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.