HB 305-CAMPAIGN FUND RAISING DURING SESSIONS  9:16:18 AM CHAIR MCGUIRE announced the consideration of HB 305. [Before the committee was CSHB 305(RLS) AM.] SENATOR BUNDE moved Version \O, Senate CS for CSHB 305 as the working document. There being no objection, it was so ordered. 9:17:17 AM MIKE PAWLOWSKI, Staff to Representative Kevin Meyer, Alaska State Legislature, said Section 3 is the meat of the bill. It applies a prohibition to legislators and extends the logic in current statute to say that during a regular or special session, legislators may not solicit or accept a campaign contribution for their own campaign. 9:18:02 AM MR. PAWLOWSKI said he is speaking about Page 3, Line 3, and it applies to a legislator's own campaign for state or municipal office. "They may not solicit during a session unless it is within 90 days of that election for that office." However, during regular session or a special session a legislator may not solicit for another candidate, for a political party, or to influence a state ballot proposition. The 90-day exception is important for a member's own campaign "to strike that balance between the governor's ability to call a special session and perhaps meddle in politics." That is why the 90-day exception is maintained in (A). "But really to try and to get to the point of eliminating all fundraising for political activities during a session, be it regular or special. So … the 90-day exception does not apply to (B), (C), or (D) within this subsection." Section 2 only applies to legislative employees and doesn't contain the same provisions in Section 3, because legislators are the decision makers, and there is a compelling state interest to regulate a legislator's behavior but not to get into the constitutional concerns over free speech. Section 1 is conforming language with the APOC statutes to try to bring them in line with the prohibitions in Sections 2 and 3. The Senate Judiciary Committee removed application of this bill to federal office, which was of great concern to many because the bill was preempted by federal law. The CS is better, he opined. 9:20:58 AM SENATOR BUNDE said there have been some very influential staff who have been very effective gatekeepers for access to the legislature. They basically run some offices, so he asked why the 90-day provision didn't apply to them. MR. PAWLOWSKI said it is a good point. Section 2 is the way the current law is and the bill extended it to municipal or state office. "We felt that the move from the current statute to municipal or state office was a good one." Getting into staff participation in a ballot measure or a political party touches free speech. He noted case law that requires the law to go by the least intrusive means. Some legislators have concerns about the free speech issues in Section 3, "and we are pushing the envelope." But Legislative Legal Services said the bill isn't crossing the line, "but if you did it to employees I think you would run into that problem." 9:23:13 AM SENATOR FRENCH referred to Section 1, and he said a legislative employee can't be a candidate for state office. MR. PAWLOWSKI said he believes that is correct. He or she must resign once filing a letter of intent. He believes a municipal office also requires a letter of intent. SENATOR FRENCH asked if the bill is prohibiting something that is already prohibited, or if it is allowing something that is prohibited. "We are saying they can raise money for their own election, but there's another provision in law that says they can't be legislative employees and raise money for an election." MR. PAWLOWSKI said yes, that is a good point. SENATOR FRENCH said there are two statutes on the same track that are about to collide. He suggested taking "legislative employee" out of the provision. 9:25:03 AM JOYCE ANDERSON, Administrator, Select Committee on Legislative Ethics, said that once a legislative employee files a letter of intent, they must resign. SENATOR FRENCH asked if it is for any municipal or state office. SENATOR GREEN asked if it is just on behalf of their employer. Staff can't do work that the legislator is not allowed to do. SENATOR FRENCH said that is right, but Line 8, Page 1, speaks to an election in which the employee is a candidate. "That to me is a legal impossibility." MS. ANDERSON said a legislative employee may not seek a nomination or become a candidate for the legislature or any state or national political office. SENATOR BUNDE asked about a municipal office. MS. ANDERSON said the administrative code states that a letter of intent need not include the specific seat for which the individual may file, but must state whether the individual will seek state or municipal office. It is not in the ethics code but it is in the Administrative Code: 2AAC50.724. 9:27:51 AM MR. PAWLOWSKI said AS 24.60.033 specifically says that a legislative employee may not file a letter of intent. So he or she would have to resign. MS. ANDERSON said an individual is not allowed to raise funds unless they have filed a letter of intent. SENATOR FRENCH suggested taking out "legislative employee". The committee took a brief at-ease at 9:29:12 AM. 9:30:43 AM MR. PAWLOWSKI said he believes that this is an important error. The language was written to make it consistent with Section 2, which is the ethics code. Section 1 of the APOC statute probably should not extend to an employee since they could not be legally raising funds for an election. CHRIS ELLINGSON, Acting Executive Director, Alaska Public Offices Commission (APOC), said, with the exception of the legislative employee, Section 1 is a really good fix. It fixes something that has been broken for quite a few years. It is a misstatement to say that they have to file a letter of intent to run for municipal office because they don't. They can wait until the filing period opens and declare just like anyone else. 9:32:29 AM SENATOR BUNDE said, "But to raise funds they must file a letter of intent." MS. ELLINGSON said yes, if they are going to start fundraising prior to the filing period. But there have been cases when someone has waited until the filing period opens and just go in and declare. MS. ANDERSON said the language needs to remain in (d), because an employee should not be able to solicit or accept a contribution to be used for the purpose of influencing an election. On both lines 8 and 9, "or legislative employee" needs to be removed. SENATOR FRENCH said, "The only circumstance under which I can raise money during a regular or special legislative session is if I've somehow come up against an impending election that is about to happen. So you're going to grant me an exception as the most affected person - the legislator … defending your seat - I can raise money if it is for my own campaign, it's during the 90 days before the election, and it's away from the capital. But we're going to also let legislative employees do that while the session is sitting? The finance aides, the judiciary aides, all the people that run around this building … they can raise money as well?" 9:34:19 AM SENATOR GREEN asked if Senator French is talking about an employee who has filed as a candidate. SENATOR FRENCH said it has already been concluded that they can't be a candidate. But while the legislature has bills flying through it, should its employees be raising money for campaigns? He said he could be persuaded either way, but it needs to be discussed. MR. PAWLOWSKI said Section 2 is important because of the ethics code that governs the conduct of an employee. It says you may not solicit or accept a contribution or a promise to pledge to make a contribution. So under the ethics code the legislative employee is prohibited from doing that during session. 9:35:27 AM CHAIR MCGUIRE said it should be clear it is not in the capital city. "We don't want to muddy the water about the fact that a legislative employee cannot be a legislative candidate. That's clear, so we need to remove that reference." But Section 1 is an attempt to reconcile through APOC laws what is already in ethics law, which says that you can't accept these contributions in a way that's intended to influence. An exception has been carved out for special session. So outside the capital city "and it's 90 days before - you can do it." A similar thing is being done for the employee, "and I think that makes sense." SENATOR FRENCH moved conceptual Amendment 1 as follows: Page 1, lines 8 and 9: Delete "or legislative employee" and "legislative employees" Hearing no objection, conceptual Amendment 1 carried. SENATOR FRENCH asked the current rule for a legislative employee raising money for a campaign during session. 9:37:10 AM MS. ANDERSON said current statute puts the legislator and the employee under the same restrictions. SENATOR FRENCH said there is an exception for a legislator's own campaign in the 90 days before an election, and that applies to the employee. MS. ANDERSON said that is correct. SENATOR FRENCH said if the session is pushed up against an election, their free speech rights to participate in elections trumps their role as an assistant law maker. CHAIR MCGUIRE said that is true, but outside the capital city. The further you get away from the policy making, the better off you are. SENATOR FRENCH said he has qualms, but he will let it go. 9:38:17 AM SENATOR BUNDE said he doesn't have time to fundraise, so he can send someone back to his district to raise money? CHAIR MCGUIRE said the fix is clean elections. SENATOR FRENCH said he shares Senator Bunde's qualms. CHAIR MCGUIRE said this issue keeps coming back: campaign donations and their influence. It is such a thorny issue. The ethics of a lawmaker have to be relied on. "You put these structures in place and then you hope people will be honorable." SENATOR FRENCH said the prohibition on Page 3 says a member can't expend money that was raised on a day where the session bumps up against an election. He asked about creating subaccounts and how it will work in real life. CHAIR MCGUIRE said it does say it doesn't apply to money raised in another place. So it is reconciling that principle. 9:40:29 AM MR. PAWLOWSKI said the prohibition on spending money is in current statute. In repealing and reenacting this section, it applies it to any municipality versus the capital city, but the language is the same as in current statute. SENATOR FRENCH asked what money can be raised while in session. MS. ANDERSON said that is referring to Section 2, an event held on a day when the legislature is in session. The Lincoln Day dinner is a fundraiser for the Republican Party, and that money goes into their coffers. It is later designated for a specific candidate. It was raised during the session, but not designated for a specific candidate, "so you could receive that money and you could expend that money … but you cannot hold a fundraiser for yourself." 9:42:15 AM SENATOR FRENCH noted that it is money raised by or on behalf of a legislator under a declaration of candidacy, so it is not the Lincoln Day dinner. MR. PAWLOWSKI said that is correct. The Lincoln day dinner is okay, as well as some other events, because it is not for a specific candidate; however, if a party were to throw a fundraiser during a session with specific candidates listed, that might run afoul of the law. That is existing language. SENATOR FRENCH asked if they would be prohibited from soliciting or accepting that contribution. MR. PAWLOWSKI said there are members of both parties active in fundraising outside of the legislative body. The Democratic Party of Bethel could hold a fundraiser as long as it doesn't designate it for a specific candidate, and that money could go to candidates that are running in races. 9:44:00 AM SENATOR FRENCH said, "So it could be raised on behalf of a legislator without naming that legislator, and I don't how in the world you'd ever prove that that happened." CHAIR MCGUIRE said, "We can't get to people who are not already public servants who are running for office." It has really bothered her that people who are running against incumbents come to Juneau during session and hold fundraisers. "It goes right against everything … if you want to think about intended to influence or intended to intimidate or how it makes you feel." She supposed that, constitutionally, there is nothing that can be done. She suggested that APOC filers take some sort of oath to incorporate ethical principles regarding fundraising. It may or may not be constitutional, but it could become something that the public could use to judge them. 9:45:40 AM MR. PAWLOWSKI noted the case of State v. Alaska Civil Liberties Union. "The problem with candidates for office is that that has been ruled unconstitutional in the State of Alaska - that you can't apply these provisions to a candidate. You can apply them to incumbents." CHAIR MCGUIRE asked if the legislature could ask, as an option, that a person signing up for office can make an additional pledge that would be in keeping with what incumbents are already asked to do in the compelling state interest. MR. PAWLOWSKI said, "I'm sure you could." It might be better done in regulation. Perhaps APOC could draw up a list of all of the prohibitions for an incumbent. A candidate might want to know what type of ethical guidelines he or she is walking into. 9:47:21 AM CHAIR MCGUIRE asked Ms. Ellingson if APOC would consider that. MS. ELLINGSON said that has never been discussed. CHAIR MCGUIRE asked if APOC would need a legislative directive asking for a document for those filing for office that would inform candidates of the ethical guidelines of sitting lawmakers and ask if they would like to sign to agree with that. MS. ELLINGSON said it could be done without a legislative directive. But what would the enforcement mechanism be? CHAIR MCGUIRE said the public would be the enforcement. The candidate can decide to follow the ethical guidelines or not. MS. ELLINGSON said it would probably be better if there were some intent language to fall back on. 9:49:12 AM CHAIR MCGUIRE said she feels uncomfortable removing candidates from the bill. We are starting to go down a path where incumbents are treated disparately. She says she gets it but feels uncomfortable taking out any reference to that. SENATOR BUNDE said they are still the public until they are elected. "We are held to a different standard." He once ran against an incumbent. Often people running for office stress that incumbents have an incredible advantage with their access to the press and the trappings of office. People who are running should have something to balance that perceived or real access to the public. CHAIR MCGUIRE said a person can envision a circumstance where the reverse occurs. If an incumbent were in a hotly contested special session on a subject, like a head tax on cruise ships, that the incumbent supported, "you can see a circumstance where a candidate that was running against you could actually leverage that position that you were taking and raise money in opposition to you." SENATOR BUNDE said they already do that. The line is somewhat artificial: whether they do it in Anchorage or Juneau. A non- incumbent can raise money during session and legislators cannot - and that is the balance. The public accepts that. 9:52:05 AM SENATOR FRENCH said it goes to the appearance of impropriety and corruption. "No candidate has a vote and we do." SENATOR BUNDE moved to report Senate CS for CSHB 305, as amended, from committee with individual recommendations and attached fiscal note(s). There being no objection, SCS CSHB 305(STA) passed out of committee.