state.
SENATOR ELTON said he does not. The conferees were from a
much higher socio-economic stratum than the average
Alaskan. He added that two-thirds of the conferees
indicated they earned over $100,000 per year.
SENATOR FRENCH commented that the various proposals before
the committee represent a struggle between the government
and the people for the earnings of the permanent fund. The
people have repeatedly expressed their will to get their
share of the fund's earnings. SJR 32 embodies that will
most closely.
CHAIR SEEKINS asked Senator Elton if he recalled what top
two funding sources the conferees suggested the legislature
look at.
SENATOR ELTON replied a unique voting system was applied at
the Conference. When the conferees were able to vote
anonymously, there was a weighted average. The conferees
were asked to decide on their top three revenue
enhancements. The weighted average showed an income tax was
the preferred method, by a very slight margin, over the
earnings of the permanent fund, which had a relatively
small margin over natural resource taxes. He said he would
characterize the top two as a virtual dead heat between the
income tax and the permanent fund earnings.
CHAIR SEEKINS responded, "All of which are the people's
money, correct?"
SENATOR ELTON agreed.
SENATOR THERRIAULT asked Senator Elton why he chose an
80/20 split rather than a ratio that is closer to the
status quo.
SENATOR ELTON repeated that the sharpest minds at the
Alaska Permanent Fund Corporation (APFC) did projections to
the year 2010 and suggested that to best replicate the
statutory dividend formula, 60 percent of the earnings
stream would be necessary. Because many variables could
occur in that timeframe, he personally took a retrospective
look to 1990, had the POMV methodology been in place. The
split of earnings would have been about 76 percent for
dividends and 24 percent for government. He said he picked
an 80/20 split in favor of the dividend.
SENATOR THERRIAULT said if the POMV methodology is
established, the earnings reserve will no longer be in
existence. He asked Senator Elton to elaborate on how the
20 percent would be used.
SENATOR ELTON said the 20 percent is unallocated and would
be available for government spending, which would be
codified by the legislature and the budget process.
SENATOR THERRIAULT noted that under POMV, 80 percent of up
to 5 percent would be used for dividends. If the
legislature uses 3 percent instead of 5, 80 percent of that
amount will be used for dividends.
SENATOR ELTON explained that SJR 32 is based on a 5 percent
return from POMV. If the return is less, the 80/20 ratio
remains the same but a lower amount would be available for
each.
SENATOR THERRIAULT asked Senator Elton:
Even though it doesn't say it here, the use of
the other 20 percent, it's your intent that it be
available for appropriation and, in fact, you say
here at least 80 percent of the amount
appropriated so that 20 percent has to be
appropriated for something. You have appropriated
it from the earnings and whatever you have
appropriated out, 80 percent shall go to a
dividend but you have appropriated that other 20
percent too and you can't get to the dividend
unless you appropriate that 20 percent.
SENATOR ELTON said he thinks all legislators would view
this as a revenue source in the same way that an income tax
or additional resource taxes would provide an income stream
available for appropriation. This constitutional amendment
provides that 80 percent of this revenue stream would be
preserved for the dividend program. The other 20 percent
would be available for government spending.
SENATOR ELTON said he appreciates the fact that SJR 32 is
linked with the POMV. He believes there is a growing
realization that the POMV truly is the best way to make the
permanent fund permanent.
TAPE 04-10, SIDE B
SENATOR FRENCH maintained, regarding what split more
accurately reflects the current system, there is no bright
consensus. The APFC board has said a 60/40 split produces
the current dividend. However, Sharman Haley, from the
Institute of Social and Economic Research at UAA, recently
wrote an article [in the Anchorage Daily News] in which she
said the appropriate split is 70/30. He indicated that
trying to replicate what is basically an earnings driven
system under the current value driven system is like
comparing apples to oranges. He commended Senator Elton for
erring on the side of caution.
CHAIR SEEKINS indicated the discussion is not about whether
the POMV system is a good one but about how much would be
given to whom.
SENATOR ELTON agreed and pointed out that during his tenure
in the legislature, the asset management of the fund was
changed. He added:
All of those changes, what happens in the
marketplace, all of these things make it very
difficult to say with any kind of real authority
it is 61.3 percent to most closely replicate - I
mean you can't do that. We can trust the best
minds that we have down at the permanent fund,
and I do trust them but it's kind of a rolling
target that could change next year also.
SENATOR OGAN asked Senator Elton how much new money would
be available to spend on government services with an 80/20
split.
SENATOR ELTON estimated about $260 million, based on a 20
percent of the 5 percent return from the POMV, which would
be $1.3 billion this year.
SENATOR OGAN said he believes offering 80 percent for
dividends is very generous, but his concern is that a new
$275 million funding source for government services will
cause government to grow and the state will be in the same
situation that it's in today in five years. He noted he
wants to see a constitutional spending limit enacted first.
SENATOR ELTON commented that the legislature has acted in
an extremely responsible way regarding the use of the
permanent fund earnings. Regarding Senator Ogan's concern
about new money being available for appropriation, he sees
any new revenue stream as backfilling deficit spending that
will allow the legislature to draw down the budget reserve
at a slower rate.
CHAIR SEEKINS asked if all of the earnings of the permanent
fund have been available to the legislature for spending
since the beginning of the dividend program.
SENATOR ELTON said they have and because the program is
statutory and not constitutional, it only requires a simple
majority vote.
SENATOR OGAN expressed concern that SJR 32 means to him
that the remaining budget gap will have to be filled with
an income or sales tax to lock in the 80/20 split.
SENATOR ELTON agreed but noted that additional spending
cuts are possible. He said the discussion is moving toward
a philosophical one and his view is that SJR 32 is not a
fiscal plan. It could be one component of a fiscal plan.
CHAIR SEEKINS asked Senator Elton if he believes in the
need for an income tax before looking at spending the
permanent fund earnings.
SENATOR ELTON said his position is most closely reflected
by that of the fiscal policy caucus, a group made up of 28
members of the legislature. Its package included a cruise
ship tax, alcohol tax, oil industry tax and a small income
tax. He pointed out that none of the 28 members believed
that plan was a perfect one, however they agreed it was as
close as they could come to one. On an individual basis,
they all preferred a different plan.
CHAIR SEEKINS announced a recess.
9:08 a.m.
SJR 19-CONST. AM: PERMANENT FUND INCOME
CHAIR SEEKINS called the meeting back to order and
announced that SJR 19 was before the committee.
MR. MARK STOPHA, staff to Senator Lincoln, sponsor of SJR
19, said he was available to answer questions.
MR. MARK GNADT, staff to Representative Croft, sponsor of
House companion legislation, offered to answer questions.
SENATOR THERRIAULT noted that Representative Croft stated
at the last meeting that inflation proofing of the
permanent fund was paramount, in his opinion. He said some
of the other proposals before the committee have been
drafted to do just that so that the permanent fund remains
truly permanent and is not eroded by the effects of
inflation. He pointed out that SJR 19 does not; it freezes
the current statutes in place giving the dividend top
priority. SJR 19 also provides a mechanism that allows
spending on government services with the ratification of
the people. Therefore, if dividends are given a preference
and dollars are tight, he thinks the first thing that will
fall off of the table is inflation proofing. He asked why
Representative Croft signed on to a piece of legislation
that does not make inflation proofing paramount.
MR. GNADT said he is correct in that inflation proofing
falls second to dividends under SJR 19 but, to ensure that
inflation proofing occurs, it requires ratification of 50
percent of the voters before spending for government
services. Therefore, inflation proofing is prioritized
above spending unless the people vote otherwise.
SENATOR THERRIAULT responded:
That still is a concern of mine because looking
out for the next generation is I think what the
permanent fund is all about and that allows
current people to get a dividend in their pocket
- the current people to vote to just use money
for governmental services that they support, and
I think the tendency is to do those things and
not look out for the next generation. So, to me
that's one of the whole beauties of the permanent
fund.
He then said the current permanent fund dividend statutes,
projected forward, result in a 60/40 split. He asked if
Senator Lincoln and Representative Croft understand and
support that.
MR. GNADT said he cannot speak to what percentage they
support but they do support putting the existing dividend
program into the Constitution.
SENATOR THERRIAULT repeated that means a 60/40 split going
forward.
SENATOR FRENCH pointed out that several economists have
tried to define the split necessary under a POMV plan to
restate the current program, which is an earnings stream
driven plan. He said no one has arrived at a "lock-tight"
number.
CHAIR SEEKINS announced that with no further questions on
SJR 19, the committee would take up SJR 18.
SJR 18-CONST. AM: PF APPROPS/INFLATION-PROOFING
CHAIR SEEKINS asked Mr. Storer if the percent of market
value (POMV) system focuses the attention of the Board of
Trustees primarily on making sure the permanent fund
investments produce the highest amount of income possible
for the citizens.
MR. ROBERT STORER, Executive Director of the Alaska
Permanent Fund Corporation (APFC), said the POMV embodies
two objectives. The first is to memorialize inflation
proofing in the Constitution and the second is to establish
a management tool that gives the Board of Trustees
direction in how to best manage the assets to eliminate
ambiguity.
CHAIR SEEKINS asked Mr. Storer to provide the committee
with the history of the 1996 anomaly in the realized gains
of the permanent fund.
MR. STORER said he was not at the APFC at that time, but
was close enough to describe what occurred. He noted the
chart of realized income showed a lot of spikes up and
down, with a big spike up in 1996. The distribution system
is based on cash flow from dividends, interest, and the
profit or loss from the sale of securities. In 1996, the
[APFC board] discussed the fact that a substantial portion
of the permanent fund's equity investment was in a passive
portfolio during the bull market. Passive portfolios are
designed to replicate the performance of an index. They are
very low cost with virtually no turnover. The Board of
Trustees was concerned about intergenerational equity so
the board decided to liquidate some of the profits in that
passive portfolio, which then became realized income and
were distributed according to the statutes.
CHAIR SEEKINS asked if the Board of Trustees unilaterally
decided to bring in a higher amount of realized earnings in
order to distribute them through the dividend program.\
MR. STORER said that is correct; the board made the
decision after discussions with the consultant and a
lengthy discussion about intergenerational equity. He noted
POMV is indifferent to that possibility because it captures
the rising market in a measured way, i.e. the real income,
and it harmonizes with current accounting practices and
ignores the need for arbitrary or market decisions.
CHAIR SEEKINS asked if the APFC board is charged with
accommodating intergenerational equity under its charter.
MR. STORER replied, "Mr. Chairman, I'd say embedded in all
generations being treated equally or benefiting equally,
that was, I assume, part of that evaluation."
CHAIR SEEKINS asked if the board is the body that
determines how to equally treat all generations under the
current system.
MR. STORER answered, "On that day, in that action."
CHAIR SEEKINS asked Mr. Storer if he had $20+ billion and
was to recommend how that fund should be managed for the
benefit of current and future generations, how he would
convince people to use the current system over the POMV
system.
MR. STORER said that would be difficult. The hurdle would
be to convince people to use a methodology that is
inconsistent with current accounting methodology. A second
hurdle would be to negate the fact that most endowment
funds use some form of the POMV. He said the main criticism
of the realized income basis, is that the realized income
can be manipulated by making decisions independent of what
the market is doing. He has given Chair Seekins' question a
lot of thought but has failed to come up with a reasonable
argument in support of the current methodology. He said it
made a lot of sense in the 1970s when the permanent fund
was created.
CHAIR SEEKINS asked Mr. Storer if he could reasonably
defend the position that the current realized income system
meets the fiscal responsibility of a trustee, in terms of
the trustee's fiscal responsibility to the beneficiaries of
a fund.
MR. STORER replied the POMV is consistent with the
methodology of most funds. He explained:
Another way that you see out there is taking the
less popular - you take the income stream -
dividends, interest, and that's part of your
payout and then you in effect inflation proof by
not accounting for the appreciation in your
assets, whether they're realized or not, they
stay with the fund. So that's kind of a second
tier so now you've created inflation proofing
through appreciation and a distribution through
the income stream.
So now we go to the third one, which memorializes
the distribution of the profits that occur and
creates an enormous amount of volatility. The
statutes say that we as fiduciaries, this is how
we manage the fund so the statutes have given us
the fiduciary responsibility [indisc.] to manage
it and to be mindful with that.
CHAIR SEEKINS said he was speaking only to the
responsibility to better meet the long-term needs of the
beneficiaries under one's fiduciary role, not by statute.
MR. STORER said he believes he provided his opinion on the
hierarchy of treating all generations equally. He said he
has not heard any better method being discussed right now,
which does not mean one won't be proposed in the future.
The legislature has the ability to appropriate all of the
realized income in the fund right now. The more insight a
fiduciary has as to how to best manage a fund, the better
job the fiduciary can do. The current methodology leaves a
lot of room for ambiguity.
SENATOR OGAN commented that many citizens do not trust the
legislature's or APFC Board of Trustees' motivations for
wanting to adopt the POMV. They see it as allowing the
legislature to get more money for government spending. He
asked Mr. Storer if he believes the POMV method should be
coupled with a spending limit to assure the people that it
is not just a way for the legislature to get more money
from the permanent fund to spend.
MR. STORER said he understands the citizens' distrust and
thinks it is natural and healthy. He believes parallel
issues are facing the legislature and voters right now -
the proposed POMV, which addresses inflation proofing and
is a management tool, and the state's fiscal problems. The
APFC Board of Trustees would have proposed the POMV no
matter what the state's fiscal situation was. The board and
staff recognize that the [earnings] distribution is within
the prerogative of the legislature.
SENATOR THERRIAULT noted that the previous question was
phrased as public distrust of the APFC dividend trustees;
however, no such body exists. The Board of Trustees is
charged with making sure that this multigenerational asset
is not diminished by inflation and that is the Board's
motive behind proposing the POMV.
MR. STORER strongly agreed.
SENATOR OGAN thanked Senator Therriault for correcting his
misstatement and pointed out the legislature has the
responsibility for paying the dividend. He maintained that
the simultaneous discussion of the POMV proposal and the
budget gap is making everyone very suspect of the
motivations behind the POMV proposal.
MR. STORER said the Board of Trustees understands that
completely and when it is given the opportunity to speak
directly to individuals and answer questions, it has found,
without exception, they understand the distinction. The
difficulty is conveying that message.
SENATOR THERRIAULT noted that under SJR 19, there might not
be enough revenue in a down market to pay a dividend and/or
inflation proofing. SJR 19 freezes the existing statutes so
that the dividend takes precedence. He asked Mr. Storer if
that concerns him.
MR. STORER said the Board of Trustees strongly believes
that how the funds are used is within the legislature's
prerogative. He stated:
If you went back to June 30, and this is what
we've been using, we're updating it and then in
any given year under the existing formula,
there's about a 10 percent chance that there
would be no dividend - I'm not saying every year,
I'm just saying within that continuum. So that is
the risk with the existing formula.
Now, because the market has done so well, and
once we visit our asset allocation we will
remodel it and, at least for some foreseeable
time, that 10 percent probability diminishes
because we have a much larger cushion. But the 10
percent probability of a significantly smaller
dividend would still exist under the existing
formula, and then inflation proofing - I haven't
really thought through the - if POMV passes and
you have this existing formula, you have now put
inflation proofing ahead of that formula.
CHAIR SEEKINS took public testimony.
MS. MARY GRISWOLD, representing herself, said she supports
a combination of CSSJR 18(STA) and SJR 32. She told
members:
POMV provides long-term protection for the buying
power for the permanent fund by constitutionally
inflation proofing the entire fund. Right now
only the principal is inflation proofed, and that
is done by an annual legislative appropriation
subject to available funds. Equally important,
POMV prevents erosion of the permanent fund's
value by limiting the spending in times of
plenty. This payout method complies with
generally accepted accounting practices and is
appropriate for diversified funds composed of
stocks, bonds and real estate. Our current payout
method is outdated because we are no longer
invested only in income-producing bonds.
Implementing POMV must be kept simple and
comparable to the existing dividend program to
gain voter acceptance. So while I am not
generally in favor of dedicating appropriations
in the Constitution, this case warrants doing so.
The political reality is that we are going to get
nowhere resolving our growing difficulties
without clearing the dividend issue from the
table. I favor an 80-20 split of the payout
because this is the most defensible math to
preserve a comparable dividend formula. It is
consistent with the performance model, which I
trust better than short-term projections or look
backs. The model stipulates 80 percent nominal
returns, 3 percent inflation, and a 5 percent
real return over time. Right now we are using
half of the nominal returns for dividends. To
equal this after POMV's implicit inflation
proofing, we must use 80 percent of the 5 percent
payout. This is straightforward and leaves 20
percent available for essential government
services, which when combined with revenue from
revised oil taxes and a 3 percent income tax
based on federal adjusted gross income will
[indisc.] bridge our fiscal gap.
SJR 19 and SJR 24 continue our outdated payout
method, which threaten the value of the permanent
fund by allowing overspending in years of high
income. A combination of CSSJR 18 and SJR 32 is a
good solution to protect the value of the
permanent fund, preserve the dividend program
that Alaskans have learned to count on, and help
us take a big step toward fiscal responsibility.
Thank you.
MR. MARK NEWMAN, testifying on his own behalf from Big
Lake, informed members that he was a delegate to the
Conference of Alaskans. He has repeatedly heard the comment
that it is necessary to get the POMV by the people. He said
he has recently talked to many people who understand that
with the current method, dividend checks will be higher
when the stock market is up and lower when it is down. He
noted the permanent fund began in 1976 with a deposit of
$728 million and it now amounts to $28 billion, which shows
that the current system is working very well. A commission
report from 1990 showed the results of two questions put
before Alaskans: what is the purpose of the permanent fund
and what role will it play in Alaska's long-term future.
The public clearly stated that it wants the permanent fund
retained; the principal of the fund preserved; the current
level of state spending lowered; and it does not want to
use fund earnings to support state programs in the
foreseeable future. Many people desperately need that
dividend check. He expressed concern that the people are
not being listened to by the politicians and government
officials. He cautioned that to build public trust, the
legislature must listen to and do what the people say. He
invited members to call him.
MR. ROGER GAY, a resident of Big Lake, said he was tired of
hearing about the issue of inflation proofing because the
legislature cannot inflation proof anything by throwing
more money into the permanent fund. He told members, "The
only way to get the real value of or from a fluctuating and
intrinsically worthless currency is to spend it now at
today's value. Tomorrow your money is going to be worth
less."
TAPE 04-11, SIDE A
MR. GAY said when inflation eats the value of the permanent
fund down to zero that should be a lesson to the people who
refuse to control their own currency. He added, "If it
doesn't make sense to inflation proof the dividend, let's
stop hearing about the oxymoron of inflation
proofing...double digit inflation is going to be a bigger
shock than the stock market crash and you can bet it's
coming."
CHAIR SEEKINS announced that with no further witnesses
wishing to testify, public testimony was closed.
SENATOR OGAN concurred with Mr. Newman's statement that a
lot of people need the dividend check. He said he was glad
Mr. Newman attended the Conference of Alaskans, as he
represented the "average guy."
SENATOR THERRIAULT commented that the legislature always
has to deal with reality versus perception and he believes
there is the perception among the public that the
management scheme of the permanent fund has never been
changed. However, had the legislature never tinkered with
that management structure, the permanent fund would not
have increased in value as the result of the stock market
rise. He explained that the permanent fund was originally
set up as a bond fund and had the legislature chose to
leave it that way, the stock market would have taken off
and left the fund behind. That change resulted in a
tremendous payout to the public, which people are now so
dependent on.
[The following testimony by Chair Seekins is verbatim.]
CHAIR SEEKINS: I agree. Other comments? Discussion among
the members? My intent here is to take a look at all four
of these bills this morning and I think that the Judiciary
Committee has discussed and discussed and discussed these
bills. I think it's time for other members of the
legislature to be able to discuss them as well. My intent
here is to put an up and down vote as to whether we put all
four of these bills forward or not. I don't have any
problem with them going forward and being discussed in
further committees of assignment. I think it's worthwhile
to be able to do so.
On a personal level, I support some concepts and I don't
support other concepts but I don't think that they've been
fleshed out to the point where I would be on an up or down
vote except on one thing, and that would be that I believe
that the POMV system is superior to the system that we have
now. I'm saying that both as a legislator, as a
businessperson and as a former trustee. In 1991-1994, we
had discussions as to whether or not the fund should be
operated on a percent of market value way back then rather
than the current system of realized gains. I think our
current system is antiquated. It's subject to market
variability. It's subject to political manipulations and
it's not the best system that we should have in place for
my family currently, my children now, my grandchildren and
their children to come. I do believe that we should
intrinsically inflation proof the fund and I support that
on that basis, and I think that that is an added benefit to
the POMV system. I can't guarantee what inflation proofing
is going to be next year but the way that SJR 18 is
written, it gives the legislature the cap of 5 percent, not
a mandate to spend 5 percent. I don't think people in
general understand that.
As I've gone around the state and talked to people, I found
out that once they understand that it's a management system
and it's not a raid on the permanent fund, as some
political opportunists would like to make it be, I think
that they say well maybe that's not a bad system. The
discussion though, would tend to be as to well how much and
where would it go, as we heard in the committee this
morning. I'm not at this point in favor of limiting the
fiscal responsibility of the legislature, either now or in
the future to be able to handle emergencies that may emerge
and the flexibility that we would have to have.
On a personal basis, I don't have any problem with a
spending limit - a constitutional spending limit, which is
not part of what we're looking at this morning, where we
would be able to override the provision in case of an
emergency or collapse - some kind of a national disaster.
My primary responsibility as a legislator fiscally is to
make sure that we are meeting the essential needs of the
government in the State of Alaska and I think that our
Constitution was very strong in assigning that position to
the legislature. I have not been in favor of endowing money
for any purpose in my past, and I'm not at this point in
time.
I don't have any problem - I believe, based on the track
record of the legislature, we would continue to try our
dead level best to be able to put a dividend into the hands
of the people of the State of Alaska. It's a strong
economic force. It's one of - I don't know where it would
be but it's one of the top five economies in the state of
Alaska. At one time I know it was second only to, I
believe, fishing at that particular time. So, it's a strong
economy. We would not choose, I don't think as a
legislative body, to cripple that economy, nor would we
choose as a legislative body to cripple the State of Alaska
when dire circumstances were necessary for us to be able to
meet those essential needs of government.
So, I hope that as we look now - we're going to ask on an
individual basis, I'm going to ask for recommendations from
the committee on all four of these for the purposes of
further discussion down the line in the rest of the body.
We all know that we're coming up to a date when we
[indisc.] by the Governor and we've agreed that we'd take a
look at many different approaches to be able to look at how
we would operate fiscally in the State of Alaska. And we
have got recommendations from everywhere, including the 55
members of the Conference of Alaskans. So, I would ask
first for the will of the committee as to SJR 24. Senator
Therriault?
SENATOR THERRIAULT moved SJR 24 from committee with
individual recommendations.
SENATOR ELLIS objected because he believes the committee
has a superior work product before it that addresses the
same issues.
The motion to move SJR 24 from committee with individual
recommendations carried with Senators Ogan, Therriault, and
Seekins in favor, and Senators Ellis and French opposed.
SENATOR THERRIAULT moved SJR 32 from committee with
individual recommendations.
SENATOR OGAN moved a conceptual amendment to SJR 32, that
being to incorporate Section 4 from SJR 24. That amendment
reads:
Sec. 4. Article XV, Constitution of the State of
Alaska, is amended by adding a new section to
read:
Section 30. Conditional Effect. The
2004 amendments to the Alaska permanent fund
(art. IX, sec. 15) take effect only if, in 2004,
the voters approve an amendment relating to an
appropriation limit (art. IX, sec. 16).
SENATOR ELTON asked for clarification of what the amendment
does.
SENATOR OGAN explained that it would also require voter
approval of a spending limit.
SENATOR ELTON said he would prefer to keep SJR 32 as simple
as possible and expressed concern about predicating SJR 32
on another action. He suggested the Senate Finance
Committee discuss that matter.
SENATOR ELLIS objected to the adoption of the amendment.
The motion to adopt the amendment carried with Senators
Therriault, Ogan and Seekins in favor, and Senators Ellis
and French opposed.
There being no further discussion on the motion to move SJR
32 as amended [CSSJR 32(JUD)] from committee, the roll was
called. The motion carried with all Senators in favor.
SENATOR THERRIAULT moved CSSJR 18(STA) from committee with
individual recommendations.
SENATOR ELLIS objected.
The motion to move CSSJR 18(STA) from committee carried
with Senators French, Therriault and Seekins in favor, and
Senators Ellis and Ogan opposed.
SENATOR ELLIS moved SJR 19 to the next committee of
referral with individual recommendations.
SENATOR THERRIAULT objected and asked Senator Ellis, given
the testimony that SJR 19 prioritizes the dividend over
inflation proofing, whether he wished the committee to take
action as an endorsement of the measure or just to keep it
alive as a vehicle.
SENATOR ELLIS said individual recommendations by the
members were inherent in his motion. He believes SJR 19 is
a proposal that merits further consideration and each
member can make a recommendation on the committee report.
SENATOR OGAN moved to adopt a conceptual amendment to SJR
19, that being to incorporate Section 4 from SJR 24. That
amendment reads:
Sec. 4. Article XV, Constitution of the State of
Alaska, is amended by adding a new section to
read:
Section 30. Conditional Effect. The
2004 amendments to the Alaska permanent fund
(art. IX, sec. 15) take effect only if, in 2004,
the voters approve an amendment relating to an
appropriation limit (art. IX, sec. 16).
SENATOR FRENCH said he is opposed to this amendment because
he has a hard time endorsing a spending limit without any
specifics in front of him at this time.
SENATOR OGAN said he understands that the committee would
be voting on something that no one is able to describe at
this time. However, the Senate could amend it on the floor.
SENATOR ELLIS told Senator Ogan that he might believe that
adding the spending limit provision will enhance the chance
of voter support but he encouraged members to think through
the constitutionality of linking a constitutional spending
limit with these other matters. He said it is unknown
whether that goal will ultimately fail [in the courts]. He
cautioned that the legislature would be asking for trouble
down the road, past the voters. He agreed with Senator
French that it is difficult to make a decision on this
conceptual amendment in the timeframe provided by the
chair.
The motion to amend SJR 19 carried with Senators
Therriault, Ogan and Seekins in favor and Senators French
and Ellis opposed.
The motion to move SJR 19 as amended [CSSJR 19(JUD)] from
committee carried with all members in favor.
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