SB 31-PROHIBITING BINDING CAUCUSES  4:28:28 PM CHAIR SHOWER announced the consideration of SENATE BILL NO. 31 "An Act relating to binding votes by or for a legislator under the Legislative Ethics Act." He noted that he was the sponsor. 4:28:48 PM SENATOR COSTELLO moved Amendment [1], work order [32- LS0303\A.1]. 32-LS0303\A.1 Wayne 3/25/21 AMENDMENT 1 OFFERED IN THE SENATE BY SENATOR MYERS TO: SB 31 Page 1, lines 8-9 Delete ", through a vote in a caucus," CHAIR SHOWER objected for discussion purposes. SENATOR COSTELLO suggested that when the bill was drafted, there was some misunderstanding about how a caucus comes together. She read the first part of the sentence without the phrase. It read as follows: (k) A legislator may not commit or bind another legislator to commit to vote for or against a bill, appointment, veto, or other measure that may come to a vote before a legislative body. She related that a caucus is a group of people who coalesce around certain ideas. There is no vote to join and it would be inaccurate to leave the phrase in the sentence. This does not change the intent of the legislation; it adds clarity and accuracy. CHAIR SHOWER, speaking as sponsor of SB 31, said the amendment sounds good but he would like Mr. Ogan to speak to the Legislative Legal Services opinion on the amendment. 4:31:15 PM SCOTT OGAN, Staff, Senator Mike Shower, Alaska State Legislature, Juneau, Alaska, stated it is the legislature's prerogative whether or not to agree with legal opinions from the Legislative Legal Services. He offered his belief that the amendment makes the intent of the legislature more succinct. 4:32:28 PM CHAIR SHOWER read the March 25, 2021 Legal Services' memorandum from Legislative Counsel, Daniel C. Wayne for the record: Transmitted herewith is the amendment you requested. If adopted, the amendment would probably make the bill unconstitutional. The U.S. Supreme Court has found that :"restrictions upon legislators' voting are not 1 restrictions upon legislators' protected speech." The Court explained: [A} legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.... {T]he legislator casts his vote as trustee for his constituents, not as a prerogative of personal power. In this respect, voting by a legislator is different from voting by a citizen. While a voter's franchise is a personal right, the procedures for voting in legislative assemblies pertain to legislators not as individuals but as political representatives executing the 2 legislative process. Notwithstanding this finding, the Court also recognized a general rule that "the First Amendment prohibits laws abridging the freedom of speech, which, as a general matter means that government has no power to restrict expression because of its message, its 3 ideas its subject matter or its content." If the proposed amendment is adopted it will prohibit a legislator from committing to vote a certain way on a piece of legislation - not just in a legislative caucus, hallway, or office, but anywhere. For that reason, if the bill is challenged in litigation a court will probably find that it violates the First Amendment, depending on specific facts. For example, at present a legislator running for reelection may in some instances lawfully make a public pledge to vote a certain way on a pending bill in order to gain support from the electorate. If amended as proposed, SB [31] would prohibit a legislator (but not the legislator's election opponents) from making that promise in any instance. "The First Amendment has its fullest and most urgent application to speech uttered during a 4 campaign for political office." If I may be of further assistance please advise. 1 Nevada Com'n on Ethics v. Carrigan, 564 U.S. 117, 125(201). 2 Id. at 125-126(Internal quotation marks and citations omitted). 3 Id. at 121(Internal quotation marks and citations omitted). 4 Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 233 (1989) (Internal quotation marks omitted). 4:33:29 PM CHAIR SHOWER said he likes the proposed amendment because it makes the intent of the bill more succinct and the foregoing was "just a legal opinion." 4:34:06 PM SENATOR HOLLAND offered his perspective that the amendment "offers exceptional clarity" to the bill. 4:34:53 PM SENATOR COSTELLO stated that the legislature follows both Mason's Manual and the Alaska Constitution for how it conducts voting. The Open Meetings Act requires that all votes must be taken publicly. She said that is why legislative committees have people who moderate and record the meeting and every vote is taken publicly and recorded. She argued that without the amendment, SB 31 would require caucus meetings to be recorded and votes made publicly. She said her experience is that votes are not cast in caucus, it is strategy that is discussed. She maintained that the amendment clarifies what occurs in caucus. CHAIR SHOWER said he agrees and he appreciates the clarification. 4:37:58 PM SENATOR KAWASAKI noted the exception relating to the selection of an officer of a caucus or legislative body and offered his understanding that this generally does happen in both majority and minority caucuses, sometimes through secret ballot. He asked if this was incorrect. CHAIR SHOWER deferred the question to Senator Costello. SENATOR COSTELLO said the Senate majority caucus does not vote, but when she was in the House the caucus had a secret ballot to select the presiding office and other organizing. The exception language would allow the House to continue that practice. She clarified that the exception had nothing to do with legislation or an issue and said she believes that language should stay in the bill. SENATOR KAWASAKI said he appreciated the comments. SENATOR REINBOLD offered her perspective that the exception language in paragraph (1) on lines 12 and 13 was "kind of a big deal." She asked if the "selection of an officer" phrase meant a chairmanship or leadership. CHAIR SHOWER asked Senator Costello if she wanted to respond and added that he would like to hear from Mr. Ogan because of the discussion with Legal Services. 4:41:47 PM SENATOR COSTELLO responded that this was not her bill and the questions were beyond the scope of the amendment. SENATOR REINBOLD said her question was not directed to anybody in particular. She just wanted to know whether the phrase meant selection of a chair. 4:43:09 PM CHAIR SHOWER responded that the answer is "yes" at the top level, but he could see the difference in a caucus. He said his vision was that there would be discussions about who would be in leadership and chair positions and that goes out in a Committee on Committees report for the open public vote. He asked Mr. Ogan to comment. SENATOR REINBOLD stated support for the bill and the amendment. 4:45:40 PM MR. OGAN said the discussion is important to establish the legislative intent. He recalled that Legislative Ethics laws allow voting for the selection of officers, including chairs, for the purpose of organizing. The law also says that votes on legislation and amendments should be done in the open. He reported that no other state has a binding caucus and one state has it in their oath that legislators will not pledge their vote to anybody. He suggested the committee consider the language in that oath, perhaps instead of the amendment. CHAIR SHOWER recalled that Mississippi requires legislators to take an oath that they will not pledge their vote. He asked Senator Reinbold if her question was answered. SENATOR REINBOLD said yes. 4:49:37 PM CHAIR SHOWER removed his objection. Finding no further objection, Amendment [1] passed. 4:50:01 PM CHAIR SHOWER opened public testimony on SB 31 and recognized Adam Hykes. 4:50:18 PM At ease 4:50:36 PM CHAIR SHOWER reconvened the meeting and noted that Mr. Hykes had dropped offline. 4:50:51 PM CHAIR SHOWER closed public testimony on SB 31. 4:51:23 PM SENATOR HOLLAND stated support for the amendment and said he did not recall taking a vote in caucus. SENATOR COSTELLO opined that all legislators should be held responsible for ensuring that their caucuses discuss general strategy. If at any time a vote is required in caucus, it is incumbent on all members of that caucus to say that is not allowed. SENATOR REINBOLD stated that she does not support a binding caucus. CHAIR SHOWER welcomed suggestions to make the bill better. 4:54:32 PM SENATOR REINBOLD moved to report SB 31, work order 32-LS0303\A as amended, from committee with individual recommendations and attached fiscal note(s). CHAIR SHOWER found no objection and CSSB 31(STA) was reported from the Senate State Affairs Standing Committee.